CB v London Borough of Merton and Special Educational Needs Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 26 April 2002 |
| Neutral Citation | [2002] EWHC 877 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: CO/4218/01 |
| Date | 26 April 2002 |
[2002] EWHC 877 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Sullivan
NO: CO/4218/01
MS CHERIE BOOTH QC AND MR JOHN MCKENDRICK (instructed by Ashok Patel, 257 Balham High Road, London SW17 7BD) appeared on behalf of the Claimant.
THE FIRST DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
MR MARTIN CHAMBERLAIN (instructed by Treasury Solicitor) appeared on behalf of the Second Defendant
Friday, 26th April 2002
At the outset of these proceedings I ordered that the claimant's son's anonymity should be protected. The claimant should be referred to hereafter as CB and her son as TB.
INTRODUCTION
This is an appeal under section 11 of the Tribunals and Inquiries Act 1992 against the decision of the Special Education Needs Tribunal (the Tribunal) dismissing, in part, the claimant's appeal against the contents of a Statement of Special Educational Needs issued by the first respondent for her son, TB, who was born on 21st October 1987.
The claimant had appealed against the contents of Parts 2, 3 and 4 of the statement. No complaint is made of the amendments to Parts 2 and 3 of the statement that were ordered by the Tribunal. Part 4 of the statement named the Royal School for Deaf Children, Margate, a non-maintained residential special school (the Royal School). Because of the distance from the claimant's home, TB would have to board at the Royal School. Neither the claimant nor TB want him to board. Before the Tribunal the claimant argued that Part 4 of the statement should be amended by the deletion of the Royal School and the substitution of a description of a type of school suitable for TB to attend so that he could continue to live at home and attend school as a day pupil. The Tribunal dismissed the claimant's appeal against Part 4 of the statement. With the assistance of TB's older brother, Peter, who is able to sign, the Tribunal heard oral evidence from TB because "we thought it important that we hear TB's views and feelings about the school the authority was proposing he should attend."
FACTS
The background facts are set out in the Tribunal's decision dated 13th September 2001, as follows:
"1. TB is 13 years 11 months old. He has profound bilateral sensory hearing loss. He has severe communication difficulties. He can voice only a few words and, although he has a reasonable signing vocabulary, his signing is undeveloped. He has a high level of activity, and a short attention span. He has emotional and behavioural difficulties, and the written evidence mentions matters generally taken to be indicators of severe emotional disturbance.
2. When TB was tested at the age of 8 years 1 month, his general cognitive abilities were thought to be appropriate to his age. More recent assessment puts his non-verbal IQ at 87.
3. TB lost his hearing at the age of 4. When he attended nursery classes, he received teaching from a specialist teacher of the hearing-impaired, and speech and language therapy. He joined a first school in January 1994, where he received 12.5 hours a week individual support, and specialist teaching. On advice that he needed a total communication approach, he moved in September 1995 to a junior school in Croydon which had a primary hearing centre. There TB was in a class of 24 with 4 other deaf children. In 1996, in spite of changes to his hearing aids by Great Ormond Street Children's Hospital, TB made no progress. His attendance was irregular. His concentration and motivation were poor, and he often seemed tired.
4. The parents have a number of difficulties which have resulted in their care of TB being called into question. In particular, they have not enabled TB to keep medical appointments—Great Ormond Street Hospital removed TB form its list for a cochlear implant because of that—and they have not responded to advice and attempts to offer support as the Authority would have wished.
5. In February 1997, after professional advice that even with 20 hours a week support and specialist teaching, TB was not making progress, TB transferred to Hamilton Lodge, a special school in Brighton, as a weekly boarder. There his attendance was irregular; he showed signs of disturbance approaching weekends. In 1999 his behaviour deteriorated markedly, and TB was excluded from the school, initially temporarily, but then permanently, following violence to staff and other pupils, and theft.
6. TB has not acquired basic literacy and numeracy skills. In March 2000 he was working, in National Curriculum terms, at Level 1 in English and maths. Although he was able to write his name and address between February 1997 and May 2000, he cannot now do so.
