A, R (on the application of) v Hertfordshire County Council

APPENDIX

DECISION OF SENDIST TRIBUNAL

"Appeal

[Mr and Mrs A] appeal under s.326 of the Education Act 1996 against the contents of the Statement of Special Educational Needs made by Hertfordshire County Court (LEA) for their daughter, [D].

Attendance

Mr G Read represented the LEA. His witnesses were Dr R Sharp, a LEA Educational Psychologist and Mr Addison, the Deputy Head Teacher of [B] School.

Mr J Rabinowicz, a solicitor, represented [Mr and Mrs A]. Their witnesses were Mr Urani, an Educational Psychologist instructed by them, and Mr Horton, the Head of Care at the [AL] School.

Preliminary matters

In the course of the hearing [Mr and Mrs A] provided us with the following further documentation:

(i) Two reports from Ms McLaughlin, a State Registered Music Therapist, dated 2nd February 2005 and 30th June 2005;

(ii) A note dated 13th June 2006 by Ms Cosham, a Speech and Language Therapist employed by [AL] School.

Mr Read did not object to the Tribunal having sight of either of these documents, which were admitted under Regulation 33(3) of the Special Educational Needs Tribunal Regulations 2001. Mr Rabinowicz informed us that he had sent the music therapy reports to the Tribunal with the other documentation but it had been omitted from the bundle. A query had been raised in the course of the hearing as to the expertise of [AL] School with respect to use of communication aids and Ms Cosham faxed through the note to deal with this issue.

Facts

(1) [D] is 10 years old and has attended [MW] Special School since April 1999, initially on a part-time basis and full-time since the autumn term of 1999. [MW] is a maintained school for children with physical and neurological impairment. Previously the attended [M] Jewish Day School for half day a week. [D] is due to transfer to secondary school in September 2006.

(2) [D] has been diagnosed with global developmental delay with marked hypotonia.

(3) [D] has no independent functional mobility. She is totally dependent on an adult carer for all her transfers, mobility and personal care. She is fed orally but has a gastronomy to supplement her nutrition. [D] is non-verbal but communicates by smiles, moaning and expressing her dislike or discomfort by crying or noises of protest. She is generally working within P-Level 5.

(4) The LEA proposal is that in September 2006 [D] transfers to [B] School, a maintained day special school for pupils with severe learning difficulties aged from 2 to 19 years. In preparation for secondary transfer a Statement of Special Educational Needs was issued on 13th February 2006. [Mr and Mrs A] have appealed against Parts 2, 3 and 4 of that statement. In essence, they wish certain therapies to be specified in the statement and seek a 52 week residential placement at [AL] School, a school approved by the Secretary of State as one suitable for the admission of pupils aged between 12-16 years with either behavioural and emotional difficulties, physical difficulties or severe learning difficulties. The LEA accept that the statement should specify the level of occupational therapy, physiotherapy and hydrotherapy and have produced an amended statement (the working document) to the Tribunal, which is attached to this decision, and which identifies the level of provision that they propose in these areas. [Mr and Mrs A] do not accept the levels of occupational and physiotherapy proposed by the LEA and also wish speech and language therapy to be specified as well as music therapy. In addition, they seek that the statement specifies that [D] receive support from a full-time Learning Support Assistant (LSA). It was agreed in the course of the hearing that the statement should specify that [D's] school should be wheelchair accessible and that the statement should specify that [D] be provided with a Tech-Talk communication aid.

(5) At [MW], [D] is in a class of six children with one teacher and three teaching assistants. At [MW] [D] has received a combined total of 20 sessions of physiotherapy and occupational therapy input each academic year. [D] is re-assessed periodically by a speech and language therapist and is part of a weekly communication group with other children who also utilise a Tech-Talk communication aid. [D] generally has hydrotherapy once a week for 20 minutes and had music therapy sessions from January to July 2005. She receives full-time teaching assistant support.

(6) The Tribunal had the benefit of a number of physiotherapy and occupational therapy reports. These included reports dated 11th January 2005 and 10th January 2006 from Ms Billings, an NHS physiotherapist who had been treating [D], and a report dated 16th February 2006 from Ms Taylor, a physiotherapist instructed by [Mr and Mrs A]. With respect to occupational therapy, the Tribunal had before it a report dated 29th November 2004 from Ms Stephens, an NHS occupational therapist, who had been treating [D], and a report dated 13th February 2006 from Ms Wilson, an occupational therapist instructed by [Mr and Mrs A]. In addition, the Tribunal had before it a joint report dated 12th January 2006 from the NHS Occupational Therapy and Physiotherapy Service.

