IN THE UPPER TRIBUNAL Case No  HS/1350/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Ms Holly Stout, Counsel, instructed by Ms J Hammond, Director of Legal and Democratic Services

 

For the Respondent: Mr Tom Cross, Counsel (acting in a voluntary capacity on behalf of the Independent Panel for Special Education Advice (“IPSEA”))

 

Decision:  The appeal is dismissed.  The decision of the First-tier Tribunal in case 09-02084 issued on 23 March 2010 is upheld.

 

REASONS FOR DECISION

 

1. Though there are other grounds of appeal as well, this appeal poses particularly acutely questions of the true scope of sections 316 and 316A of the Education Act 1996 (“the 1996 Act”), which regulate whether a child with special educational needs should be educated within mainstream provision or in a special school or elsewhere.  Permission to appeal was given by Upper Tribunal Judge Levenson on 17 June 2010.  I held an oral hearing in Manchester on 22 September.

 

2. The case concerns a boy born in July 2002 and so now aged 8.  In this anonymised decision, I shall refer to him as A.  He has a diagnosis of agenesis of corpus callosum and severe developmental delay.  His Full Scale IQ (given subject to certain caveats) is 45.  Less than 1 in 1,000 children have an IQ at such a low level.  His comprehension of spoken language is at the two word level.  He functions at a pre-school level, P5-P6, and follows the Foundation Curriculum normally followed by children aged 3-5.  His age would put him in Year 4, but he is currently attached to a Year 3 class.

 

3. It is not necessary to set out here the history of the litigation.  The position adopted by Mrs U, A’s mother, understandably evolved during the proceedings.  By the time the matter reached the First-tier Tribunal, there were differences over a small number of matters of detail in part 3 of U’s statement of special educational needs (“statement”), but the main issue was over what should be included in part 4, where Mrs U wanted a type of education - mainstream education – to be named.  This was opposed by the local authority, who wanted a particular special school to be named.

 

4. While there was a very substantial body of professional opinion that said that A’s educational interests would be better served if he were to attend the special school, that was not his mother’s wish.  The view which the tribunal took of sections 316 and 316A was that they were prevented from considering whether mainstream education was unsuitable for A.  I need to consider whether that view was correct.

 

5. Those sections provided at the material time (so far as relevant):

 

“316. (1) This section applies to a child with special educational needs who should be educated in a school.

 

(2) If no statement is maintained under section 324 for the child, he must be educated in a mainstream school.

 

(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with–

(a) the wishes of his parent, or

(b) the provision of efficient education for other children.

 

(4) In this section and section 316A “mainstream school” means any school other than–

(a) a special school, or

(b) an independent school which is not–

(i) a city technology college,

(ii) a city college for the technology of the arts, or

(iii) an Academy.

 

316A. (1) Section 316 does not prevent a child from being educated in–

(a) an independent school which is not a mainstream school, or

(b) a school approved under section 342,

if the cost is met otherwise than by a local education authority.

 

(2) [not material]

 

(3) Section 316 does not affect the operation of–

(a) section 348, or

(b) paragraph 3 of Schedule 27.

 

(4) If a local education authority decide–

(a) to make a statement for a child under section 324, but

(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,

they shall, in making the statement, comply with section 316(3).

 

(5) A local education authority may, in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b) only if they show that there are no reasonable steps that they could take to prevent the incompatibility.

 

(6) An authority in relation to a particular mainstream school may rely on the exception in section 316(3)(b) only if it shows that there are no   reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility.

 

(7) [not material]

 

(8) An authority must have regard to guidance about section 316 and this section issued–

(a) for England, by the Secretary of State,

(b) for Wales, by the National Assembly for Wales.

 

(9) That guidance shall, in particular, relate to steps which may, or may not, be regarded as reasonable for the purposes of subsections (5) and (6).

 

(10) [not material]

 

(11) “Authority”–

(a) in relation to a maintained school  or maintained nursery school , means each of the following–

(i) the local education authority,

(ii) the school's governing body, and

(b) [not material].”

 

 

6. However, these two sections were substituted for the previous form of section 316 by the Special Educational Needs and Disability Act 2001 (“the 2001 Act”).  The previous form was in the following terms:

 

“316. (1) Any person exercising any functions under this Part in respect of a child with special educational needs who should be educated in a   school shall secure that, if the conditions mentioned in subsection (2) are satisfied, the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent.

 

(2) The conditions are that educating the child in a school which is not a special school is compatible with—

 

(a) his receiving the special educational provision which his learning   difficulty calls for,

(b) the provision of efficient education for the children with whom he will be educated, and

(c) the efficient use of resources.”

 

7. Comparison of the two versions of section 316 reveals that, among other changes, the express requirement of compatibility with the special educational provision called for by the pupil’s learning needs, contained in section 316(2)(a), was specifically removed.  This was a premise of the Court of Appeal’s judgment in R(H) v SENDT and LB Hounslow [2004] EWCA Civ 770; [2004] ELR 424.  However, Ms Stout suggests, it does not follow from that removal that all questions of compatibility with the provision needed by the pupil have ceased to be relevant.  She bases her argument on a number of other provisions, to which reference must be made.  (It was accepted by Mr Cross that, though the argument was not put - at any rate in these terms - by the local authority at the First-tier Tribunal hearing, where it was not legally represented, it was nonetheless right that the Upper Tribunal should decide on the point.)

 

8. By section 7 of the 1996 Act:

 

“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.”

