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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> R ota JW through his mother DW as Litigation Friend [2009] UKUT 197 (AAC) (02 October 2009) URL: https://www.bailii.org/uk/cases/UKUT/AAC/2009/197.html Cite as: [2009] UKUT 197 (AAC), [2010] ELR 115, [2010] AACR 11 |
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R ota JW through his mother DW as Litigation Friend [2009] UKUT 197 (AAC) (02 October 2009)
Case No JR/2050/2009
Attendances:
For the Claimant: Ms Aileen McColgan of Counsel, instructed by Messrs John Ford
For the Defendant: Ms Sarah Hannett of Counsel, instructed by in-house solicitor
Decision:
1. Permission to apply for judicial review is granted.
2. The claim is dismissed
.
"The Defendant provide suitable educational provision for the Claimant pending the final determination of the First-tier Tribunal appeal against his amended statement in any of the following ways by providing funding for:
i. A placement at [Z]
Home tuition for [the Claimant] by a suitable Orthodox Jewish home tutor; failing either
A suitable Orthodox Jewish male teaching assistant to attend [B School] with [the Claimant]."
The references to Z and B are to the education provision respectively put forward by the Claimant and the Defendant and are examined further below. At the hearing, Ms McColgan indicated that the Claimant was no longer seeking the relief at iii, even as a fall-back.
"…We received an enquiry some months ago from [the Claimant's mother] about a place for [the Claimant] in Z College for this September. I explained to her that for various reasons Z is not able to accept any new students into LSC [Learning and Skills Council] -funded College places for this September. However, we would be prepared to consider [the Claimant] for a place in Z Day School, which offers 14-19 provision, maintaining his LEA Statement of SEN (with amendments as necessary), with the understanding that the bulk of his education would be delivered at the Z College site, which has more appropriate facilities for him."
"The panel does not agree to fund the placement on the grounds of cost and would therefore be considered an inappropriate use of resources. Appropriate maintained post-16 provision has been identified that can meet [the Claimant's] needs at no extra cost."
"This is an unusual case where a suitable teaching assistant will need to be appointed, who can meet [the Claimant's] specific religious and cultural needs. An appropriate orthodox Jewish organisation will need to be approached and a suitable appointment may take some time to put in place.
In the interim, please confirm that you will provide suitable full time home tuition for [the Claimant]."
The expectation of those advising the Claimant at this stage was thus
apparently that he would attend B School. Certainly the wording does not suggest a continuation of a placement at Z, because no teaching assistant would then be necessary.
"…I have asked Kash Yusaf, Special Schools Case Manager in the Learning Trust's SEN Assessment & Monitoring Team, to follow up this issue with [H] [a Jewish welfare organisation.]
Unfortunately, we are currently unable to provide a timescale in which an appropriate TA will be appointed. [Ms J], [H's] Teaching Service Manager, has put out a request for an Orthodox Jewish male TA but has not yet found an appropriate TA. She has told Mr Yusaf that she will be in contact once she has spoken with the Head Teacher at B. I will of course update you when more information is available.
With regard to your proposal of home tuition, The Learning Trust does not have any home tutors available for over-16s. Additionally, it would prove equally difficult to find an Orthodox Jewish home tutor as it is to find such a TA. As such, The Learning Trust is unable to offer this provision as an interim measure."
These positions were in essence repeated in formal judicial review protocol letters dated 30 April from the Claimant's solicitors and in a reply dated 19 May from the Defendants.
"[The Claimant's] behaviour has deteriorated and life has been very difficult. He is tense and unmotivated. He sometimes gets up as late as 11am because he has no routine or programme. At present [the Claimant] is at home for most of each day. I cannot leave the home for long periods because [the Claimant] needs constant care and it is difficult, due to his challenging behaviour, to attend appointments with him. Being out of school has had a detrimental effect on [the Claimant]. He longs to go back to [Z]. [The Claimant's] behaviour has deteriorated over the past few months. The tension is affecting the entire family.
