HS/0734/2010

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
ON AN APPLICATION FOR PERMISSION TO APPEAL

Decision 

1. I refuse permission to appeal against the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 18th February 2010 (after a hearing on 9th February 2010) under reference 09-02237, dismissing an appeal in respect of part 4 of the Statement of Special Educational Needs dated (it seems) 10th July 2009 (but possibly amended subsequently). 

Hearing

2. I held an oral hearing of this application on 17th June 2010. The mother of the child in question attended in person and was represented by Anne Lawrence of counsel. The respondent local education authority was represented by David Lawson of counsel. I am grateful to them all for their attendance and assistance..
 
Background and Procedure

3. The child in question is a boy, C, who was born on 26th July 1999. He is a child with special educational needs and in respect of whom the respondent local education authority maintains a statement of special educational needs. He has been diagnosed variously as having an autistic spectrum disorder/Asperger’s Syndrome, attention deficit hyperactivity disorder, motor coordination difficulties and specific learning difficulty. In the words of the First-tier Tribunal: “[He] is extremely bright and his cognitive skills have been assessed to be on the first to second percentile” (paragraph 9 of the Decision).  

4. For some years C has attended W Junior School, a maintained mainstream school. The First-tier Tribunal accepted evidence that the school has managed C’s behavioural difficulties by providing a full time teaching assistant who is able to control C’s behaviour but that this teaching assistant was about to leave the school and the school would be unable to continue to meet C’s needs. This is not disputed.

5. There had been some disagreement over the contents of parts 2 and 3 of the Statement but these have largely been resolved. This application really focuses on whether there is a need for “waking day provision” and for C to attend a residential school, whether a residential placement should be weekly or termly and which of two specific schools should be named in part 4 of the Statement.

6. I do not need to go into the precise chronology but by the time of the First-tier Tribunal hearing the position of the local education authority was that there was no educational need for C to attend a residential school but that it had no day provision to propose and wanted part 4 to specify school B. C’s mother wanted school A to be specified. The First-tier Tribunal specified school B.
7. C’s mother applied for permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal. On 15th March 2010 the judge of that tribunal refused the application. C’s mother renewed her application to the Upper Tribunal itself and on 7th April 2010 I directed that there be an oral hearing. The local education authority opposes the application and supports the decision of the First-tier Tribunal.

The Principal Relevant Legal Provisions

8. So far as concerns this appeal the following provisions of the Education Act 1996 are particularly relevant:

Section 9: 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.

Section 324(4): The statement [of special educational needs] shall – 
(a)	specify the type of school or other institution which the local education authority consider would be appropriate for the child, [and]
(b)	… specify the name of any school or institution … which they consider would be appropriate for the child and should be specified in the statement …

Where the matter is being considered on appeal by the First-tier Tribunal these duties apply to that tribunal as they do to the local education authority.

9. It seems to me that in a case in which needs have been identified, and in which the local education authority and the parents each wish a different school to be named, and in which the First-tier Tribunal has to chose between the two schools, then in essence these provisions require three questions to be addressed:

(a)	Are both schools appropriate to meet the need? A school that is not appropriate cannot be named.
(b)	If they are both appropriate, which is the school preferred by the parents? Unless (c) applies that school must be named.
(c)	Would naming the school preferred by the parents be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure? If so the school suggested by the local education authority must be named.

The Schools

10. School A (preferred by C’s mother) is a non-maintained special school for boys with Asperger’s Syndrome and associated difficulties. C’s mother wishes C to attend on a 38 week per year residential basis, returning home for one weekend each half term (one weekend in three). The First-tier Tribunal put the cost of C attending school A at approximately £130,000 annually. There is no suggestion that school A would not be appropriate. It is agreed that it would be able to meet C’s needs.

11. School B (nominated by the local education authority and specified by the First-tier Tribunal) is a non-maintained special school for children with social communication difficulties, behavioural, emotional and social and associated difficulties. It is a weekly residential school (with children returning home each weekend) for up to year 8. The First-tier Tribunal put the cost of C attending school B at approximately £55,000 annually plus the cost of occupational therapy.

The Main Findings 

12. The First-tier Tribunal summarised the evidence as follows (in paragraph 35 of its decision):

“35. It is agreed amongst all the experts who gave evidence that C’s special educational needs are such that he requires a specialist school environment, and that provision needs to give opportunities to develop his social skills to make friends and maintain relationships, where there is a high level of structure and predictability, as well as small class sizes, and that there be opportunities to have a consistent behaviour management regime during school and outside of formal schooling, with opportunities to generalise learning in non-formal setting.”

13. The tribunal continued:

“… the experts supporting [the] appeal … believe C requires a residential school with a “waking day” programme … an integrated day so that new social, life and independent skills learnt in the educational setting cab be practiced both in the classroom  and after school environment with consistency through the waking day … that he needs extra curriculum activities so that he has sufficient after school opportunities socially and that a waking day curriculum will optimise C’s chances of developing C’s communication skills and hopefully reduce his more serious challenging behaviours.”

14. This all seems clear enough and it might be thought that what the tribunal then had to do was to decide whether it accepted this evidence and, if so, whether school B could meet the needs identified. However, next came a paragraph which has caused difficulties.

