Ali v Kirklees Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,Lord Justice Sedley,LORD JUSTICE SEDLEY,LADY JUSTICE ARDEN |
| Judgment Date | 23 March 2001 |
| Neutral Citation | [2001] EWCA Civ 582 |
| Docket Number | C/2000/2441 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2001 |
Lord Justice Schiemann
Lord Justice Sedley and
Lady Justice Arden
C/2000/2441
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE TURNER)
Royal Courts of Justice
Strand
London WC2
MR J FRIEL (instructed by Ridley & Hall, Huddersfield DH1 1LE) appeared on behalf of the Appellant
MR C LEWIS (instructed by Kirkless Metropolitan Borough Council, Legal Dept) appeared on behalf of the Respondent
( )
Friday, 23rd March 2001
Lord Justice Sedley will give the first judgment.
This is an appeal from a decision of Turner J, given on 23rd May 2000, upon a statutory appeal under the Tribunals and Inquires Act, section 11, from a Special Educational Needs Tribunal. It comes before this court by permission of Rix LJ on a single short but by no means easy point.
The appellant's child, "J", is gravely handicapped both mentally and physically. He is statemented as in need of special schooling. Until 1999 he was at Fairfields School, which was the school named in Part 4 of his statement; but in July of that year he had a serious accident there resulting in a skull fracture by reason, in his parents' belief, of the staff's neglect of his safety. In short, what happened was that his wheelchair overbalanced causing him injuries which required intensive hospital care. It was, moreover, the third accident to happen to him in spite of assurances that had been given after the first two. J has not returned to school since.
It was accepted that he needed a change of school. The Local Education Authority, the first respondent, proposed Highfields, but the parents objected because they considered its regime similar to that of Fairfields where the three earlier accidents had occurred. The parents proposed Hollybank instead, but the Local Education Authority stood firm, as it was entitled to do, and the matter went before a Special Educational Needs Tribunal. The tribunal in its decision, issued on 22nd December 1999, upheld the Local Education Authority's choice on the ground, in short, that both schools were suitable to J's needs, but Highfields a great deal less expensive.
It emerged subsequently that, through nobody's fault, the Local Education Authority had failed to draw the attention of either the tribunal or J's parents to the fact that in 1993 an accident which on one view was not dissimilar had occurred to another child, Daniel, who had been allowed to tip forward on to his face in spite of being strapped in a wheelchair. The whole story is tinged with sadness because Daniel has since died. Daniel's mother's account of it is, in its material parts, as follows:
"On 16th March 1993 in circumstances that are still not absolutely clear Daniel was tipped from the chair into which he was strapped. The response of the school at that time was to ring me to say 'not to worry' but I arranged to take him straight to the surgery of our GP."
It was the GP's view that the injuries were, though visibly unpleasant, were superficial. But the mother's statement goes on to describe how thereafter Daniel's health declined to the extent that in the summer of 1995 hospital investigation revealed that he in fact had suffered a neck fracture in 1993. She goes on to describe how in the interim between the accident and the full diagnosis she had sought various medical investigations and had met the professionals at Highfields School because Daniel was in a slow but steady decline. She says:
"It would be fair to say that in the course of these 18 months or so the attitude of teachers at Highfields School in general was that I was an over-protective mother, too concerned for Daniel's progress and not concentrating enough on his lack of co-operation which was seen as a behavioural problem attributable to Daniel."
She goes on to record that once the full diagnosis was made the headteacher had written to express his sincere regret.
The Local Authority put in evidence before the judge which expressed sympathy for Daniel and his mother, but said:
"I understand from the Council's records that Daniel had been on a school visit and on returning to the school, a student teacher was assisting in the unloading of children from the bus. The student was holding Daniel's wheelchair and another mobile child and it was when the other mobile child pulled away that Daniel's wheelchair fell over."
The statement goes on to take issue whether it was this that caused the spinal fracture that was later diagnosed.
It was taken by Turner J as common ground that the omission of the facts about Daniel should not have happened – in other words that both the parents and the tribunal should have known of it. The necessary implication of such a concession might be thought to be that a rehearing is called for, since something material that is something capable of having influenced their decision has been omitted. It is no doubt for this reason that before us Mr Lewis has been careful to modify the concession in order to accommodate his entirely appropriate argument on relevance.
The fact that comparative safety was material to the tribunal's decision was made clear enough by the fourth of their final conclusions:
"We have great respect for the devotion and care which [the parents] clearly have for their son, and we noted carefully their perception of being let down by the LEA as regards their son's safety, following his accident at school earlier this year. It is not for us to form any view on the merits of how that accident occurred; our sole concern in relation to the accident is whether J's safety would be properly looked after at Highfields School. We are so satisfied, noting in particular the fact that no serious accident has occurred to pupils at Highfields School and also noting the favourable comments on safety procedures at the school in the recent Ofsted report."
The tribunal earlier in their decision had expressed their reliance upon the impressive evidence given by the headteacher of Highfields, Mr Ware, who has been in post since early 1998. They say in particular:
"On the question of safety, Mr Ware cited the findings of the most recent Ofsted inspection, which was carried out in May 1999. The report as a whole was very favourable to the school, an in regard to safety procedures the findings were favourable in every respect. Mr Ware added that none of his pupils had been involved in a serious accident at the school."
In his judgment Turner J said at paragraph 37:
"There can in my judgment be no doubt but that it was material for the Tribunal to consider not what was the position seven years before, or five years before, or even three years before, but what was the current position at the school."
Later in paragraph 41, he said:
"I have to counsel myself against falling into the trap of taking the decision which the decision-maker would himself have made, had he been apprised of the accidents in 1993. It has been generally accepted by those on behalf of the LEA, that the matter ought to have been disclosed. [That is the position which has been qualified before us]. With that, I find myself to be in full agreement. But the true question which arises here is not whether, in the interests of ultimate fairness, that matter should have been disclosed, but whether that matter was relevant to the decision which the tribunal had to reach."
It was on that footing that he answered the question in the negative and dismissed the appeal before him.
There are two other elements of the evidence to which it is necessary to refer. Before the tribunal, as I have indicated, the headteacher had said that none of his pupils had been involved in a serious accident at the school. This is something which has not attracted direct criticism of that headteacher because for him it was undoubtedly true. Whether it was conclusive as to the earlier history remains in doubt; but it is a doubt which, in my judgment, has to be resolved according to the same question as we are addressing in the appeal, namely whether there was relevant evidence of an earlier accident at the school. Secondly, the chairman of the tribunal himself, Mr Dorsey, as is normal for an interested party in statutory appeal, deposed in a short statement to the court as follows:
"If an accident had occurred at the school in 1995 [he means 1993], this was clearly evidence that the tribunal should have known about. However, I do not feel on balance that any such evidence would have...
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