Amanda Duncan v Bedfordshire County Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DYSON |
| Judgment Date | 13 December 1996 |
| Judgment citation (vLex) | [1996] EWHC J1213-2 |
| Date | 13 December 1996 |
| Docket Number | CO 3062/96 |
| Court | Queen's Bench Division (Administrative Court) |
[1996] EWHC J1213-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
Mr Justice Dyson
CO 3062/96
and
MR J FRIEL (instructed by Messrs A E Smith & Son, Stroud GL5 2AF) appeared on behalf of the Applicant.
MR N GARNHAM (instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Second Respondents.
Friday, 13th December 1996
Marc was born on 27th March 1989. Even before he started to attend Stephenson Lower School in April 1994, a clinical psychologist had advised Marc's mother that his development was significantly delayed. Difficulties arose in his first year at school. In March 1994 the first statutory assessment of his special educational needs began. This included an assessment by a speech therapist. On 7th April a Note in Lieu of a Statement of Special Educational Needs was issued. In about August the first respondent Council ("the Council") informally agreed to undertake a further statutory assessment of Marc's special educational needs. His head teacher wrote a report on 22nd September saying that Marc's communication skills were quite poor and that his speech was not very distinct. The further statutory assessment began on 12th October 1995. On 8th February 1996, the Council wrote to Mrs Duncan saying that it had decided not to issue a Statement of Special Needs, on the ground that Marc's special needs, which it accepted did exist, could be met within the resources normally available to main stream schools. The Council issued a second Note in Lieu of a Statement.
Mrs Duncan was surprised at this decision, particularly because it had been arrived at without the benefit of a speech therapist's report. She appealed to the Special Educational Needs Tribunal ("the tribunal"). In her Notice of Appeal, she pointed out that the Council had reached its decision without a report from a speech therapist, despite the fact that there was evidence that he had difficulties with speech. She claimed that Marc should have a Statement.
In fact, in the Autumn of 1995, the Speech and Language Therapy Service of the local NHS Trust had received a request from the Council to carry out a speech therapy assessment, but, owing to an administrative mistake, no assessment had been carried out. Realising the significance of this omission, Mrs Duncan contacted the Speech and Language Service herself on about 25th March 1996. As a result, Karen Booth, a speech therapist employed by the Trust, saw Marc on 2nd April, 1st and 13th May. Ms Booth prepared a report which is dated 14th June. In it she explains how Marc was referred in early 1995 and how the assessment was suspended in September 1995 because a particular form SEN(S) was not received by the Speech and Language Service.
Mrs Duncan states that she told Ms Booth that the appeal was due to be heard and that the report was required urgently. The closing date for Mrs Duncan to submit evidence to the tribunal was 7th June. The report is dated 14th June, but Mrs Duncan did not receive it until 25th June, whereupon it was sent immediately to the tribunal by Mrs Hockey, a lay representative who was assisting Mrs Duncan with the appeal. Mrs Hockey did not by her letter of 25th June make an application for permission from the President to adduce the report out of time. Such an application was made by letter dated 10th July. Her application was that the case was "exceptional" within the meaning of Regulation 8(5) of the Special Educational Needs Tribunal Regulations 1995 SI 1995/3113 ("the 1995 Regulations"). I shall have to return to the question of "exceptional cases" when I deal with the second of the three issues raised by Mr Friel.
The hearing of the appeal had been fixed for 16th July. It seems that Mrs Duncan's application for leave to adduce the report out of time had not been determined by that date. At the hearing Mrs Duncan renewed her application to the tribunal itself. The representative of the Council who was present did not oppose her application. Nevertheless, the tribunal refused to admit the report. The tribunal proceeded with the hearing of the appeal and recorded its amended decision in a document dated 14th August. In its reasoned conclusions, the tribunal said this:
"A. The Tribunal carefully considered the parties' submissions and the evidence we heard, and took into account the written evidence which had been submitted.
