L, R (on the application of) v Ms L and Mr H

MR JUSTICE JACK: By its decision issued on 6 January 2006 the Special Educational Needs and Disability Tribunal, SENDIST, ordered that the statement made as a local education authority by the London Borough of Wandsworth under section 324 of the Education Act 1996 in respect of a child I will call 'F', should be amended to provide for his future education at the A school in place of the B school. The Borough appeals against that order on points of law pursuant to section 11(1) of the Tribunals and Enquiries Act 1992. F was born on 22 April 1999 and is now aged six years old. He suffers from autistic spectrum disorder (ASD). An order has been made protecting the identity of F and the schools in question.

There are also proceedings brought by F, acting through his mother, for judicial review of the Borough's decision not to amend the statement to provide for the A school following the Tribunal's decision and pending appeal. It is agreed that these judicial review proceedings will be determined by the outcome of the Borough's appeal.

The history can be set out quite shortly. F's autism was first diagnosed in February 2003 when he was aged three. In April 2003 he started at a nursery school. His parents were concerned that his needs were not being met there. He was offered a place at the S school from June 2004. The S school had a specialist ASD base. His parents visited the school in April 2004 and were concerned to find that the ASD base was not a separate provision but fully integrated into the main school. They felt that they had been misled. They accordingly arranged for F to be tutored at home using a method called Applied Behavioural Analysis, abbreviated to ABA. This began in June 2004. They funded it themselves at a cost of £45,000. It was not until 19 August 2005 that F's statement was amended by the Borough to accept that F was not suitable for mainstream education. The intention of F's parents was that this January he should start at the A school. The dispute as to whether it should be the B school has held that up and they are at present teaching him as best they may themselves at home. The cost of the A school is currently £42,750 per annum. F's attendance at the B school would not involve the borough in any additional expense save a possible expense of initially integrating him into the school.

It is submitted on behalf of the Borough that the Tribunal made a number of errors of law in reaching its decision that F's statement should be amended to provide for the A school.

In its decision the Tribunal found the following facts of which Iwill set out, as a whole, at this stage because they are all ultimately relevant:

The Tribunal's conclusions were:

The first and main ground of appeal relates to how the Tribunal dealt with the closure of the B school. The procedure for the closure of the B school, as with any such proposal, is provided by section 29 and Schedule 6 of the School Standards and Framework Act 1998. Section 29(1) provides for the publication of the proposal. Section 29(5) provides for the proposal to be sent to the School Organisation Committee for the area. Schedule 6 then applies. Paragraph 2 enables the making of objections. If there are objections, paragraph 3(1) provides that the proposal must be approved by the School Organisation Committee. It appears from paragraph 3(6) that if the committee does not approve the proposal unanimously it must be referred to the Schools Adjudicator. I say "appears" because I have not seen the regulations there referred to. The intended procedure for the B school with intended dates, and terminating with a decision by the school's adjudicator, was set out in a letter from the Borough to F's mother, dated 4 October 2005. This was before the Tribunal together with other documentation referring to the proposals for the closure of the B school. Both parties addressed the Tribunal on the basis that there was a proposal to close the school rather than that it was definitely to be closed. The parents' case statement before the Tribunal set out a number of reasons why the B school was not appropriate. Among them, though not in the forefront, was "the proposed closure." The Borough's statement of case did not refer to the closure directly but exhibited the letter of 4 October 2005 as setting out "future proposals" for the school. The letter referred to the Borough's intention that the facility for teaching autistic children at the B school should be transferred to another school "with adaption to cater for children with severe and complex needs including autism".

In contrast with what is set out in the previous paragraph, the Tribunal's statements of the facts and of its conclusions consistently assumed that the school will close in 2007, with the transfer of its pupils. I refer to paragraph 4 of the facts and paragraph C of the conclusions.

