Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The parent's appeal to the Upper Tribunal is disallowed. The decision of the First-tier Tribunal sitting at Alton on 15 February 2011 did not involve any error on a material point of law, for the reasons given below, and therefore stands.

 

 

REASONS FOR DECISION

 

1. The tribunal was concerned with an appeal against the contents of the November 2009 statement of special educational needs (SEN) for Samuel (date of birth 30 August 1997). The parties and their representatives were not present at the sitting on 15 February 2011, but had been able to put in written submissions on the comparative costs of the two schools in issue after the completion of the taking of oral evidence and submissions at a hearing on 24 January 2011. It is important to note that there had been earlier adjournments on 21 July 2010 (because Samuel’s mother had not had the opportunity to clarify and incorporate her requested amendments to the statement into a working document) and on 18 October 2010 (because she could not attend due her car breaking down and her representative was not prepared to proceed in her absence without clear instructions about the school that she now preferred). The main issue raised in the appeal was the school that should be named in Part 4 of the statement, which the tribunal eventually narrowed down to a choice between the maintained special school, Lakeside, preferred by the local authority, and Eagle House School, an independent special school preferred by Samuel’s mother. The tribunal named Lakeside, having found both schools to be suitable for Samuel. There were other issues about the educational provision that should be specified in Part 3 and in particular whether occupational therapy (OT) and speech and language therapy (SALT) should be specified.

 

2. In relation to OT, Samuel’s mother, advised and represented by IPSEA, was asking for the provision in Part 3 of the statement under the heading of literacy and numeracy requiring timetabled sessions on a daily basis to implement a handwriting skills programme with an emphasis on developing a cursive handwriting style and practising common patterns of letters to have this sentence added (the word eventually added by the tribunal has been underlined):

 

“This should incorporate any advice from an Occupational Therapist.”

 

Similar amendments were sought under the heading of motor and communication skills development so as to read as follows (words eventually deleted by the tribunal have been underlined):

 

“Suitably experienced staff will follow the advice of the Occupational Therapist in delivering programmes designed by an occupational therapist for Samuel to develop his motor and co-ordination skills.

 

 

Daily handwriting practice will be put in place to improve pencil control using writing aids as advised by the Occupational therapist or Local Authority Advisory Teacher.”

 

3. The tribunal’s conclusions on that issue in relation to the handwriting programme in paragraph 23 of its statement of reasons were as follows:

 

“The Tribunal was satisfied that Samuel should undergo assessment by an occupational therapist. He has a long standing diagnosis of dyspraxia. We were concerned that, in the absence of such an assessment, the Tribunal was not in a position to determine the amount of occupational therapy provision required if any. However, Samuel has been out of school for a long period of time and it was not in the interests of justice and would be against Samuel’s interests to adjourn the case in order to see the results of any such assessment. In this regard, we relied on the case of E v LB Newham and SENT [2003] ELR 286. If the assessment reveals a need for provision the LA will be expected in these circumstances to amend the statement accordingly.”

 

Paragraphs 27 and 28 of the statement of reasons in relation to motor and co-ordination skills were as follows:

 

“27. … The Tribunal cannot anticipate the advice that will be given by the assessment by the occupational therapist and therefore the reference to a programme devised by the OT will be deleted.

 

 28. … The Tribunal once again cannot anticipate the advice that will be given by the OT and will delete this reference.”

 

4. In relation to SALT, the tribunal accepted what Samuel’s mother was asking for, and had apparently been agreed by the local authority, to the extent of specifying that Samuel required a structured and systematic programme of social skills training with specific timetabled practice sessions, but substituted for the words “as advised by a qualified Speech and Language Therapist” the words “incorporating any advice from a qualified speech and language therapist”. The reasons for that were given in paragraph 26 of the statement of reasons:

 

“Similarly to the need for occupational therapy advice, Samuel has not had the benefit [of] speech and language therapy assessment and it was clearly important that such an assessment took place in order to set up baseline assessments so that his progress can be measured. Samuel has impaired social communication skills and forming and maintaining good relationships with his peers has been a longstanding issue for him. The Tribunal had expected there to be a speech and language therapist report given that it had been cited as one of the reasons for an adjournment at an earlier hearing. Again we were concerned about the lack of specificity but, for the reasons set out above, it was not in Samuel’s interests to adjourn the case. If the case is that the assessment reveals a need for provision the LA will be expected in these circumstances to amend the statement accordingly.”

