T v Devon County Council & Anor

"Facts

[T] is currently attending [School A], an independent school approved by the DFES for boys with specific learning difficulty, dyslexia. During his primary years [T] had attended various schools, both within the maintained sector and within the independent sector. In September 2002 he began secondary phase education as a pupil at [School B], a mainstream school maintained by the LEA. [School B] had been identified by [T's] parents as their preferred secondary provision.

However, a situation arose on the first day which resulted in [T] determining not to return to school. That continued until April 2003 when, with the help and support of a welfare officer, [T] began back initially for an hour a day, increasing over the next few weeks to the point where by May 2003 he was attending school for the whole day, although not always for the whole week. By the start of the new school year in September 2003 [T] was back at school on a full time basis, although . . . he was struggling, particularly in French. As a result it was agreed that he would not have to pursue French, but nonetheless matters deteriorated to the point where by the 27th April 2004 [T] again refused to attend school. He went back on the 29th April for a geography field trip. That was his last time at [School B]. Between September 2003 and the end of the summer term 2004, apart from those limited times when [T] was attending school, whether on a part time or full time basis, he was not receiving any formal educational input. Nonetheless, [School B] commended his work at the annual statement review in January 2004, commenting that it had not itself experienced the 'trauma' that [T] was reported to be suffering as a result of his attendance there.

In the meanwhile, on the 19th May 2003 [T's] first statement of special educational needs was issued by the LEA, naming [School B]. It was noted that [T] had been known to the Devon Educational Psychology Service since 1997, that he had specific learning difficulties and experienced high levels of anxiety.

As a result of [T's] experience at [School B], and in view of his previous difficulties with mainstream provision, independent and maintained, [T's] parents determined to look for another means whereby his special educational needs could be addressed. In due course they resolved that he should attend [School A], as from September 2004.

This appeal is against Parts 2, 3 and 4 of [T's] amended statement, issued on the 22nd September 2004. For the purposes of the appeal [T's mother] had commissioned assessments by Mr Michael Biddulph, educational psychologist, Dr Brian Male, consultant psychiatrist, Ms Patricia Rush, independent occupational therapist and Nancy Arnaud, independent speech and language therapist. Reports from each of those experts were provided to us within the appeal papers.

Within his report, Mr Biddulph concluded that [T] is a student in the average range of intelligence but that he has a specific learning difficulty which is making it much more difficult for him to use the written word than would be expected. Mr Biddulph noted that the application of the 'Dyslexia Index' which combines intellectual ability, achievement and diagnostic scores, puts [T] in a category indicating that his dyslexia is 'severe'. Mr Biddulph concluded his report by making a number of recommendations. He advised that [T] requires 5 hours of specialist tuition per week, using a structured multi-sensory approach, on an individual or paired basis provided by a suitably qualified and experienced teacher of students with specific learning difficulties; 2 hours a week of specialist study skills tuition; one hour a week of specialist tuition in mathematics; additional support with homework, not undertaken within the home; and additional tutorial support, timetabled on a regular basis, by a named sympathetic teacher with an understanding of his needs. Mr Biddulph also advised that if [T] was to be educated in a mainstream school he would require additional LSA support in literacy based subjects.

Mr Biddulph concluded his advice in these terms:-

Dr Male's report is dated the 15th November 2004. [T's mother] told us that it came as a shock to her. He diagnosed [T] as suffering from a specific reading disorder (dyslexia); moderate depressive episode; and generalised anxiety disorder of childhood. Dr Male described three occasions during which [T] is said to have made attempts at suicide -- once by running head on into a cupboard, on another occasion repeatedly banging his head on the bedroom door, and on the third occasion, during his first week as a boarder at Mark College, when he is said to have tried to hang himself using his tie from a curtain rail. Dr Male noted 'although the suicide attempts have not been likely to succeed it is of concern that he can act like this in response to failure'. He described [T] as showing a separation anxiety, subsumed into the overall diagnosis of generalised anxiety. [T] had also expressed anxiety concerning his father's health but identified the principal cause of his stress as being his 'educational failure'. Dr Male concluded:-

We should note here that at the conclusion of the hearing Mr Biddulph, speaking on behalf of [T's mother], emphasised to us that it is not part of her case that a residential placement is required to satisfy an educational need.

Ms Rush, in her report of the 17th December 2004, looked closely at certain aspects of [T's] motor skills, and recommended that he requires occupational therapy provided by a paediatric occupational therapist experienced in working with boys of his age. She prescribed a short burst of therapy, in one term 6 sessions each of 45 minutes with the therapist followed by 15 minutes with an LSA, with monitoring sessions at the beginning and end of the next two terms.

