LB HS 556 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 03 October 2011 |
| Neutral Citation | 2011 UKUT 405 AAC |
| Subject Matter | Special educational needs |
| Respondent | Kent County Council |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 556 2011 |
| Appellant | LB |
Attendances:
For the Appellant: Ms T Hetherington, Counsel, instructed by Messrs Levenes
For the Respondent: Mr D Lawson, Counsel, instructed by County Solicitor
Decision: The appeal is dismissed. The decision of the First-tier Tribunal dated 6 January 2011 is upheld.
REASONS FOR DECISION
1. This appeal raises questions about the transition from the special educational needs system to the system for supporting people who are or should be the subject of a learning difficulty assessment under s139A of the Learning and Skills Act 2000 (“the 2000 Act”).
2. A was born on 3 September 1992. When aged seven she was diagnosed with generalized seizure disorder with absences and learning difficulties. She has continued in a persistent refusal to take medication on a regular basis to control her epilepsy. Her mother, Mrs B, had for many years contended that A’s difficulties were also due to autism. In 2009 the local authority accepted a diagnosis of autistic spectrum disorder.
3. In May 2008 Mrs B had removed A from school, which she had been reluctant to attend and where her attendance record had been very poor. A was then home educated until November 2008. From November 2008 the local authority provided education otherwise than at school for 21 hours a week, via an organisation called Writetrak. Writetrak sessions took place at tutors’ homes. This provision ceased in July 2010 as the local authority took the view that A would be more appropriately educated at C College, her local further education college.
4. The matter had first come before the First-tier Tribunal in September 2009. The tribunal gave some provisional conclusions, which resulted in the parties engaging in a search, which proved to be lengthy, for a suitable placement in the light of those conclusions. Both parties made applications to amend their case statements. A’s mother wanted the tribunal to make further amendments to Parts 2 and 3 of A’s statement and to name in Part 4 the D School (not its true initial), an independent special school in another area which A had attended for a 5 day trial, which offered a residential placement. The local authority sought an order pursuant to section 326(3)(c) of the Education Act 1996 (“the 1996 Act”) that A’s statement of special educational needs should cease, on the basis that the appropriate placement was C College and thus that it was no longer necessary to maintain the statement. Permission to amend the case statements was given and subsequently both parties filed amended case statements together with further written evidence and submissions.
5. Mrs B’s solicitors filed an additional submission dated 12 October 2010, “made to set out Mrs [B’s] response to the new case being advanced by the LEA...that [A’s] statement should now cease and that she should attend a mainstream further education college placement, at [C] College.” Part of this submission addressed section 139A:
“9.We would also argue that the questions of necessity and (as posed in para 8:123 of the guidance) of whether a particular placement can meet [A's] needs should be read in the light of the requirement in section 139A of the Learning and Skills Act 2000 for a report to be prepared on pupils with statements who are, or may be, in their last year of schooling. A lawful and detailed report under that section is in practice a prerequisite to a lawful decision being made as to provision for someone who is (or may be) leaving school. We say “or may be” because there is nothing to prevent a report under s139A from recommending that a young person remain in school if that is necessary in order for their needs to be met.”
It is convenient here to set out paragraph 8:123 of the Code of Practice on Special Educational Needs, referred to above:
“Where parents want their child to remain at school post 16, but the LEA considers that the young person’s special educational needs would be better met in a further education institution, the LEA cannot know whether the child still requires a statement until it has contacted the FE institution in question and confirmed that it is both able to meet the young person’s needs and has offered a place. The LEA should satisfy itself on both counts before taking formal steps to cease to maintain the young person’s statement….. It is not sufficient for LEAs to have a general expectation that an FE institution should be able to meet a young person’s needs.”
6. The submission then referred to a document described as a section 139A report which had been prepared by Connexions for the local authority which formed part of the authority’s amended case. It criticised it for (among other things) the lack of consultation with A, her mother or the solicitors and the failure to recommend specific and detailed provision. It continued:
“14. The report does not recommend a placement, or even discuss any placement. Insofar as it recommends provision, it is not clear that this would be compatible with a placement at the College. Given the numerous flaws in the assessment and report, we would argue that the Tribunal should give no weight at all to this document. We attach a copy of a letter sent to the LEA in this regard inviting them to withdraw the assessment, to which we have had no reply.”
7. The local authority as part of its case at the resumed hearing argued that A’s statement could not in any event continue after her 19th birthday i.e. 3 September 2011. This was, additionally, relevant even before then in that it was said that the limited period of time left before that date made it inappropriate to remove A from her local community (and was thus a reason for opposing the naming of D School.)
8. Whether the local authority’s position is correct on the upper age limit point is the subject of conflicting authority in the cases of AW v Essex CC [2010] UKUT 74 and R(B) v LB Islington [2010] EWHC 2539. An appeal in the former case is due to be heard by the Court of Appeal in October 2011.
9. The FtT:
(a) followed the Islington case and concluded that A’s statement could not run beyond the age of 19
(b) held that there was in any event insufficient evidence to enable them to conclude that the D School could meet all of A’s special educational needs
(c) held that C College could meet A’s needs and had a place for her
(d) held that strategies were available to deal with A’s antipathy to C College, so that it was not on that ground unsuitable for her and
(e) agreed that it was not necessary for the local authority to maintain a statement for A, so it should cease.
10. A’s mother sought permission to appeal on the grounds that:
(a) the FtT had erred in applying the Islington case rather than the Essex case and
(b) the FtT had erred in concluding that statutory provision was available for A at C College (with the consequence that it was no longer necessary to maintain a statement for her) by failing to take into account the absence of an assessment under s139A Learning and Skills Act 2000 (a “learning difficulty assessment” or “LDA”)
11. I gave permission to appeal on both grounds, but stayed the first, as this would be addressed by the Court of Appeal’s decision in the Essex case.
12. The issues for the tribunal were:
(a) whether the D school would be “appropriate for [A] and should be specified in the statement” (cf. 1996 Act, s 324) and
(b) whether, acting pursuant to section 326(3)(c), to order the local authority to cease to maintain the statement.
13. There has been a relatively recent re-organisation of responsibility for post-16 education and training. Under the 2000 Act as originally enacted, assessments with similarities to LDAs were carried out by an appointee of the Secretary of State - in practice, the “Connexions” service. The Education and Skills Act 2008 (“the 2008 Act”) transferred responsibility for LDAs to local authorities (albeit many still have them carried out by Connexions). What LDAs were required to cover remained the same as before, but the range of people subject to them was increased. Further, the statutory context against which they existed changed, in that different bodies took over functions formerly carried out by the Learning and Skills Council in relation to securing and financing post 16 education and training.
14. In consequence of amendments made by the 2008 Act, sections 139A – 139C of the 2000 Act provide:
“139A Assessments relating to learning difficulties: England
(1) Subsection (2) applies if a local authority in England—
(a) maintains a statement of special educational needs...
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