M, R (on the application of) v Wiltshire County Council & Anor

SIR MICHAEL HARRISON: The appellants' appeal pursuant to section 11 of the Tribunal and Inquiries Act 1992 against a decision of the Special Needs and Disability Tribunal ("the Tribunal") dated 12th July 2006 dismissing their appeal against parts of the Statement of Special Educational Needs ("the Statement") relating to their daughter, "E".

E is 11 years old. She has a diagnosis of Autistic Spectrum Disorder ("ASD") with associated severe receptive and expressive language delay, communication impairment and global development delay. She has difficulties with self help, independent living skills and social interaction.

She had been attending the Charter Rose Specialist Centre for pupils with ASD at Charter Primary School in Chippenham. During 2005 her Statement was reassessed in view of her prospective transfer to secondary school. That reassessment included, amongst other things, an Annual Review in May 2005 and a Core Assessment in November 2005. The final Statement was issued in February 2006. It named St Nicholas School, Chippenham in Part 4 of the Statement as the school where she should be placed after she had left Charter Primary School. St Nicholas School is a day special school maintained by the First Respondent for pupils with severe and complex learning difficulties. The appellants would like her to go to Hope Lodge School in Southampton which is an independent residential special school for pupils aged 4 to 19 with a diagnosis of ASD where she could have a 24 hour, or waking day, curriculum so that all her needs, including those on an educational, therapeutic and social basis, could be met in an integrated and holistic way.

The appellants therefore appealed against the Statement to the Tribunal. Their appeal related not only to Part 4 of the Statement but also to Parts 2, 3A and 3B of the Statement. However, their objections to Parts 2 and 3A were met by some amendments by the First Respondent so that, apart from the objection to Part 4, the only remaining issues related to Part 3B of the Statement concerning the need for a 24 hour curriculum, the need for direct speech and language therapy, and the need for a motor programme devised by a physiotherapist and occupational therapist.

Before coming to the Tribunal's consideration of the outstanding issues, I should first refer in a little more detail to the history of the consideration of E's needs.

On 16th May 2005, Mrs Westrup, one of the First Respondent's educational psychologists, concluded that, for secondary education, E would benefit from being taught in a specialist setting that offered very structured small group work designed to cater for children with Autistic Spectrum Disorders and expressive language delay.

On 26th May 2005 there was an Annual Review meeting to consider E's Statement. Present at that meeting, in addition to the appellants, were one of the First Respondent's specialist teachers, the head teacher of Charter Primary School, the SENCO at the school, E's class teacher, Mrs Westrup, Mr Murray, a consultant community paediatrician, and Mrs Higgs, a speech and language therapist. The Annual Review Report stated:

In November 2005, a Core Assessment of her needs was carried out by a social worker employed by the First Respondent. It was a lengthy document, the final paragraph of which stated:

In March 2006 Dr Murray, the paediatrician who had attended the Annual Review, wrote to the First Respondent expressing concern over the provision recommended by the First Respondent for E, referring to the conclusions of the Annual Review meeting and of the Core Assessment.

With the appeal hearing set for 28th June 2006, the appellants sought expert advice. They sought reports from Mrs Pontac, an independent speech and language therapist, and from Dr Sharon Lloyd, an educational psychologist.

In her report dated 16th May 2006, Mrs Pontac recommended that E required a waking hours curriculum in order to develop reasonably her communication, social and life skills. She also recommended that E required an educational environment in which staff are trained to work with children with autism, in which consistent communication and behaviour strategies are used, in which the teaching of life skills is part of the everyday curriculum and in which there are speech and language therapists on site working for a majority of the week. Mrs Pontac's report was put in evidence before the Tribunal.

Dr Lloyd's report is dated 7th June 2006. She concluded that E's needs should be met in a full-time residential education setting. I quote two paragraphs from her report:

Dr Lloyd's report was put in evidence before the Tribunal and she was one of two witnesses who gave oral evidence before the Tribunal on behalf of the appellants, the other witness being Mr Robinson, the head teacher of Hope Lodge School.

