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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H v East Sussex County Council & Ors  EWCA Civ 249 (31 March 2009)
Cite as:  ELR 161,  EWCA Civ 249
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE SCOTT BAKER
LORD JUSTICE TOULSON
| Miss H
|- and -
|East Sussex County Council and Ors
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Peter Oldham (instructed by Legal Services, East Sussex County Council) for the
Hearing date : 24th February 2009
Crown Copyright ©
Lord Justice Waller :
"1. The Tribunal erred in law in its rejection of MH's need for a waking day curriculum (decision paragraph Aiii) in that
(a) it failed to give legally sufficient reasons for rejecting the evidence including from medical and educational experts, which supported that need – the Tribunal referred only [to] the former and gave no reasons for rejecting the latter;
(b) The Tribunal took into account only the medical evidence in support of that need and thus failed to have regard to plainly material evidence from educational experts to that effect and/or erroneously rejected the evidence of the educational experts (as well as doing so without explaining why it was doing so); and
(c) The Tribunal rejected the evidence in support of a waking day curriculum (albeit, as above, only considering part of that evidence) on the basis that (so it considered) separation of [MH] from her mother would not be in her best interests which (however relevant it might be to a social services assessment) was not a lawful or proper basis on which to reject expert medical and educational evidence to the effect that [MH] required a waking day curriculum in relation to her special educational needs.
2. The Tribunal erred in law in concluding that Grove Park should be specified as [MH]'s school placement (in Part 4 of her Statement) (decision paragraph G) in that:
(a) It erroneously reached that conclusion on the basis of its conclusion that Grove Park (taken with other provision) "represent a broadly appropriate education for [MH]" when that is not the appropriate test. The true question was whether Grove Park could make the provision set out in Part 3 of [MH]'s Statement (as it would be amended in the light of the appeal). The Tribunal never addressed itself to that question let alone did it give any lawful reasons for a conclusion on the point.
(b) Grove Park could not, in fact, make the provision set out in Part 3 (as amended) such that the Tribunal could not, in any event, lawfully conclude that it would be a suitable placement.
(c) Moreover, it did so instead in reliance on the provision at Grove Park and the social services support, without identifying the social services support it had in mind and (in any event) without that support having been identified as educational provision (such that it could not properly form part of the package of educational provision for the Tribunal to take into account."
Approach to giving reasons
"14. Reasons must, first, deal with the substantial points that have been raised so that the parties can understand why a decision has been reached. This is seen from S (A Minor) v Special Educational Needs Tribunal and Another  1 WLR 1627, sub nom S v special Educational Needs Tribunal and City of Westminster  ELR 102 and M v Worcestershire County Council and Evans  EWHC 1292 (Admin),  ELR 31. In H v Kent County council and the Special Educational Needs Tribunal  ELR 660, Grigson J stated that what was necessary was that the aggrieved party should be able to identify the basis of the decision. Secondly, a specialist tribunal, such as SENDIST, can use its expertise in deciding issues, but if it rejects expert evidence before it, it should state so specifically. In certain circumstances it may be required to say why it rejects it: see H v Kent County Council, per Grigson J, at para . Thirdly, mere recitation of evidence is no substitute for giving reasons: see L v Devon County Council  EWHC Admin 958,  All ER (D) 155 (Nov), per Gibbs J, at para . Fourthly, and linked to the second point, where the specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it. That is established in the Mental Health Review Tribunal context by R v Mental Health Review Tribunal ex parte Clatworthy  3 All ER 699, and in the context of this tribunal in M v Worcestershire County Council and Evans."
"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  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 t his subject. In UCATT v Brain  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."""
"30. . . This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security  EWCA Civ 734,  3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent Tribunal had indeed confused the three tests or neglected to apply the correct relocation test."
The decision of the Tribunal
"(2) The statement shall be in such form and contain such information as may be prescribed.
