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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Bury Metropolitan Borough Council v SU [2010] UKUT 406 (AAC) (04 November 2010) URL: https://www.bailii.org/uk/cases/UKUT/AAC/2010/406.html Cite as: [2010] UKUT 406 (AAC), [2011] ELR 14 |
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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.
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
4 November 2010