 

9. The provisions of section 437 and following are concerned with  enforcing this duty, though nowhere is it said that they are the only means of doing so. Section 437 sets out a process which may lead to a school attendance order being made, under which a parent has to cause the pupil to become a registered pupil at a school named in the order. The process is triggered if it appears to the local authority that a child is not receiving “suitable education”, defined in part (by section 436A(3)) in terms of suitability to any special educational needs the child may have.  Failure to comply with a school attendance order is an offence under section 443, while section 444 creates further offences where, with or without the knowledge of the parent, a child fails to attend regularly at a school at which he is registered.  There is also a regime of penalty notices, created by section 444A, as an alternative to prosecution.

 

10. Reference should also be made to the power of a court under section 36(1) of the Children Act 1989, on application by a local authority, to make an education supervision order.  The test for such an order is as follows:

 

“(3) A court may only make an education supervision order if it is satisfied that the child concerned is of compulsory school age and is not being properly educated.

 

(4) For the purposes of this section, a child is being properly educated only if he is receiving efficient full-time education suitable to his age, ability and aptitude and any special educational needs he may have.”

 

11. The effect of an education supervision order is set out in Part III of schedule 3 to the 1989 Act:

 

“12.—

(1) Where an education supervision order is in force with respect to a child, it shall be the duty of the supervisor—

(a) to advise, assist and befriend, and give directions to—

(i) the supervised child; and

(ii) his parents,

in such a way as will, in the opinion of the supervisor, secure that he is properly educated;

(b) where any such directions given to—

(i) the supervised child; or

(ii) a parent of his,

have not been complied with, to consider what further steps to take in the exercise of the supervisor's powers under this Act.

 

(2) Before giving any directions under sub-paragraph (1) the supervisor shall, so far as is reasonably practicable, ascertain the wishes and   feelings of—

(a) the child; and

(b) his parents,

including, in particular, their wishes as to the place at which the child should be educated.

 

(3) When settling the terms of any such directions, the supervisor shall give due consideration—

(a) having regard to the child's age and understanding, to such wishes and feelings of his as the supervisor has been able to ascertain; and

(b) to such wishes and feelings of the child's parents as he has been able to ascertain.

 

(4) Directions may be given under this paragraph at any time while the education supervision order is in force.

 

13.—

(1) Where an education supervision order is in force with respect to a child, the duties of the child's parents under sections 7 and 444 of the Education Act 1996 (duties to secure education of children and to secure regular attendance of registered pupils) shall be superseded by their duty to comply with any directions in force under the education supervision order.

 

(2) Where an education supervision order is made with respect to a child—

(a) any school attendance order—

(i) made under section 437 of the Education Act 1996 with respect to the child; and

(ii) in force immediately before the making of the education supervision order,

shall cease to have effect; and

(b) while the education supervision order remains in force, the following provisions shall not apply with respect to the child—

(i) section 437 of that Act (school attendance orders);

(ii) section 9 of that Act (pupils to be educated in accordance with wishes of their parents);

(iii) sections 411 and 423 of that Act (parental preference and appeals against admission decisions);

(c) and (d) [not relevant]”

Although sub-paragraph 13(2)(b)(iii) does not appear to have been further amended to reflect it, sections 411 and 423 of the 1996 Act were repealed, with effect from 1 September 1999 by the School Standards and Framework Act 1998 (“the 1998 Act”).  The equivalent provisions are now found as sections 86 and 94 of the 1998 Act.

12. Section 9 of the 1996 Act provided:

 

“In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. “

 

13. Section 19 of the Education Act 1996 provided:

 

“(1) Each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”

 

14. When a local authority is required to make and maintain a statement, part of what must be included is addressed by section 324(4):

 

“(4) The statement shall—

(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child,

(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and

(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be   specified in the statement.”

 

15. The provisions of schedule 27 which feed into this process are primarily those of paragraph 3, sub-paragraph (3):

 

“(3) Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of   that school in the statement unless—

(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or

(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would   be educated or the efficient use of resources.”

 

16. It is also necessary to make brief mention of paragraph 8 of schedule 27 which concerns a request to change the name of a school in a statement. By sub-paragraph (2):

 

“(2) The local education authority shall comply with the request unless—

(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or

(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would   be educated or the efficient use of resources.”

 

17. To avoid confusion, I should record that, though each might have been relevant at an earlier stage in proceedings, the Upper Tribunal was here concerned neither with a case under paragraph 3 of schedule 27, nor with a request for a change of school under paragraph 8.  This is because Mrs U sought only a type of education to be named in part 4.  I refer to these provisions rather as part of examining the overall legislative structure.

 

18. I turn to examining the grounds of appeal put forward by Ms Stout.

 

Ground 1: the First-tier Tribunal erred in law in holding that section 316(3) and section 316A(4) of the Education Act 1996 compelled it to name “A mainstream primary school” in Part 4 of A’s statement

 

19. Ms Stout’s case is in particular that a parental preference not complying with section 7 of the 1996 Act does not fall to be taken into account for the purposes of section 316.  However, section 316 does not create a right to choose mainstream education. Rather, it reflects a legislative intention that that is how provision is to be made, unless (in the case of sub-section (3)) specific conditions are met.  The language of section 316(2), dealing with a child with SEN but who does not have a statement, entertains no argument.  It would not matter (notwithstanding the provisions of education law with regard to parental preference, to which I return below) that the parent might prefer the child to be educated in a special school or that professionals might consider a special school more beneficial to the child.  Under sub-section (2), the matter rests where Parliament has seen fit to draw the line, unless and until a statement of SEN is issued in respect of a child not previously statemented.  Section 316(3) is grammatically cast in the same way. It stipulates that the statemented child is to be placed in mainstream education, but in this case unless one of two defined conditions is met. It does not require a parent to choose mainstream education; if the parent expressed no view, a pupil would still have to go to a mainstream school unless the (b) condition were met.

