K v The Special Educational Needs and Disability Tribunal & Anor

This is an appeal by K against the decision of the Special Educational Needs and Disability Tribunal dated 6 October 2006 made pursuant to section 326 in Part IV of the Education Act 1996.

The Tribunal’s decision, and this appeal, relate to the education of Ms K’s son L, who is severely disabled. He is now aged 12. The most substantial dispute before the Tribunal, and in substance the real dispute before this Court, concerns the school he is to attend for his secondary education. The dispute in its essence is not uncommon. His mother believes that he needs to be educated at a non-maintained private residential school, namely Treloar School, which offers distinct advantages over a non-residential placement. The cost of such a place is very substantial indeed: some £75,000 a year. The Second Respondent, the Local Education Authority, had proposed that L attend its special school, Lonsdale School, a specialist school that had been highly praised by Ofsted. The cost to the authority of his place at Lonsdale would be relatively negligible. It is scarcely surprising, therefore, that the authority would prefer him to be educated at Lonsdale. The case is not unusual in another respect too, in that the number of experts providing reports for L’s mother, the appellant, exceed those doing so for the LEA.

The relevant part of the decision of the Tribunal is set out in the Appendix to this judgment. For ease of reference, the Tribunal’s bullet points have been replaced by numbered paragraphs.

The facts relating to L are clearly and adequately set out in the Tribunal’s decision. I add only that no one who has read the interim report of Dr Carr, the consultant paediatric neurologist at Great Ormond Street who was concerned with him, could not have the greatest sympathy for him and his mother, whose devotion to and support for him merit respect and commendation.

The question for the Tribunal was whether L’s special educational needs would be met at Lonsdale; if not, it was common ground that they could and should be met at Treloar.

The issues before the Tribunal affecting the choice of placement were the implications of the considerable distance between L’s home and Lonsdale, and the consequential considerable travel time involved; the availability of appropriate therapy, and the question whether he needed a 24-hour curriculum, which of course could only be provided in a residential placement.

The challenge to the decision of the Tribunal is essentially a reasons challenge: did the Tribunal give adequate reasons for its decision? Allied with this is L’s mother’s contention that the Tribunal could not, on the evidence before it, reasonably have found that L did not require a 24-hour curriculum, or, what is very much the same contention, that there was no evidence to justify the finding that he did not require such a curriculum.

There is an express statutory requirement that the Tribunal give reasons for its decision. It is to be noted, however, that the requirement, in regulation 36 of the Special Educational Needs Tribunal Regulations 2001, is that they be “in summary form”. That being so, it is not to be expected or required that they should be of the length and detail appropriate to a judgment of a court following a disputed substantive hearing. The authorities were considered and the requirement was described by Beatson J in his judgment in R (L) v LB Waltham Forest [2003] EWHC 2907 (Admin), [2004] ELR 161, at paragraphs 13 and 14, which it is unnecessary for me to set out. I would, however, caution against seeking to break the requirement down into a number of specific mandatory requirements. Ultimately, the question for the Court is whether the reasons given by the Tribunal demonstrate that they addressed the substantial issues before them, that they took into account the relevant evidence and contentions, and show why they reached their decisions on those issues.

It is by no means unusual for children with special educational needs who need education at a specialised school to have to travel a considerable distance to and from school. The reason is not hard to find. There are not enough special schools to be able to find one within what for other children would be a reasonable travelling distance.

There was an issue as to how long the journey would take. That was resolved by the Tribunal’s finding that it would take about an hour, which is not challenged. L’s mother’s evidence was to the effect that the journey would be unduly fatiguing and stressful. Diane Blit, the Occupational Therapist instructed on behalf of L’s mother, in a report dated 19 June 2006, said, under the heading “Transport”:

“1.

L will always need to be transported in his wheel chair when travelling in education transport as it would be unsafe for carers to lift him in and out. He would need to travel in his wheelchair with seating system so he is in a good safe position.

2.

Ms K reported that L suffered from dehydration last summer. If he were to travel for any length of time it would be much more comfortable if he were in an air conditioned vehicle.

3.

One of the documented findings regarding L’s condition is that stress and anxiety often leads to an increase in spasticity. If travelling long distances caused L stress than this should be taken into consideration when considering school placement.”

The dehydration presumably arose from L’s difficulty in drinking large amounts of fluid at any one time: see page 9 of Ms Blit’s report. It can be seen that Ms Blit’s view relating to travel was very qualified and conditional (“if it causes stress”). She did not advise that travel to Lonsdale School was inappropriate.

