Harrow Council HS 3653 2012
| Jurisdiction | UK Non-devolved |
| Judge | Other Judges / Other Commissioners/Deputy Commissioners |
| Judgment Date | 27 March 2013 |
| Neutral Citation | 2013 UKUT 157 AAC |
| Subject Matter | Special educational needs |
| Respondent | AM |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 3653 2012 |
| Appellant | Harrow Council |
IN THE UPPER TRIBUNAL Case No. HS/3653/2012
ADMINISTRATIVE APPEALS CHAMBER
JUDGE MARK
Decision: The appeal is allowed. I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions given below.
REASONS FOR DECISION
- This appeal is brought with my leave. This decision follows an oral hearing on 22 March 2013 at which Mr. John McKendrick of counsel appeared for the appellant council and Mr. Tom Cross of counsel appeared for the respondent, the mother of the child, F, with whose education this appeal is concerned. I am grateful to both for their helpful submissions
- F was born in 2001. He suffers from a very rare form of muscular dystrophy. He has severe myopia with no sight in one eye. Although 11 years old at the time of the tribunal hearing, his curriculum attainments have been described as mainly equivalent to a developmental level of between 6 and 12 months. He has no expressive language. He has hypotonia and severely impaired gross and fine motor skills. He attended a maintained special school until July 2012 and the main issue of disagreement between the council and his mother was as to the school to be named in part 4 of his statement, although there were also some differences as to the contents of parts 2 and 3 of the statement
- The council wished to place F in Kingsley High School, a maintained day special school for students from 11 to 19 with complex/severe learning difficulties. It was not suggested that this would be an unsuitable placement for F. An Ofsted inspection had adjudged it to be a good school with outstanding features and a rich and exciting curriculum. F’s mother, however, wished him to be included in a mainstream school and at one point proposed Whitmore High School. On the evidence before the tribunal, however, she conceded that a placement at Whitmore would be incompatible with the efficient use of resources or the provision of efficient education for the children with whom he would be educated.
- Nevertheless, she still expressed a clear wish that he should be educated in a mainstream school. The tribunal made findings as to F’s needs and as to the contents of the statement. It set out its conclusions in paragraph 23 of its decision as follows:
“In conclusion, therefore, whilst we find (as in Bury) that, given reasonable steps, [F’s] education in a mainstream school would not be incompatible with the efficient education of other children, we consider that the proposed model [ie, proposed on behalf of his mother] for his placement at Whitmore is incompatible with any concept of inclusion, simply because he would be alone, with adults, for much of his day as a result of the requested amendments to Part 3. We do not see any realistic possibility of his having the opportunity for significant interaction with mainstream peers in the classroom or outside it or of making the hoped for additional progress in this environment. The statutory guidance does not address the issues relating to the inclusion of a child with profound and multiple learning difficulties and we are mindful that it does not suggest that inclusion in mainstream will be right for all children. It may be that some children will experience true inclusion in a different setting. The facts in Bury, to which reference has been made, are distinguishable in that the child concerned was of primary age, physically able, and verbal. We accept that the legislation supports [the mother’s] preference for a mainstream school but we do not accept that it requires us to endorse a plan which we consider to be profoundly unsuitable for a very vulnerable child. Although the LEA has provided little evidence as to how inclusion is facilitated in its other mainstream schools, (and in Harrow it seems probable that Whitmore is the most likely to be suitable) we are aware, from our own knowledge and experience, that there are mainstream schools where [F] would not receive his education in isolation, and where he could experience inclusion in a more meaningful way than would be possible at Whitmore. Consequently, since no other ‘candidate’ schools have been put before us we propose to name a type of school.”
- The tribunal went on to order that Part 4 was to specify “A maintained mainstream secondary school where [F] will be educated with other pupils who have severe and complex disabilities, which has appropriate facilities, expertise and access to extensive therapy involvement and provision.”
- In the course of the decision, at paragraph 21, the tribunal addressed the problems which the council has said would occur if, in effect, a school within a school was created for F. It found that “the impact of his presence in school on the day to day education of his peers would be minimal” as he would spend little time in the classroom. I am unclear why indeed he would spend any time there, as the lessons being taught would have no meaning whatsoever for him and would be wholly beyond his capacity to comprehend. Nor would there be, as the tribunal pointed out, any significant detraction from the time allocated to the other students as differentiation at the level F required would be the task of the specialist teacher. Additions to the work of the SENCO could reasonably be covered by additional resources and reasonable adjustments could be made to allow for the significant amount of extra space he would need for his individual teaching and therapy.
- In seeking permission to appeal, the council initially identified four grounds of appeal. Firstly, it contended that the tribunal had acted irrationally and/or unreasonably and/or in error of law by concluding that F’s placement at a mainstream school would not be incompatible with the efficient education of other children. Secondly, it was contended that the tribunal failed to provide any reasons as to what reasonable steps were required, or why they were required, and also failed to consider the costs of such steps and provide reasons as to why the steps were reasonable given the cost. Third it is said that the tribunal erred in law by considering whether F’s placement at Whitmore or generally in mainstream was ‘inclusive’ or otherwise. Fourthly, it was contended that by giving evidence to itself it acted contrary to the rules of fairness when concluding that there were other mainstream schools available when no evidence had been presented that this was the case.
- Following receipt of this application, by order dated 24 September 2012, a different tribunal judge, Judge Tudur, refused permission to appeal but decided that the decision should be reviewed in part pursuant to Rule 47(1) because there was an error of law in that “the Tribunal did not specifically make reference in its reasons for the conclusion that a dedicated specialist teacher was not required to be included in part 3 of [F’s] statement nor identify the level of input by a specialist teacher required to be included in Part 3 (if any).” Judge Tudur further directed that the review should be conducted by the original tribunal panel following written submissions by both parties. She found that there was no arguable error of law in relation to the second to fourth grounds of appeal, omitting to refer at all to the first ground. This appears to have been an accidental error, as the ‘reasons’ ground was in fact the second ground, but fortunately nothing turns on it.
- The council then applied to the Upper Tribunal for permission to appeal, the new application being dated 22 October 2012. Only three grounds were relied on, the contention that the tribunal had acted irrationally or unreasonably no longer being pursued. Meanwhile the review proceeded, and on 8 November 2012 an Upper Tribunal judge stayed the application for permission until 14 days after the First-tier Tribunal had sent out its decision on the review application. The review decision is dated 21 November 2012. Paragraphs 1 to 5 are basically an account of the parties’ submissions and evidence and the broad view taken of them by the tribunal. It then continued in paragraph 6 by stating:
“Essentially, however, we concluded that ‘reasonable steps’ could be taken in order to prevent the inefficient education of other pupils at Whitmore, as a ‘candidate’ school. We also accepted that [F] would require the kind of curriculum described by Dr. Hymans if he were placed in a mainstream setting. (Para15). We did hypothesise, in para 22, that the creation of a school within a school’ would not be a ‘reasonable step’ envisaged by the statutory guidance. However this did not amount to a finding in relation to [F]. Indeed the tribunal was able to envisage a situation where a child, in a wheelchair, placed in a mainstream classroom, supported by a teaching assistant, following a wholly differentiated curriculum and encouraged not to vocalise inappropriately would not compromise the efficient education of the other pupils. We could not accept, however, that such a setting would be in any way appropriate for [F]. What followed was the detailed conclusion (para 23) that, whilst ‘reasonable steps’ were possible, the plan being put forward for [F] was so unique as to be extremely isolating and therefore harmful to a very vulnerable child. Hence the decision in...
To continue reading
Request your trial