These reports document the work that has been done with [D] together with recommendations for future work. In particular, Ms Taylor states that to develop [D's] fine and gross motor skills, which is one of the objectives in her statement, it is important that therapy is provided over a full 24 hour day. Similarly, Ms Wilson states that a residential placement would benefit [D's] development most fully. Both Ms Taylor and Ms Wilson also make specific recommendations as to the level of occupational therapy and physiotherapy required, which exceed the level proposed by the NHS therapists.

The reports by the NHS therapists do not make recommendations for a residential placement but the joint report of 12th January 2006 recommends that [D] receive over the year 20 sessions of physiotherapy and occupational therapy. However, Ms Billings, in her report of 10th January 2006, does state that the quality of [D's] physical management directly affects how she is able to access the curriculum effectively, that she has complex needs and needs a consistent approach to her postural management, which needs to be over a 24 hour period, and that she needs a consistent and comprehensive approach to her physical management in order to maintain her physical function and facilitate her care and access to the curriculum.

(7) The speech and language therapy reports before the Tribunal consisted of two reports dated 9th December 2004 and 13th December 2005 from Ms Helden, an NHS speech and language therapist, and a report dated 27th March 2006 from Ms Robertson, a speech and language therapist instructed by [Mr and Mrs A]. Ms Helden does not make a recommendation for direct speech and language therapy whilst Ms Robertson makes a number of recommendations including an individual 40 minutes session of direct speech and language therapy once a week and regular individual 30 minute sessions with a teaching or speech and language therapy assistant two or three times a week to practise her communication skills, following a programme written by the speech and language therapist.

(8) The LEA does not accept that an LSA is needed full-time and Dr Sharp, in particular, stressed the need for [D] to develop a degree of independence. Mr Addison told us that staff were deployed in such a way that reflected the range of difficulties that the children faced and Dr Sharp assured us that [D] would have one to one support when needed. [Mr and Mrs A] pointed to the fact that [D] currently has full-time teaching assistant support. The report of Ms Billings states that [D] is totally dependent on an adult carer for all access to the curriculum and curriculum materials, as well as her physical management. Ms Stephens confirms in her report that [D] requires one to one adult support for mobility, physical management (use of equipment), classroom support (learning/practical), movement games and self-help skills (feeding, dressing and toileting).

(9) The report from [MW] provided for the annual review on 31st January 2006 documents [D's] progress against the objectives in her Statement of Special Educational Needs. [Mr and Mrs A] confirmed in their statement written for the purposes of the annual review in January 2006 that her needs had been met at [MW] School and Dr Sharp in his report of 14th January 2005 notes that [Mr and Mrs A] are happy with [D's] progress at [MW].

(10) [B] has 64 pupils on roll. The LEA has a contract with the Primary Care Trust, which provides a range of therapy services to [B]. The school receives the equivalent of three days per week input from a speech and language therapist plus half a day from a speech and language therapy assistant with 43 pupils receiving speech and language therapy. The speech and language therapists go into classes and work with the staff and children in that context. Programmes are developed at school for the children to follow, which are planned by the teachers in consultation with the speech and language therapist. The LEA resisted quantification of the level of speech and language therapy input since they did not accept that there was a need for direct speech and language therapy and that allocating a specific amount of time to speech and language therapy would not reflect the reality of the way in which speech and language therapy services would work at a special school such as [B].

[B] has input from the occupational therapy service equivalent to one and a half days of occupational therapy a week with 19 children being supported by occupational therapy services.

[B] has input from the physiotherapy service equivalent to one and a half days per week from a physiotherapist and one and a half days a week from the physiotherapy technician support service. 23 children at the school receive support from the physiotherapy services.

[B] has a hydrotherapy pool and the children generally receive one session per week of 20 minutes.

At [B], [D] would be in a Year 7 class consisting of nine children, with one teacher and three learning support assistants.

Mr Addison told us that although the school has no experience of Tech-Talk, it does have extensive experience of augmentative communication and devices that are similar to Tech-Talk.

The Tribunal was provided with an Ofsted report on [B], dated January 2004, which concluded that the school was very effective.