The First Respondent's witnesses were Mr Clandillon, an educational psychologist employed by the First Respondent, and Mrs Owen, the head teacher of St Nicholas School. Mr Clandillon had produced a short Follow Up Report on E in April 2006 in which he said that she was not one of the most challenging pupils he deals with and that she was beginning to emerge as a pupil with a social communication disorder rather than just a severe or moderate learning difficulty. He said:

Mr Clandillon claimed to have seen E at school six times during the year. That is disputed by the appellants. There is a letter from the head teacher of Charter Primary School, which post-dates the Tribunal's decision, in which it is stated that Mr Clandillon observed specific children in the Charter Rose Centre on seven occasions. On one of them he visited as part of E's Annual Review process and on another occasion his visit related to E's Individual Education Plan, but he did not observe in class on that occasion.

I come then to the Tribunal's decision dated 1st July 2006 following the hearing on 28th June 2006. Paragraphs 1 to 17 set out the facts.

Paragraph 5 summarised the evidence relating to speech and language therapy. That included Mrs Pontac's recommendation that there should be a weekly session of direct individual speech and language therapy for at least half an hour, as well as a weekly social language group of at least a similar length.

Paragraph 6 recorded that the First Respondent accepted that Hope Lodge School could properly cater for all of E's needs, but opposed naming it in her Statement because it would involve unreasonable public expenditure.

Paragraphs 7 and 8 summarised Dr Lloyd's evidence in the following way:

Paragraph 9 dealt with the Annual Review meeting in May 2005 by stating:

Paragraph 10 summarised Mr Clandillon's evidence. In support of the First Respondent's suggested day school provision, he had said that St Nicholas School would provide a very different educational experience for E from that previously provided in the primary school. He had said that St Nicholas School could meet E's needs the next year and that nearly all the children in the class proposed for her would have a diagnosis of ASD. He had added that the First Respondent does send some of its pupils to Hope Lodge School on a residential basis, but they all have much more challenging behaviour than E.

Paragraph 11 summarised the details relating to Hope Lodge School that had been given by Mr Robinson.

Paragraph 13 summarised the details relating to St Nicholas School that had been given by Mrs Owen. It is a generic special school for pupils with severe or profound and multiple learning difficulties. The school capacity is 70, but there would be 72 pupils in September. There are currently 27 pupils with an ASD diagnosis which would increase to 31 in September. The class proposed for E would have nine pupils including her, eight of whom would have an ASD diagnosis, the other pupil having severe learning difficulties. The school's policy is to recognise the importance of providing a consistent and predictable experience throughout the school day for all its ASD pupils. The class would be led by a teacher supported by four full-time teaching assistants. The school has a speech and language therapist for two days a week and an assistant therapist for three and a half days a week. They mainly do group work with the children rather than one to one therapy. There is a physiotherapist and an assistant at the school for one and a half days a week and an occupational therapist visits usually for half a day per week. The school's SENCO and the class teacher have ASD qualifications.

Paragraphs 16 and 17 of the decision letter dealt with the costings of the two schools. Summarising the position, the total cost of Hope Lodge School would be in the region of £70,000 a year, whereas the cost for St Nicholas School would be about £15,000 a year.

The Tribunal then set out its conclusions with reasons in paragraphs A to L.

In paragraph A, the Tribunal took into account section 9 of the Education Act 1996 to the effect that pupils are to be educated in accordance with the parents' wishes so far as is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

In paragraph B the Tribunal stated:

I need not refer to paragraph C which deals with a motor skills programme. In paragraph D the Tribunal explained why it was not necessary to specify that E should have daily one to one teaching.