 

20. What is at issue therefore is not whether Mrs U’s preference should for some reason be disregarded, but whether a wish which she does not in fact harbour can be attributed to her that A should be educated otherwise than in a mainstream school. As a matter of first impression, it does some violence to the wording to interpret the phrase “the wishes of his parent” in section 316(3)(b) as meaning “what professional opinion considers the parent ought to wish”. To do so would be to import a more objective test.

 

21. Yet this is precisely what Parliament has chosen not to do by the 2001 Act. Where in the original version of s316 there was, in addition to the requirement for compatibility with the parent’s views, a condition of compatibility “with his receiving the special educational provision which his learning difficulty calls for”, following the amendments made by the 2001 Act, that condition has been removed. I return below to the decision in R(H) v SENDIST, but observe that at [79] the Court of Appeal considered that Parliament had “specifically removed” the suitability condition from the original s316.  Ms Stout says that, the amendment having been made, one has to construe the statute as it now stands following the amendment.  One does indeed, but that is not the totality of the process.  As Hobhouse LJ put it in Inco Europe Ltd v First Choice Distribution (a firm) [1999] 1 All ER 820 at 823 c-e:

 

“In general terms, it is undoubtedly correct that the effect of an amendment to a statute should be ascertained by construing the amended statute. Thus, what is to be looked at is the amended statute itself as if it were a free-standing piece of legislation and its meaning and effect ascertained by an examination of the language of that statute. However in certain circumstances it may be necessary to look at the amending statute as well. This involves no infringement of the   principles of statutory interpretation: indeed it is an affirmation of them. The expression of the relevant parliamentary intention is the amending Act. It is the amending Act which is the operative provision and which alters the law from that which it had been before. It is the expression of the parliamentary will as to what changes in the law Parliament wishes   to make.”

 

(Although that case subsequently went to the House of Lords, the Law Lords adopted substantially the same approach to the issue of statutory construction as had the Court of Appeal.)

 

22. If one looks both at the legislation as it now stands and at the 2001 Act, I find it impossible to infer that compatibility with a pupil’s special educational needs remains a relevant factor, save for one particular – and limited -purpose.  Section 316 as it now stands sets out the tests – which do not (save as above) include one of assessing compatibility.  The 2001 Act confirmed that a test of compatibility was to be removed. It would be surprising if, after Parliament had made such a change, it was necessary to undertake an enquiry in each case where it might be relevant in order to establish whether, after all, mainstream education was indeed suitable for a pupil with a statement of special educational needs, yet this is the consequence of Ms Stout’s position for the local authority.

 

23. Ms Stout argues that, like compatibility with a pupil’s special educational needs, the efficient use of resources was deleted from the old section 316 by the 2001 Act, yet, she says, no one would claim that resources are irrelevant.  The answer to that is that under the new regime resources may be relevant under section 316A(5), but not otherwise. Under that sub-section, when one is considering what are reasonable steps to take in order to remove an incompatibility with the education of others, what is “reasonable” is not limited.  In the same way, I can accept that it might not be reasonable to take steps to remove the incompatibility with the education of others if the effect of doing so would be a material adverse effect on the ability of the pupil with special educational needs to receive the provision that he requires.  However, save to that extent, which arises only because of the specific terms of section 316A(5), neither resources, nor questions of compatibility with the pupil’s special educational needs are in my judgment relevant under section 316 when one construes both the Education Act 1996 as it now stands and the 2001 Act.

 

24. It forms a key part of the local authority’s case that the Court of Appeal in R(H) was not invited to consider the impact of section 7 upon section 316 and thus that I am not constrained to follow the Court of Appeal’s decision. As has been seen, section 7 requires a parent to cause the child to receive efficient full-time education that is suitable to “his age, ability and aptitude” and to “any special educational needs he may have”.  Although differently phrased, tests of compatibility with his receiving the special educational provision which his learning difficulty calls for” (cf. the old section 316) and “receiving efficient full-time education that is suitable to any special educational needs he may have” (cf. section 7) are substantially similar. If it had been the law at the time of the 1996 Act that section 7 qualified the parent’s ability to express a wish so that she was deemed to have expressed a wish against mainstream education where such education was in the view of professionals incompatible with the child receiving the necessary special educational provision, then it is hard to see why the legislator should have thought it necessary additionally to include the suitability condition in the original section 316(2)(a).  If it were by way of “belt and braces”, then what Parliament did in 2001 was to remove the belt while leaving the braces in place and Parliament would have legislated in vain.  Far more likely is it in my view that parental wishes and compatibility with SEN provision have always covered different ground.

