MW S 2292 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 03 February 2010 |
| Neutral Citation | 2010 UKUT 34 AAC |
| Subject Matter | Special educational needs |
| Respondent | Halton Borough Council |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | S 2292 2009 |
| Appellant | MW |
Attendances:
For the Appellant: Mr D Lawson of Counsel
For the Respondent: Mr M Mensah of Counsel
Decision:
1. 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 the appeal: rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 applies.
2. The appeal is allowed. The decision dated 10 July 2009 of the First-tier Tribunal (Health, Education and Social Care Chamber) sitting at Liverpool on 2 July 2009 under reference 09-00339 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Health, Education and Social Care Chamber) for rehearing before a differently constituted tribunal.
3. I direct that the file be listed for a case management conference before a judge of the First-tier Tribunal as soon as practicable to consider whether further directions are required, including (but without limitation) as to the provision of further evidence to the re-hearing.
REASONS FOR DECISION
1. The original application to the Upper Tribunal had requested a hearing in private. The basic rule is that hearings are to be held in public (rule 37) subject to any direction to the contrary. Much of the business of the Administrative Appeals Chamber of the Upper Tribunal involves matters of personal sensitivity. The circumstances here, though undoubtedly sensitive, were in that context not exceptional and there is in general terms a legitimate public interest in being able to see how the Upper Tribunal functions. I considered that the interests of the child involved were adequately protected by the order at 1. above without additionally ordering that the hearing be in private. This was acceptable to both parties.
2. The appeal is brought by the mother of B, a boy born on 15 August 1998. Although a child with such a date of birth would generally have progressed to Year 7 in September 2009, B has been one year below his chronological year group since starting at school. Thus the tribunal which sat in July 2009 was concerned with provision for B for Year 6 from September 2009.
3. B was originally diagnosed with autistic spectrum disorder and was viewed as being on “the mild to moderate band of the autism spectrum” (FtT 578 – references in these Reasons in this format are to the First-tier Tribunal bundle). In 2008 the diagnosis was amended to one of autism. He has difficulties with language and communication and social understanding, social interaction, cognitive and problem-solving skills and with anxiety and confidence. He has some literary and numeracy difficulties and has motor skills difficulties.
4. The issues outstanding between the parties principally related to whether Part 2 of B’s statement of special educational needs should be amended to refer to an inability to cope in mainstream education; whether B needed an autism specialist environment for the purposes of Part 3 (there were also ancillary issues concerning speech and language therapy provision and the need for a sensory curriculum); and the school to be named in Part 4. The Respondent had named C School, a maintained mainstream school, which B had attended since the beginning of Year 3. B’s parents argued that it was not appropriate for B. They wanted school D to be named, a non-maintained special school for children aged 5 to 19 years with autism. The Respondent accepted that school D could offer appropriate instruction and training, but as in their view school C was also appropriate, the difference in costs meant that C should be named, because of the need for the avoidance of unreasonable public expenditure: cf. Education Act 1996, section 9.
5. The tribunal recorded agreement between the parties on other points and ordered certain other amendments to the statement. It declined to add the wording sought to Part 2; it considered that an autism specialist environment was not required for the purposes of Part 3 and it upheld the naming of C school in part 4. B’s mother applied for permission to appeal on 6 September 2009, which I gave. I held an oral hearing at the Manchester Civil Justice Centre on 20 January 2010 at which B’s mother was represented by Mr Lawson of Counsel and the Respondent local authority by Mr Mensah of Counsel. I am grateful to both for their submissions.
6. B had been attending the C school since September 2006. It appears that for a while, all concerned were pleased with his progress and development, although the papers do contain suggestions that even then, concerns existed over behaviour and a tendency to diarrhoea, similar to those which more definitively emerged later. In any event by early 2008, more focused concerns were surfacing in the minds of B’s parents. They noticed aggressive behaviour towards them on B’s part and noted what they describe as “a recurring theme of headaches, abdominal pains and sickness on his return home from school” (FtT 46). This resulted in a referral in February 2008 from the consultant paediatrician to the Child and Adolescent Mental Health Service (CAMHS), led by a Consultant Child and Adolescent Psychiatrist, Dr O’Malley. Many of the issues before the Upper Tribunal concerned the treatment by the First-tier Tribunal of Dr O’Malley’s evidence, which it is necessary to set out at some length.
7. Before doing so however, it is right to record the process of assessment which was carried out in May and June 2008 in preparation for the 2008 Annual Review of B’s special educational needs by Mr Martin Redmond, an Educational Psychologist – Senior Practitioner (FtT 381-389). B’s parents had raised a number of specific concerns, such as bad behaviour which they felt had been caused by the school’s failure to provide advanced warning of optional SATs tests in maths (a subject B is said to find particularly difficult), and problems of social interaction and gross motor skills. Mr Redmond undertook observations during playtime, assembly and a lesson afterwards and subsequently in a PE lesson. He recorded, among other matters, that:
“During playtime [B] appeared to enjoy his break and the company of the other children, he tended to play with younger pupils. During assembly…he attended appropriately...He displayed a low level of restlessness at times during the assembly, but no more than other pupils…In the lesson… [he] worked on-task successfully alongside other pupils…[He] worked with five other children talking to them at times, presenting as being an integrated member of his class of 27 pupils…”
In PE he found that B was able to complete some activities successfully, while finding other activities too difficult (as did some other children). He was observed to be happy throughout the lesson, presenting as smiling and talking to the teacher, his support worker and to other pupils.
8. Mr Redmond also spoke to staff involved with B and carried out tests. He also administered a Pupil Attitudes to Self and School (PASS) Survey. Under it, B showed a positive attitude (compared with other children from his own age group) towards his teachers and a just below average level of being positive in relation to “General work ethic” but, as Mr Redmond put it:
“Otherwise his profile is concerning reflecting the profile of a pupil who is not happy about himself as a learner within the context of his school”.
Mr Redmond’s professional view was that “the PASS audit is a valid assessment of how B views himself as a learner within the context of school.” Mr Redmond’s recommendation was that further multi-professional investigation with colleagues from CAMHS be undertaken. It was only the limited positive or neutral findings from this survey and not those described by Mr Redmond as “concerning” that found their way into the draft amended statement of SEN (FtT 428), although it does not appear that any point has been taken in relation to this in the proceedings to date.
9. With regard to “Aims of Provision” Mr Redmond commented:
“Provision needs to focus on meeting the needs of a pupil whose predominate ability profile reflects that of a pupil deemed to have moderate learning difficulties. He presents to ‘significant’ others as a pupil and son who is experiencing problems with his communication skills. Advice from the Speech and Language Therapy Service will inform teaching colleagues how best to help understand [B’s] communication and interaction skills, and how to address meeting those needs. Provision also needs to help him achieve progress with learning basic literary skills.
Provision needs to address [B’s] concerning profile of how he views himself as a learner, building on his positive attitude towards his teachers.”
10. With regard to “Facilities and Resources”, Mr Redmond noted:
“[B] will benefit from being taught using factual concrete examples within practice involving, repetition,...
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