It is necessary to set out paragraphs E to L of the Tribunal's conclusions in full:

The challenge to the Tribunal's decision was made on seven grounds but, as Ms Hay, who appeared on behalf of the appellants, said, it is primarily a reasons challenge. In those circumstances, I should first refer to Regulation 36(2) of the Special Educational Needs Tribunal Regulations 2001 which provides that the statement of reasons for the Tribunal's decision shall be in summary form. In the case of R (L) v London Borough of Waltham Forest [2004] ELR 161, Beatson J helpfully summarised the relevant requirements relating to the duty of the Tribunal to give reasons drawn from the burgeoning line of cases on that subject. Reasons should deal with the substantial points that have been raised so that the parties can understand why a decision has been reached. If the Tribunal rejects expert evidence, it should state so specifically. In certain circumstances, it may be required to say why it rejects it. Mere recitation of the evidence is no substitute for giving reasons. If the Tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it. The latter requirement is not, strictly speaking, relevant to this appeal but it was referred to during the hearing. Finally, reference was made to the dictum of Collins J in the case of Staffordshire County Council v J and J [1996] ELR 418 when he said at page 424 that what should not happen is that a fine tooth comb should be used and a detailed dissection made of the reasons given in order to try and tease out an apparent error or inconsistency to try to assert that full reasoning has not been given.

With those criteria in mind, I turn to the grounds of challenge. The first ground of appeal is not, in fact, a reasons challenge. It is contended that the Tribunal misunderstood the findings of the professionals at the Annual Review meeting in May 2005 and erroneously concluded that their decision to endorse a residential placement was based solely on the lack of ASD specialist provision at St Nicholas School, whereas E's communication difficulties and lack of appropriate life skills were also a factor. It is said that the Tribunal thereby took into account irrelevant considerations.

That ground of appeal is based on paragraph 9 of the Tribunal's decision, which I have quoted earlier, where the Tribunal refer to the Annual Review meeting, stating that all the professionals present felt that E needed specialist provision in an ASD school for her secondary education and that the meeting did not consider that St Nicholas School would be an appropriate secondary setting as the classes there were not purely for pupils with autism. That is a correct summary of the last of the two paragraphs that I quoted earlier from the Annual Review. The first of those two paragraphs also contains some reasons why it was felt that E needed specialist residential ASD provision but, in summarising the conclusions of the Annual Review, it was not incumbent on the Tribunal to go into that level of detail when setting out the facts in the decision itself. In any event, those other matters were covered by the expert evidence to which reference is made in the decision. In those circumstances, I do not consider that there is any force in the first ground of appeal.

The second ground of appeal is a reasons challenge and it really forms the core of the appellants' case. It is submitted by the appellants that the Tribunal failed to give any or any adequate reasons why a residential placement was not necessary to meet E's needs. In particular, it is submitted that the Tribunal failed to give reasons for rejecting the conclusions of the professionals at the Annual Review meeting and the conclusions of Dr Lloyd and Mrs Pontac, all of whom concluded, for the reasons that they gave, that E needed a residential placement to give support beyond the school day. It was said that the only attempt to give reasons was in paragraph K of the decision, the meaning of which was unclear because the fact that children do not return to Hope Lodge School after weekends and school holidays in an unduly disturbed condition was an irrelevant consideration when considering why a residential placement was not necessary. The reference to a very good level of home/school liaison being required was said to be unspecific and inadequate. Overall, it was contended that the Tribunal failed to give reasons why it was not necessary to have the provision beyond school hours that a waking day curriculum entailed, as advocated by the Annual Review, the Core Assessment, Dr Lloyd and Mrs Pontac. Reference was made to the requirement mentioned in the Waltham Forest case that, if the Tribunal rejects expert evidence, it should state so specifically and, in certain circumstances, it may be required to say why it rejects it. It was submitted that, having regard to the weight of professional opinion in favour of residential placement, this was a case where reasons must be given for rejecting that evidence.

Mr McGuire, who appeared on behalf of the First Respondent, submitted that the reason why the Tribunal had rejected residential placement was because it had concluded that E's needs could be met adequately at St Nicholas School for the reasons set out in paragraphs G, H and I of the decision. Not only had the Tribunal been impressed by Mrs Owen's evidence relating to the very high staff to pupil ratio at the school and by the fact that all pupils but one in E's class would have an ASD diagnosis, but also the Tribunal had plainly accepted Mr Clandillon's evidence, thereby rejecting the appellants' professional evidence. Mr McGuire pointed out that the Tribunal had attached importance in paragraph I of the decision to E receiving all of the additional support set out in the Statement which, he said, also included provision for support and liaison when E was at home. He suggested that, on a proper reading of paragraph K of the decision, the Tribunal had expressed the reasons before that point and that the comments in that paragraph were simply factual observations but, if he were wrong about that, the Tribunal were saying that, by comparison with Hope Lodge School, there was no reason why E would not attend school in an unduly disturbed condition provided that there was good home/school liaison. Overall, it was submitted that the expert evidence of Dr Lloyd and Mrs Pontac had expressly been taken into account and that the reason why their evidence had not been accepted was because the Tribunal had found that E's needs could be met at St Nicholas School. It was contended that, in the circumstances of a special educational needs appeal, that was adequate, intelligible and dealt in summary form with the substantial point that had been raised.