In contrast, in the medical advice obtained during the re-assessment of [T's] needs, the Consultant Community Paediatrician, Dr Holme, noted in his report of the 25th June 2004 that [T's] motor control was 'normal'.

Finally, the speech and language therapist, Nancy Arnaud, assessed [T] and concluded that he has intact language skills and that there is no need for direct or indirect speech and language therapy. She noted that his language skills 'appear to be a relative area of strength for him'.

There is no issue between the parties as to the relevance and significance to [T] of his specific learning difficulty. The LEA's educational psychologist, Ms Tipping, gave evidence to us at the hearing and confirmed that there is no material point taken in respect of the test results obtained by Mr Biddulph, which were largely consistent with results obtained by others on previous occasions. The difference between the parties is whether [T] needs the specific quantity of specialised provision put forward by Mr Biddulph in his report, supplemented by him during the course of his evidence to us, or whether [T's] specific learning difficulty can be dealt with adequately within its own maintained provision, which is now proposes should be [School C].

[T's mother] urged upon us that it is not simply a matter of addressing [T's] academic needs in terms of his literacy and numeracy difficulties. She said that his school history to date has been fragmented and has presented him with a number of challenges which have caused him, and his family, stress, which have raised his anxiety to wholly unacceptable levels, and which have caused his self-perception and self-esteem to plummet. She told us that [T] took a couple of months to settle at [School A], but is now well settled there and is succeeding. Initially she would receive a number of telephone calls and text messages from him, through the day and night, [T] using that as a means of relieving his anxiety. She told us that now she gets perhaps 2 a day, if that, and that during his time at home, at weekends and during holidays [T] is a wholly different child. He is relaxed, happy, and is achieving -- not least as a result of the fact that he is now a regular attender at school rather than a school refuser.

We were generally assisted at this hearing by evidence from [Mr C], the head of learning support and SENCO at [School C]. The college takes pupils between 7 and 13. There are presently approximately 860 students on roll. Of those there are 80 children at School Action, 10 at School Action Plus and 24 with statements of special educational needs, of whom 6 have statements that include specific learning difficulties.

[Mr C] has the RSA qualifications in teaching children with specific learning difficulties. He told us that 80% of his own timetable is available for use at his discretion. Currently about 20 lessons out of the 40 which take place during the week are spent by him with pupils on a 1:1 or small group basis. Additionally there is a team of 16 teaching assistants (TAs). A number of them have undergone specialist SEN based training. Should [T] attend [School C], [Mr C] told us that he has a particular TA in mind who has experience of supporting a child who entered the school in Year 8, barely literate, to the point where he is now on course to achieve 5 or more GCSEs at grade C and above. During the course of his evidence, [Mr C] fully and carefully explained to us how [T's] specific learning difficulty would be addressed. A range of multi-sensory teaching strategies are used within the school including a Reading Scheme on a 1:1 or small group basis; the use of Phongraphics, with specific training from LEA staff; two TAs have recently completed training on the Reading Recovery Scheme; use of the Touch, Type and Spell IT package; and reading groups of 3-6 students, allowing for daily reinforcement of literacy learning.

[Mr C] explained the expanded and improved ICT resources available within the school and how [T's] need for organisational study skills would be met. In mathematics a particular TA is designated to the maths department and would support [T] under the guidance and supervision of the maths teacher. Homework support is provided both within and after school homework club and also within a support facility (referred to informally at the hearing as a 'sanctuary') staffed by teaching assistants and over-seen by [Mr C]. Presently it is running at lunchtime but as from May it will be available throughout the school day.

As to occupational therapy, [T's mother] told us that it is not currently being provided to [T] at [School A]. There is not an occupational therapist on site there, and so it would have to be bought in, if required. At the moment neither she nor [School A] see it as a requirement. [T's] motor skills needs are being met as part of the delivery of the curriculum. [Mr C] confirmed that the same would happen at [School C].

Miss Chester told us that the LEA would in any event want to undertake an occupational therapy assessment, noting the discrepancy between the paediatrician's view on [T's] motor skills, and those expressed by Ms Rush in her report. Should that assessment identify a need for occupational therapy, then the LEA would secure it, the usual model being that a programme is devised by an external therapist, having assessed [T], and is delivered by a TA, and also generalised across the curriculum. The LEA acknowledges that occupational therapy is, in [T's] case, an educational need. What is does not accept is that there is a requirement now for [T] to have direct work with the therapist in order for that need to be appropriately addressed.