(11) In their Statement of Case, [Mr and Mrs A] raised a number of issues in relation to the physical environment of [B] School. At the hearing the key issue which was put before the Tribunal in relation to this was the accessibility of the school for [D]. Mr Read confirmed that the school had satisfied a Disability Access Audit and Mr Addison was asked to deal with the criticisms made by Mr Urani at paragraphs 2.30-2.32 of his report dated 1st May 2006. Mr Urani had visited [MW] as well as [B] and [AL] School. Mr Addison confirmed that [D's] class would be in the main body of the school rather than in the pre-fabricated building that Mr Urani had been shown on his visit, although he could not confirm that [D] would not be in that classroom in the future. Mr Addison also confirmed that the lift had been replaced and that there was no part of the building which a child could not access in a wheelchair, although the LEA accepted that given that the building was not purpose built, it may be slightly cramped in some places. The Tribunal was informed that 22 out of the 65 pupils do use wheelchairs.

[Mr and Mrs A] were also concerned about the journey to [B] School. The journey to [MW] currently takes half an hour and they anticipated that the journey to [B] would take at least one hour. They were concerned that this would mean that [D] would return home exhausted after school and that the long journey would limit her concentration at school.

[Mr and Mrs A] wished [D] to be educated in an environment where her cultural needs are addressed and for this reason wished her to be educated in a Jewish school. The LEA submitted that [B] was a multi cultural school where [D's] Jewish culture would be respected.

(12) The primary objection of [Mr and Mrs A] to [B] was that they believed that [D] required a highly structured 24 hour approach to her learning and for this reason they sought the placement at [AL] School. In support of this they pointed to the reports of Ms Wilson, Ms Taylor and Ms Robertson and also to the report of Mr Urani. In particular, Mr Urani stated that the educational need of [D] was to develop, to whatever degree she can, some form of independent living and life skills. [Mr and Mrs A] are in receipt of a package of support that is organised by them with funding from Social Services. [D] is entitled to 19 hours per week of support during school term time and during holidays this can increase up to 30 hours per week. [Mr and Mrs A] pointed to the difficulties of finding carers who were often unreliable or ill and the fact that they were expected to train them themselves. They were also concerned that [Mrs A] was suffering physically as a result of the care that she needed to give [D].

(13) [AL] School has a total of 21 children, one of whom is a day pupil. 13 children are in the post 16 provision. The other 8 children range in age between 7 and 16. There are two classes for these children. The likely plan is that [D] would join a class which would consist of her and three children aged 13, 14 and 15. The 13 year old is a young man in a wheelchair who also uses a walking frame, while the other two children are severely autistic. [D] would be the only child following a Year 7 curriculum and the children in the class would span Key Stages 3 and 4 of the national curriculum. The class would have one teacher and each child would have one to one LSA support.

[AL] School has a hydrotherapy pool and a physiotherapist attends the school on two days a week with 22 children being supported by the physiotherapist. An occupational therapist attends one day a week with an option to extend to two days a week, with 22 children being supported by the occupational therapist. A speech and language therapist attends for two days per week. We were informed that the school is not familiar with Tech-Talk but had used communication aids in the past.

Mr Horton explained that the care staff worked very closely with the school, the care staff going into the school and the educational staff going into the homes. Programmes of work were carried over within the care home and there were ongoing discussions and liaison between the care staff and the therapists.

Mr Horton was referred by the LEA to an Ofsted report on [AL] School dated December 2003. It described [AL] School as an improving school. The previous Ofsted inspection in 1995 had found that the school had serious weaknesses in its curriculum and assessment system and in the value for money which it provided. Mr Horton was referred to a number of passages in the Ofsted report. In particular, that schemes of work were generally satisfactory but the activities which were specified were sometimes not appropriate to pupils of this age; that the provision for ICT was at a very early stage of development; that staff had not yet all received full training on the use of structured teaching systems for dealing with pupils with more complex difficulties and that there were no specialist rooms for music, design and technology or science. Mr Horton was able to confirm that specialist rooms were now in existence and that there was an ICT suite but was not able to help with the other points that were raised.