The relevant law, that is the law relating to a mistake of fact as a basis for a challenge in law to a Tribunal's decision, is to be found in the decision of the Court of Appeal in E v Secretary of State for the Home Department [2004] QB 1044. I quote paragraph 66 of the judgment of Carnwath LJ:

Here there was a mistake as to an existing fact, namely stating that the school was to be closed rather than stating that it was proposed to be closed. That fact, namely that the matters are still at the proposal stage, is here clearly established. The Borough were not responsible for the Tribunal's mistake. The issue, in my view, is whether that mistake played a material, though not necessarily decisive, part in the Tribunal's reasoning.

It is difficult to see how the Tribunal came to make such a mistake. I have considered whether I should simply put it down to a carelessness in expression: the use of "will" for "may". Thus, Mr Dennis Edwards submitted, on behalf of F's parents, that the issue was one of semantics: the use of the future tense rather than the future conditional. I have concluded that I should not take this approach. The Tribunal consistently refers to the closure as something that has been determined.

Further, there may be a substantial difference in the weight to be given to a factor in reaching a decision between something which may happen and to something which will happen. The weight to be given is affected by the likelihood.

An alternative approach, which I have considered, is whether I should conclude that, even though the Tribunal wrongly assumed that the closure of the B school had been definitely decided upon, the mistake made no difference because the school is likely to close and the Tribunal would have considered that the likelihood of closure meant that F should not go there. That may very well have been the case. Indeed, it would require just a few words of alteration to rewrite the Tribunal's decision on that basis. But I have ultimately concluded that I would be wrong to proceed in this way, nor was I really urged to by Mr Edwards. The Tribunal had to weigh up the various factors between the schools. The costs difference was a factor strongly favouring B. The definite closure of the B school carried more weight than its possible or likely closure. It is not for me now to decide what weight the Tribunal would have given to the possibility of closure.

Mr Edwards submitted that the Tribunal had decided that in any event the B school was unsuitable and so whether it was to close or not was irrelevant to the outcome before the Tribunal. He relied on paragraph E of the decision. Paragraph E was itself the object of a further attack by Mr Clive Sheldon on behalf of the Borough.

In paragraph E the Tribunal made a number of findings and it is helpful to separate them out individually:

Mr Sheldon submitted that the required consistency of approach was something which the Tribunal had got from nowhere. He said that the parents' case had been that F needed teaching on a consistent one-to-one basis, which means that he should be taught on a one-to-one basis for most, if not all, of the time, and that he should be taught by the ABA method.

The Tribunal heard evidence as to the teaching methods at the B school from the teacher in charge of the Autistic Resource Base at the school, and from Mr David Urani, an educational psychologist called on behalf of the parents. F's mother also gave evidence to the Tribunal. In the parents' Case Statement she had stated that the teaching methods used at the B school, which included those called TEACHH and PECS, were unsuitable for F and had previously been used with him with adverse results, namely his regression. It would have been open to the Tribunal, had they so concluded, to say that they found the teaching methods used at the B school unsuitable for F. While that is not how they expressed it, I have concluded that this is how the paragraph is to be read. I should try to find a reading which conforms with the evidence and the cases that were advanced on behalf of the parties, and this does so. In these circumstances I need not consider whether this complaint made by the Borough can be properly advanced under the heading of "Error of Law."

Mr Sheldon also attacked the conclusion that the teaching environment at B was not set up to offer teaching on a one-to-one basis. Here the Tribunal was plainly correct. The B school was not set up to offer teaching on a one-to-one basis. Only one pupil was taught at it on a one-to-one basis, and that occurred because he had behavioural difficulties. Miss Arcos had informed Mr Urani that F would get two 20 minutes one-to-one sessions a day. At the hearing she informed the Tribunal that one-to-one arrangements could be physically accommodated. Counsel for the Borough stated that, if the Tribunal required one-to-one support at all times, it would be provided and that the school was able and prepared to do so. This evidence does not show the Tribunal to have been wrong, but it lessens the weight to be given to this factor, namely whether the school was "set up" to provide one-to-one teaching. If the B school had been simply unable to offer consistent one-to-one teaching, it would have been a factor of very considerable weight. The school not being "set up" to provide it, though able and willing to do so, must carry less weight.