It seems to me that there are two possible approaches to the point in issue in this case involving different starting points. One is to consider the expert evidence of the appellants to determine whether it justifies the need for a residential placement and, if it is concluded that it does not, then to consider whether E's needs can be adequately met at St Nicholas School. The other is to consider whether E's needs can be met at St Nicholas School in which case, if they can, there is no reason to consider whether there is a need for residential placement. On the face of it, it appears that the Tribunal adopted the latter approach insofar as it stated in paragraph G that the central question was whether St Nicholas School can provide the education E needs without the need for residential placement and then, having concluded that it could, concluding in paragraph K that it followed that E did not require a waking day curriculum.

The disadvantage of that latter approach is that it does not involve express consideration of the reasons advanced by the appellants' expert evidence why a waking day curriculum is needed. The approach involves a residual conclusion that it is not needed without having grappled with the reasons why the appellants say it is needed. That, quite understandably, gives rise to a sense of grievance on the part of the appellants because they came to the appeal with a body of expert opinion giving reasons why a waking day curriculum was needed only to find that they lost the appeal without the Tribunal having grappled with that important part of their case.

The whole thrust of the appellants' expert evidence was that a residential placement was needed to provide E with a stable environment and a consistency of approach to enable her to improve her communication and behavioural skills. It is difficult to see how it can be concluded that St Nicholas School could meet her needs without first concluding whether she needs the working day curriculum to give her the stable environment and consistency of approach because, if she does need it, St Nicholas School does not provide it.

The Tribunal summarises the evidence of Dr Lloyd in favour of the waking day curriculum but then it does not deal with it. Indeed, it does not even go so far as to say that it rejects it save by implication in paragraph K from the conclusion that E should be placed at St Nicholas School. Paragraph K is not in itself a particularly satisfactory paragraph. It seems to be saying that there should be no material difference between the two schools so far as disturbance to the child from return to school after weekends and holidays is concerned provided there is a very good level of home/school liaison. That may well be right, but it does not deal with the central question of whether there is a need for a waking day curriculum.

In my view, the weight of professional opinion in favour of residential placement makes this a case where the Tribunal should have grappled with that argument and given its reasoned conclusions relating to it. In my view, it was insufficient simply to say that it was rejected because it was concluded that St Nicholas School would meet E's needs, because that conclusion itself could have been affected by a reasoned conclusion on the need for a waking day curriculum. The result is an understandable sense of grievance on the part of the appellants because the Tribunal simply has not dealt with their professional evidence in favour of residential placement. I would therefore allow the appeal on that ground.

Having reached that conclusion, I will deal with the remaining grounds of appeal very shortly.

The third ground of appeal relates to a paragraph in Part 3B of E's Statement which states:

It turns out that the appellants themselves originally suggested the last sentence, save for the words "with professional specialist input", in the context of seeking placement at Hope Lodge School. The additional words were agreed between the parties on the day of the hearing. A consequence of all that was that there was no objection to the Tribunal against that sentence. In those circumstances, I do not consider that it would be right to allow an objection to be taken now. In any event, I do not consider that the requirement is unlawful. As Henriques J said in DM and KC v Essex County Council [2003] EWHC 135 Admin, all good education involves some degree of partnership between parent and professional, and in this case the parents themselves suggested the provision. However, it does seem to me that, although the wording could apply to a day school context, it originated out of a residential placement context. As the appeal is being allowed, it would be worthwhile to look at it again on any reconsideration and to consider whether the reference to "professional specialist input" could be more specific.