(14) [Mr and Mrs A] also submitted that [D's] cultural needs would be addressed at [AL] School since it is an independent Jewish, residential school. They stated that as an Orthodox Jewish family they observed all the festivals and a weekly Sabbath and [D] was familiar with these and showed excitement and enjoyment. They felt that she had some understanding of her cultural background. Mr Urani told us that in view of [D's] level of cognitive development he did not know to what degree [D] had any understanding of being Jewish and that he believed that the responses described by [Mr and Mrs A] might well be responses to music and songs which she enjoys.

(15) The costs of the respective placements are laid out in the case statement of the LEA and were not challenged by [Mr and Mrs A]. The annual costs of a placement at [AL] are between £180,000 and £220,000 with the cost of transport being £1,440. The annual costs of a placement at [B] School are £221.74 with transport costs of £4,000.

(16) The LEA opposed the placement at [AL] since they did not accept that [D] had an educational need for a residential placement and that [B] School would meet her needs. A placement at [AL] would therefore cause the LEA unreasonable public expenditure. The LEA submitted that [D] had made progress in the provision to date and that their proposal was a continuation of the model to date, although they accept that [MW] School is a purpose built school for children with physical impairment, unlike [B]. They question why there is any reason to change this and place [D] in residential provision. They accept that it is important that there is a consistent approach between the school and the home environment but do not accept that this means that she requires special educational provision outside school hours to meet her special educational needs. Their view is that [D] clearly has care needs and this is the reason that Social Services have provided the package that has been identified above. They also make the point that there are many children in [B] with difficulties similar to [D's] who benefit from consistent physical management schemes outside school hours, and question on what basis it is suggested that [D], as opposed to any of the other pupils, has a special educational need for a 24 hours curriculum.

The LEA were also concerned as to whether the proposed element was in [D's] best interests in any event. Amongst the issues raised were whether she would have an appropriate peer group and the implications of her being placed in a small class with two severely autistic children. They also queried whether residential provision for 52 weeks, was in her best interests, given her level of maturity. Dr Sharp pointed to the potential emotional implications for [D] of a placement at [AL], given the levels of [D's] functioning identified by Mr Urani in his report, for example, under the heading of 'daily living skills', Mr Urani had reported an age equivalent of one year six months for personal skills. Mr Urani accepted that [D] had a bond with her parents and would no doubt experience a degree of anxiety but in view of her severe disability he could not answer authoritatively the question as to the impact on her of such a separation from her parents. [Mr and Mrs A] felt that although [D] would be very upset she would welcome the activities and the stimulation, together with the presence of other children, and that she would get used to the placement.

Tribunal's conclusions with reasons

We carefully considered the written evidence submitted to the Tribunal and the evidence given to us at the hearing, including the video produced by [Mr and Mrs A] of [D]. We also took account of the Code of Practice.

A. We were asked by [Mr and Mrs A] to make a number of amendments to Part 2 of [D's] statement, in particular, to provide for a residential curriculum, an appropriate home school environment where her cultural and religious needs are met, a highly structured and intensive approach and an environment with wheelchair accessibility. We did not accept that any of these amendments were appropriate amendments to Part 2 but rather were amendments to Part 3. The LEA had no objection to the inclusion of wheelchair accessibility in Part 3 and we propose to provide for it in Part 3. The LEA were concerned about the inclusion of the words 'a highly structured and intensive approach' since the meaning of this was unclear. We agree that the meaning of 'an intensive approach' is unclear and we are not sure how much this would add to a statement. However, we do accept that [D] needs a highly structured environment and will include that in Part 3 of the statement. [Mr and Mrs A] also wished Part 3 of the statement to specify that [D] should be in a school with a small class structure but do not propose to add the word 'very' since we do not accept that this adds any value to the statement.

B. The LEA proposal for specified occupational therapy and physiotherapy is laid out in the working document attached to this decision. It is based on the recommendations of the Children's Occupational Therapy and Physiotherapy Service and is in line with the occupational therapy and physiotherapy that [D] has received to date. [Mr and Mrs A] seek a higher level of therapy as identified in the reports of Ms Taylor and Ms Wilson. We prefer the recommendations of the NHS Occupational Therapy and Physiotherapy Service. They are based on a detailed knowledge and experience of [D] over a number of years and entail a continuation of the level of therapy that [D] has received to date. Under such a regime she has made good progress as is clear from the report of [MW] prepared for the annual review in 2006. However, we do propose to make it clear in the statement that the therapy suggested is a minimum and we also propose to make it clear that 20 sessions can be either physiotherapy, occupational therapy or a combination of both as we were informed was the recommendation. We also see that the report of 12th January 2006 recommends a global total of 20 sessions and does not break the sessions down in the way that it has been done in the working document.

