Lucie M v Worcestershire County Council and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lawrence Collins,MR JUSTICE LAWRENCE COLLINS |
| Judgment Date | 28 June 2002 |
| Neutral Citation | [2002] EWHC 1292 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1061/2002 |
| Date | 28 June 2002 |
[2002] EWHC 1292 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lawrence Collins
CO/1061/2002
Mr John Friel (instructed by Elaine Maxwell & Co) for the Appellant
Mr Clive Sheldon (instructed by the Legal Department, Worcestershire CC) for the First Respondent
J M is now about 13 1/2 years old and lives in Malvern, Worcestershire. He has severe learning difficulties, and his parents (his mother being the appellant) are dissatisfied with a decision of the Special Educational Needs Tribunal (“the Tribunal”), the effect of which is that he will have to attend a special school, run by the local educational authority (“the Authority”). The parents (and also J) want him to go to a privately run specialist school in Devon, F College, which has a much smaller number of pupils and can provide the direct occupational and speech and language therapy which they say he requires. The cost to the local authority of sending J to F College would be between £57,000 and £75,000 p.a.
The challenge to the decision of the Tribunal is centred on the rejection of the case put forward on his behalf that he should receive direct therapy by an occupational therapist, that he should receive direct speech and language therapy, and that The schoolwas unsuitable for J's needs. In particular it was said that the Tribunal had not taken proper account of the evidence that he would not go to the school and could not be persuaded to go there, and that the school did not have full provision to meet his needs, because it was the Authority's policy not to provide direct speech therapy, and there were no adequate facilities available to provide occupational therapy. The main focus of the challenge was on lack of adequate reasoning. But it was also suggested that in relation to its findings on occupational therapy the Tribunal had made use of its own expertise without putting its solution to J's parents.
II Legal aspects
This is an appeal under section 11 of the Tribunals and Inquiries Act 1992, from a decision of the Tribunal, the procedure of which is now regulated by the Special Educational Needs Tribunal Regulations 2001, S.I. 2001 No.600.
By section 9 of the Education Act 1996 the Secretary of State and the local education authorities are to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.
Part IV of the Act deals with children with special educational needs, that is learning difficulties which call for special educational provision: section 312(1). The general principle is that children with special educational needs are normally to be educated in mainstream schools (section 316). Where a local education authority is of the opinion that a child for whom it is responsible has special educational needs and it is necessary for it to determine the special educational provision which any learning difficulty calls for, the authority may make an assessment of the child's educational needs: section 323.
Special educational provision is educational provision which is additional to, or otherwise different from, the educational provision made generally for children of the age in schools maintained by the Authority: section 313(4). If, in the light of an assessment under section 323 of the child's educational needs and of any representations made by the parent, it is necessary for the authority to determine the special educational provision which any learning difficulty calls for, the authority is to make and maintain a Statement of the child's special educational needs; and the Statement must contain details of the assessment of those needs, and specify the special educational provision to be made for the purpose of meeting those needs, and specify the name of the school which they consider would be appropriate for the child: section 324.
By section 326 the parent of a child may appeal to the Tribunal against the contents of the Statement, and on an appeal the Tribunal may dismiss the appeal, or order the authority to amend the Statement or order the authority to cease to maintain it: section 326(1), (3).
A panel of the Tribunal is chaired by a person with legal qualifications. No person may be appointed as a member of the lay panel unless the Secretary of State is satisfied that he has knowledge and experience of children with special educational needs: Special Educational Needs Tribunal Regulations 2001, SI 2001 No. 600, reg 3.
By Regulation 36(2) the statement of the reasons of the Tribunal's decision is to be “in summary form.” This is an increasingly used expression in regulations relating to the procedure of statutory tribunals, such as those dealing with matters as diverse as immigration and asylum and family health services.
The principles applicable to challenges of the Tribunal's decision are not unique to this Tribunal, but since several cases in relation to its decisions were cited I summarise their effect. First, proper and adequate reasons must be given, so that they are intelligible and deal with the substantial points that have been raised, and the reasons should deal, in short form, with the substantial issues raised in order that the parties can understand why the decision has been reached: S v. Special Educational Needs Tribunal and the City of Westminster [1996] ELR 102 at 112; The Queen on the application of B v. Vale of Glamorgan CBC [2001] ELR 529, 536: Crean v. Somerset CC [2002] ELR 152, 164 to 165. Secondly, and as a result of the first principle, the absence of reasons to explain why a case was rejected may make the decision appear irrational: Crean at 167. Thirdly, where reasons are inadequate, it is not normally appropriate that the reasons should be amplified on the appeal to the High Court: Oxfordshire CC v. GB [2002] ELR 8, at 11 (C.A.).
Fourthly, a decision must be sufficiently specific and clear as to leave no room for doubt as to what has been has been decided: London Borough of Bromley v Special Educational Needs Tribunal [1999] ELR 260, 297 (C.A.). Fifthly, the lay members of a Tribunal specifically appointed for their educational expertise may use that expertise in deciding issues before the Tribunal, but they may not use it to raise and decide other issues which the parties may not have had an opportunity to consider (for example the choice of a specific school which neither party had considered): Richardson v. Solihull Metropolitan BC [1998] ELR 319 at 322. That is because although it is a specialist tribunal with members appointed for their expertise, it is important that the Tribunal obeys the rules of natural justice and that members should not give evidence to themselves which the parties have had no opportunity to challenge: ibid at 338.
III Background
I will take the background from the decision of the Tribunal. J has high levels of anxiety. He panics when faced with tasks and worries about failure. When he was transferred to a secondary school in September 2000 he suffered severe depression, for which he was admitted to hospital and underwent psychiatric treatment. He has a communication disorder within the autistic spectrum with associated delayed and disordered language development, obsessive behaviour and difficulties with social interaction.
In 1998 at the age of 9 1/2 he was referred to the Authority's learning and behaviour support service, and in September 1998 when he started Year 5, it arranged for him to have almost 7 hours a week individual support. By November 1998 he was refusing to go to school and was being prescribed anti-depressants. He transferred to another primary school in January 1999, he was recorded as having difficulties with motor co-ordination, mixed laterality visual discrimination, memory, perception, concentration and poor self esteem. He was given learning support, and his parents arranged for him to attend a private dyslexia class.
When he transferred to a secondary school in September 2000 he was not able to cope, and suffered an episode of severe depression. He was diagnosed as having specific developmental dyslexia.
He became suicidal and in late November 2000 he was admitted to the adolescent mental health care centre at Birmingham Children's Hospital. A consultant psychiatrist recommended that he be taught in a small group setting and receive speech and language therapy.
At that time he attended a local primary school but was discharged in February 2000, and has not attended any school since then. He has refused to attend a unit for children with school phobias, because, according to his mother, there were pupils there who had been excluded from school for bad behaviour. The Authority provided home tuition, but he withdrew from that, and he has not received any teaching since July 2000.
In May 2000, when he was still at primary school, Mrs M asked the Authority to arrange statutory assessment of his special educational needs. The Authority consented to an order, and in the course of an assessment the Authority received advice from (among others) its senior educational psychologist, a Birmingham Children's Hospital speech and language therapist, and a consultant community paediatrician.
The senior educational psychologist saw J when he was 12 years 4 months old, and assessed his verbal reasoning as on the 7 th centile of the population, his non-verbal reasoning on the 34 th centile, his...
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