MS HS 1840 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge H. Levenson |
| Judgment Date | 03 February 2011 |
| Neutral Citation | 2011 UKUT 50 AAC |
| Subject Matter | Special educational needs |
| Respondent | London Borough of Brent |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 1840 2010 |
| Appellant | MS |
[2011] AACR 29
(MS v London Borough of Brent (SEN)
Judge Levenson HS/1840/2010
3 February 2011
Special educational provision – education otherwise than in a school – parents wishing education partly at school and partly at home – meaning of “education in a school”
The father of a child with special needs appealed against the contents of a statement naming a particular maintained special school which he should attend on a full-time basis. He had been attending a maintained mainstream primary school on a part-time basis and receiving a home-based programme using Advanced Behavioural Analysis (ABA) for 30 hours a week. The parents wished him to continue attending that school on a part-time basis with home-based ABA of 40 hours weekly. Section 319 of the Education Act 1996 provides that where a local authority is satisfied that it would be inappropriate for the special educational provision which a learning difficulty of a child calls for, or any part of such provision, to be made in a school, it may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school. Section 316 provides that where a child with special educational needs should be educated in a school, he must be educated in a mainstream school unless that is incompatible with the wishes of his parent, or the provision of efficient education for other children. In TM v London Borough of Hounslow [2009] EWCA Civ 859 it was held that in addressing the question under section 319 it was not enough for the local authority to ask simply whether the school can meet the statement of needs but it has to see if a school would not be suitable or would not be proper, and to do so must take into account all the circumstances of the case in hand. The First-tier Tribunal decided that it was not inappropriate for any of the provision to be made in a school, and applying section 316 decided that part 4 of the statement should name the mainstream school on a full-time basis with a carefully planned transition programme in place leading to full-time attendance over a six-month period. ABA would continue to be delivered at home but decrease in proportion to the increasing number of school hours until the transition was complete at which point a further review would be necessary. The father appealed to the Upper Tribunal. The local authority argued that the wishes of the parents were not for education in a school but for education at home with an element of co-location at school and, having concluded for the purposes of section 319 that it would not be inappropriate for the child’s needs to be met at the special school, the tribunal should not have gone any further as section 316 did not apply, citing the Department for Education and Skills 2001 Guidance on Inclusive Schooling, which indicated that a child had to be in mainstream education for at least 51 per cent of the time in order to count as being in mainstream education.
Held, allowing the appeal, that:
- education at home with an element of co-location at a school is education at a school, at least in part, and while there may be a de minimis requirement for what is to count as attendance at a school, the parents’ proposal for about 30 per cent attendance was well above any de minimis threshold (paragraph 22)
- the 2001 Guidance was designed to prevent local authorities from claiming that children with special educational needs were in mainstream education when in fact they were not and had no relevance to the section 316 exercise and, as a matter of law, it could not provide authoritative interpretation of the statute (paragraph 22)
- having decided under section 319(1)(a) that it was not inappropriate for any of the provision to be made in a school, and having carried out the section 316 exercise, the tribunal should then have considered whether under section 319(1)(b) it was inappropriate for part of the provision to be made in a school and, in failing to separate out the issues in the case, the decision of the First-tier Tribunal involved the making of an error of law (paragraphs 23 and 24).
The Upper Tribunal judge remitted the case to a completely differently constituted tribunal for rehearing.
DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Decision
1. This appeal succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (Health, Education and Social Care Chamber), sitting in London and made on 29 April 2010 under reference 09/02513. I refer the matter to a completely differently constituted tribunal panel in the Health, Education and Social Care Chamber of the First-tier Tribunal for a fresh hearing and decision.
2. Before listing, the matter is to be referred to a judge of the First-tier Tribunal for case management directions, taking account in particular of any pending or recent review. Without prejudice to those directions, the parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.
3. The parties are agreed that the decision of the tribunal was made in error of law, but for very different reasons from each other. It has been necessary to consider the principal legal arguments made on behalf of each party.
4. The respondent local authority had applied for permission to cross-appeal against the decision of the First-tier Tribunal but I saw no useful purpose in complicating matters in this way since I could in any event (and did) consider any relevant points of law that the authority wished to make. The First-tier Tribunal appears to have given the appellant limited permission to appeal, and to the extent necessary I give further permission in relation to the matters that I discuss below.
Hearing
5. I held an oral hearing of this appeal on 6 January 2011. The appellant (the father of the child in question) was represented by David Wolfe of counsel, instructed by Levenes, solicitors. The respondent local education authority (the authority) was represented by Fiona Scolding of counsel. I am grateful to them for their assistance.
Background
6. The relevant child is a boy to whom I shall refer as “A”. He was born on 15 March 2003 and at the age of three was diagnosed as being autistic. He is a child with special educational needs and in respect of whom the respondent local education authority has maintained a statement of special educational needs, although I do not know when the first such statement was issued. The First-tier Tribunal stated that “He has experienced difficulties in all areas of his development, particularly in relation to his language skills and social interaction”. In December 2006 he started to receive a home based programme using Advanced Behavioural Analysis (ABA) and attended nursery on a part-time basis. In September 2007 A began to attend a particular maintained mainstream primary school on a full-time basis. From September 2008 he began to attend the school for three half days each week and for a while the ABA tutors also attended the school. This attendance pattern has continued and in addition A has received ABA at home for 30 hours weekly. His parents would like to continue with that pattern of attendance at that particular school but with home based ABA of 40 hours weekly for 50 weeks a year in addition to the school attendance. The First-tier Tribunal found that the total annual cost of such provision would be £46,358.
7. In 2009 the authority assessed or re-assessed A’s needs. Various reports were obtained and recommendations made, which were not always compatible with each other. It is not the role of the Upper Tribunal in this case to adjudicate between them or to resolve the conflicts, but to decide whether the First-tier Tribunal went about its task (which did include such roles) in a legally appropriate way.
8. In the new statement which seems to have been issued on or about 19 August 2009 the authority named a particular maintained special school which A should attend on a full-time basis. There were about 124 pupils on the role, of whom over 50 per cent had an autistic spectrum disorder. The First-tier Tribunal found that the total annual cost of attending this school would be nearly £23,800.
9. On 5 October 2009 A’s parents appealed to the First-tier Tribunal against the contents of the statement. That tribunal heard the appeal on 15 March...
To continue reading
Request your trial