DC S 1497 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 11 January 2010 |
| Neutral Citation | 2010 UKUT 10 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | London Borough of Ealing |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | S 1497 2009 |
| Appellant | DC |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.
The decision of the First-tier Tribunal taken on 4 February 2009 under file reference 08-02606 does not involve any error on a point of law.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
Introduction
1. This case concerns the statement of special educational needs for a child whom I shall simply call E. Formally the parties are E’s mother and the local authority. However, E’s father is equally concerned with her education and so I shall refer to the parties as the parents and the local authority respectively.
2. I held an oral hearing of this appeal at Harp House on 23 December 2009. The parents were represented by Mr Friel of counsel and the local authority by Mr Hyams, also of counsel. Neither had appeared at the First-tier Tribunal below and indeed Mr Friel was instructed relatively late in the history of the case. I am indebted to both counsel their clear, well-structured and helpful submissions at the hearing, which assisted greatly in focussing the issues.
The background to the appeal to the First-tier Tribunal
3. E is a young girl who is now aged 7. According to the First-tier Tribunal’s decision – and this much is not in dispute – she “has an unusual and complex developmental profile with delayed language skills and significant social communication difficulties. She has sensory processing difficulties. She is highly self directed, is very active and is vulnerable as she lacks awareness of danger.”
4. E joined the Reception Class of a maintained mainstream primary school in the usual way and as at the date of the First-tier Tribunal’s hearing (when she was aged 6) she had remained at that school by agreement pending determination of the appeal.
5. The local authority prepared a Statement of Special Educational Needs for E under section 324 of the Education Act 1996 and in the usual format. Accordingly Part 2 set out E’s special educational needs and Part 3 the special educational provision that was required. This was followed by Part 4, dealing with placement, which stated that “E should attend an enhanced resourced provision within a mainstream school, catering for pupils with a range of learning difficulties with opportunities for ongoing assessment.” It then named a particular primary school’s (not the primary school she had been attending) “Support Base” as the relevant school.
6. The parents were unhappy with the Statement in a number of respects. In terms of the proposed placement, their main concerns were that E would have insufficient academic challenge in the Support Base and that the other children in the peer group being educated there were generally less able and less communicative than she was. They wished to have a particular independent special school for pupils with language and communication disorders as the named school for the purpose of Part 4.
The First-tier Tribunal’s decision
7. The First-tier Tribunal sat on 4 February 2009 to hear the parents’ appeal. The tribunal’s decision was to allow the appeal in part. The tribunal ordered that Parts 2 and 3 be amended in certain respects. However, on the crucial question of the appropriate named school under Part 4, the tribunal concluded that the Support Base at the maintained primary school identified by the local authority was suitable for E, and that it would be an unreasonable use of public expenditure to place her at the independent special school sought by the parents.
8. The Tribunal Judge issued a combined Decision and Statement of Reasons for its decision. The appellant applied for a review of, and permission to appeal against, the tribunal’s decision, but both matters were refused by the Tribunal Judge. I subsequently granted permission to appeal to the Upper Tribunal.
The Upper Tribunal’s jurisdiction
9. Before 3 November 2008 (‘T-Day’) appeals against decisions of what was then a Special Educational Needs Tribunal (or SENDIST) were heard by the High Court. Since the implementation of the Tribunals, Courts and Enforcement Act (TCEA) 2007, the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal has assumed the first instance functions of the SENDIST, with a right of appeal to the Administrative Appeals Chamber of the Upper Tribunal.
10. Under section 11(1) TCEA 2007, any party has “a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision”. Excluded decisions are defined by section 11(5), and include any decision by the First-tier Tribunal to review or not to review any of its earlier decisions. Thus there is no right of appeal against the present tribunal’s refusal to review its decision of 4 February 2009.
11. Furthermore, the Upper Tribunal’s jurisdiction is confined to deciding whether the decision of the First-tier Tribunal discloses any error on “any point of law”. It is therefore trite law that the Upper Tribunal can only interfere with the decision of the First-tier Tribunal if it got the law or the procedure wrong. I cannot substitute my own view of the facts for that taken by the tribunal – not least as the tribunal is an expert tribunal in this specialist field. In particular, it is axiomatic that the weight to be attached to any particular evidence “is essentially a matter for the Tribunal, unless the approach can be shown to be so illogical as to be irrational or perverse” (per Dobbs J. in W.S. (by his litigation friend Mr S) v Governors of Whitefield Schools and Centre [2008] EWHC 1196 (Admin) at paragraph 27).
12. It necessarily follows from the Upper Tribunal’s focus on the decision of the First-tier Tribunal that it is not concerned with events subsequent to that hearing. I merely note that the local authority has stated that since the tribunal hearing below the parents have not brought E to the Support Base and it is concerned that E may not be currently receiving appropriate education, the implication being that she is also not attending her original primary school. I merely express the hope that views are not so entrenched that the parents and the local authority are unable to work together in furthering E’s best interests for the future.
A preliminary point: the format of the decision of the First-tier Tribunal
13. The format of the First-tier Tribunal’s decision in this case was in the traditional SENDIST format. Thus the Decision and Statement of Reasons includes a section headed ‘Facts’ with numbered paragraphs, a section headed ‘Tribunal’s conclusions with reasons’ with lettered paragraphs, and the document was ‘topped and tailed’ with paragraphs which are neither numbered nor lettered.
14. This is clearly a tried and tested format for SENDIST decisions. However, the section headed ‘Facts’ does not simply record the facts as found by the tribunal – it also rehearses the evidence (a tendency which Stanley Burnton J observed in VK v Norfolk County Council and SENDIST [2004] EWHC 2921, [2005] ELR 342 at paragraph 60), without necessarily always making it clear whether or not that evidence was accepted.
15. There is, however, a more fundamental issue about the continued use of this traditional SENDIST format for decisions. The HESC Chamber of the First-tier Tribunal is part of the judicial system established by the 2007 Act and overseen by the Senior President of Tribunals. The Senior President has the power to make directions on ‘the making of decisions by members of the First-tier Tribunal’, without the approval of the Lord Chancellor (Tribunals, Courts and Enforcement Act 2007, section 23(6)(b)).
16. In this regard the Senior President has issued a Practice Statement on the Form of Decisions and Neutral Citation: First-tier Tribunal and Upper Tribunal on or after 3 November 2008. This expressly provides that “First-tier and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering”. The Practice Statement refers to the need to follow international practice and to use such numbering to facilitate publication of decisions on the web. True, that latter rationale is not applicable to decisions of the HESC Chamber of the First-tier Tribunal in special educational needs cases. However, a consistent and sequential system of paragraph numbering is invaluable for the parties and also for the Upper Tribunal in helping to identify easily particular passages in tribunal decisions. Compliance with the Senior President’s Practice Statement is therefore a matter of good judicial practice.
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