 

25. Ms Stout  invites me to conclude that what appears to have happened is that Parliament assumed when amending section 316 that, with sufficient adjustments, any child could be provided with a suitable education in mainstream, i.e. that the rest of the Education Act 1996, including the various provisions which refer to a child receiving a suitable education, would continue to make sense and to operate correctly even if “suitability” were removed from section 316 as a specific ground on which mainstream education could be refused.  However, this is a more elegantly put version of the “belt and braces” argument. The first part (down to  “i.e.”) may well have been the case (though subject to the caveat that Parliament recognised that on occasions there might be an unacceptable cost in terms of the adverse impact on the education of other children).  The remainder begs the question as to what is meant by “correctly”.  As will be seen, I do not consider that there is any significant difficulty in giving effect to the remainder of the 1996 Act without the need to cut down on the scope of section 316.

 

26. I am fortified in this view by a number of considerations.  Firstly, although section 7 has a long history (going back to the Education Act 1944), Ms Stout was unable to cite any authority in which it had been relied upon in order to qualify the scope of other provisions in education law. Secondly, there is no need to cut down the impact of provisions such as section 316 in order to give meaningful effect to section 7, for which the school attendance provisions of the 1996 Act and the education supervision order provisions of the Children Act 1989 provide sufficient remedies, including options of both a more punitive regime (prosecution) and a more carefully-crafted regime, with a strong emphasis in ascertaining the wishes of the child and the parent and befriending them for the purpose, provided by the education supervision order provisions (see [11] above.)

 

27. Ms Stout argues that where Parliament intended a provision to remain unaffected by section 316 it said so, citing the express provision made in relation to schedule 27, para. 3 by section 316A(3)(b).  However, in my view that merely expressed the legislative intention, as declared by the Court of Appeal in R(H), that the tests required by schedule 27, paragraph 3 and by section 316 were cumulative.  Conversely, in Slough BC v C and SENDIST [2004] EWHC 1759; [2004] ELR 546 Richards J held that paragraph 8 of schedule 27 was unaffected by section 316 even though there was not an express provision saying so.  In my view both decisions are understood as a response to the specific provisions with which they were concerned in schedule 27 and they do not materially assist me as to the relationship between section 316 and section 7 or other parts of the 1996 Act.

 

28. Ms Stout further invites me to conclude that section 9 of the 1996 Act constrains Mrs U’s ability to maintain a preference for mainstream education. The primary difficulty with this argument is that any duty to educate A in mainstream education arises not from a preference expressed by Mrs U, but from the law, absent an incompatible preference otherwise. The conceptual difference between section 316 and section 9 (and other provisions) is illustrated by the fact that section 316 is not included in the list of provisions

disapplied by paragraph 13 of schedule 3 of the 1989 Act when an education supervision order is in force (see [11] above). No active preference is needed under section 316 and thus the provisions of section 9 limiting the extent of the relevance of parental preference for the purposes of the duty to have regard to it are not material.

 

29 In any event though, there would be other difficulties with any reliance on section 9, notably that the comparators are different.  Section 316 requires only consideration of the effect on other children: section 9 does not and I thus derive little assistance in the present case from the decision in Hampshire County Council v SENDIST [2009] EWHC 626 (Admin) insofar as it holds (amongst other matters) that for the purposes of section 9, ”the provision of efficient education” extends to the education of the child concerned and not merely to that of others. The general must yield to the specific. The legislator has indicated where interests are limited to those of other children and must be taken to have done so advisedly.

 

30. Nor do I see any incompatibility between section 316 and section 324(4)(a), under which a statement shall “specify the type of school or other institution which the local authority consider would be appropriate for the child.” “Type” is not a defined term.  Section 324 is concerned with the making of a statement.  At that time, all parties will be developing their understanding of the child’s needs, and of the provision to meet those needs, as the statementing process progresses.  The local authority may hold the view that what would be appropriate would be a special school.  A parent will no doubt wish to consider the local authority’s views carefully. But unless the parent is persuaded and wishes the child to go to a special school, the local authority, as a result of section 316, will not be able to make the specification under section 324(4)(a) of a special school stick and will have to specify some other type of school or other institution.  The sections are capable of working together without the need to reach a strained construction of either.

 

31. Nor do I see any incompatibility with section 19 of the 1996 Act, under which the local authority is under a duty to “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”  The effect of reading sections 19 and 316 together is that for a child with a statement of special educational needs whose parent does not wish for a special school,  “suitable education”, if provided in school, will have to be provided in a mainstream school.  This may illustrate the significance of the change effected by the 2001 Act: it does not provide any reason to interpret section 316 any differently

 

32. I therefore conclude that if sections 7, 9, 19 and 324 were not cited to, or considered by, the Court of Appeal in R(H), none of them would have made any difference to the outcome or to the guidance given. No material provision of law was overlooked. I appreciate that  in places the Court of Appeal appears to have assumed that the anticipated outcome would be that mainstream education would be appropriate for the child in that case, but do not see why that should invalidate its approach to interpreting the relevant provisions.  I do however accept that the observations may strictly have been obiter (in that it was accepted that the decision of the tribunal was unlawful for failure to give sufficient reasons) and that what was given was general guidance.  However, the Court in giving guidance considered the matter with considerable care and I have no doubt that I should give very considerable weight to the Court’s observations which, in any event, I respectfully consider to be correct.

 

33. I should add that I have not overlooked the guidance issued under section 316A(8).  However, both parties are agreed that the guidance cannot alter the meaning of a statute (see also R(H) at [73]) and there appears little benefit therefore in analysing that guidance,  from which both parties attempt to draw support, in this already long decision.

 

34. I therefore conclude that the tribunal did not err in law by failing to have regard to suitability when applying section 316 and 316A.