The fourth ground of appeal is that the Tribunal failed to deal with the change of view expressed by the Social Services and made no reference to it at all. This relates to the paragraph of the Core Assessment quoted earlier in this judgment which was later retracted by Mr Green for the reasons that he gave. Whilst I can understand the appellants' scepticism at the late retraction of the view expressed in the Core Assessment, there is no evidence of bad faith. It was suggested that this matter had not been argued by Mr M at the hearing but he says that he did raise it. I would have been surprised if he had not raised it and it does not matter how forcefully or otherwise he did so. In the final result, Mr Green's view was not favourable to the appellants' case but the Tribunal did not rely on it at all in its conclusions. In those circumstances, although I am slightly surprised that it was not alluded to at all in the Tribunal's decision, I do not consider that it was an error of law not to have done so. I would not therefore have allowed the appeal on this ground.

The fifth ground of appeal is that the Tribunal erred in paragraph J of the decision by taking too narrow a view of what constituted education and by appearing to conclude that the evidence of Mrs Pontac and Dr Lloyd about E's needs were non-educational needs. It seems to me that this point, insofar as I understand it, is closely related to the extent to which E's educational needs are dependant on her domestic circumstances; that is to say, whether at home or in a residential school setting. It is therefore connected with the reasons challenge under the second ground of appeal and to that extent will be reconsidered in that context. In those circumstances, I do not say anything more about it.

The sixth ground of appeal related to the Tribunal's conclusion in paragraph B of its decision that it was important that E should have direct weekly speech and language therapy. What is said is that the Tribunal erred in relying on that provision in favour of a placement at St Nicholas School where there was no evidence that it could be made available. That assertion is based on the evidence of the head teacher, Mrs Owen, as recorded at paragraph 13 of the decision as follows:

I agree with Mr McGuire's submission on this aspect that the Tribunal were perfectly entitled to conclude on that evidence that the school would be able to provide the speech and language therapy described in paragraph B of the decision. The position may have been different if there were no existing provision for such therapy at the school, but there were speech and language therapists at the school and the fact that they mainly do group work does not preclude one to one therapy. I do not consider that there is any force in this ground of appeal.

The seventh and last ground of appeal is that the Tribunal failed to give reasons why it rejected the remainder of Mrs Pontac's evidence in favour of a residential placement. That is really part and parcel of the reasons challenge under the second ground of appeal. It will therefore fall for consideration when that aspect of the matter is reconsidered.

I therefore conclude that this appeal should be allowed.

Ms Hay submitted that I should quash the Tribunal's decision and order that the matter should be reheard before a differently constituted Tribunal. Failing that, I should remit it to the same Tribunal for reconsideration. Mr McGuire submitted that I should adopt the latter course.

In my view, the appropriate course would be for the matter to be remitted to the same Tribunal for reconsideration. Members of the Tribunal are well acquainted with the facts of the case and I have no reason to think that they would not approach the reconsideration with an open mind. I stress that it is important that they should approach it with an open mind because the need to give a reasoned conclusion relating to the appellants' professional evidence in favour of a waking curriculum could lead members of the Tribunal to a different conclusion from that which they reached previously.

The appeal therefore succeeds and the matter will be remitted to the same Tribunal for reconsideration in the light of the matters that I have mentioned in this judgment.

MS HAY: My Lord, there is an application for the appellants' costs.

SIR MICHAEL HARRISON: Yes.

MS HAY: I think Mr McGuire wishes to address you on the issue of proportion in terms of costs. This appeal is one that succeeded on one substantive ground, an inter-related ground arising from 2, 5 and 7. Perhaps if your Lordship will permit, he might want to address you.

SIR MICHAEL HARRISON: You are being invited to address me on that.

MR MCGUIRE: My Lord, if I can say first of all, if my Lord is minded to make an order as to costs the parties are agreed that the costs are to be assessed if not agreed.

SIR MICHAEL HARRISON: Yes.

