R MRS L v London Borough of WALTHAM FOREST SPECIAL EDUCATIONAL NEEDS and DISABILITY TRIBUNAL
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEATSON |
| Judgment Date | 21 November 2003 |
| Neutral Citation | [2003] EWHC 2907 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2295/2003 |
| Date | 21 November 2003 |
[2003] EWHC 2907 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
MR JUSTICE BEATSON
CO/2295/2003
MR D WOLFE (instructed by Levenes) appeared on behalf of the CLAIMANT
MR J MILFORD (instructed by Waltham Forest, EduAction) appeared on behalf of the DEFENDANT
In this case, Mrs L is appealing pursuant to the Tribunals and Inquiries Act against the decision of the Special Educational Needs and Disability Tribunal dated 16 April 2003, dismissing her appeal against the contents of a statement of special education needs made by the defendant Council for her son, G, on 16 October 2002.
The grounds of appeal are that the Tribunal erred in law in concluding that the school was meeting G's needs, and it was thus appropriate, by reference to P scale scores. This was in the face of evidence that, (1) G was actually regressing, at least by the time of the Tribunal hearing; and (2) that the P scale scores in question were misleading in showing relevant progress, in particular:
(1) the evidence in question was not contradicted such that the Tribunal's contrary conclusions unsupported by evidence are perverse;
(2) the Tribunal unlawfully failed to give proper reasons for rejecting that evidence, including for not accepting the expert evidence of Mrs Burgess on the point; and
(3) insofar as the Tribunal relied on its own expertise in the matter, the Tribunal unlawfully failed to give the appellant an opportunity to deal with that evidence.
At the hearing, Mr Wolfe, on behalf of the appellant, did not pursue the first ground. It was agreed that there was evidence for the Tribunal's conclusion. He focused his submissions on the absence of proper reasons and the fact that, if the Tribunal had relied on its own expertise in the matter, it did not give the appellant an opportunity to deal with the matters arising from its expertise.
G is 6. He has an autistic spectrum disorder and is substantially delayed in all his skills. Since 2000 he has had a statement of special educational needs within the meaning of Part 4 of the Education Act 1996. Since September 2001, he has attended a maintained special day school. Following his annual review in 2002, his mother considered he was not making progress and his case was referred to the Special Educational Needs Panel of the LEA. The LEA accepted that there might be difficulties and proposed that an educational psychologist should review the strategies to support the child in the school.
G's mother had requested the Panel to fund a LOVAAS home based programme for him. She and her husband had attended a meeting at which such programmes were discussed and decided that such a programme would help their son in a more satisfactory way than the school. The Panel considered this but rejected a home-based LOVAAS programme, although it accepted that there might be difficulties where G was not making sufficient progress. His statement was amended on 16 October, but not in the way that his parents wished. The statement specified a school based programme. Mrs L appealed to the Tribunal. She argued that G had not made sufficient progress in the maintained special day school in which he had been placed, and asked the Tribunal to order the local educational authority to fund a LOVAAS programme at home. The Tribunal rejected her appeal.
Her evidence to the Tribunal consisted of two statements. She described her fears about G's progress and the fact that since going to school, he had changed from a happy child to one who was unhappy. She first became aware of these difficulties from his behaviour and his reluctance to go to school. He became a child with very challenging behaviour. Before the Tribunal, evidence was given in support of G's mother by Ms Naomi Burgess, an educational psychologist who had assessed G at the school on 31 January and 4 February 2003. She also had the annual reports and other documents concerned with his progress, including his parents' views.
In her report dated 12 February 2003, Ms Burgess stated that the main difference for G between school based and LOVAAS learning will be "the minute detail of the task analysis as each programme is broken down for him and the small time lag between response, repetition and reinforcement". She stated that G appears to learn "almost exclusively through direct teaching and reinforcement with physical prompts rather than learning incidentally through being in a group with other children". Her discussions with G's school indicated to Ms Burgess that it did not offer the particular style or approach for which G's mother was searching and which she believed was likely to support G more fully in learning to respond, socialise and learn. In conclusion she believed that G required:
"An environmental and teaching plan which operates on a finely tuned behavioural model in order to teach him early learning, socialisation and language skills which most children learn through play. Most importantly he needs very focused training to increase his attention focus and reduce his inappropriate learning behaviours, and this focus needs to be part of each teaching element …
"Observations would indicate that G is not benefiting from incidental learning from modelling on the other children and that he actually needs to build up a learned social repertoire, which is then practised, to consolidate that learning."
After referring to the fact that the process used at his school can be operated in a highly structured manner and with flexibility, she stated "in this instance it seems that G is reaping little benefit from the system in operation".
She stated that G would need:
"Tuition delivered on a tightly organised behavioural schedule in an environment with minimal distraction.
"One-one tuition delivered by an ABA consultant who will be trained and monitored according to their professional recommendations."
An ABA consultant would be a person who would deliver the LOVAAS programme.
As well as evidence from Ms Burgess, the Tribunal and G's mother, the Tribunal had before it G's annual reports and assessment using a measure called the P scales. The LEA's case was presented by Ms Sharon Joseph, their SEN strategy and support manager. Ms Joseph accepted that a LOVAAS approach was appropriate for a person in G's position, but it was not necessary in his case because his current school was making suitable provision and his needs could be addressed in school. She stated that he was making progress and that progress had been assessed by the school in certain curricular areas using the P scales.
G's mother stated that she had taught herself the LOVAAS approach and had conducted a daily one hour session with G at home. She stated G had made progress and that, although he lost some skills, he still remembered others. She considered these sessions showed that a LOVAAS approach was appropriate and the best way of enabling him to progress.
In its decision, the Tribunal first set out the facts and the evidence. Apart from evidence that I have mentioned, it stated in relation to Ms Burgess's evidence that, although his school offered its own approach to children with difficulties such as G's, her:
" … discussions at [the school] indicated they do not offer the particular style or approach for which Mrs L is searching and which [she] believe[s] is likely to support G more fully at the moment in learning to respond, socialise and learn."
It was also said in the "facts" section that G was not benefiting from incidental learning. The passage which I have quoted from Ms Burgess's written report is in substance set out again.
I turn to the conclusions. The relevant passages regarding the disputed part of the statement, Part 3, are those in paragraphs c to g, which I set out in full:
"...
To continue reading
Request your trial
-
Mr & MRS M v SW SCHOOL and The SPECIAL EDUCATIONAL NEEDS and DISABILITY TRIBUNAL
...accept the submission that the approach to the duty to give reasons is set out by Beatson J in L v Waltham Forest and the SENDIST [2003] EWHC 2907 (Admin) at paragraphs 13 and 14 as follows in material respect: "13. … The statutory requirement is that reasons be given in summary form. … 14.......
-
Dr Robin Edward Lawrence v The General Medical Council
...to challenge. [11]" 231 See also R(L) v London Borough of Walton Forest Special Educational Needs and Disability Tribunal [2003] EWHC 2907 (Admin) at [14] : "… where the specialist Tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its th......
-
Bury Metropolitan Borough Council HS 1350 2010
...reiterating the principle as set out above, East Sussex casts doubt on the summary provided by Beatson J in R(L) v LB Waltham Forest [2003] EWHC 2907 (Admin); [2004] ELR 161, at [14], on the grounds that such a summary “risks elevating into general principles what are statements made by ref......
-
Miss H v East Sussex County Council and Others
...summarising what are suggested to be “requirements” identified in the authorities, as Beatson J was persuaded to do in R(L) v London Borough of Waltham Forest and Another [2004] ELR 161 at paragraph 14. There he suggested he was summarising the “requirements” central to the appeal before hi......