B. We accepted that Marc had problems with co-ordination and motor control skills, both gross and fine. He needed the extra support in the classroom to help him concentrate in literacy and numeracy work. His levels of attainment showed that progress had been made within his ability and we were confident that the school was devising appropriate IEPs to assist his development taking into account the advice of the Educational Psychologist and the Occupational Therapist.
C. We considered that the Note in Lieu was not sufficiently detailed in the way in which Marc's IQ levels were described and the effect on his learning of the discrepancy in verbal and performance levels. We would expect the Educational Psychologist involved to be able to expand that part of the Note so that the school would be fully aware of Marc's needs.
D. We would expect the LEA to include reference to the Speech and Language Therapist's report in the Educational Provision section of the Note in Lieu after the reference to the Educational Psychologist and Occupational Therapist. Similarly there should be reference to speech and language therapy in the Non-Educational Needs and Provision section.
E. We were concerned at the possibility of inadequate communication between the school and Marc's mother. We felt that the school was making very positive efforts to help and support Marc particularly in the area of his low self-esteem. We would urge Mrs Duncan to work closely with the school, if necessary with the intermediary help of Mrs Rowlett, the Parent Partnership Co-Ordinator, particularly over the production and monitoring of Marc's IEP. In this way, realistic short-term targets can be clearly seen and agreed and their achievement encouraged and celebrated both at home and at school.
F. The Tribunal did not consider Marc's needs to be so severe and complex as to warrant the production and maintenance of a statement. We were satisfied that the Stephenson Lower School was taking 'relevant and purposeful action' as described in paragraph 3.44 of the Code of Practice and that progress was being made within Stage 3 of the Code of Practice."
On behalf of Mrs Duncan, Mr Friel appeals against the refusal of the tribunal to admit the report. He raises three points of law.
The Statutory Framework
Section 180(1) of the Education Act 1993 ("the 1993 Act") provides that:
"Regulations may make provision about the proceedings of the Tribunal on an appeal under this Part of the Act and the initiation of such an appeal".
Section 180(2) provides a list of matters in respect of which the regulations "may in particular" make provision.
Regulation 7 of the 1995 Regulations provides for the giving of Notice of Appeal by a parent to the tribunal within two months from the date on which he or she was given notice of the right of appeal.
Regulation 8 provides:
"(5) The parent may in exceptional cases—
(a) with the permission of the President at any time within 15 working days from the date on which a response under paragraph (2) above could have been delivered, or
(b) with the permission of the tribunal at the hearing itself—
deliver written evidence (if he has not previously done so) or further written evidence."
Regulation 29 provides:
"(1) In the course of the hearing the parties shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal both on the evidence and generally on the subject matter of the appeal….
(2) Evidence before the tribunal may be given orally or by written statement, but the tribunal may at any stage of the proceedings require the personal attendance of any maker of any written statement—Provided that neither party shall be entitled to give evidence by written statement if such evidence was not submitted with the notice of appeal or submitted in accordance with regulation 8….. "
The Issues
Three issues arise:
(i) Is the proviso to Regulation 29(2) ultra vires the 1993 Act?
(ii) Was the decision of the tribunal to refuse to treat this as an exceptional case under Regulation 8(5) unlawful in the sense of being Wednesbury unreasonable?
(iii) Was the decision of the tribunal unlawful in the way in which it dealt substantively with the question of speech and language therapy?
Ultra Vires
The argument of Mr Friel can be summarised as follows. The 1993 Act is concerned inter alia with the assessment of the needs of children with special educational needs, and the making of statements in respect of them: See sections 167, 168. Where a parent appeals to the tribunal under section 169 (as in this case) or under section 170, the tribunal is required to consider the most up-to-date evidence about the assessment of the child, since it must address the issue of what is to be done for the child in the future. In support of this proposition, Mr Friel relies on R v Secretary of State for Education, ex parte Davis [1989] 2 FLR 190. It should be pointed out that this was a decision under the Education Act 1981, whose provisions were materially different from those of the 1993 Act. Further support for Mr Friel's...
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