My examination of paragraph E of the Tribunal's conclusions leads me to this: I cannot be sure that if the Tribunal's conclusion as to the effect of closure is put on one side, the Tribunal would nonetheless have still decided that the B school was unsuitable. I do not think that paragraph E is in sufficiently strong and clear terms for me to do that.

I therefore conclude that the Tribunal's error in stating that the B school will close is a material part of its decision that the A school should be substituted in the statement. In short, it is not something which in the circumstances can be ignored, or put on one side. So by reason of that mistake the appeal must be allowed.

I realise that this will greatly distress F's parents. I realise that it will also mean that a dispute, which urgently requires a final decision, will drag on. It may well be that if the Borough had sought a review of the Tribunal's decision under regulation 37 of the Special Educational Needs Tribunal Regulations 2001, all of this could have been avoided. The Tribunal could have corrected its mistake as to closure and said whether it affected its decision. It is also possible that it could have clarified paragraph E. That did not happen.

While that is sufficient to determine the appeal there is one further ground of application that I should refer to. Until two days before the Tribunal hearing the Borough's position was that they were to be represented at the hearing by Mrs Norgate, the Borough's Head of Special Needs Assessment. On that day the parents were told that the Borough would be represented by counsel and it was intended to call Mrs Norgate as a third witness for the Borough. Under regulation 34 of the Tribunal's regulations permission is required for a third witness. The Tribunal refused permission. That decision was attacked on two grounds: first, it was said that it was an improper exercise of the Tribunal's discretion. I am not satisfied as to that. The Tribunal stated in its decision:

Second, it was said on behalf of the Borough that Mrs Norgate should have been permitted to give evidence to give effect to that part of regulation 34 which reads:

There are two reasons why I do not need to do so: first the Tribunal was asked to permit Mrs Norgate to give evidence as a third witness and not under the opening words of the regulation as representing the Borough. The Tribunal was not at fault in refusing the application on that basis in the circumstances, for the Tribunal was not obliged to consider an alternative basis which was not put to it. Second, what would the evidence of Mrs Norgate have added? I was told that she would have underlined the position regarding the closure of the A school. But that was already perfectly well documented before the Tribunal and counsel for the Borough could make such points arising from the documents and oral evidence as he wished. As I have said, the situation as to the proposed closure was not in issue between the parties. So I conclude that the Borough has not, in any event, been disadvantaged by not being able to call Mrs Norgate. This attack on the Tribunal's decision fails.

Mr Sheldon advanced one further attack on the Tribunal's decision. It related to the Tribunal's finding as to a strained relationship between the parents and the Borough. The submission was that this was an irrelevant consideration. This factor was something which the Tribunal raised very much at the end of its conclusions and I do not see it as being central to its conclusion as to the A school. It is, in my view, something that it was entitled to look at and entitled to give some weight to it. I do not consider that there is anything in this point.

For the reasons that I have stated, the appeal will be allowed.

I apologise to Mrs Norgate but I think at some points she became "Mrs Northgate". I think I also referred, at one point, to regulation 14 when I meant 34. That too will be corrected.

MR SHELDON: There is one other slight correction which is the School Standards and Framework Act is 1998, I think you mentioned 1996. We did not take you to it.

MR JUSTICE JACK: Thank you very much.

MR EDWARDS: There are two matters: the position is that a stay was imposed by Hughes J on the Tribunal order in my first application. I would have to ask your Lordship to consider lifting the stay in the light of the fact it could take many months before the Tribunal hearing takes place. We are concerned, at the end of the day, about a child who has been out of school for long and who is not yet been at a school place. The LEA has made the point that it would be robbed of the fruits of any ultimate Tribunal hearing in the context of a stay application.

Our position on that is that all things are not equal in the case because we are concerned about the education of the child. My first application to your Lordship is to consider lifting the stay on the Tribunal order so that the child can attend the school.