 

Ground 2: misdirection in law and/or perversity in determining that placing A in a mainstream school would not be incompatible with the provision of efficient education for other children within section 316(3)(b) of the 1996 Act

 

Ground 3: misdirection in law and/or perversity in determining that the steps that the authority would have to take in order to prevent the placement of A in a mainstream school being incompatible with the provision of efficient education for other children within section 316A(5) of the 1996 Act were “reasonable”

 

35. Although expressed as separate grounds, there is a degree of overlap between them in their formulation. Ms Stout does not allege that there was a specific misdirection in law with regard to the application of section 316(3)(b) itself. Rather, she says, if the tribunal misdirected itself in relation to section 316A(5) (the subject of Ground 3), then its approach in relation to section 316(3)(b) will also inevitably be legally flawed.

 

36. Further, the evidence to the tribunal and the presentation of the issues in their decision does not neatly correlate with Ms Stout’s grounds, thus it is convenient to look at the common background of the evidence and of what the tribunal said first, before turning to Grounds 2 and 3 as set out above.

 

37. The key evidence was from three sources:

 

(a) a report and oral evidence by Mrs Walker, the local authority’s educational psychologist, prepared following a previous direction by the tribunal

(b) oral evidence from Mr Howarth, headteacher of the H (mainstream) primary school, which A  had been attending for 1.5 days a week, as part of a split arrangement also involving the M special school

(c) written evidence from Miss Hardman, Head of Resourced Provision and SENCo based at one of the local authority’s schools, a teacher of 34 years’ experience.

 

It is necessary to provide a summary of each.

 

38. Mrs Walker provided, as she had been directed to do, a report on A’s current needs and attainments, the level of skilled support required to meet those needs and the resources involved on each of three hypotheses- (a) that A was placed in a mainstream setting, full time; (b) that A was placed in a special school; and (c) that A had a split placement between two schools, one mainstream and one special.  The report was compiled following assessments, discussions with teachers and with Mrs U, observation of A in both the schools he was attending and with reference to the records of the educational psychology service and other papers. In her written report she set out under 16 bullet points details of the “skilled support required to meet [A’s] needs”.  It is not necessary to set it out in full, but it covered matters including the need for staff skilled in modifying every aspect of the curriculum; additional and ongoing training for those involved in supporting A; whole school training on safeguarding issues because of A’s perceived vulnerability; staffing levels to ensure continuity and to enable support outside lesson times and on trips etc, help with the management of transitions; and a good deal more besides.  She also listed the resources involved in meeting those needs, addressing the availability of advice on a range of strategies, input from the authority’s Outreach Service for children with complex learning difficulties, the need for training costs and supply cover for training; access to specialist resources such as hydrotherapy, or equipment to facilitate multi-sensory programmes; and provision for transport costs. As her report concerned A’s needs, it did not say much about the impact on others, beyond recording the views of A’s teacher and/or teaching assistant at the H school that there were problems of differentiating the curriculum and that A’s attention-seeking behaviour detracted from the other pupils’ ability to learn.

 

39. Miss Hardman provided a report examining the implications for teaching a mainstream class of which A was a part.  Her evidence was summarised by the tribunal as follows (italics in original, quoting Miss Hardman):

 

“Her response was that [A] still requires a Foundation Stage   Curriculum in order to meet his developmental needs, which is far removed from Key Stage 2. “The level of differentiation required would mean that the class curriculum would be totally inappropriate for [A] and this would inevitably lead to [A] being taught 1 to 1 away from his peers; excluding him from class activities…The impact for any teacher of providing an alternative curriculum at this level in KS2 will be very   time consuming and stressful…Given the level of modification needed to support [A’s] needs in a mainstream school, it is my opinion that it is far in excess of the reasonable adjustments mainstream schools are asked to consider in order to achieve inclusive education.””

 

40. Miss Hardman’s evidence also included:

 

a. examples of how providing an alternative curriculum would be “time consuming and stressful”, including the need for a teacher to “leave her teaching of the class to assess and refocus A and to determine the “next step”.  The consequence of this in a class of 32 pupils would be that “the majority of pupils are losing “teaching time” so that one pupil can be refocused;

 

b. that A’s teacher would have to liaise with a variety of professionals, that the time required could not be quantified  but that “all teachers   recognise the disruption to learning for their pupils when a Class teacher is taken away  from the class.”

 

c. in a summary, in the midst of a substantial list of the areas in which additional resources were required, she indicated that adjustments to support A’s needs in  a mainstream school necessitated, among other things, “the complexity of delivering the Foundation Stage Curriculum and Continuous Provision within a KS 2   classroom” and “Loss of learning time for his peers”.

 

 

41. Both Mr Howarth and Mrs Walker gave oral evidence (as did a Miss Chadwick). This evidence was summarised by the tribunal in paragraph 5 of its decision in the following terms:

 

“We heard evidence from Mr Howarth, Miss Chadwick and Mrs Walker on the question of whether [A’s] inclusion in a mainstream school would be incompatible with the efficient education of the other children with whom he would be educated. [A’s] ‘inappropriate touching’ gave cause for concern, although it was accepted that there have been no complaints from parents about this, and that his behaviour is not sexualised.  Touching was considered to be one indication of [A’s] generally immature behaviour, which was seen as distracting in the classroom.  The view was also expressed that it would be difficult, if not impossible, to differentiate the mainstream curriculum to P levels in   order to include [A].  Mrs Blaylock [the outreach teacher for complex   learning difficulties] submitted that he would need a personalised curriculum at Key Stage 2, and it was generally considered that, although physically present in school, [A] would need   to be taught separately from his peers and would be unable to access the National Curriculum.  Mr Howarth then submitted that the ‘adjustments’ necessary would disrupt the flow of the curriculum and affect the class as a whole, even if resources were not in issue. A’s needs are such that the level of support required for him would inevitably impact on other children. Mr Howarth submitted that notwithstanding his own considerable experience of inclusion theory and strategies, he has never before come across a child with difficulties as severe as [A’s] in a mainstream school. In particular, his inability to socialise prevents meaningful inclusion.”