 

 

5. After permission to appeal had been refused by the chairman of the tribunal of 15 February 2011 (on 28 April 2011), the application to the Upper Tribunal, prepared by Mr Russell Holland of counsel, was expressly put on narrow grounds. Paragraph 2 of the grounds included this:

 

“[I]t is submitted that the Tribunal acted unlawfully in that it recommended further assessments take place with an expectation that the [LA] should make further amendments to the statement. It is submitted that in the circumstances the Tribunal was in error and the effect of the decision is that if the LA does not assess or does not amend the statement then the parent shall be left without any right of appeal for an unreasonable period of time. It is submitted that the appropriate remedy in this case is to specify a date in the statement for the annual review to take place. That would ensure that the Appellant would have a right of appeal in the event that no assessments or amendments take place.”

 

In paragraph 5 it was said that:

 

“It is well established that statements [of SEN] must be specific and quantified and that a Tribunal must make key findings in respect of any appeal. In this case it is submitted that the Tribunal erred in law in that it failed to make findings in respect of the need for occupational therapy and speech and language therapy. It further erred in law in that having identified that there was a potential need for occupational therapy and speech and language therapy it simply expected the LA to amend the statement. In the event that the LA does not carry out any assessments or does not amend the statement the parent will have no remedy.”

 

Mr Holland also cited a couple of cases in support of the general need for findings of sufficient detail on important issues in dispute and submitted that the facts of E, relied on by the tribunal, were very different from those of the present case.

 

6. I gave permission to appeal because it seemed to me that the matters of general principle raised by Mr Holland at least deserved an answer from the local authority.

 

7. The time that has been taken for the various stages of this appeal to work through has turned out to be rather unfortunate. After my grant of permission to appeal was issued on 19 July 2011, the local authority’s response came in at the end of the month allowed, but was not issued by the Upper Tribunal (AAC) office until 31 August 2011. Mr Holland’s response on behalf of the parent came in very promptly, on 15 September 2011. However, the file did not arrive in my office until just after I had started a couple of weeks’ pre-arranged leave. As a result, I was not able to consider the appeal until after what had been strongly relied on by Ms Bicarregui of counsel, who drafted the local authority’s response, as a crucial date. That date was 29 September 2011, the date which had been fixed for an annual review of Samuel’s needs, including consideration of reports from an occupational therapist and a speech and language therapist arranged by the local authority. She submitted that from that date onwards all that Mr Holland had suggested by way of remedy would be in place automatically, since Samuel’s mother would have a right of appeal under section 328A of the Education Act 1996 whether or not the local authority amended the statement of SEN following the annual review. Ms Bicarregui suggested that the appeal to the Upper Tribunal had therefore become academic and invited Samuel’s mother to withdraw it. That invitation was not taken up by Mr Holland in his reply.

 

8. The urgency of reaching a decision in the present appeal has therefore rather been overtaken by events. If I had concluded that the tribunal’s decision had involved a material error of law, there might well have been difficult questions about whether the discretion in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set aside the decision should be exercised and, if not, about the basis on which any new decision on the appeal against the November 2009 statement of SEN should be made either by the Upper Tribunal or by the First-tier Tribunal on remission. It might well have been necessary to seek further submissions from the parties on those questions. However, as I have concluded that there was no material error of law, I do not need to go into those questions.

 

9. In my judgment, the primary focus must be on the statement of SEN as directed to be amended by the tribunal and whether there was the necessary degree of specificity.

 

10. Here, the most authoritative statement of principle, although at a very general level, was in the judgment of the Court of Appeal, delivered by Schiemann LJ, in E v London Borough of Newham and SENT [2003] EWCA Civ 09, [2003] ELR 286. There are of course differences between the precise circumstances of that case and those of the present case, but they do not in my judgment take away anything from the relevance of the statement of general principle. In E the main dispute before the equivalent of the First-tier Tribunal had been whether the school named for the child concerned should be a mainstream school, as preferred by his parents, or a special school, as proposed by the local authority. The tribunal decided on the latter. Part 3 of the statement of SEN as amended by the tribunal included the following:

 

“An Individual Education Plan should be developed following assessment by a speech and language therapist, occupational therapist and physiotherapist which will offer a fully integrated teaching and therapy programme. Speech and language therapy, physiotherapy and occupational therapy to be provided by Newham Health Trust and reviewed on a termly basis.”