At the end of the hearing there was discussion between the parties as to the relative cost of the placements at [School C] and [School A]. Mr Harrison had done some calculations, based upon what it would be likely to cost the LEA if it was required to make the provision identified in the various experts' reports, upon the assumption that the provision would have to be bought in. However, should individual occupational therapy be required for [T], that would be a cost incurred in whichever placement [T] was being taught. In terms of comparison, therefore, it would be cost neutral.

As to the provision of specialist teaching, [Mr C] has the qualifications required to undertake that work. He is already employed by the LEA, and would have the time available within his existing timetable. The LEA would not be having to buy in specialist teacher time, nor would it be purchasing additional TA time, given the resources available at [School C], to provide necessary support during the course of the school day, and throughout the curriculum, as required."

As to the description of [T's] needs within Part 2 there is not, in fact, any significant difference between the parties. We do not accept that it is appropriate to describe [T's] specific learning difficulties as 'severe' in the terms in which it is put to us by Mr Biddulph. The LEA accepts that his difficulties are significant but disputes that it is helpful to categorise it in those terms. We accept the LEA's position that where there is no issue between the parties as to the assessment results obtained both by those within the LEA, and those outside it, it is more relevant to determine the provision necessary to meet those needs, about which there is no dispute, than attempt to label them. We accept that [T's] needs are significant.

We also accept that as a result of the additional information obtained by [T's mother], and provided to us at this appeal, Part 2 should be expanded so that it contains a more detailed account of the findings of the various experts who have contributed to a more complete understanding of [T's] needs.

At the end of the hearing, in his submissions on behalf of [T's mother], Mr Biddulph urged us to the view that it would be wrong to jeopardise what is now working at [School A] by placing [T] at [School C]. He noted, however, that 'from a paper point of view [School C] could possibly make provision for [T]' but said that it would not work in practice. The inference is that [T] would refuse to attend [School C] because of his previous experiences and because he is now fully settled within an environment that he finds understanding and supportive.

On the balance of the evidence provided to us at this appeal we find that appropriate and adequate provision can be made for [T] at [School C]. We were impressed by the evidence given to us by [Mr C]. We are satisfied that if [T] requires 1:1 specialist teaching, it will be available to him at [School C]. [Mr C] has the experience and qualifications to provide it. We are further satisfied that support in literacy based subjects within the curriculum, and in mathematics, can be appropriately and adequately provided by [Mr C], the TAs, and professional staff within the school. It seems to us that [School C] is well resourced and that [T's] dyslexia is readily capable of being addressed by [Mr C] and his colleagues there.

As to occupational therapy, we agree with the LEA that it would be appropriate for it to obtain its own assessment. We are satisfied that occupational therapy is appropriately identified as an educational need. We are not satisfied, however, that the case is yet established that there needs to be direct 1:1 work between [T] and an occupational therapist. We have taken account of the report prepared by Ms Rush. We have noted that the Consultant Community Paediatrician identified [T's] motor skills as 'normal'. We are aware that no occupational therapy is currently being provided for [T] at [School A]. Direct work with a therapist does not appear to have been identified as a necessity there, at least for the time being. We are satisfied that should it become apparent to [School C] that some direct occupational therapy is required to supplement or guide Mr Confrey and his colleagues in the delivery of the curriculum, it will be identified and will be provided for [T] at [School C]. As Mr Biddulph pointed out, Ms Rush was in any event recommending a relatively small amount of direct provision.

As to additional learning support, we are satisfied that [School C] is appropriately resourced to ensure that [T] has that support within those parts of the curriculum where it may be required. We agree with both parties to this appeal that [T] would not be assisted by a lot of dedicated support within the classroom. It would reinforce his sense of being 'different'. It would be unwelcome to him and would, in all probability, be ineffective. On the basis of what we have heard, from [Mr C] in particular, we believe that adequate support would be sensitively and purposefully provided to [T] at [School C]. [T's] vulnerability would be recognised and properly addressed by a soundly based pastoral care system within the school.

The LEA does not suggest that [T] is not being adequately provided for at [School A]. On the face of it, therefore, both placements would be able to meet his needs.

[T's mother] told us that if the decision boiled down to one of cost, having regard to her preference that [T] should remain at [School A], she . . . would undertake to be responsible for transporting [T] to and from [School A], on a weekly basis so that the burden that fell upon the LEA would be restricted to the annual boarding fee, namely £17,952.