(3) In particular, the statement shall—
(a) give details of the authority's assessment of the child's special educational needs, and
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (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,
…" [underlining added]
"A statement shall—
(a) be in a form substantially corresponding to that set out in Schedule 2 to these Regulations;
(b) contain the information therein specified;
"(a) the type of school which the authority consider appropriate for the child and if the authority are required to specify the name of a school for which the parent has expressed a preference, the name of that school, or, where the authority are otherwise required to specify the name of a school or institution, the name of the school/or institution which they consider would be appropriate for the child and should be specified; …" [underlining added]
"In general LEAs are likely to consider that there is a need for residential provision where there is multi-agency agreement that:
- The child has severe or multiple special educational needs that cannot be met in local day provision;
- The child has severe or multiple special educational needs that require a consistent programme both during and after school hours that cannot be provided by parents with support from other agencies;
- The child is looked after by the local authority and has complex social and learning needs, and placement is joint-funded with the social services department;
- The child has complex medical needs as well as learning needs that cannot be managed in local day provision and the placement is joint-funded with the health authority."
"She requires a 24-hour curriculum to meet her Learning, Social, Emotional and Behavioural needs, in addition to the therapeutic needs which have arisen as a result of Prader-Willi Syndrome."
(1) Consultant Paediatric Endocrinologist from Great Ormond Street Hospital 13 June 2007 ;
(2) General Practitioner 12 June 2007;
(3) Consultant Paediatrician 19 June 2007;
(4) Community Paediatrician 2 July 2007.
"In order to meet the totality of [MH]'s special educational needs, . . . :
. . .
ii) She requires a 24-hour curriculum to meet her Learning, Social, Emotional and Behavioural needs, in addition to the therapeutic needs which have arisen as a result of her Prader Willi Syndrome. The waking-day curriculum will need to address her daily living skills, her independent skills across a structured and consistent routine where she can learn skills in functional environments and there is a transfer and generalisation of activities through home and residence."
"[The LEA] believes that [MH]'s needs can be met in local day provision. The authority believes that there is no evidence that her needs cannot be met by a day placement, with support from the Children's Disability Team [i.e. social services department]. The [social services] core assessment (both the initial draft and the final version) did not recommend that a residential placement was necessary and therefore there is no agreement to joint fund. Much of the medical evidence suggests a residential environment might be appropriate, but stops short of any recommendation or agreement that this should be jointly funded by health."
"16. Ms Birnbaum, who did a long report on [MH] in February this year, concluded that it was essential that [MH] receives structured care with a consistent routine which she would not be able to receive from a variety of different providers within the home setting. She told us at the hearing that [MH] needs opportunities to generalise her skills after school (noting that she has poor coping strategies) in order to develop independence, health eating and lessen her anxieties. Ms Birnbaum would expect the therapists, especially the speech and language and occupational therapists, to do some work with [MH] after school hours for this purpose."
"17. Mrs Clarke said that her school has a club from 3.00 pm to 6.00 pm on Wednesdays for the pupils, which is run by social services. The children have tea and then go on outings in good weather and at other times follow indoor activities such as art. Parental involvement is actively encouraged. Ms Hughes said that the LEA has the services of the Family Intensive Support Service, which is an NHS facility staffed by clinical psychologists, speech and language therapists and specialised social workers. They work at home with the children in co-operation with their parents and then, if necessary continue this support at school. Mrs Clarke said that she was confident that, subject to receiving extra therapy support – as detailed in the costings section later – her school can meet [MH]'s needs.
18. Children's Services also offered to Miss H continued support from Carers First, an independent organisation which provides specialist help to pupils in their homes. This has been provided for [MH] for some years and is comprised of support one evening a week and on Saturday mornings. Miss [H] commented that this only works when she is in close support to see that [MH]'s often subtle needs are not misunderstood. An example given was that she has to go along when [MH] is taken swimming in case she misunderstands instructions. Children's Services have also offered 52 nights a year of residential respite care for [MH], when she would stay with another family. Miss [H] does not think this would work because of the very heavy demands it would place on the carers."