 

The child’s parents had been contending for two one-hour sessions of physiotherapy a week, two two-hour sessions of SALT and one hour of OT, but had not put forward any reports from any practitioners in those areas. The tribunal concluded that there was therefore no evidence that the amount of therapy sought was appropriate or necessary and that it would not be in the child’s interests to limit the amount of therapy to be received by specifying hours. Instead, the amount of therapy and the most appropriate way of delivering it should be determined and monitored by the relevant therapist following an assessment of the child’s current needs. The challenge to the tribunal’s decision was put in the Court of Appeal on the basis that the statement of SEN was not lawful because it delegated to others than the tribunal the task of determining the special educational provision to be made for the child and that where a tribunal lacked the material to be able to make that determination it was obliged, except in cases of overwhelming urgency, to adjourn to enable such evidence to be obtained.

 

11. The Court of Appeal acknowledged the force in the abstract of the case made for the parents, in particular the general propriety of determining Parts 1 to 3 of the statement of SEN before Part 4, rather than working the other way round, and of not allowing statements to be so unspecific that they did not need to be changed when circumstances changed, but considered the countervailing arguments for allowing the degree of particularity to be determined, not in the abstract, but in the context of the particular case, to be overwhelming. Paragraphs 64 and 65 were as follows:

 

“64.  The following general considerations have weighed with us:-

(i)              At one extreme, a tribunal plainly cannot delegate its statutory duty to some other person or body, however well-qualified. Equally, the statutory duty will not be discharged if the description of the special educational provision which is to be made is framed in terms so vague and uncertain that one cannot discern from it what (if anything) the tribunal has decided in that respect.

(ii)            At the other extreme, the statutory duty plainly cannot extend to requiring a tribunal to `specify’ (in the sense of identify or particularise) every last detail of the special educational provision to be made (indeed Mr Wolfe [counsel for the parents] accepted that in an appropriate case a tribunal may lay down minimum requirements).

(iii)          Between those two extremes, the degree of flexibility which is appropriate in `specifying’ the special educational provision to be made in any particular case is essentially a matter for the tribunal, taking into account all relevant factors. In some cases a high degree of flexibility may be appropriate, in others not.

(iv)          In the particular circumstances of the instant case the tribunal was, in our judgment, fully entitled to conclude that the individual education plan referred to in Part 3 of the statement be determined not by it but by the designated special school in conjunction with the therapists.

 

65.        On the facts of the present case the end result seems eminently sensible – this is a case where the educational and non-educational needs of the child overlapped and were highly complex. The following factors specific to this case have weighed with us:-

(i)              the tribunal was dealing with a situation where the parents had reconciled themselves to the fact that a special school rather than a mainstream school was, for the time being, appropriate;

(ii)            the reason for much of the argument on provision before the LES and the tribunal was the parents’ desire that a mainstream school should be specified – in that context greater specificity might well be appropriate because staff had to be brought in, whereas in the context of a special school such staff were in principle available;

(iii)          [the child] had been out of school for a long time and it was important to get him back, yet the professional advice was out of date for reasons which could not primarily be laid at the door of the LEA;

(iv)          there was in any event much to be said for flexibility and assessing both needs and provision in the school context;

(v)            there were no conflicting assessments by experts – the parents had not themselves (probably for reasons with which we can sympathise) engaged any experts.”

 

12. The differences in the underlying facts and the difference that in the present case the competition was between two special schools, one maintained and one not, and not between a mainstream school and a special school, do not in my judgment affect the relevance of those principles in the present case. Nor do the other cases cited by Mr Holland in the application for permission to appeal, which were in any event decisions only of High Court judges sitting alone. In Re A [2000] ELR 639 (which is what Mr Holland must have meant by A v Sefton) the main focus of Moses J was on the reasons given by the tribunal for its decision, not on the specificity of the statement of SEN itself. And in commenting on the weakness of the support, in the light of the particular evidence before the tribunal, for its statement that it did not have sufficient information to specify the exact amount of SALT that should be received, the judge said this at page 648:

 

“(46) I accept that a Tribunal is entitled to reject a recommendation as to a specific provision in the interests of flexibility. It may be that a Tribunal would conclude that the needs should be met not by any specific provision but, as I have said, by a flexible arrangement. It is unfortunate, if that is what the Tribunal had in mind, that it did not clearly say so. …

 (47) I would not have quashed the decision on this ground alone. Whilst it is plain that specificity may be required in the circumstances of particular cases, in relation to this comparatively minor matter it would be quite wrong to give relief.”

