LS HS 1557 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 11 March 2013 |
| Neutral Citation | 2013 UKUT 135 AAC |
| Subject Matter | Special educational needs |
| Respondent | Oxfordshire County Council (SEN) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 1557 2012 |
| Appellant | LS |
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.
The decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 28 February 2012, following the hearing on 23 February 2012 under file reference SE931/11/00017, involves an error on a point of law.
The Upper Tribunal is not in a position to re-make the decision on the appeal against the Respondent’s refusal to make a statement of special educational needs in relation to C. It therefore follows that the case is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.
This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The new tribunal should not involve the tribunal judge or members who sat on the last tribunal on 23 February 2012.
(2) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.
(3) These directions may be supplemented as appropriate by later directions by a Tribunal Judge in the First-tier Tribunal (Health, Education and Social Care Chamber).
RULING
There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child who is the subject of this appeal.
This ruling is made under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
REASONS FOR DECISION
Introduction
1. This appeal concerns a decision of the First-tier Tribunal (“the tribunal”) about the special educational needs of a young boy now aged nearly 14 (“C”). The local authority (“the Council”) carried out an assessment of those needs and issued a non-statutory Note in Lieu rather than a statutory statement of Special Educational Needs (SEN). The tribunal dismissed the mother’s’ appeal against that decision following an oral hearing on 23 February 2012. I am allowing her further appeal for the reasons that follow.
2. Following my grant of permission to appeal, I held an oral hearing of the appeal to the Upper Tribunal at Field House in London on Monday 4 March 2013. C’s mother was present and represented by Mr David Lawson of Counsel; the Council was represented by Ms Karen Steyn of Counsel. Neither advocate had appeared at the hearing before the tribunal below. I am grateful to them both for their helpful submissions.
The background to the appeal to the First-tier Tribunal
3. C is an intelligent boy; his special educational needs arise from his literacy difficulties (dyslexia) together with the difficulties arising from his diagnosis of Asperger’s Syndrome. He started senior school in September 2010. Although he was placed on School Action Plus, his mother was concerned that he was not getting sufficient specialist support and pressed for the Council to issue him with a SEN statement.
4. The Council conducted an assessment of C’s special educational needs under section 323 of the Education Act 1996. In July 2011 the Council informed C’s mother that, in its view, his needs could be met appropriately from resources available within the school at School Action Plus. The Council accordingly issued a non-statutory Note in Lieu. In August 2011 C’s mother appealed to the tribunal.
The First-tier Tribunal’s hearing and decision
5. The tribunal held an oral hearing on 23 February 2012. C’s mother was assisted by a volunteer from the Council’s parent partnership organisation, but called no witnesses. The Council was represented by a SEN officer, who called three witnesses.
6. The tribunal dismissed the appeal. In summary, the tribunal’s assessment of the evidence was that it did “not cause us to conclude that C’s needs will only be met if we order the Local Authority to issue a Statement” (tribunal decision, paragraph [24]). Having considered the various aspects of C’s progress at school, the tribunal found that:
“We do not find convincing evidence in those areas that C’s needs could only be met by the Local Authority making a statement. These areas should all be addressed from within the normal resources available to a school” (paragraph [20]).
The grounds of appeal to the Upper Tribunal
7. There are three grounds of appeal. The first relates to the correct test to be applied in deciding whether a SEN Statement is needed. The second is a complaint that the tribunal failed to make sufficient findings of fact about the arrangements in place in the Council or at the school. The third concerns the tribunal’s omission to consider the implications of the school’s imminent conversion to Academy status.
8. In short I do not accept the first ground of appeal. I conclude that the second ground of appeal is made out in part. I find the third ground of appeal to be proven. I therefore allow the appeal. I deal with the issue of further disposal (or “relief”) below.
9. Before turning to those three grounds of appeal, I should first deal with one preliminary matter. On the Thursday before the Upper Tribunal hearing on the following Monday, the Appellant’s solicitors lodged an 8-page “updating statement” by C’s mother, with nearly 30 pages of supporting documents. This set out various ways in which it was said that, since the hearing below, even the provision promised in the Note in Lieu had not fully materialised. Ms Steyn objected to this evidence on the basis that it had been served late, she had not been able to take proper instructions on its contents and it was in any event contested.
10. I simply make three short points. First, I understand the mother’s anxiety that everything that she can do for C is done on his behalf. However, whatever may or may not have transpired in fact since the hearing before the lower tribunal cannot help me answer the question whether that tribunal erred in law in any respect. Second, the case management directions for the oral hearing before the Upper Tribunal made no provision for any such “updating statement” to be supplied, but simply for the exchange of skeleton arguments on the legal issues. Third, I follow as correct the approach helpfully set out by HH Judge Pearl in NC & DH v Leicestershire County Council [2012] UKUT 85 (AAC) at paragraphs 22 and 23. I therefore do not have regard to that evidence which deals with events subsequent to the tribunal’s decision when determining whether or not that tribunal’s decision involves an error of law. Insofar as is necessary, I formally exclude the “updating statement” with its exhibits under rule 15(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
Ground 1 – the failure to apply the correct test or reaching an unreasonable decision on the test applied: amount of provision
The submissions on behalf of the Appellant
11. Mr Lawson’s submissions on the first ground of appeal took as their starting point three propositions. First, that section 324 of the Education Act 1996 and the allied Code of Practice provided for an objective test to govern the issue of SEN statements, so as to ensure consistency of treatment, not just within local authority areas but also across the country. Second, that the Code of Practice set out “markers” for when a statement was, or was not, likely to be appropriate (see especially paragraph 8.13). Third, that the statutory test is about the necessity to specify provision, and is not about funding or whether the relevant provision is or is not being delivered. Mr Lawson further argued that the provision for C which the tribunal found to be in place was at a level beyond School Action Plus and, properly construed, fell within the right-hand column of paragraph 8.13 of the Code of Practice and so mandated the issue of a SEN statement for C. In summary, he concluded that the tribunal had (i) failed to apply the correct test; (ii) failed to give reasons, other than the Council’s financial arrangements, why the provision for C did not indicate that a statement was appropriate; and (iii) reached an unreasonable conclusion that the provision involved did not meet the markers in paragraph 8.13 for the issue of a statement.
The submissions on behalf of the Council
12. Ms Steyn’s submissions on the first ground of appeal took as their starting point the principle that the 1996 Act and the Code of Practice envisage differing levels of intervention, and that issuing a Statement is at one end of the spectrum of methods to address special educational needs. She argued that the...
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