Paragraph 36

15. The tribunal continued further:

“36. We are conscious that the question of whether such programmes and support could be provided in a day placement [my emphasis] package with carefully planned extended day and weekend activities is hypothetical as the school being proposed by the [local education authority] is a residential school which provides a waking day curriculum. As a result the [local education authority] have not presented any evidence of what would be provided locally or in any notional day placement. Nevertheless we have to decide whether a waking day provision is to be included within Part 3. We have carefully considered the nature of the programmes which are recommended by the experts for the waking day provision. We accept … that these should address the need for consistency of management and provide opportunities to apply social skills learnt in formal educational settings to less formal settings. In our view they could be delivered as part of a carefully planned and monitored extended day programme … we conclude that there is insufficient evidence to suggest that the programme could not be delivered after school hours with support or that C’s needs are so severe that they could [not] be met in local day provision. Accordingly we are not ordering that Part 3 provides for a waking day curriculum.”

16. It is agreed that the word “not” inserted above in bold must have been intended to be included. It must also be noted that the tribunal recorded that the local education authority had undertaken not to seek to move C from whichever of school A or school B the tribunal specified. 

17. Ms Lawrence argued that in determining that C did not require a waking day curriculum with a residential school the First-tier Tribunal failed to consider either adequately or at all the written and oral evidence on this matter. In view of what I say below, I do not need to reach a conclusion on this. She argued further that the conclusion as to an extended day programme was not based on any evidence and was therefore irrational: “There is no attempt by the tribunal to either specify or quantify what the extended curriculum will look like, who will provide it and how it will be delivered” (paragraph 10 of her skeleton argument of 14th June 2010). Also, insufficient evidence that something is not available is not the same as evidence that it is available. This is true, but in this kind of litigation it is often worth asking the question “so what?” In a former (academic) occupation I had the duty of reporting what the contents of a non-existent course would have been if the course had existed. It made no sense then and it makes little more sense in this case. Nobody was suggesting that a day programme was or could be available, and it is not really clear (to me, at any rate) why the First-tier Tribunal went into the issue. 

18. Schedule 2 to the Education (Special Educational Needs (England) (Consolidation) Regulations 2001 sets out the form of a Statement. Part 3 should state the objectives which the special educational provision should aim to meet, and the provision appropriate to meet the needs specified in part 2 and the objectives specified in part 3. In particular, part 3 should specify “(d) where residential accommodation is appropriate, that fact”.

19. It seems to me that to state that residential accommodation is appropriate is not the same as stating that non-residential provision is not appropriate, any more than stating that one school is appropriate necessarily means that a different school is not appropriate. I am not persuaded that in a case such as the present one, where nobody is suggesting anything other than residential accommodation, the Statement must specify whether non-residential provision is appropriate. To do so would not inform the tribunal’s decision, it should not influence what happens on a review of the statement (which should be judged on the needs at the time), and it would have no practical effect in view of the undertaking given by the local education authority. It might be different if the tribunal were of the view that residential provision would, in some way, be detrimental, but that is not the case here. It seems to me that having identified the needs the tribunal could have recorded that no party was seeking day or non-residential provision. The tribunal could have omitted paragraph 36 but I do not really see how its inclusion means that the decision in this case involved the making of an error of law. That leaves the question of whether there was such an error in the finding that school B was appropriate.

The Argument In Relation to Schools A and B

20. On this matter Ms Lawrence argued that the First-tier Tribunal failed to determine whether C should attend school on a weekly or a termly basis. She suggested that “the intensity and consistency of provision is very different in respect of each type of placement” (paragraph 27 of her skeleton argument of 14th June 2010). The local education authority did not consider that C needed to remain at school over the weekends, whereas his mother argued that he should only come home every two to three weeks at most. The tribunal recorded the Head Teacher of school A as giving evidence (paragraph 28 of its decision) that:

“… at least at the outset it is important for C … to have an extended period at school in order to develop his social skills at weekends and in the evenings. This will be monitored and in due course it may be appropriate to increase weekends at home to fortnightly”.

21. In the same paragraph, the tribunal recorded the educational psychologist was called by C’s mother to give evidence as stating that in her view: “it is a question of degree and that staying at school for three weeks would be better than two weeks at this stage, although she accepts that it is not possible to give a hard and fast reason why …”. She also accepted that school B is a good school (paragraph 38).

22. I do not agree that the First-tier Tribunal failed to consider the evidence on this matter. It seems to me that the opposite is shown to be true from the detail and the reasoning in it decision. It specifically considered the non-specialist nature of school B and how that would suit C’s needs (paragraph 41), it accepted the evidence about the relevant experience of the staff at school B (paragraph 42), found that it would provide C with continuity and consistency (paragraph 43) and in paragraph 44 concluded that:

“It is clear to us, and indeed not disputed, that school B is able to provide opportunities for consistency and generalisation in school and after school settings and also has an ethos of working closely with parents to ensure consistency of approach at home”.

These were conclusions that the First-tier Tribunal was entitled to reach from the evidence before it.

Conclusions

23. I can only interfere with the decision of the First-tier Tribunal if it got the law or procedure wrong. I cannot substitute my own view of the facts for that taken by the tribunal, which is what part of the grounds of appeal are really asking me to do. The tribunal had the opportunity of considering a wide range of expert and other evidence. I am not persuaded that it is reasonably arguable that its decision involved the making of an error of law.  For these and the above reasons I refuse this application for permission to appeal.

H. Levenson
Judge of the Upper Tribunal 
23rd June 2010