 

42. It has not been suggested to me that there was any evidence before the tribunal as to the cost of putting in place the sort of provision described in Mrs Walker’s or Miss Hardman’s evidence nor as to any consequential implications of such costs for the provision of education for other children.

 

43. In its conclusions, the tribunal set out the tests laid down by section 316(3) and section 316A(5) (reference was made in error to section 316(5), but nothing turns on this) before observing:

 

“8. It has been very clear to us that all the professionals involved with [A] are convinced that his educational needs can best be met in a special school, and that he is likely to become increasingly isolated in mainstream as the gap between his abilities and attainments and those of his peers becomes ever wider.  Whilst those views deserve to be respected, the principle of inclusion embedded in section 316 requires the LEA to comply with [Mrs U’s] preference unless it can demonstrate   that it will give rise to the inefficient education of other pupils.  None of the evidence that we have heard leads to a conclusion that this would be the outcome of [A’s] placement in a mainstream school.  The proviso, however, is that adequate, appropriate support would have to be made available. Mrs Bloom [Mrs U’s representative before the First- tier Tribunal] has pointed out, quite rightly, that [A] has experienced success at the [M special school], where strategies have been based on appropriate training, support and advice.  Such strategies would also need to be employed in a mainstream setting. [A’s] withdrawal from the classroom from time to time would have to be accepted, and he would require a personalised curriculum, supported by experienced, specialist teaching.

 

9. It is implicit in Miss Hardman’s letter and in the oral evidence that, given sufficient resources, any threat which [A’s] inclusion might pose to the efficient education of other children can be minimised.  Miss Hardman has suggested that the level of adjustment necessary to accommodate [A] would be excessive, but her comments centre on   resource.  The question then is whether, or at what point, the input of   resources for [A] could be said to prejudice the efficient education of other children because, given finite resources, fewer resources would be available for them.  We do not accept that [A’s] presence in mainstream would be incompatible with the efficient education of other children if he were properly supported, and we also do not accept that what is required to achieve this goes beyond “reasonable adjustment”.”

 

44. I turn to the perversity aspect of Ground 2. Any consequential effect of any misdirection in relation to section 316A(5) will be picked up in my consideration of Ground 3.

 

45. In R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the Court of Appeal observed:

 

“It is well known that "perversity" represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481, the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter.”

 

46. It is not a correct approach to equate the fact that there would be some impact on the provision of efficient education for other children if a child were to attend a particular school with it being incompatible with the provision of efficient education for those children: see  R(Hampshire County Council) v R [2009] EWHC 626 (Admin) at [49] and [50]. Thus the fact that there may have been some evidence from Miss Hardman and Mr Howarth suggesting that there was some impact does not mean that the tribunal was perverse in failing to hold that there was an incompatibility.  Within the evidence of both Miss Hardman and Mrs Walker there was a significant emphasis on the steps which would need to be taken to accommodate A in mainstream schooling and there was virtually no suggestion (in the case of Mrs Walker’s evidence) and only a limited suggestion (in the case of Miss Hardman’s) that residual effects on the education of others would remain if those steps were taken. Likewise, Mr Howarth made what is described as a submission that there would be and indeed had been such effects, including the issues around teacher time (though it appears he considered that a mainstream school could meet A’s needs albeit with a level of input that is beyond reasonable expectations), distraction and the space issues around resource provision if A were to be taught as part of the class.

 

47. The tribunal held that:

 

” None of the evidence that we have heard leads to a conclusion that this [sc. the inefficient education of other pupils] would be the outcome of [A’s] placement in a mainstream school.”

 

This was not, as Ms Stout  submitted, an error of law by saying there was “no evidence” when there was: it is not likely that the tribunal had suddenly overlooked the evidence it had both heard and set out at some length in its decision. Rather, in my view, the tribunal was saying that it was not persuaded by the evidence before it.  Set in the context of the statutory wording to which the tribunal was directing its attention, the question was whether educating A was incompatible with the provision of efficient education for other children.  There was considerable evidence that extra resources would be required, not least to support 1-to-1 teaching of A.  It was an issue whether the provision of those resources was reasonable; but if they were provided, then the evidence supporting incompatibility was limited to distraction and space issues.  Bearing in mind the correct approach to incompatibility as set out by Stadlen J in R(Hampshire), it cannot be said that a conclusion that there was no incompatibility was either not supported by the evidence or was an irrational conclusion.  Rather, the tribunal was examining the material before it to see whether it satisfied the statutory test and reached a conclusion, open to it on the evidence, that it did not go that far.