On the basis of the evidence, the only additional cost that might be incurred at [School C], should it be found to be necessary, would be some limited direct occupational therapy. However, that cost would also fall upon [School A] should the same provision have to be made for him there. [School C] is already sufficiently resourced, in our opinion, both in terms of access to a specialist teacher and to appropriate learning support so that the cost of [T's] placement there, put by the LEA at £4,722 per annum is a reasonable basis upon which to conduct the comparison.

We have . . . concluded, however, that there is a material and significant difference between the placement costs at [School A] and [School C], irrespective of transport costs. We find that it would be an unreasonable imposition upon the LEA to require it to fund the cost of [T's] attendance at [School A], even with the cost of transport being removed from the equation.

However, we have to resolve the differences in the approach taken by Mr Biddulph and Ms Tipping to the provision of specialist teaching. Both took the view, with which we agree, that 'little and often' was likely to be most effective. On balance, we are satisfied that there needs to be a minimum level of specialist teacher provision identified within [T's] statement. Having heard from [Mr C] we are not satisfied that it needs to be as much as recommended by Mr Biddulph. We have noted the LEA's position. Ms Tipping invited us, in effect, to leave it to [Mr C] and his colleagues to determine what provision is required, and then to provide it. We take the view, however, that some middle ground is appropriate.

Having considered the report from [School A] as to [T's] current progress and taking note of his verbal and non-verbal abilities as identified by his test scores, in our view 2 and a half hours a week would be an appropriate minimum level of direct or small group (a maximum of three pupils in the group) specialist teaching provision for [T] to facilitate his access to the curriculum at [School C]. We are satisfied that should it be found that more than that is necessary it can be, and will be, provided from within the teaching resources available at that school.

We do not find that it is possible, desirable or necessary to identify some minimum level of TA support for [T] at [School C]. We are satisfied that there would be adequate resources and experience to ensure that [T] is appropriately supported across the curriculum in a manner that would not cause him to feel himself to be under a spotlight.

Finally, but importantly, we have to consider whether all of the above would be rendered irrelevant because of [T's] emotional responses to stress and pressure and his predicted reaction to [School C] being named in Part 4.

Dr Male's report is a cause for significant concern. We can fully understand [T's mother's] shock upon reading it. She chose not to share it with [T's] GP nor, until as part of the appeal papers, with [School A]. No help or support has yet been sought from CAMHS. We note that [School B] appears not to have experienced the traumas within school that were described as having been experienced at home prior to April 2004. That is not to deny that [T's] behaviour at home, and physical discomfort at the prospect of going to school, were not real and very upsetting to his parents. That was allowed to go on for several months, without any formalised educational input or support being made available to him while he was out of school. As time wore that would have been likely to reinforce [T's] reluctance to consider going back to school.

[T's] mother was very clear in her evidence to us that this is not a case of a child 'tied to his mother's apron strings', notwithstanding Dr Male's references to separation anxiety. In responding to [T's] numerous phone calls and text messages following his placement at [School A] -- as well as one serious attempt at self-harm -- she has reinforced her support for that placement and has been successful in persuading [T] to stay the course after a rocky start. With that encouragement [T] has made a difficult transition -- all the more difficult because it has required him to be away from home during the school week.

We heard from [Mr C] how the pastoral care system works at [School C]. The college has its own counsellor, but also has access to more specialist counselling from CAMHS, which [Mr C] thought might well be preferable in [T's] case. We are confident that [School C] would adopt a sensible and sensitive approach to enabling [T] to make a managed transition from boarding provision at [School A] to day provision at [School C]. We do not underestimate the size of the task, but we do consider that if given the same home-based support that he gets currently, [T] would be able to make the move to [School C] where he would be well supported throughout his GCSE years, and where he could stay on into the 6th form if he so chose.

We acknowledge that, despite what we have found, [T] may not himself be persuaded and that he may refuse to make the move. However, given our conclusions as to the adequacy of provision at [School C], and as to the material difference in the cost of a placement at [School A], it could not be appropriate nonetheless to require the LEA to fund [T's] placement at [School A] on the ground only that [T] may refuse to attend at [School C]."

"The parties are entitled to be told whether they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court, to know whether any question of law arises."

Miss Scolding added, however, that, as can be seen, for example, in paragraphs 32 to 36 of the judgment of Calvert Smith J in J v Staffordshire, it is necessary for the Tribunal to deal with the substantial points raised.