C. The proposal of the LEA in relation to hydrotherapy is in line with the recommendation that has been made by Ms Taylor and we propose to amend the statement as suggested by both parties.

D. The LEA has resisted quantification of speech and language therapy on the basis that they do not accept that [D] would benefit from direct speech and language therapy in view of her level of cognitive functioning and that the model that would benefit her would be one where speech and language therapists come into the classrooms, observe the children and develop programmes. In the hearing they stated that [D] would get her fair share of the allocation of speech and language therapy under such a regime but, 'if pushed', they would suggest that she receive an allocation of one hour per week.

We do have the benefit of a report from the NHS speech and language therapy services which have treated [D] over the years. They do not recommend direct speech and language therapy and from the reports of Ms Helden it is clear that [D] has been making good progress. We prefer to rely on the report of Ms Helden rather than that of Ms Robertson in view of her greater knowledge of [D] and the progress that she has made under the existing model. We also note that Mr Urani has, during the course of the hearing, questioned Ms Robertson's recommendation that [D] receive once a week individual 40 minutes of speech and language therapy. In his view such a long session would not be appropriate for [D] and suggested that it would be more appropriate for her to have two sessions of 20 minutes each. This criticism adds to our concern as to how much weight to give to Ms Robertson's report. We would also like to add that we share the concern of the LEA as to [D's] ability to benefit from direct speech and language therapy.

These reasons lead us to refuse the application of [Mr and Mrs A] to specify direct speech and language therapy in the statement. However, we do think that it is important to specify that [D] receives a minimum allocation of one hour of speech and language therapist time each week. Clearly [D's] communication skills are very poor and she will need input from a speech and language therapist for assessment, review and development of programmes. We do not propose to specify it any further than this, particularly in view of the fact that [D] will be in a special school, which can call on the expertise of the speech and language therapy services allocated to the school. We also propose to specify that [D] will be provided with a Tech-Talk device [D] should have. We do not think it is necessary or appropriate for us to specify this in the statement.

E. [Mr and Mrs A] have asked us to specify music therapy in the statement. The report that we have been shown by Ms McLaughlin, dated 30th June 2005, states that '[D] has perhaps achieved the most that she is able to at this current time in music therapy' and suggests that she should have a break from music therapy for the time being and possibly continue with sessions at a later date. We have no up-to-date report from a music therapist suggesting that therapy is now needed. We also note from Mr Urani's report that [MW] state that [D] found music therapy very difficult to deal with as it was too free-flowing and unstructured for her to cope. On the basis of this evidence, we do not propose providing for music therapy in the statement.

F. With respect to the request to specify a full-time LSA, we note the evidence of Mr Addison and Dr Sharp. However, in our view given the clear need for support identified in the reports of Ms Billings and Ms Stephens, in combination with the fact that [D] currently has full-time teaching assistant support at [MW], [D] has a need for full-time LSA support.

G. We considered the concerns of [Mr and Mrs A] that [B] School was not an appropriate physical or cultural environment for [D] and their concerns as to the length of the transport time to and from the school. It is clear that the physical environment is not as good as [MW] as, unlike [MW], it is not purpose built but we accept the evidence of Mr Addison as to its accessibility. We note from the case statement that [Mr and Mrs A] raise issues as to its cleanliness. These were not put to Mr Addison at the hearing but we do have the benefit of an Ofsted report, which raises no issues as to the health or safety of the pupils. We are satisfied that the physical environment is appropriate having considered all the evidence.

With respect to the length of the journey to and from school, it is of course regrettable that the journey time is longer than to [MW] but we do not accept that the length is such that it would prevent [B] being an appropriate placement. We note that neither Ms Taylor or Ms Wilson comment on any adverse effects to [D] of such a journey although Ms Wilson does comment that travel to school on a daily basis would be tiring for [D].

As to the cultural appropriateness of [B], we heard evidence from the LEA that it is a multi-cultural school and note that the Ofsted report states that cultural awareness is very well fostered. We have considered [Mr and Mrs A's] wish that [D] be educated in an environment where her cultural needs are addressed. In order to do this we do not accept that she needs to be educated in a Jewish school. We also share Mr Urani's uncertainty as to the extent of [D's] understanding of being Jewish, given the level of her cognitive functioning. We do not accept that the evidence before us that being educated in a Jewish school will facilitate [D's] access to the curriculum or that it can form the basis of a special educational need or the basis for special educational provision.