 

48. Ms Stout submits that the tribunal failed when considering section 316A(5) of the 1996 Act to assess whether the steps that could be taken to remove the incompatibility of [A’s] presence with the efficient education of other pupils were reasonable in or of themselves.  I do not agree. As noted at [43], the tribunal directed itself, correctly, as to each of the two statutory tests with which it was concerned. Further, in paragraph [9] of its decision it concluded (emphasis added):

 

We do not accept that [A’s] presence in mainstream would be incompatible with the efficient education of other children if he were properly supported, and we also do not accept that what is required to achieve this goes beyond “reasonable adjustment”.”

 

It is clear that it asked itself a two part question rather than, as Ms Stout submits, erring by conflating the test under section 316(3) with that under section 316A(5).  The extract cited above leaves me in no doubt that the tribunal did not misdirect itself by asking the wrong questions, or by failing to ask the right ones. There was a limit as to how much it could say on this point, but that was because of the lack of evidence put forward and so does not support a view that the two part test quoted above was mere recitation, without any real assessment being carried out.

 

49. Nor can I agree that the tribunal’s conclusion on this aspect was perverse.  The tribunal had already concluded that the adverse effect remaining (assuming that the relevant resources could be put in place) was not such as to amount to an incompatibility with the provision of efficient education and that conclusion in my view is unassailable in a jurisdiction limited to error of law. The question was thus principally about the reasonableness of making the provision which it was not disputed that A would require. I have already noted at [42] and elsewhere the lack of evidence on the point.  The tribunal nonetheless had to reach a decision on it, which they did.  It is an expert tribunal and as such its conclusions on matters of fact are entitled to considerable respect.

 

50. There were a number of sub-grounds of Ms Stout’s main grounds, to which I now turn.

 

Did the tribunal fail to consider all relevant factors in reaching its conclusion under s 316A(5)?

 

51. The tribunal judge asserts in refusing permission to appeal that the tribunal did take costs into account.  I should in any event have been prepared to infer this from the tribunal’s decision.  Resources were a central issue: “The proviso, however, is that adequate, appropriate support would have to be made available”. The cost of providing support is an issue with which such tribunals are regularly concerned and I infer that in declining to accept that provision goes beyond “reasonable adjustment” the tribunal inevitably had cost in mind.

 

52. As to physical accommodation of adjustments, the adjustments with which the tribunal was here concerned were, rather, primarily those of staffing and working methodology. There was evidence about the difficulty of incorporating, for instance, a sand or water tray in a Key Stage 2 classroom, but the tribunal had concluded that the effect on the education of others fell short of an incompatibility. It was thus not necessary for it to consider whether it was reasonable to make further such adjustments in order to remove an incompatibility.

 

53. It is said, based on a reported remark by a member of the tribunal that even if A ended up being taught in a corridor, that was Mrs U’s right, that the tribunal applied the wrong test in relation to physical accommodation adjustments.  If the remark was made (and I am not asked to make a finding on it) it was in my view more readily to be understood as putting, in argument, the view of section 316 which the tribunal evidently held and which I have adjudged to be correct.

 

54. Next, it is said that the tribunal failed to consider the effect of the adjustments on A’s education. I have ruled against the local authority’s position on section 316, but that is not an end of the matter.  It is submitted that there is no limit in section 316A(5) on what could or could not be taken into account when determining whether a particular step is reasonable. I accept that there may be occasions when the effect on the child’s education is relevant.  But the context is whether there are reasonable steps that can be taken to prevent the incompatibility with the education of others.  I can readily see that if a local authority was having to counter the argument that it could reasonably remove the incompatibility by taking a given step, it would be open to it to argue that that was an unreasonable step because while it might prevent the incompatibility, it would also prejudice the education of the pupil with special educational needs.  But that is not the case here.  The steps with which the tribunal was concerned were those which it was clear from the evidence of the authority’s own witness, Mrs Walker, and not in dispute, needed to be put in place if A was to be able to avail himself of mainstream education.

 

55. It is said next that what A would receive could not be viewed as a mainstream education, that he would, in effect, be provided with an individual special school within a mainstream school building and that it was relevant in considering reasonableness to have regard to this. I do not consider this point well-founded.  The tribunal’s finding was that “A’s withdrawal from the classroom from time to time would have to be accepted…” It is of course by no means uncommon for children with special educational needs to be withdrawn from class lessons in mainstream schools in varying degrees. The education is nonetheless “in a mainstream school” for the purposes of section 316.

 

56. I therefore conclude that there were no material factors which the tribunal failed to consider when applying the test under s316A(5).

 

Did the tribunal err by failing to comply with the legal duty to give reasons?

 

57. It is common ground that the relevant authority on this question is now the decision of the Court of Appeal in H v East Sussex County Council [2009] EWCA Civ 249; [2009] ELR 161.  Although that case was concerned with predecessor rules, under which only reasons “in summary form” were required, no point has been taken on that.  At [16], Waller LJ, giving a judgment with which Scott Baker and Toulson LJJ concurred, said:

 

16 The requirement to give reasons is concerned with fairness and as far as guiding principles are concerned I agree with what Wall LJ said in W v Leeds City Council and SENDIST [2006] ELR 617 . After referring to four first instance decisions specifically relating to Special   Educational Needs Tribunals and the giving of reasons, including Grigson J's decision in R(M) v Brighton and Hove City , he said at paragraph 53 to 54 as follows:-

 

“53. I do not think it necessary for this court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this court in Meek v Birmingham City Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English Law of ECHR) as the definitive exposition of the attitude superior courts should adopt to the reasons given by Tribunals. Whilst, of course, some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now SENDISTs. Sir Thomas said:

“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why 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 see whether any question of law arises …”

 

54. The Master of the Rolls added:

“Nothing that I have said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] IRLR 225, Lord Justice Donaldson (as he then was) said at p 227:

“Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law … their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for   which the reasons are given.”””