Sara Taylor, the physiotherapist instructed for L’s mother, in her report dated 2 July 2006, stated:

“I am concerned that L has been offered a secondary school, Lonsdale, which is 33 miles away. This entails a 3 hour return journey, which would be detrimental to a child with L’s condition. It has been shown that L’s musculo-skeletal system deteriorates when he is not well managed and a journey of this length would only serve to increase both his muscle tone and his fatigue levels, which in turn would leave him unable to fully benefit from the education this school would offer.”

Her assumption of the duration of the journey was, given the Tribunal’s finding, mistaken, by a considerable amount. Clearly, this affected the reliability of her conclusion: indeed, on one view, her evidence was inapplicable to a journey time of 2 hours.

Dr Carr addressed this issue in her letters of 10 May and 20 June 2006. In the letter of 10 May 2006 to L’s mother’s solicitors (in reply to a letter of 4 April 2006 which unfortunately is not in the court bundle), she said:

“I do apologise for my delay in replying to your letter of 4/04/06. I understand you are acting for L’s mother, Ms K who is appealing against the contents of L’s Statements of Special Educational Needs. One of her concerns is the travel time that L will endure if he attends Lonsdale School. You asked for my opinion on the likely physical impact of this journey upon L in his general well-being and his ability to access the curriculum.

L was last seen in our clinic 22/02/06 by my colleagues Dr D Howard, Dr S Bhate and Ms L Katchburian. The report to which you refer followed an assessment by Dr J Sergent and colleagues on 7/09/05.

From para 16 of the appeal I note that if L does not attend Lonsdale School he would be facing a journey of 1 hour 15 minutes on a Monday morning, Wednesday evening and trips to and from the school on Thursday and Friday. I agree this represents significant travelling time, which could indeed be arduous, tiring and possibly distressing to L. However the travelling conditions, the company L enjoys during the journey and his ultimate experiences in Lonsdale School (as to how stimulating and enjoyable he finds the environment) will affect his ability to cope with the journey. It is indeed possible that the whole experience will be unduly fatiguing for L but this is not guaranteed. I note that Ms K is in favour of residential placement at Treloar School where the travel would but be an issue and which offers an educational package that is not available at Lonsdale.”

In her letter of 20 June 2006 she stated:

“Following my report of 10/05/06 I have had further discussion with Ms K, L’s mother and we are ourselves discussed things over the telephone 13/06/06. The main issue remains the potential detrimental effects of the long journey that L will require if he is to attend Longsdale School as is currently planned.

It is certainly Ms K’s opinion that this will be the case. Clinically L has abnormal muscle tone and prolonged periods of immobility will have a negative impact on this; increasing his tone and causing discomfort. As a result he requires extra stretches after periods of immobility. Given the time that is going to be spent in travelling to and from school there is additional concern that he will not receive his usual stretches before or after school, which again will negatively impact, on his overall muscle tone.

Furthermore L has oromotor difficulties. Long journey times could compromise his inability to keep up with his fluid demands.

He needs frequent small amounts of oral fluid but in the past has become dehydrated in the hot weather.

At the end of the day I would have concerns at L facing such a long journey on a regular basis. I think it has to be considered very carefully along with his very specialist educational needs. A residential placement may well be better suited to L’s needs.”

Dr Carr produced an interim report dated 20 September 2006, clarifying at the request of the tribunal that L’s hereditary spastic paraplegia is indeed a degenerative condition, and explaining the implications of that for him. She did not expressly address the question of travel to and from school, although she was of course aware of it as an issue of concern to L’s mother.

The LEA’s evidence included a joint report by a children’s physiotherapist and a children’s occupational therapist from the Hertfordshire Partnership NHS Trust dated 1 September 2006. They had read Sara Taylor’s report, but made no comment on the question of travel to and from school.

In its statement of its case, the LEA pointed out that “although each child has different needs many pupils who travel a similar distance to Lonsdale School have similar complex medical needs”.

According to L’s mother’s witness statement, Judith Huddart, the clinical director of Treloar School, gave evidence to the effect that long journeys had a negative impact on children with conditions similar to L.

The Tribunal dealt with this issue at paragraph E(2), from which it appears that Mrs White, the headmistress of Lonsdale School, gave evidence about the greeting and therapeutic input of children on arrival.

