HS 147 2012, London Borough of Hammersmith and Fulham v JH

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge S M Lane
Judgment Date19 September 2012
Neutral Citation[2012] UKUT 328 (AAC)
AppellantLondon Borough of Hammersmith and Fulham
Subject MatterSpecial educational needs
Docket NumberHS 147 2012

IN THE UPPER TRIBUNAL Appeal No. HS/147/2012


Before Judge S. M. Lane


1 These are the reasons for the short decision I issued on 6 September 2012 by which I allowed the appellant Local Authority’s appeal against the decision of the First-tier Tribunal of 8 November 2011 (tribunal reference no. SE/205/11/00008). I set aside the decision and remitted it to a freshly composed Tribunal under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

2 The appeal relates to whether the Tribunal was correct in naming the school preferred by the respondent parent, JH, in Part 4 of the Statement of Special Educational Needs for her son, AH (‘A’). The identity of the respondent and her son are not to be revealed without permission from the Upper Tribunal. They are to be known only by their initials.

3 The appeal took place by way of an oral hearing at Field House on 9 July 2012. Mrs Hellier, from the local authority’s Legal Division, was present on behalf of the local authority. JH represented herself. Mrs Trupia, the main case worker for the local authority was present, initially as an observer.

4 It quickly became apparent from the way that both sides turned to Mrs Trupia to seek basic information that she could be of assistance to both sides. I therefore invited her to take part, as needed. JH was worried that this might be intimidating for her, but I did not consider this to be a realistic objection: JH is a highly articulate, assertive person who has long experience of special educational needs provision because all three of her children were autistic. She had known and dealt with Mrs Trupia for years, and had no hesitation in turning to her for confirmation or other information. In the circumstances, I concluded that it was appropriate for Mrs T to take part, rather than to keep interrupting proceedings whenever a party turned to her to check whether there was any objection. JH agreed that this was satisfactory. Mrs T’s was of great assistance in clarifying basic factual information and I thank her for her helpful and balanced input. I also thank the parties for their full and frank input at the hearing.

The appeal

5 The First-tier Tribunal allowed JH’s original appeal against the Statement of Special Educational Needs issued by the Local Authority on 23 August 2010. The SSEN was unusual in that it adopted a staged approach, naming in Part 4 the PM School (which A had been attending for several years) for the period September 2010 – July 2011, followed by WM from September 2011. That would have taken A through to the end of his school years, when he was 19 or so. The period during which A was to be placed at PM was to end in July 2010, but for circumstances which need not detain us here, it was extended until July 2011. His placement was on a residential basis. The Tribunal decided that only PM was to be named in Part 4. The placement was to remain residential.

6 In granting permission to appeal, I considered it arguable that the Tribunal erred in law on several grounds: it (i) failed to make sufficient findings and give adequate reasons for its decision that A needed a waking day curriculum; (ii) failed to make a proper comparison between the schools in deciding that WM School was not suitable; (iii) failed to give sufficient reasons for saying that a cost of £37,000 was not an unreasonable use of public resources; (iv) may have misdirected itself to whether there had been a change in A’s SEN, rather than whether WM School was suitable; and (v) erred in relation to the evidence of a witness, Mr Adu.

7 I consider that grounds (i) and (ii) are established. Each of these is a sufficient basis on its own for setting aside the Tribunal’s decision. I also consider that grounds (iii) and (v) are established. It will be unnecessary to deal with (iv) in the circumstances.

8 It should be noted that JH indicated to the Upper Tribunal that she wished to reserve her position in relation to Parts 2 and 3 of the SSEN if she was not successful in defending the Tribunal’s decision. This is not possible. At the Fist-tier hearing, the tribunal rightly confined the scope of the appeal to Part 4 of the Statement in view of JH’s statement that she had no objection to the provision under Parts 2 and 3 which were supplied at PM, and her failure to supply any grounds of appeal under those parts. The same reasons apply at the Upper Tribunal.

9 The appeal to the Upper Tribunal is therefore confined to whether the tribunal was correct in specifying PM in Part 4.

The Background

10 A has attended PM as a boarder for several years. At the time of the First-tier Tribunal hearing, the reason for his attendance at a residential school was lost in the mists of time. At the Upper Tribunal hearing, I heard evidence from the Local Authority that A was sent to a residential school because, during A’s earlier years of education, they had inadequate facilities and programmes for SEN children. JH certainly concurred with their frank admission. However, their provision has now greatly improved, making it appropriate, in their view, to bring A back to a suitable local mainstream school which could offer the necessary SEN provision.

11 PM is an independent school which takes special educational needs children either as boarders or day pupils, though the cost of boarding and day attendance at the school is the same. WM School, on the other hand, is a mainstream maintained sixth form college. It has an outstanding report from OFSTED in relation to both non-SEN and SEN pupils. The difference in cost between PM and WM is some £37,000.

12 JH expressed a preference for PM. She objected to moving A to WM because it was big, noisy, unfamiliar to A and she believed it did not have suitable arrangements for him. A himself was set against attending WM. It emerged from the evidence in the papers that A had a girlfriend at PM to whom he was very close, which might have added to his resistance to a change of school.

13 The tribunal considered that the Local Authority was proposing a very significant change in the provision for A without a sufficient working plan [26] and when it had not been shown that A’s needs had changed. The SSEN, it stated, contained elements that were normally provided in special schools. It decided that

‘without further...

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