58. In reiterating the principle as set out above, East Sussex casts doubt on the summary provided by Beatson J in R(L) v LB Waltham Forest [2003] EWHC 2907 (Admin); [2004] ELR 161, at [14], on the grounds that such a summary “risks elevating into general principles what are statements made by reference to the facts and circumstances of particular cases but taken out of context.”

 

59. In this case, did the tribunal tell the parties why they won or lost?  The tribunal made clear in the two final sentences of paragraph 8 of its decision, and also in paragraph 10 where it adopted the recommendations of Mrs Walker, what they thought was needed to meet A’s needs in a  mainstream setting  The tribunal did not disagree that there might be an effect on the education of other children (as both Miss Hardman and Mr Howarth had indicated), but concluded that it could be “minimised” ([9], first sentence) through the provision of proper support, with the benefit of which A’s presence in mainstream education would not be incompatible with the efficient education of other children ([9], final sentence). I did consider carefully whether the tribunal’s duty to give reasons required it to explain its view as to the extent of the impact on other pupils caused by behaviour, or by the physical consequences of putting equipment for A in the classroom, but concluded that this would be to insist upon a “comprehensive and detailed analysis of the case” in a way disapproved of by East Sussex.  As regards the reasons given on the section 316A(5) point, the tribunal found what steps would be needed to support A without incompatibility with the education of others and concluded that such steps did not “[go] beyond “reasonable adjustment”.  They were not dealing with specific evidence about the reasonableness of the adjustment, rather with assertions by Miss Hardman that in her view the extent of adjustment required was unusual and unreasonable.  That was the very question which the tribunal, on this aspect, had to decide.  It is clear from paragraph [9] that it reached a different view from Miss Hardman on this aspect, as it was entitled to do.  There are limits on the extent to which a tribunal can be expected to give reasons for decisions on matters of judgment.

 

60. I am unable to say, for the reasons above, that the way in which the decision was written fell short of the legal standard for the giving of reasons.

 

Did the tribunal err by using its own knowledge without putting it to the parties for comment?

 

61. It is said that if the tribunal did consider costs as it was required to do as part of assessing the reasonableness of the steps proposed (see [51]), it relied on its own knowledge, without putting the point to the parties. The tribunal judge when refusing permission to appeal  indicated that as the local authority had not addressed the issue in its case statement or provided detailed costings, the tribunal made a judgment, based on its knowledge of inclusion of children with disabilities as severe as A’s.” What the tribunal in my view was doing was to use the very expertise for which it exists in order to make a judgement on a question of degree. This was not a case where the tribunal was using its own knowledge to disagree with the evidence on a particular point.  Rather, it was the very matter which the tribunal had to decide and in such circumstances they were not obliged to give a preliminary view of their conclusions to allow the local authority the chance to comment upon it: see Baron v Secretary of State for Social Services, Court of Appeal, 17 March 1986 (reported as an Annex to R(M)6/86.)

 

62. I am mindful that East Sussex was not concerned with a situation where the tribunal was said to be using its own knowledge and thus that its disapproval of what was said in R(L) v Waltham Forest might not stretch as far as what the latter case had to say on that particular topic.  However, in that decision Beatson J refers to R v Mental Health Review Tribunal ex parte Clatworthy [1985] 3 All ER 699, where the observations (at 704b) are concerned with the situation “where a tribunal desires to proceed on the basis of some point which has not been put before it and which on the face of the matter is not in dispute”.  That was not the case here. The local authority had been advised in previous directions of the need to address “the legal framework which protects parental preference with regard to the placement of a child who has SEN” and there was nothing from which it could subsequently have concluded that reasonableness under section 316A(5) was no longer in dispute.  The decision in R(L) v Waltham Forest  also refers to M v Worcestershire CC and Evans [2003] ELR 31, a case which acknowledges that a tribunal may apply its expertise in a way which did not require it to put the matter to the parties for comment.  Such was the case here, for the reasons given at [61].

 

Conclusion

 

63. Consequently, I conclude that this appeal does not succeed.

 

64. I acknowledge that professionals with considerable experience hold the view that A’s interests would be better served by attendance at a special school.  Like the First-tier Tribunal, I do not have to decide whether that view is right or not.  Parliament has given a strongly entrenched primacy to mainstream education.  Whether that approach is the most appropriate one in order to help children such as A would have to be a matter for Parliament.

 

65. Nor am I concerned in these proceedings with whether an education supervision order should be made in respect of A, nor with what the position would be in the, one trusts, unlikely, event of a prosecution.  Whether an offence is committed by failing to have the wish that would cause a child not to be educated in a mainstream school will have to await a case in which it falls for decision. No doubt Mrs U is doing what she considers to be the best for her son in what must be a challenging situation and, if it remains concerned about the suitability of the education provided to A in a mainstream school, no doubt the local authority may wish to continue to work with Mrs U to seek to persuade her of the merits of education in a special school. 

 

66. Finally, I indicated at the hearing that I considered that the appropriate time for any application for permission to appeal further was one month.  I was incorrect in suggesting that I might need to abridge time for that purpose.  This type of appeal does not fall within any of the exceptions to rule 44(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which sets a one month

time limit as the default position.

 

 

 

.

CG Ward

Judge of the Upper Tribunal

4 November 2010