H. The key issue is whether [D] requires a residential placement in order to meet her special educational needs and that consequently [B] is not a suitable placement. In considering this issue we have borne in mind the case of Bromley London Borough Council v Special Educational Needs Tribunal and Others [1999] ELR 260, which makes it clear that there is no hard edge between what is an educational need and a care need and that educational need may extend beyond the school day.

Ms Robertson suggests that [D] needs a 24 hour curriculum to develop and use her communication systems in everyday situations. We do not accept this. This is not a recommendation made by Ms Helden who clearly knows [D] well. Moreover, Ms Robertson gives no reason for such a recommendation and, as indicated above we do have reservations about her report.

Ms Wilson states that a residential placement would benefit [D's] development most fully and Mr Urani records the Headteacher of [MW] stating that in principle all children in his school needed what he referred to as an extended curriculum beyond a typical school day. It may well be the case that a residential placement would optimise [D's] physical development most fully. However, what the Tribunal has to consider is whether that is needed in order to meet her special educational needs.

We have considered very carefully the physiotherapy and occupational therapy advices, including the recommendations of Ms Taylor. The report that we give the greatest weight to is that of Ms Billings in view of her length experience of [D]. Her recommendation is that [D] needs a consistent and comprehensive approach to her physical management in order to maintain her physical function and facilitate her care and access to the curriculum. We accept this recommendation and have considered whether this calls for [D] to receive residential provision in order to meet her special educational needs. After much reflection we have decided that it does not. It is clear that [D] has a very high level of care needs and it is important that there is consistency of programmes and approach over a 24 hour period but this does not mean that [D] requires special educational provision outside school hours in order to meet her special educational needs.

We also note that the report dated 12th January 2006 prepared by the physiotherapy and occupational therapy services based on their knowledge of [D] clearly state under the heading of 'educational needs', '[D] continues to need the following support and provision within the school: physical management, opportunities to use her walker, classroom support and self-help skills'. They do not identify that there is a need for special educational provision outside school.

Moreover, we do note, particularly from the report of [MW], that [D] has made progress with the provision that she has received to date and the model that is proposed by the LEA is very similar to the provision to date. We see no reason why such progress should not be built on. We also do share the reservations of the LEA as to the impact on [D] of a residential placement, given her level of maturity. We are concerned as to the impact on her of such a separation from her parents.

In conclusion, we accept the case of the LEA that [D] clearly has extensive care needs but that these should be met by the Social Services package of care and not through residential provision as they are care needs rather than educational needs. We therefore do not accept that [D] requires a 24 hour curriculum to meet her special educational needs.

I. We were impressed by the Ofsted report on [B] and the evidence given by the LEA as to [B]. We accept that [B] can meet [D's] needs and, having considered s.9 of the Education Act 1996, find that a placement at [AL] School would involve unreasonable public expenditure to the LEA given the discrepancy in the costs. No issue was raised in relation to the costs by [Mr and Mrs A] in view of the large discrepancy between the costs of a placement at [B] and the costs of a placement at [AL] School. In particular they did not seek to persuade us that in coming to our decision on this issue it was necessary to take into account the expenditure by Social Services or that such costs would materially narrow the gap between the costs of the two placements.

J. We wish to put on record that, in any event, we would have concerns about a placement at [AL] School. We are concerned that [D] would not be in an appropriate peer group in view of the fact that there would only be eight children aged between 11 and 16 at the school and we would be very concerned about the proposal that she was educated with children aged 13, 14 and 15 which would involve a curriculum spread over two Key Stages.

Order

That Hertfordshire County Council amend the Statement of [D] dated 13th February 2006 as follows:

Part 3

(a) Under the heading of 'Educational', insertion of the words 'highly structured' after the words 'with a caring and'; the words 'with a small class structure' after the words 'supportive environment' and the two following paragraphs: 'The school will be wheelchair accessible' and '[D] will be provided with a full-time Learning Support Assistant'.

(b) Under the heading of 'Communication', at the end of paragraph 2 insertion of the following: '[D] will receive a minimum allocation of speech and language therapy time amounting to one hour per week' and '[D] will be provided with a Tech-Talk for her own personal use'.