"The necessity or otherwise for a waking day curriculum. Our conclusions here are that despite the outstanding care and attention [MH] has had at her primary school, she can no longer cope in mainstream and must go to a special school placement. Everybody concerned agrees with this. We also note that [MH]'s primary school did not have undue difficulty in managing her food craving while she was a pupil there, as they responded by keeping her heavily involved in school activities at all times. We next refer to the weight of medical evidence in favour of residential placement, but equally must note that the medical professionals do not have educational expertise and presumably have not heard any of the details we had about Grove Park School and what it has to offer. We must finally note here that no-one from the Health Service saw fit to recommend and offer joint funding of a residential placement for [MH]. We have come to the same conclusion as did Children's Services to the effect that the conclusion from their core assessment was that separation of [MH] from her mother would not be in her interests and consequently joint funding by them would not be offered. Instead, they offer the varied programme referred to in the Facts in the form of support from Carers First and the possibility of overnight respite with another family. We must say straight away here that we respect Miss [H]'s view that the latter will not work for [MH] and nothing we say must be taken to indicate that such overnight care has got to be provided for her. We also took into account Miss [H]'s view that [MH] would not have any difficulty in separating from her to become a school boarder."
"Our overall conclusion is accordingly that the package of support offered by the LEA for [MH], including her placement at Grove Park, the extra therapy provision offered and the social services support will taken together represent a broadly appropriate education for [MH] as she enters secondary schooling. St. Mary's is clearly a highly specialised school which offers excellent opportunities to its pupils. However, we were not convinced from the evidence that [MH] can only receive an appropriate education in a residential setting and it follows that the LEA's grounds of opposition to residential placement on the grounds that this will involve unreasonable public expenditure succeeds."
The judge's judgment
"34. . . . The point of out of school day educational need, though clearly decided against the mother, and against Ruth Birnbaum, is not directly met by the tribunal's analysis of the evidence. Nonetheless the right question was asked and there was evidence on each side and the Tribunal stated clearly which side it preferred. The conclusion is clear, that the educational provision can be supplied by Grove Park with the extra therapy identified, and the other needs are met by non-educational support for the mother. I do not regard those reasons as so inadequate as to be unlawful."
Discussion and conclusion
Educational provision out of school hours
"Our overall conclusion is accordingly that the package of support offered by the LEA for [MH], including her placement at Grove Park, the extra therapy provision offered and the social services support will, taken together, represent a broadly appropriate education for [MH] as she enters secondary schooling."
"39. If any aspect of that additional provision was to be regarded as educational then it had to be in part 3 and quantified and it was necessary to show how it would be provided either by the school specified in part 4 or by other means. I am satisfied that neither the Tribunal nor anyone conducting the case thought that this was educational provision. Part 3 was negotiated and fought over. Mr Silas' evidence in his witness statement about the final submissions describes the argument in this area:-
"Miss White said that with proper support and social progress outside of school there would be no reason for M to require a residential curriculum".
Mr Silas said:-
"There was educational need for residential curriculum not just social activities."
40. I do not find that the Tribunal thought that this was educational provision. The strongest support for the view that they fell into error comes in the first sentence in paragraph G when placement at Grove Park, extra therapy (which is defined in part 3) and social services support are all taken together to result in a "broadly appropriate education". The alternative view is that the Tribunal were simply acknowledging that the social support that would contribute significantly to M's wellbeing overall without itself being educational provision that had to be specified as such, and that the social support would be important to her. I acknowledge that to take the latter view is to qualify the plain sense that all 3 factors are said to contribute to a broadly appropriate education but I am unable to accept that in the decision as a whole the Tribunal thought that this provision was educational. As in the case of R (A) -v- Cambridgeshire County Council and SENDIST  EWHC 2391 mixing up discussion of educational and non educational provision by the Tribunal that is only dealing with the former (even though the life of the child with special educational needs will often require a combination of the two) may cause difficulty when it comes to legally appropriate reasons for a decision. However in my judgment properly looked at here the Tribunal consistently with the approach that it should adopt was identifying the out of school support as non educational despite the terms of paragraph G. It was identifying the care of Ms H together with social services and other social support as necessary for M's well being, but not as educational. In my judgment it was open to the Tribunal to come to the conclusion it did and it is not shown to have been wrong.
Lord Justice Scott Baker :
Lord Justice Toulson :