 

I have not been able to find a transcript of the other case on this point mentioned by Mr Holland – S v SENDIST [2007] EWHC 1139 (Admin). However, the isolated phrases cited do not seem to add anything of value to his case in law.

 

13. I have also looked at other authorities commonly relied on by representatives in support of a mechanistic and unrealistic application of the guidance in a pre-2001 version of the Special Educational Needs Code of Practice that the education provision set out in Part 3 of a statement of SEN should “normally be specific, detailed and quantified (in terms, for example of hours of ancillary or specialist teaching support”. They do not support such an approach, which is in any event undermined by the use of the word “normally” in the passage quoted above and by the immediately following words “although there will be cases where some flexibility should be retained in order to meet the changing special educational needs of the child”. Much the same message is contained in paragraphs 8.36 and 8.37 of the November 2001 Code of Practice.

 

14. The decisions I have in mind include L v Clarke and Somerset County Council [1998] ELR 129 (Laws J), S v City and Council of Swansea and Confrey [2000] ELR 315 (Sullivan J) and E v Rotherham Metropolitan Borough Council [2001] EWHC Admin 432, [2002] ELR 266 (Bell J). In L, Laws J made it clear at [1998] ELR 136H that:

 

“a requirement that the help to be given should be specified in a statement in terms of hours per week is not an absolute and universal precondition of the legality of any statement. … There will be some cases where flexibility should be retained. However, it is plain that the statute requires a very high degree of specificity.”

 

But he went on at 137B to say that the real question was whether any particular statement was so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. In S, Sullivan J in posing that question suggested that it had to be answered against the background of the matters in dispute between the parties and the particularity with which competing contentions had been put forward. In E, Bell J held, after mentioning the previous cases, that in the particular case a high degree of specificity of in respect of SALT provision was required. But the failure in that regard was that the amendments to the statement of SEN ordered by the tribunal in January 2001 said that the level of SALT support that had properly been specified was to remain at no less than that level until June 2001, thus leaving the level of support thereafter entirely to the local education authority.

 

15. All of those first instance decisions, apart from pre-dating the more authoritative decision of the Court of Appeal in E, plainly leave space for a good deal of flexibility to be applied according to the circumstances of each case and are entirely consistent with the principles laid down by the Court of Appeal, themselves supported by the earlier decision of that court in Bromley Local Education Authority v Special Educational Needs Tribunal [1999] 260. There is in my view nothing to be gained by representatives scrabbling around in first instance decisions to find some particular phrase out of its context in the particular circumstances of the case in question or some surface similarity of facts in an attempt to challenge the contents of a statement of SEN as approved by a First-tier Tribunal. The broad, and, if I may say so, wise, general principles laid down in E must be applied to the particular circumstances of each case as they arise. Those principles might be said to inject a strong dose of pragmatism into matters, perhaps boiling down to the test being that the contents of a statement have to be as specific and quantified as is necessary and appropriate in any particular case or in any particular aspect of a case. But the wisdom lies in the emphasis on the statement of SEN being a realistic and practical document which in its nature, particularly in cases where the child in question is to start at a new school, must allow for a balancing out and adjustment of the various forms of provision specified as knowledge and experience develops on all sides. Wisdom lies also in leaving a wide scope to the expert judgment of the members of the First-tier Tribunal and not subjecting matters which fall rather uneasily within the framework of a judicial process to inappropriately technical standards.

 