(c) Under the heading of 'Motor and sensory skills', insertion of the following after the words 'and to develop her gross and fine motor skills': 'These programmes will be devised by a fully qualified Physiotherapist and Occupational Therapist and delivered by teaching and support staff on a daily basis. [D] will receive, as a minimum, a combined total of 20 sessions per annum of specialist physiotherapy and occupational therapy for the forthcoming academic year, or until the next review. These 20 sessions may comprise of joint or individual input from a physiotherapist and an occupational therapist, at their discretion. Each session will last approximately for one and a half hours and will consist of any of the following: observation, assessment (either formal or informal), direct intervention (either individual or in a group), demonstration of specific activities, training of teaching/support staff, joint planning with teaching/support staff of appropriate targets for inclusion in the IEP, attendance at review meetings, liaison with parents, carers and other professionals, writing of report and programmes.

(d) Insertion of the following under the heading of 'Motor and sensory skills': 'Hydrotherapy will be provided for two 20 minutes sessions per week'."

SUBMISSIONS AFTER JUDGEMENT

AND COSTS RULING

JUDGE GILBART QC: Yes, Miss Clement?

MISS CLEMENT: My Lord, I have a very short schedule of costs. I do seek costs in this case.

JUDGE GILBART QC: Have they been provided to Mr Grodzinski and his instructing solicitor?

MISS CLEMENT: They have but it was only prepared this morning. It may be it is better dealt with in writing.

JUDGE GILBART QC: Why? The rules are quite clear. They must be provided in advance. This case was heard on Monday. I intimated yesterday morning and told the parties that judgment would be this morning. You have had time. Have you seen it, Mr Grodzinski? Very often in these cases it does not take long to work out.

MR GRODZINSKI: I was given a minute or so before 10 o'clock.

JUDGE GILBART QC: Would you like a few minutes?

MR GRODZINSKI: It provides two things. One for solicitors and one for counsel, but no breakdown. My submission was going to be, my Lord, obviously my learned friend may need to say more, that there should in this case be no order for costs.

JUDGE GILBART QC: So far as the schedule is concerned, what I am going to do is adjourn for a short time. I am here all day. You are going to provide a breakdown which Mr Grodzinski will give to his solicitor. But you want to make an application that there is no order?

MR GRODZINSKI QC: My Lord, yes. Can I to so in the following way. Can I hand up just two authorities to my Lord. (Handed).

JUDGE GILBART QC: Of course.

MR GRODZINSKI: I will take you through them in a moment.

JUDGE GILBART QC: Yes, Mr Grodzinski.

MR GRODZINSKI: My Lord, these proceedings are, by way of background, privately funded. Because unlike judicial review proceedings which are brought in the name of a child and which can therefore almost automatically benefit from Legal Aid, and the protection that involves, these proceedings are brought in the name of the parents. The parents are in the invidious position of being too well off to qualify for Legal Aid.

JUDGE GILBART QC: You do not need to be well off not to be ineligible for Legal Aid in the current time.

MR GRODZINSKI: Precisely so. The proceedings were brought in what the parents perceived to be the best interests of their daughter. They have acted responsibly and reasonably throughout.

JUDGE GILBART QC: I am looking at the first paragraph of the headnote in Re O, is that what you are drawing my attention to? It is that argument, is it not?

MR GRODZINSKI: Indeed. Can I take my Lord to one paragraph of the judgment in that case. It is on page 5 of the print-out.

JUDGE GILBART QC: Yes. There is a bit in the middle.

MR GRODZINSKI: Just under C, "The majority of civil proceedings".

JUDGE GILBART QC: Yes, I see. I take it you also refer to the passage that is cited there from the judgment of Wilson J, as he then was.

MR GRODZINSKI: My Lord, I do. Can I take my Lord to a more recent review of all the relevant authorities.

JUDGE GILBART QC: Was that a family law case?

MR GRODZINSKI: My Lord, both of these cases are family law cases. There is one distinction between family cases and judicial review cases which is that in family cases the usual principle of costs following the event is disapplied expressly by family proceedings rules. This application does not expressly appear in judicial review proceedings. But nonetheless, the underlying principles in my submission apply with equal force. Can I take my Lord to the recent decision of C and SC. Again, it is a children proceedings case. There was a review, a comprehensive review by Rex Tedd QC sitting as a High Court judge. If I can take my Lord to page 8.

