Hampshire County Council S 558 2009
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 24 November 2009 |
| Neutral Citation | 2009 UKUT 239 AAC |
| Subject Matter | Special educational needs |
| Respondent | JP |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | S 558 2009 |
| Appellant | Hampshire County Council |
[2010] AACR 15
(Hampshire CC v JP)
(Three-Judge Panel)
[2010] AACR 15
(Hampshire County Council v jp (SEN) [2009] UKUT 239 (AAC))
Judge Rowland S/558/2009
Judge Levenson
Judge Oliver
23 November 2009
Special educational needs – residential placement – whether required on educational grounds or social care grounds
Tribunal procedure – statement of reasons – whether adequate reasons for preferring evidence of one expert to that of another
The local authority appealed against a decision of the First-tier Tribunal to the effect that a child required residential education 52 weeks a year and named a particular school, notwithstanding that a place might not be available for nine months. By the time the appeal came before the Upper Tribunal, a place had become available and the local authority had decided not to move him even if it succeeded on the appeal. Nonetheless it wanted the appeal heard to clarify points of law, in particular the question whether the First-tier Tribunal had been correct to order a placement that might not be available for nine months, although that question was clearly academic.
Held, allowing the appeal, that:
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the appeal was not wholly academic and the ground of appeal that was academic had been fully argued before the Upper Tribunal against a genuine factual background, was a short point and was linked to the other grounds of appeal, and would therefore be considered (Office of Communications v Floe Telecom Limited [2009] EWCA Civ 47 and R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 considered) (paragraphs 15 to 18);
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the First-tier Tribunal’s decision to name the particular school was not erroneous in point of law merely because there was a risk that a place there might not become available for nine months, given that it must, on the evidence before it, have considered there to be a substantial likelihood of a place becoming available by the beginning of the next term, and it was entitled to consider that the amendment it made to Part 4 of the statement of special educational needs was the best that could be achieved for the child once it had accepted his need for a placement in a residential school (paragraph 21);
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in deciding that the child needed residential education the First-tier Tribunal misunderstood the evidence of a witness, who had accepted the need for continuity in the child’s life but had not conceded that he needed residential education, and that misunderstanding suggested that it might have failed to draw a proper distinction between educational needs and social care needs (paragraphs 25 to 30);
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the weight to be attached to an opinion expressed on a matter beyond the professional expertise of a witness is likely to be limited and reliance on such an opinion is likely to require some explanation by a tribunal (paragraph 34);
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the First-tier Tribunal’s decision was erroneous in point of law because it gave inadequate reasons for its conclusion that the child required residential education and for preferring the evidence of one expert to that of another (Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377 (CA) followed) (paragraphs 36 to 40).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Jonathan Auburn of counsel, instructed by the Head of Corporate and Legal Services, Hampshire County Council appeared for the appellant.
Ms Anne Lawrence of counsel, instructed by Mr Felix Moss, solicitor, of Accrington appeared for the respondent.
Decision: Permission to appeal is granted on ground 2, permission having already been granted on the other grounds of appeal.
The decision of the First-tier Tribunal dated 11 November 2008 is erroneous in point of law but is not set aside.
REASONS FOR DECISION
1. This is an appeal brought under section 11 of the Tribunals, Courts and Enforcement Act 2007 by Hampshire County Council against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 11 November 2008, amending a statement of special educational needs in respect of a child, N. Crucial to this appeal are the amendment to Part 3 of the statement, to include a sentence that reads:
“He needs a waking day curriculum provided 52 weeks a year”,
and then the amendment to Part 4, so that it reads:
“Placement at a school for pupils with Autistic Spectrum Disorder and complex learning difficulties on a day basis first at [O] School and then once a 52 week placement at [PV] is available on a residential basis for fifty two weeks a year at [PV] School.”
2. N, who had just reached the age of 17 at the time of the First-tier Tribunal’s decision, has a diagnosis of autistic spectrum disorder and severe learning difficulties. He has had a statement since 1996 and attended O School, a local authority maintained special school, from September 2002, at which time N was living with foster parents. His mother, who is the respondent to this appeal and had separated from her husband when N was very young, had increasingly found it difficult to manage N’s behaviour. In April 2004, the statement was amended. This followed the diagnosis of autism in September 2003 and also O School’s move to new premises in the same month. Later in 2004, the foster placement broke down and N returned to live with his mother but with periods of respite care. However, in September 2005 the respondent asked that a residential placement be found for N because she was finding his behaviour too difficult to manage. From November 2005 N was a “looked after child”. From then until May 2008, he lived at O School’s residential unit during the week in term time and with his mother most weekends and holidays, although he continued to be placed in respite care frequently, mostly (but not always) at a children’s home in Winchester. In April 2008, the respondent told the local authority that she could no longer look after N full-time when he was not at school and so he was accommodated in a children’s home – not the one in Winchester – under section 20 of the Children Act 1989, although he continued to spend some time with his mother. He remained living at O School during term-time weeks until the end of the school year in July 2008, but he moved to the post-16 unit in June 2008, primarily because of his behaviour as he had not quite reached the end of Year 11.
3. Meanwhile, in 2006, the respondent had appealed to what was then the Special Educational Needs and Disability Tribunal against a refusal by the local authority to reassess N’s special educational needs. What she was seeking at that time was amendments to the statement of special educational needs so that it recognised what she regarded as N’s educational need for a residential placement. The local authority’s view was that his needs outside normal school hours were social care needs, rather than educational needs, and he had been living in the residential unit at O School on that basis. Nonetheless, the local authority did agree to reassess N and the appeal appears to have been withdrawn. In any event, the local authority issued an amended statement on 16 May 2008, but it still did not include in Part 3 any reference to a need for a residential placement. The respondent therefore appealed against that amended statement. Her appeal was registered on 2 July 2008.
4. In her appeal, the respondent challenged Parts 2, 3 and 4 of the statement of special educational needs. As to the drafting of Parts 2 and 3, she maintained that it did not identify adequately in Part 2 what she believed (on advice) were complex deep-seated problems that N had. The respondent said that her concerns related to matters identified by both occupational therapists and speech and language therapists. She maintained that Part 3 did not properly identify all of the educational provision that N needed and in particular did not deal with his occupational therapy and speech and language needs. Finally, and most importantly, the respondent also maintained that N’s needs were such that the provision that he needed to meet those special educational needs could only be met in a school with autistic spectrum disorder expertise, which offered a waking day curriculum 52 weeks a year. She wished Part 3 to be amended to that effect and had identified PV School as the school she wished the tribunal to name in Part 4.
5. Between the appeal being registered and the statements of case being lodged, which under the procedural rules then in force was to be done by both parties simultaneously, there was what the local authority regarded as a major change of circumstances. The Children’s Services Department identified TP, a privately-run care home for young people with learning disabilities, as appropriate accommodation for N. Because TP was primarily accommodation for young adults, it was potentially available to N until he was aged at least 24. N moved to TP on 18 August 2008 and staff were specifically recruited to work with him.
6. The local authority’s written case on the appeal was that N’s educational needs could properly be met at O School on a day placement basis in its post-16 unit, that he had no requirement for a waking day curriculum, and no requirement for a 52-week curriculum. It maintained that TP would best meet N’s social care needs and that placement at a school offering a 52-week waking day curriculum,...
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