MR JUSTICE JACK: I just want to think that through. The stay would be lifted. The borough would then have to statement the Rainbow School. Would the child then be able to go straight to the Rainbow School mid term, or would we have to wait until when the next term begins somewhere in the middle of April?

MR EDWARDS: My instructions are that the school still has a place for him. There is a time limit on that place. It is not going to be open forever, which I say raises another question of prejudice. There are great demands on these school places. It is a small school as well.

MR JUSTICE JACK: Has it been checked that if the stay is lifted he could go there not necessarily tomorrow, but--

MR EDWARDS: He could go there very soon, from tomorrow, I am told. I say there is another factor here which is why there has been no fault attributable to the authority and probably there is no fault attributable to the parents: the position we are left with is that with the child continuing to be out of school I hear the LEA is offering to fund continuing ABA. This is not the first time that the appeal was launched that it ever offered such a thing.

MR JUSTICE JACK: It offered, as I understand it, to fund ABA pending the appeal.

MR EDWARDS: That is the reality of the position.

MR JUSTICE JACK: The other factor, which Mr Sheldon will raise with me, is that if he starts at the Rainbow then that will be a further factor in favour of the Rainbow and that this will be unfair to the Borough. I suppose there are three possibilities: one is that he continues to be taught at home; two is that he goes to the Rainbow; and three is that he goes to The vines. Whether The Vines could accept him mid term and lay on what is necessary to make a proper beginning -- I can see the importance of that -- I do not know. It may be that that is not known.

MR EDWARDS: I certainly accept it is a balance of convenience like analysis: a balancing process your Lordship has to engage in. In that balance I would say that all things are not equal because we do have the education of the child to consider.

MR JUSTICE JACK: The fourth factor, of course, is how long it will take to get a fresh decision out of the Tribunal. If it goes back to the same Tribunal it may take less time. I do not know. I would hope that with this difficulty, having arisen through no fault of the parties, a date would be found at the earliest possible opportunity.

MR EDWARDS: My instructing solicitor informs me that the Tribunal is presently listing for July.

MR JUSTICE JACK: Something I could do is to say that I am not going to make a decision about this today because I want to know when this can be heard by the Tribunal. Whether in the particular circumstances a special listing might be made--

MR SHELDON: My Lord, if I could just respond? I think the application is actually misconceived because the stay only applies up until the date of your decision. There is no further stay. What the authority were seeking a stay of was the order of the Tribunal requiring the LEA to name the Rainbow School at Part 4 in accordance with your submission that order is quashed. There is no order upon which a stay would bite. This court has said that the matter effectively should go back to the Special Needs Tribunal for consideration of Part 4. What that actually means is that the statement, as it currently stands, names The Vines at Part 4. What my learned friend is asking you to do is make the decision of the Tribunal itself. We are not seeking a stay of a decision. We do not need to seek a stay of the decision because we have been successful in the appeal. The whole basis was that we got to the appeal without the LEA being required to send the child to the Rainbow School. The question of what happens now between now and the remitted hearing is ultimately a matter for the parents. What the LEA has undertaken to do is to fund an ABA programme at home pending the remitted hearing. I am not sure arrangements can be made, but it is certainly possible to see whether there are other providers. I know that those instructing me have looked to see whether there are other providers and perhaps that communication can take place before the parties.

In terms of your position the necessary effect of your decision is to quash the order of the Tribunal. Looking at the decision of Hughes J, the stay was only for the purposes of the period pending this appeal. There are often cases where parties try to come to court and say what happens pending a Tribunal hearing, where should a trial go. The ordinary approach has been to say this is a matter for the Tribunal to determine. It is not a matter for this court to determine. There is no power to deal with that.

MR JUSTICE JACK: I think that is right. I think the mistake I was making, maybe I will be told it is not a mistake, was that I was treating the Tribunal's decision as something that was effective until a fresh decision was made by the Tribunal. In fact, the effective thing is the statement. That is what determines the school to which the child should go. The Tribunal does not determine it. It determines that the statement should be amended. In order for there to be a legal requirement for the child to go to The Rainbow there has to be a statement naming The Rainbow.