JUDGE GILBART QC: This is Mr Rex Tedd QC?

MR GRODZINSKI: My Lord, yes. Having gone through a large number of the relevant authorities, he cites a number of cases in paragraph 25 in particular the judgment of Hale J, as she then was, in the R and R case --

JUDGE GILBART QC: I will hear what is said against you.

MR GRODZINSKI: My Lord, I am grateful. One last thing before I sit down, my instructing solicitor did not state a case. I submit it makes no difference as we are not seeking costs against Hertfordshire.

JUDGE GILBART QC: I just want to think through that.

MISS CLEMENT: My Lord, I was handed in the cases this morning. I have not actually read them. As my learned friend has pointed out, these are family cases. It is a very different context, and in particular the reference he took you to in Hale J's decision, as is set out there the reasons why it was disapplied is the family context. In this case I act as a public sector defendant. If it is not able to cover its costs then the funds for all special educational needs children in the area are diminished. Normally costs follow the event and in my submission there is nothing in this case to divert from that rule.

JUDGE GILBART QC: Thank you. Mr Grodzinski, do you want to say anything about the point Miss Clement makes that it is a public sector defendant? There are limits on public sector resources.

MR GRODZINSKI: My Lord, inevitably in these cases they are public sector defendants. There is not a lot the parents can do to avoid that consequence. As to what my learned friend said about the principle about sums being diminished, if my Lord looks at the bottom two paragraphs on page 8 those principles apply very much in this sort of case. The court's concern is to discover what is in the best interests of the child.

JUDGE GILBART QC: I suppose, Mr Grodzinski there is this difference too. If you are dealing with children cases of the sort which arises in these two, the decision maker is the court and it is for the court to determine what the appropriate outcome is. I see in the Re O case it was an appeal to the Court of Appeal against orders made under the Children Act by a lower court and in the C and SC case it was actually an application made to that judge. Now, there is a difference, is there not, between a case where the decision maker is determining, having grappled with the question of what the outcome should be, and then determines there should be no order and, on the other hand, what I am doing is considering whether or not the decision maker made a legal error?

MR GRODZINSKI: My Lord, I accept that distinction but nonetheless, what your Lordship is doing -- albeit on different grounds but just as much as the Tribunal would do it -- is determining proceedings which have been brought to resolve what would be in the best interests of the child. Although there is a distinction, it is not one which obviates the distinction in that case.

JUDGE GILBART QC: Very well. I am going to make no order in this case and I am going to say why.

In the normal event, costs would follow, but I have had my attention drawn to two authorities. The first is Re O [1997] 1 FLR 265, a decision of the Court of Appeal and also C and SC, a decision of first instance of Mr Rex Tedd QC sitting as a Deputy High Court judge. Both of those relate to decisions made by judges who were dealing with cases under the Children Act. However, it is plain from them that it can be a proper exception to the normal rule that costs follow the event when one is dealing with what is in the best interests of the child. There is a distinction to be drawn because special rules apply there under the Children Act and also I am not the decision maker, I am sitting in judicial review of the decision of the Tribunal. But the thrust of Mr Grodzinski's point is, where one is dealing with these cases and exploring the best interests of the child, it would be wrong to penalise the parent for pursuing what it thought were the best interests of the child unless it was an entirely unreasonable approach.

I also have in mind the result of my decision on the continuing and very significant burden of caring for D. Therefore, I want to do as little as possible which is going to make that task more difficult. On that basis, I make no order as to costs. I am satisfied that my ability to exercise that discretion is wide enough.

MR GRODZINSKI: I am very grateful.

JUDGE GILBART QC: I am sure you are. Any other application?

MR GRODZINSKI: No.

JUDGE GILBART QC: Now, that being said there is no need for you to get details of costs. Next time you are in front of me I will not be so forgiving. The rules are absolutely clear about this, as is the Practice Direction. Summary assessment is made by the judge and that means the two parties exchange costs figures the day before.

MISS CLEMENT: My Lord, I can only apologise.

JUDGE GILBART QC: Thank you.

MR GRODZINSKI: Can I make one observation regarding the transcript. It is often the practice that the SEN Tribunal's decision is put into an appendix.

JUDGE GILBART QC: When I see what it looks like, you may well be right. Thank you.