In my judgment, the Tribunal were right, and certainly entitled, to find that Dr Carr had been pressed on this issue, which was the only subject of her letter of 20 June 2006, and to give particular weight to her opinion, both by reason of her qualifications and the fact that she had not expressed a view which L’s mother clearly wished her to endorse. Given the mistaken basis of Sara Taylor’s opinion, and the terms of Ms Blit’s, it was unnecessary for them to address them expressly. It is evident that the Tribunal had considered the reports of Mr Taylor and Miss Blit, which they referred to generically immediately after the heading “Tribunal’s Conclusions with Reasons” and specifically at paragraph D(3). The reason for the Tribunal’s conclusion on this issue is clear: its reasons were adequate and not irrational.

The issue under this head was whether the therapy required by L would be available for him at Lonsdale. It should have been a peripheral issue. It was raised on appeal on the basis that the Tribunal’s approach demonstrated that their decision was flawed in that it was not based on the evidence before them, and inadequate reasons were given.

The LEA would be under an obligation to provide L with the therapy specified in his statement as determined by the Tribunal. If the relevant NHS authority did not provide that therapy, the LEA would have to commission it and pay for it out of its resources. (It is not suggested that the therapy specified in L’s statement has not been provided, although a failure to provide it would not be a ground of appeal, but of judicial review to enforce the LEA’s fulfilment of its obligation.) If there is a dispute as to the therapy to be specified in the statement, it must be addressed by the Tribunal and sufficient reasons given for its conclusion. Here, however, it is not suggested that the Tribunal erred as to the amount or type of therapy required, but only as to whether it would in fact be provided. It seems to me that such an issue should rarely be significant, given the nature of the LEA’s obligation.

The evidence before the Tribunal was to the effect that the therapy required by L would be very considerably more (some 20 times more) than that provided to any other pupil at Lonsdale. The Tribunal did specify that therapy.

Mr Davies said:

“At the Lonsdale School, the School has no control over the therapy support provided for the students and therapy support is allocated on the basis of the greatest need, meaning that all students receive only a share of the available ‘cake’ and there would be no guarantee that L would obtain the daily therapy management that he needs. To date, this level of daily physical management support has not been specified by the North Herts NHS Trust and provision made is only at the discretion of the Trust.”

The joint reports of the NHS Trust therapists did not suggest that the requisite therapy could not be provided at Lonsdale. However, Sara Taylor expressed the view that the NHS would not provide the necessary therapy at Lonsdale.

The Tribunal’s finding is in paragraph E(1), from which it appears that they received evidence about the provision of therapy at Lonsdale which impressed them. It appears from paragraph F that the Tribunal appreciated that it might be necessary for the LEA to buy in additional therapy. In my judgment, given the nature of the LEA’s obligation, and the absence of any suggestion that it would refuse or fail to meet its obligation in relation to therapy, the Tribunal’s reasons were adequate and their conclusion is not open to criticism.

This issue, as described in the Appellant’s skeleton argument, is whether L required a 24-hour postural management programme to maintain his physical condition, which in turn was necessary if he was to benefit from his educational (in the sense of academic) provision. The issue had been put rather differently in her amended statement of case to the Tribunal, which stated:

“10.

The appellant also believes that L requires a 24 hour curriculum so that he has an opportunity to transfer learnt provision to after school hours. Due to the complexity of his profound needs, L has a particular need for constant stimulation and provision which will not be available other than through a waking curriculum.”

The case here was that a 24-hour curriculum was necessary for L to put into practice what he had learnt. See too paragraph 18:

“24 hour curriculum

The Appellant seeks a waking day curriculum for L on the grounds that a day placement will not enable him to increase his independence skills. She refers to paragraph 15 of Mr. Davies’ report where he advises that L

“requires a much more aggressive and consistent physical management programme” in light of his diagnosis.

The Appellant submits that L can only obtain the full benefits and consistency of such a programme if it is provided through a 24 hour curriculum. She also submits that the FLAME programme at Treloar School is the most appropriate programme to provide the degree of physical management recommended by Mike Davies.”

However, Ms K’s amended statement of case predated the expert reports on which she chiefly relied before the Tribunal. These led to the contention that a 24-hour curriculum was necessary being based more on therapy needs.

The Tribunal had its first hearing of the appeal on 11 July 2006, when it learned that his condition might be degenerative, and adjourned the appeal. The chairwoman directed that a full report on his condition should be obtained. As a result, Dr Carr wrote her interim report dated 20 September 2006. The report described L’s condition, which is “almost certainly a progressive degenerative condition” and his difficulties. Dr Carr said:

“Given L’s multiple and complex needs, I would recommend that he has a comprehensive management program that should be delivered by experienced paediatric therapists including a full physiotherapy program with regular review. Deterioration cannot be entirely avoided but an active program will optimise L’s abilities and may ameliorate the rate of deterioration.”