7. TB has not attended school since May 2000. Since 13 June 2001 the Authority had provided him with 1 hour a week individual specialist tuition, to which his brother has escorted him.
8. In the statement against which CB appeals, the Authority proposed that TB attend the Royal School for Deaf Children in Margate. Because of the distance from home, that would mean a boarding place.
9. RSDC is a non-maintained residential special school for some 160 students, two thirds boys, aged from 4 to 19. It is approved by the Secretary of State for students with hearing impairment and other communication difficulties. It adopts a total communication approach. On the evidence, its regime and curriculum would be suitable for TB. The parents agree with that, but for the fact that TB would need to board in order to attend there. The report of RSDC's Ofsted inspection in 1997 said the school made good provision, and that overall the quality of teaching was good, with very good arrangements for social development. The parents for many months refused invitations to visit RSDC, or to arrange for TB to attend there for assessment, but he did attend there from 9 to 11 July for assessment, which confirmed the school's suitability for him. The Authority would expect TB to attend as a weekly boarder, and would make every effort to encourage and facilitate as much contact between TB and his family as practicable.
10. CB wants TB to attend a local day school, preferably a mainstream one. Initially she expressed a preference for:
a. Oak Lodge school in Wandsworth, a special school for deaf children aged 11 to 16 with day and residential places; after assessing TB Oak Lodge declined to offer him a place, on the grounds that for him to attend there would be incompatible with the education of other students; and
b. Southfields Community College, a secondary establishment with over 1200 students, which did not consider itself suitable for TB because, not being able to sign proficiently enough to access the curriculum, he would need to be able to access the curriculum only through speaking and listening, which he cannot do at anywhere near the levels required.
11. At the hearing CB acknowledged that TB could not attend either of those schools. She asked that we should not order that TB attend RSDC, but that we should order amendment to Part 4 of TB's statement so as to describe the type of school he should attend, leaving it to the family and the Authority to negotiate which school it should be.
12. The Authority contended that (a) TB's special educational needs were such that he needs an intensive and specialist regime, which cannot be provided in any of its own schools, or in any other school nearer than RSDC (which in the absence of evidence to the contrary we accept as fact); (b) that RSDC is educationally suitable for him (which, but for the boarding, the parents agree); and (c) in the absence of any school put forward by CB, TB should attend RSDC, because for us to order a type of school without naming one would only delay TB's re-entry into full-time education.
13. TB told us that he did not want to attend RSDC; he wanted to be at home with his parents. He spent most of his time playing at home or with friends, going fishing or working on motor bikes. He uses sign language, but some of his friends can hear. He reads books and draws. He thought RSDC boring and 'not happy'; he would not attend there, but would attend a school so long as he could be at home…
15. Whilst CB agrees the objectives in Part 3 of TB's statement, she wants that Part amended to make clear that the special educational provision for TB should not be residential. She contends that all, and every kind of, provision specified in the statement can be delivered in a day school, be it a specialist one or one with appropriate support.
16. A place at RSDC would cost about £39,725 a year (the exact figure would depend on further assessment) plus weekly transport…
18. On 11 April 2001 the Authority served a school attendance order requiring CB to register TB at RSDC. It has delayed enforcement pending the outcome of this hearing."
The Tribunal's conclusions with reasons were as follows:
"a. Paragraph 4:27 of the Code of practice recommends that Part 2 of a statement should describe all the child's learning difficulties, and should include a description of the child's functioning—what he can and cannot do. In the light of the evidence we agree that Part 2 needs to be amended to refer a little more particularly to TB's literacy and numeracy difficulties and his emotional and behavioural difficulties. It should be updated with the information from the assessment report and the report from the peripatetic specialist teacher. In particular, on the evidence and from our observation of TB at the hearing, and because of his age and current levels of...
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West Sussex County Council HS 962 2010
...with the age and maturity of the child. Sullivan J in CB v London Borough of Merton and Special Educational Needs Tribunal [2002] EWHC 877 (Admin) makes the following statement: “The Tribunal heard evidence from TB himself. His wishes were relevant and were taken into account by the Tribuna......