MR MCGUIRE: My Lord, on the principle of costs, it would be my submission that, given that the appeal has been allowed on only one substantive point out of seven points raised, albeit a further two points are related to that point, it would be my submission, my Lord, that this would be an appropriate case for a proportion of the costs to be awarded. Referring to rule 44 of the Civil Procedure Rules, my Lord will be aware that it he does have a wide discretion in relation to this matter.

SIR MICHAEL HARRISON: What do you want to refer me to?

MR MCGUIRE: First of all Part 44, my Lord. If you turn in particular to 44.3(6).

SIR MICHAEL HARRISON: Can you give me the page?

MR MCGUIRE: Page 1136, my Lord, in the 2006 edition, volume 1. I am looking at the bottom of that page:

SIR MICHAEL HARRISON: You say 30 per cent of the appellants' costs be allowed. Do you mean that the defendant should pay 30 per cent of the appellants' costs?

MR MCGUIRE: As agreed or assessed.

SIR MICHAEL HARRISON: Right.

MR MCGUIRE: My Lord, that is my submission on that.

SIR MICHAEL HARRISON: Thank you very much. Yes, Ms Hay.

MS HAY: My Lord, I cannot really comment very sensibly on the suggestion of 30 per cent as it appears to be a kind of 'seat of the pants' figure plucked out by the first respondent in terms of what proportion your Lordship might be thinking of. At least that gives us some guidance as to what their thinking is. It is certainly my submission that you would be absolutely right that the reasons challenge, on which we did not succeed entirely, was at the core of this matter, and particularly item 7 but most of the other grounds related to that reasons challenge very closely. This is not a family with substantial means at all and the financial difficulty in them bringing this appeal to this court, which has succeeded, has been great. I would be inviting your Lordship to look at the challenge as a whole and to accept that if one looks at the challenge as a whole, the substantive ground that Mr McGuire accepts has been one in which your Lordship has found there were defects in the Tribunal's reasoning exactly in line with the case as it was originally put in the original grounds of appeal and the skeleton argument at that stage, and to allow, if not all of the appellants' costs, a substantial part of the appellants' costs. I am not proposing to address my Lord on the precise percentage unless you expressly wish me to do so. Certainly 30 per cent is very far adrift from the outcome of this matter and would not reflect the position on costs as it should be.

SIR MICHAEL HARRISON: If I were to address it on the basis of proportion, what would you suggest?

MS HAY: 70 per cent. Which, in my submission, my Lord, gives a fair reflection of the importance of the reasons challenge which was the subject of discussion between the parties in advance of the hearing, and on which our minds were very much focussed throughout the entirety of the hearing.

SIR MICHAEL HARRISON: Yes. Thank you very much. As is apparent from the judgment which I gave, I have decided some points in favour of the appellant and some points in favour of the respondent. It is submitted by Mr McGuire on behalf of the respondent that, as a result, I should make an order that the defendant should only have to pay 30 per cent of the appellants' costs. Ms Hay has submitted on behalf of the appellants that I should look at the challenge as a whole and that the appellants should have all of their costs. If that were not right, the appropriate order would be to order that the defendant pay 70 per cent of the appellants' costs.

I have a discretion in this matter and, in the circumstances, where some points are decided one way and some points decided the other way, I think it is the kind of situation where it would be appropriate to make a proportional award of costs. I am firmly of the opinion that the 30 per cent suggested by Mr McGuire would be inappropriate because, as I think he accepts, the main thrust of this case was a reasons challenge and I have found in favour of the appellant on that aspect. Furthermore, there are some other grounds which are, as I have stated in my judgment, plainly connected with that main ground of challenge.

In my view, the figure of 70 per cent mentioned by Ms Hay if, contrary to her main submission, there is not a total award of costs, is the appropriate amount. It was in fact the amount in my mind, I should say, before Ms Hay even mentioned it. That, I think, would fairly reflect the main thrust of my findings, whilst allowing for some limited success of the respondents on some other points.

I will therefore make an order that the defendant pay 70 per cent of the appellants' costs, those costs to be assessed if not agreed.

MR MCGUIRE: I am grateful, my Lord.

SIR MICHAEL HARRISON: Thank you both very much.