The Tribunal placed heavy reliance on Dr Carr’s opinion, as can be seen from section D of their decision. On behalf of L’s mother, Miss Lawrence submitted that Dr Carr’s opinion was not inconsistent with those of the other experts instructed on behalf of her behalf. I do not accept that submission. In my judgment, the Tribunal’s finding that Dr Carr was not recommending a 24-hour curriculum cannot be faulted. Dr Carr’s opinion had to be read against her earlier letters, and it merited all the more weight because it was given against a background of her knowing of L’s mother’s preference for Treloar, which was a residential placement which did not involve travel, a matter that, as the Tribunal pointed out, had been previously pressed on Dr Carr. As noted above, in her letter of 20 June 2006, Dr Carr had stated that a residential placement might be better suited to L’s needs, but had gone no further. It was significant that she did not modify this highly qualified statement in her interim report.

The Tribunal preferred Dr Carr’s view to that of the other experts instructed on behalf of the appellant. Mike Davies had said:

“There are three factors that the writer has noted about the School in relation to L’s SEN:

a.

No student at the School is Statemented to receive any therapy intervention and the therapy provided to the School is ‘at the discretion of the North Herts NHS Trust’. This will not be sufficient for L and he will require an intensive daily programme that is closely monitored by the physiotherapists and occupational therapists because of the higher than usual risk of physical deterioration because of L’s condition.

b.

L also requires a very high level of speech and language therapy and this also needs to be written into his Statement at a far higher level than he is likely to receive on a routine level at the Lonsdale School.

c.

The writer supports Ms K’s request for a waking day curriculum for the reasons previously outlined: L will benefit from the therapy and educational programmes throughout the waking day and this will assist the necessary physical management programme that has been described to reduce L’s physical deterioration. The partial residential provision at the Lonsdale School does not appear sufficient and does not allow for the more extensive independence programmes that L requires – there are no facilities for the students to cook for themselves, for example, and the time available, of course, is much less and is limited to 2 nights per week only.”

In his conclusions, he said:

“72.

Consequently, L’s physical independence does become the most important aspect of his educational needs because if his physical functioning regresses, so does his access to the curriculum.

75.

The fear is that where there is not a very detailed and intensive physical management programme in place with close monitoring by the therapy services, there will be the risk of creeping deterioration because the staff with the main responsibility for looking after L will not have the level of knowledge or skill to know how to best manage L from minute to minute during the whole of the educational day.

79.

L needs to attend a school where the therapy staff are employed directly by the school and who deliver their programmes largely in the classrooms, alongside the teachers and with programmes fully integrated into the educational curriculum.

80.

L will not just benefit from the waking day curriculum, he requires it.

81.

At the Lonsdale School, the School has no control over the therapy support provided for the students and therapy support is allocated on the basis of the greatest need, meaning that all students receive only a share of the available ‘cake’ and there would be no guarantee that L would obtain the daily therapy management that he needs. To date, this level of daily physical management support has not been specified by the North Herts NHS Trust and provision made is only at the discretion of the Trust.

82.

The Lonsdale School does not offer a waking day curriculum and this cannot meet this aspect of L’s SEN.”

The italics are in the original.

The NHS Trust’s therapists, in their letter of 1 September 2006, stated:

“4.

E – Physiotherapy Needs

We cannot comment on the FLAME programme at Treloar School but would agree that L needs a consistent approach to his physical management.

We would also agree that during adolescence, L will require close monitoring of his musculo skeletal system.

The information provided by the Developmental Vision Clinic at the Wolfson Centre suggested that strategies for L’s visual perceptual skills were unlikely to improve.

6.

H – Physiotherapy Input required to meet the above needs

We would agree that L requires a 24 hour postural management programme incorporating specialist seating, standing and sleeping equipment. This will facilitate the maintenance of L’s joint ranges and muscle length.

I -hours of physiotherapy provision needed to meet above

A daily exercise and activity programme that is aimed at maintaining and developing L’s gross motor control could incorporate sitting, mobilization and hips and spine, rolling and crawling. This should be devised by a qualified physiotherapist but could be carried out by non-teaching support staff.”

This was not, however, a recommendation of a residential placement or 24-hour curriculum.

Diane Blit, in her report of 19 June 2006, referred to the degenerative nature of L’s condition. She referred to his seating needs, and said:

“The initial main priority from the occupational therapy perspective would be to review and alter L’s seating system. As outlined above, L does have complex needs and from discussion with both Mrs Carter and Ms K, it has proved difficult to meet his seating needs over the past few years. There have been long periods of delay with getting new seating and there appears to have been nothing done to date with altering his present seating system. It would be much easier for L’s seating needs to be monitored and altered quickly if he were in a specialist school where there was an on-site technician who was able to work with the therapists to alter this as and when necessary. Without good seating not only is L’s posture likely to deteriorate this will have an impact upon his general functioning and so therefore will affect how well he can access the educational curriculum.”

