Miss H v East Sussex County Council and Others

JurisdictionEngland & Wales
JudgeLord Justice Waller,Lord Justice Scott Baker,Lord Justice Toulson
Judgment Date31 March 2009
Neutral Citation[2009] EWCA Civ 249
Docket NumberCase No: C1/2008/2645
CourtCourt of Appeal (Civil Division)
Date31 March 2009

[2009] EWCA Civ 249

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

HHJ Inglis

Before:

Lord Justice Waller

Vice-president of the Court of Appeal, Civil Division

Lord Justice Scott Baker and

Lord Justice Toulson

Case No: C1/2008/2645

CO/7357/2008

Between
Miss H
Appellant
and
East Sussex County Council and Ors
Respondents

David Wolfe (instructed by Messrs Levenes) for the Appellant

Peter Oldham (instructed by Legal Services, East Sussex County Council) for the

First Respondent

Hearing date: 24 th February 2009

Lord Justice Waller

Introduction

1

MH is 12 years old and has Prader Willi Syndrome (PWS). That is a complex condition that affects many areas of her development. It impacts on, among other things, her language and communication and her ability to interact with those around her. She also has associated general learning difficulties, significantly disordered language development and a rigidity of thinking which means she finds it hard to cope with change. She has associated low muscle tone which leads to difficulties with both fine and gross motor control.

2

MH was statemented under the Education Act 1996. On 8 th February 2008 her local education authority, East Sussex County Council (the LEA), amended MH's statement in anticipation of her transfer from secondary school in September 2007. The statement as amended set out the LEA's views as to MH's Special Educational Needs (Statement Part 2), the Special Educational Provision to be made to meet those needs (Statement Part 3) and the school placement which should be made for her (Statement part 4). The placement proposed by the LEA was Grove Park School as from September 2008 – Grove Park being a day special school.

3

On 25 th March 2008 as was her right Miss H, MH's mother, appealed under section 326 of the 1996 Act seeking amendments to Parts 2, 3, and 4. In particular she sought an amendment so that in place of the day school requirement should be placement at St Mary's, a residential special school.

4

Miss H's appeal was supported by a number of medical experts, by the principal of St Mary's, where MH had been assessed, and an Educational Psychologist, Ruth Birnbaum. The LEA relied on their experts including an Educational Psychologist and the principal of Grove Park School.

5

The appeal came on for hearing before a Special Educational Needs and Disability Tribunal on 27 th June 2008. That Tribunal gave its written decision on 9 th July 2008 and by that decision it refused to make the amendments to the Statement contended for by Miss H and in particular did not require MH to be placed at St Mary's the residential school on the grounds that “we were not convinced from the evidence that MH can only receive an appropriate education in a residential setting and it follows that the LEA's grounds of opposition to residential placement, on the grounds that this will involve unreasonable public expenditure, succeeds.”

6

Miss H, by notice of appeal dated 5 th August 2008 (one day inside the time limit for appealing), appealed to the High Court on points of law pursuant to section 11 of the Tribunals and Inquiries Act 1992. The points of law identified in the grounds of appeal were as follows:—

“1. The Tribunal erred in law in its rejection of MH's need for a waking day curriculum (decision paragraph Aiii) in that

(a) it failed to give legally sufficient reasons for rejecting the evidence including from medical and educational experts, which supported that need – the Tribunal referred only [to] the former and gave no reasons for rejecting the latter;

(b) The Tribunal took into account only the medical evidence in support of that need and thus failed to have regard to plainly material evidence from educational experts to that effect and/or erroneously rejected the evidence of the educational experts (as well as doing so without explaining why it was doing so); and

(c) The Tribunal rejected the evidence in support of a waking day curriculum (albeit, as above, only considering part of that evidence) on the basis that (so it considered) separation of [MH] from her mother would not be in her best interests which (however relevant it might be to a social services assessment) was not a lawful or proper basis on which to reject expert medical and educational evidence to the effect that [MH] required a waking day curriculum in relation to her special educational needs.