[The Claimant] keeps asking to go back to [Z]. [He] loved his teacher and support worker. In mid-July 2009, [he] was invited to an outing with Z on condition he was supported by a carer. He had a wonderful time at [L] and beamed for three days afterwards."
"follow an individualised KS5 post-16 curriculum shaped primarily around his needs to continue to develop social and functional communication, social skills and integration, self-help and independence skills, meet his sensory needs, and vocational/creative skills (work experience, woodwork, horticulture, art and music). In addition he will have regular Jewish Studies lessons with a very practical focus to support his ability to be successfully integrated within his local ethnic community, plus an individualised programme of regular physical activity to promote his health and wellbeing."
There was no other evidence before the Upper Tribunal bearing on the educational provision it was proposed the Claimant should receive (if the Upper Tribunal were to order it) between the start of term in early September and November 2009 when it was anticipated the First-tier Tribunal would have heard the substantive appeal.
"A local education authority may not, under this paragraph, cease to maintain a statement if–
(a) the parent of the child has appealed under this paragraph against the authority's determination to cease to maintain the statement, and
(b) the appeal has not been determined by the Tribunal or withdrawn."
There is thus a provision suspending the effect of a local authority's decision in one specific context within SEN matters – the decision to cease to maintain a statement. This is however not the prevailing position in relation to SEN decisions generally and there is no statutory provision in the 1996 Act or elsewhere which suspends the effect of a decision taken by a local authority to name a different school in Part 4 of the statement.
"The other case is R v Oxfordshire County Council ex parte Roast [1996] ELR 381 in which Dyson J held that the local education authority had power to cease to maintain a statement, even where there was an appeal before SENDIST, and the tribunal itself had no power to impose the stay. The substantive remedy before SENDIST does not mean that there are no circumstances, however exceptional, in which this court on the grant of permission to apply for judicial review should not require that some sort of interim relief be provided."
As Dyson J determined the point of construction against the claimant, he was able to conclude that the "discretion issue" (i.e. with regard to relief) did not arise. Even if the categorisation of it as a "discretion issue" implies that Dyson J was persuaded that it existed as discretion, we respectfully find it difficult to derive in this case as much support from ex parte Roast as Ouseley J was apparently able to in the case before him. Nonetheless, our view is precisely the same as that reached by Ouseley J. A court with a judicial review jurisdiction has power in such circumstances as the present to order relief including interim relief pending the decision of the First-tier Tribunal.
"A local education authority in England must make available to young persons and relevant young adults for whom it is responsible such services as it considers appropriate to encourage, enable or assist the effective participation of those persons in education or training."
It seems to us that this adds little to the Claimant's case. Even if one were to assume that the section is capable of extending to the provision of a teaching assistant (a point which will have to await a case in which it needs to be decided), the services which the Defendant "considered appropriate" – prompted by the Claimant's solicitors – and which, as yet, they had not provided, were those of an Orthodox Jewish teaching assistant to enable the Claimant to attend B. This was precisely what the Claimant through Ms McColgan now no longer wanted in these proceedings.
"It is well established and was common ground both before the Tribunal and before me that a child's Jewish religion and identity cannot constitute a special educational need (G v London Borough of Barnet and the Special Educational Needs Tribunal [1988] ELR 480 per Ognall J at 483-484). However, a decision-maker required to make decisions as to what are a child's special educational needs and the required provision must have regard to a child's Jewish religion and identity if they are relevant to that child's special educational needs or the manner in which they may be met (R v Secretary of State for Education ex parte E [1996] ELR 312 per Hidden J). "
As such factors are hardly referred to at all in the statement of SEN, we suspect that the decision of 30 April was taken without adequate information on this point. To that extent it appears to be defective.
Upper Tribunal Judge CMG Ockelton
Upper Tribunal Judge H Levenson
Upper Tribunal Judge CG Ward
1 October 2009