Sara Taylor, the physiotherapist retained on behalf of the appellant, said:

“L needs to work through an intensive program of postural management and physiotherapy exercises throughout his school day and, furthermore, throughout the 24 hour day. …”

Miss Lawrence criticised what she suggested was the reason given by the Tribunal, in paragraph D(3), for rejecting the views of Mr Davies, Miss Blit and Miss Taylor, namely that their reports had been written without the information contained in Dr Carr’s letter of 20 September 2006, as irrational. I consider the point being made by the Tribunal was that those experts did not have the benefit of Dr Carr’s more precise description of L’s condition and her view that a 24-hour curriculum was not necessary. The last sentence of paragraph D(3) of the decision is an accurate comment. Paragraph D(4) gives sufficient reason for rejecting Mr Davies’s evidence. Quite what the point made in the third sentence of paragraph D(5) is not entirely clear, but the last sentence of that paragraph is clear, as is paragraph D(6). (Incidentally, manual handling, which is addressed in paragraph D(5), did not relate to the need for a 24-hour curriculum so that L could put into practice what he learned during lessons, the issue raised in the Appellant’s statement of case).

I do not consider that the reasons given by the Tribunal for rejecting the need for a waking day curriculum to have been inadequate. As I have indicated, they were entitled to place greater weight on the opinion of Dr Carr than on those of Mr Davies and Ms Blit and Taylor. I see nothing irrational in their reasons or their finding.

Miss Lawrence’s helpful skeleton argument includes grounds of appeal that the Tribunal failed to consider expert evidence and failed to give adequate reasons. Those grounds have been considered above in relation to the substantive issues before the Tribunal on which their decisions have been challenged, and do not need to be addressed separately.

For the above reasons, the appeal will be dismissed.

Appendix

L is 11 years 6 months old. Until July 2006 he attended Cherry Tree Primary School, which is a maintained mainstream School. It was agreed that he would need to attend a Special School for his secondary education but because no agreement had been reached about placement, he has not returned to school this term.

Until recently it was understood that L suffered from four limb cerebral palsy. It is now known that he suffers form a complicated x linked hereditary spastic paraplegia, which is said by Dr Carr to be “almost certainly” a progressive degenerative condition. Additionally he has a subluxing left hip.

L also suffers from optic atrophy with impaired visual acuity, a small left convergent squint, and a manifest jerk-style nystagmus. He has previously been seen by a behavioural optometrist who prescribed glasses but he has not been able to tolerate wearing these.

L has cognitive impairment and his attainments are limited. When tested by Mr Davies in May 2006, at Chronological age 11 years 1 month, L had an age equivalence of 6 years 7 months on the British Picture Vocabulary Scale, was at the 0.4 percentile on the Children’s Category Test, and below 0.1 percentile on both the Word Reading and the Word Comprehension Tests. Mr Davies described L’s cognitive profile as an enigma because, although he does well in imaginative story telling, he does poorly in following the most basic of functions.

L is a good communicator and his speech is intelligible to careful listeners. His spoken language can make him appear to know more than he has understood. His receptive language is poor and he has a language processing delay. His receptive language is poor and he has a language processing delay.

At Cherry Tree Primary School L received

The LEA has named Lonsdale School which is a purpose built school for children with physiological and neurological impairments. It has 77 pupils on roll with a total of 14 teaching staff and 32 full time Learning Support Assistants. It operates small teaching groups approximately 8 pupils organised in age related departments, each group being supported by one teacher and 2 assistants. Other relevant provision includes:

If L attended Lonsdale School he would require transport. He has to travel in his wheelchair and requires adult support. The AA route planner gives the distance as 24.7 miles by its chosen route and specifies a journey time of 56 minutes.

Ms K wants L to attend Treloar School, which is a non-maintained residential special school for pupils with physical disability but whose ability range varies from those who are above average to those who have severe learning difficulties. If L attended this school he would do so as a weekly boarder. He would be allocated to a group of pupils who follow the Function Language and Movement Education (FLAME) programme, which the school has developed for motor disordered students aged 7-13.

The cost of a placement at Treloar would be 75,019GBP including transport. The cost of a 2 night residential placement at Lonsdale is 422.66GBP, with no additional transport costs, as existing transport could be used at no additional cost to the LEA.