2. The Tribunal erred in law in concluding that Grove Park should be specified as [MH]'s school placement (in Part 4 of her Statement) (decision paragraph G) in that:

(a) It erroneously reached that conclusion on the basis of its conclusion that Grove Park (taken with other provision) “represent a broadly appropriate education for [MH]” when that is not the appropriate test. The true question was whether Grove Park could make the provision set out in Part 3 of [MH]'s Statement (as it would be amended in the light of the appeal). The Tribunal never addressed itself to that question let alone did it give any lawful reasons for a conclusion on the point.

(b) Grove Park could not, in fact, make the provision set out in Part 3 (as amended) such that the Tribunal could not, in any event, lawfully conclude that it would be a suitable placement.

(c) Moreover, it did so instead in reliance on the provision at Grove Park and the social services support, without identifying the social services support it had in mind and (in any event) without that support having been identified as educational provision (such that it could not properly form part of the package of educational provision for the Tribunal to take into account.”

7

His Honour Judge Inglis, sitting as a Deputy High Court Judge, heard the appeal on 26th September 2008 and handed down a written judgment on 16 th October 2008, in which he rejected Miss H's arguments. He also refused permission to appeal.

8

A notice of appeal was filed on behalf of Miss H on 5 th November 2008 (again one day short of the time limit) with a request for permission to appeal, pointing out that the appeal was a second appeal. The same grounds were raised as before the judge. The skeleton in support was filed on 18 th November 2008 and bundles approved on 27 th November 2008. The skeleton requested expedition. It submitted that “where … a parent has engaged an expert … who gives clear support … on a key point … it cannot be right that the Tribunal can reject that evidence without saying that it is doing so, let alone explaining why it has done so.”

9

The skeleton suggested that there was a conflict between the authorities at first instance as to the obligation of a tribunal when giving reasons dealing with expert evidence. It suggested that Grigson J was right when he said in H v Kent County Council and the Special Educational Needs Tribunal [2000] ELR 660“A specialist tribunal such as SENDIST can use its expertise in deciding issues but if it rejects expert evidence it should state so specifically. In certain circumstances it may be required to say why it rejects it.”

10

The skeleton contrasted the above statement with the words of Wilkie J in KW and VW v London Borough of Lewisham [2007] ELR 11“In my judgment, in a case such as this, where there were contending points of view being expressed by various professionals on either side of the argument, the tribunal has given sufficient reasons by identifying which side of the argument had succeeded.”

11

As I understand the submission in the skeleton it is first that the judges saying what they did in the above cases were to be taken to be laying down propositions of law, so that a failure in any case to comply in the case of Grigson J would produce an unlawful decision, or compliance with what Wilkie J said would in any case produce a lawful decision, and second that there was a disagreement between them as to what in law amounted to a failure to give reasons.

12

Although this was a second appeal Ward LJ was persuaded to grant permission to appeal on the basis that there “may be” a difference of approach as between Grigson J and Wilkie J and ordered expedition.

Timetable

13

I have set out the timetable in some detail because, although what was in issue in the case was the question of which school MH should attend for the term starting in September 2008, it is to say the least unsatisfactory if this court is only considering that question in February 2009. Obviously, if and insofar as there does appear to have been some delay in getting the matter dealt with in the Court of Appeal as between 27 th November 2008 and 26 th January 2008, that is a matter of regret but in truth it is not that period which is of the greatest concern, since the beginning of term had long since passed. The problem seems to me to occur at earlier stages. It took until 26 th March to appeal a decision of 8 th February. It then took until 27 th June to get a hearing before the Tribunal. A notice of appeal from that decision was only one day short of the limit, whereas the urgency would have dictated an immediate issue of a notice and an attempt to get the matter heard in the Administrative Court. Notice of Appeal from the decision of the judge was, again, one day short of the limit. A skeleton was filed some 13 days later which then asked for expedition but bundles were not approved until 27 th November 2008. We did not explore the reasons for the above timescales and I am not seeking to place blame anywhere; all I do say is that if the issue relates to the education of a child as at the beginning of a...

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