16. Adopting that approach, I have no doubt that the elements of the statement of SEN put under challenge in the present case, as set out in paragraphs 2 and 4 above, did meet the required standard of specificity. Taking into account particularly the context mentioned by Sullivan J in S of the opposing contentions of the parties, I can see no significant difference in relation to the specificity of what was being required on handwriting skills and motor and co-ordination skills between what was proposed on behalf of Samuel’s mother (presumably at a level of specificity satisfactory to her) and what the tribunal ordered to be put into the statement of SEN. The requirement for daily timetabled sessions on handwriting and for experienced staff to deliver a programme designed to develop motor and co-ordination skills was still there and in my judgment constituted the substance of the provision. The only difference was that instead of requiring advice on that provision to be obtained from an occupational therapist the requirement was either for any advice that was obtained to be incorporated (handwriting skills) or to delete the reference to such advice (motor and co-ordination skills). Similarly, in relation to social interaction, the requirement for a timetabled structured and systematic programme was still there, with the only difference being the equivalent of that for handwriting skills. I regard those differences as marginal. In the situation that there were no reports following assessments by an occupational therapist or a speech and language therapist, it was entirely proper for the statement of SEN not to refer to such definite reports. The statement was clear and specific enough about what should be provided for Samuel until any such assessments were carried out, and that in terms of the statement itself is all that is necessary. The mere reference in the statement of SEN to an assessment that might take place fell nowhere near an impermissible delegation of the tribunal’s duty to specify the special educational provision to be made. Whether or not the tribunal had the power to include in the statement of SEN a requirement that OT and SALT assessments be carried out (which is rather doubtful in the light of paragraphs 48 to 50 of Moses J’s judgment in Re A, but is submitted by Mr Holland to be permissible under section 326 of the Education Act 1996 as an amendment consequential to the specification of educational provision), the tribunal was plainly entitled in its expert judgment to determine not to include such a requirement. I deal below with the question of whether the tribunal could be said to have erred in law by not adjourning for assessments to be carried out.

 

17. I also have no doubt that the tribunal of 15 February 2011 gave adequate reasons for amending the statement of SEN only in the way described above and for rejecting the wording put forward for Samuel’s mother. It follows from what I have decided about the adequacy for the statement itself that there was no error of law in the tribunal’s not making findings one way or the other about Samuel’s need for OT or SALT.

 

18. I can then deal with the issue of adjournment quite shortly, although not quite as shortly as the Court of Appeal did in E. There the view was taken that the crucial thing was the lawfulness of the statement of SEN. If the statement complied with the legislation no sensible challenge could be made to the decision of the tribunal not to adjourn of its own motion. I do not think that it is quite as easy as that in the present case, partly because of the concerns raised by Mr Holland about Samuel’s mother being left unfairly without a remedy if the local authority had declined to arrange for assessments or, having done so, had declined to amend the statement of SEN.

 

19. Mr Holland submits that in either of those events, Samuel’s mother would not have a right of appeal and would have to wait until the date for annual review came round, at which point a right of appeal would now arise under section 328A of the Education Act 1996 if the statement were not amended following review as well as under section 326 if amended. Therefore, he says, either the tribunal should have ordered in the statement of SEN that the date for the periodical review within 12 months under section 328(5)(b) was to be brought forward (to May 2011) or the tribunal should have adjourned its decision on the appeal against the contents of the November 2009 statement of SEN and directed expert OT and SALT reports following assessments. I do not wish to go into all the technicalities or into the question of whether the tribunal had power to order that the date for a periodical review of a statement be brought forward, which Ms Bicarregui disputed. I take the simple view that the tribunal of 15 February 2011 would have known of the possible consequences in terms of future reviews of the statement of SEN (and of the right of a parent to apply under section 328(2) for an assessment of a child’s educational needs once six months had expired from the last assessment) if it did not adjourn and came to a proper decision well within the area of reasonable judgment allowed to it not to adjourn. It explained its reasons clearly and adequately and was fully entitled in my view to give considerable weight to the factor that Samuel had been out of school for a long period, especially in the light of what had been said by the Court of Appeal in E. Similarly, whatever the true extent of its legal powers, it was well within the area of reasonable judgment allowed to it for the tribunal to conclude that it was right to make a final decision in the absence of expert assessments. It was able to order sufficiently specific amendments to the statement of SEN to cover the position until any assessments were carried out. Then I see nothing wrong in the tribunal expressing the firm opinion in its statement of reasons that OT and SALT assessments should be carried out. I do not consider that, after the various recent amendments of the legislation as to rights of appeal, that left Samuel’s mother in any particularly unfair position.

 

20. In the light of those conclusions, I do not need to consider what sort of remedy, if any, might have been appropriate if I had found an error of law when a section 328(5)(b) review was due to be carried out on 29 September 2011 (and I have no reason to believe that it was not carried out).

 

21. For the reasons given above, the decision of the tribunal of 15 February 2011 did not involve any error of law on the grounds put forward on behalf of Samuel’s mother. Nor can I see that it involved any error of law on any other ground. The appeal to the Upper Tribunal must therefore be dismissed.

 

 

 

 

(Signed on original): J Mesher

  Judge of the Upper Tribunal

 

Date: 17 November 2011