MR SHELDON: I see. That aspect of the Tribunal's order has been quashes -- or that is the necessary corollary of your decision. There is nothing for a statement to bite on and nothing to require the LEA to send the child there. I think probably the most sensible thing is for the parties to work together with the Special Needs Tribunal to try and find the quickest possible date for there to be a rehearing. As before who the matter should be reheard by it may well be that it is easier to set up any Tribunal rather than the particular Tribunal who heard the case beforehand, because then we are looking at three people's dates which are often difficult to coincide. If we have any Tribunal the matter can probably come on sooner rather than later. I think you can urge expedition, although I do not think there is power from this court to require expedition.

MR JUSTICE JACK: You can just say a most unsatisfactory situation which has come through no fault of the party.

MR SHELDON: There is no reason why the LEA will not work with the parents' representative to try and get the matter on as soon as possible. I do not know whether July is the earliest possible date, or they can fit something in sooner than that. In the meantime the LEA will undertake to fund ABA at home as an alternative to The Vines, if that is not what the parents want.

MR EDWARDS: As I think about it my learned friend must be right that your Lordship's order has the effect of quashing the Tribunal decision, at least in that respect. Where I was coming from is that the local authority does, of course, continue to have a section 19 Education Act to educate the child while he is out of school. That is what I was principally concerned about. As I understand my learned friend is making an undertaking to the court that the LEA will now fund ABA provision, in so far as Miss Loughran can obtain it. I accept that undertaking. I would also ask your Lordship, if it is at all possible, to try to order expedition of the new hearing of the Tribunal appeal.

MR JUSTICE JACK: I have no power to make an order. I have expressed myself, I think, in sufficiently clear terms.

MR EDWARDS: On the Tribunal, however, our position is that we say it would be preferable if the same Tribunal could consider the matter given the volume of papers in this case. There must be some hope that it would be possible to get that panel to sit again together. They would be familiar with all the issues so it would not take as long to come to terms with the matter they have to decide.

MR JUSTICE JACK: It might be a very short decision for the existing Tribunal, or it might not. It depends what was going on in their heads. I wonder if the best thing is not for me to leave it to be discussed between the parties who can make a joint approach to the Tribunal. If it needs to come back before me I am sitting here until the end of this month. That should give you time to see what can be sorted out.

MR EDWARDS: I am grateful for that, my Lord.

MR JUSTICE JACK: I just put that forward as a proposal rather than my saying it should be heard by the same Tribunal or heard by a different Tribunal, because timing may be quite important on that. I should say if there is nothing in it on the finding I would go for the same Tribunal to reconsider that decision, in effect, in the light of my judgment where I am at the moment. I will just make a note of that.

MR EDWARDS: There is one final: that the judicial review application falls to be dismissed.

MR JUSTICE JACK: The judicial review application falls to be dismissed. That follows.

MR EDWARDS: I require a detailed assessment.

MR JUSTICE JACK: You are publicly funded?

MR EDWARDS: Yes, of the judicial review.

MR JUSTICE JACK: I am going to ask, in due course, that an order should be drawn up between counsel. I do not think that will come as a surprise. I am going to say, just to deal with this aspect, that I want an agreed order submitted to me by Wednesday, 29 March. We either have an agreed order by Wednesday, fortnight, or it has to come back and we will try and sort something out.

MR SHELDON: Can I put on record, as part of that order, the local authority is not seeking costs on the appeal? I think the costs aspect there will be no order as to costs save for detailed assessment of the judicial review costs for the purpose of legal aid.

MR JUSTICE JACK: Your clients have carried their own costs on the appeal?

MR EDWARDS: On the appeal side, yes.

MR JUSTICE JACK: Does that deal with everything I can deal with?

MR SHELDON: My Lord, I think so.

MR JUSTICE JACK: Thank you very much.