CCC HS 2264 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge S M Lane |
| Judgment Date | 27 September 2011 |
| Neutral Citation | 2011 UKUT 393 AAC |
| Subject Matter | Special educational needs |
| Respondent | London Borough of Tower Hamlets |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 2264 2010 |
| Appellant | CCC |
(ADMINISTRATIVE APPEALS CHAMBER)
This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
The decision of the Tribunal taken on 14/6/10 under file reference 09-01665 involves a material error on a point of law. The decision is SET ASIDE and REMITTED to the First-tier for a complete rehearing by a freshly constituted tribunal.
REASONS FOR DECISION
Introduction
1 I apologise for the delay in issuing this decision.
2 This case was transferred to me by Judge Wikeley. It concerns the statement of special educational needs for the appellant’s son, H. Judge Wikeley gave permission to the appellant to appeal on grounds which, in essence, are an attack on the adequacy of the facts and reasons provided by the First-tier Tribunal (‘the tribunal’). However, in the course of deliberation, I have come to the conclusion that there is, another problem in the decision: having decided not to name the appellant’s preferred school, the tribunal did not consider whether it should have placed the child at a mainstream school, as required by section 316 of the Education Act 1996, unless that was incompatible with either the parent’s wishes or the education of other children. There was evidence that the appellant wished H to attend a mainstream school with a MDL environment if preferred school was not named: p449, 474 and 612, tribunal bundle. The tribunal made no findings on the appellant’s further wishes for her child’s education, if her preferred school was rejected, or on whether it was incompatible with the education of other children to place the child in a mainstream school. Rather than delay the decision any further, I set it aside for inadequacy of reasons and the error in not dealing with the application of section 316.
3 I set out the details of the case in some detail, having regard to the complexity of events which led to this set-aside.
The background to the appeal to the tribunal
4 H, who was born in 2004, was about 6 years old at the time of the tribunal decision. The Tribunal found, in a section entitled ‘Evidence’ but which the tribunal plainly intended to treat as factual findings, that H was a high functioning autistic child with severe speech and language disorder, delay in his reciprocal social interaction skills and restrictive behaviour. He had normal cognitive functions and good hand skills, but did not have good functional skills. He was diagnosed as having epilepsy at one stage, but this diagnosis was not sustained.
5 There is a long history of dispute between the appellant and the respondent (the Local Authority) about the appropriate school for her son. In its decision, the First-tier Tribunal states that the LA investigated 14 schools in its effort to satisfy the appellant’s demands, but the appellant did not consider any of them acceptable. The LA has done its utmost in trying to accommodate the appellant’s views, but the sad fact is that she has been dissatisfied with each of the many schools which the LA either suggested as appropriate for H, or sent him to, in conformity with her wishes. The appellant’s dissatisfaction with more than one school flew in the face of their reports describing him as progressing, happy and settled. It is ironic that the school the appellant is appealing against in part 4 of the Statement of Special Educational Needs (SSEN) is an expensive, independent school for children with complex learning problems which the LA put forward of its own volition because it satisfied all of the requirements the appellant perceived her son to have.
6 The SSEN was issued on 18 May 2009. The appellant was unhappy with Parts 2, 3 and Part 4, in which Riverhouse School, an independent primary school following Montessori methods of education, was named at the appellant’s request through her solicitors (p114, appeal bundle). Although the appellant named this school, the request was, in effect, a way for her to initiate an appeal to specify Treetops School, a special school for children with moderate learning difficulties maintained by the neighbouring borough of Thurrock (p14, 450), in part 4.
7 The LA had no objection to sending H there but Thurrock, when approached, felt they could not provide a place at Treetops School for H because it was already overcrowded, had a waiting list, and could not physically find or make the space in the classrooms for the special AVA/VB teacher which the appellant insisted upon.
8 The respondent LA therefore declined to name Treetops School because, in all the circumstances, giving him a place would be incompatible with the provision of efficient education for the children with whom he would be educated: Sch. 27 para. 3(3), Education Act 1996. It maintained the name of Riverhouse School in Section 4 but continued to try to find another suitable school.
9 H attended Riverhouse School from May/June 2009 until the school decided to withdraw his place from spring term 2010 owing to the appellant’s unreasonable demands and behaviour. In the end, they agreed to keep his place open until the end of summer term (July 2010). The LA paid his fees until then but the appellant did not send him back from Easter 2010 because she considered the school totally unsuitable for her son. He has not been to school since, but has instead been home schooled, without the LA’s approval. Any proceedings arising out of her failure to send him to school are not a matter for this Tribunal. I would note, however, that her duty was to send H to the school named in the Statement of SSEN. The tribunal’s decision stood unless and until it was either stayed (which has not happened) or overturned.
10 The LA had to change the named school, type of school (or both) in part 4 since a place at the named school, Riverhouse, was no longer available. At the first hearing of the appeal on 11 March 2010, the LA indicated that it wished to name Woodcroft School, a special independent (non-maintained) school for children with severe, profound or complex learning difficulties in Loughton, Essex.
11 The appellant rejected this school as unsuitable following a visit. She felt it was a school for severely learning disabled children whereas she now considered H to have made great progress at Riverhouse School and to be only moderately disabled. This is at significant odds with the views she presented for inclusion in Part 2 of the SSEN and with the most recent paediatric occupational therapist’s report she had produced. The gist of her appeal changed, therefore, from presenting H as severely disabled to being moderately disabled. This is stated, for example, in her e-mail dated 16 March 2010 to Mrs Gersch, who represented the LA and who is head of SEN in the LA.
12 Importantly, the appellant stated in that e-mail that she thought H should be schooled in a ‘mainstream school with a MDL (moderate disability) environment, i.e. Treetops School’. There are indications that, if Treetops School was not available, she would have wanted H to be schooled in a mainstream school with a MDL environment, as set out in [2] above. At least in theory, the appellant would have been content with a mainstream school with a special unit or special provision. The issue of a mainstream school as alternative to Treetops School was was, therefore, a live one.
13 The appellant says that, at the hearing, she asked the tribunal to specify a mainstream school of her choice until a place at Treetops School became available if they did not name Treetops School in part 4. There is nothing in the tribunal’s Decision to show that this submission was made. Unfortunately, the tribunal did not record the submissions made by the appellant’s representative in the Decision, apart from noting that her representative had abandoned home schooling with a RDI programme. There is neither a Record of Proceedings nor a copy of written submissions in the file from which I can glean this information. However, it would be surprising if this submission was not made, since the appellant was by this stage desperate for H not to attend Woodcroft School, and it was obvious that a place at Treetops School was problematic.
14 It is not possible to say that the LA was convinced that the only appropriate school was a special school or that it considered H’s needs to be incompatible with the education of others in a mainstream school. The LA had proposed an independent Montessori school in part 4 and had considered a wide range of schools, including maintained mainstream schools (449, tribunal bundle), as well as a number of special schools, for H.
15 At the end of the day, the tribunal did not accede to the appellant’s wishes in respect of Part 4, though it accepted her amendments in substance in respect of Part 2 and 3.
Were parts 2 and 3 of the SSEN properly formulated and explained?
16 I have come to the conclusion that they were not. It is trite law that a Statement of Special...
To continue reading
Request your trial