R (R) v Medway Council
| Jurisdiction | England & Wales |
| Judgment Date | 01 April 2010 |
| Neutral Citation | [2010] EWHC 731 (Admin) |
| Docket Number | Case No: CO/1746/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 April 2010 |
[2010] EWHC 731 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Miss Geraldine Andrews Q.C. (sitting as a judge of the High Court)
Case No: CO/1746/2010
Ian Wise QC and Stephen Broach (instructed by John Ford Solicitors) for the Claimant
David Lawson (instructed by Medway Council Legal Services) for the Defendant
Hearing date: 30 th March 2010
Miss Geraldine Andrews QC:
This matter comes before the Court as an expedited “rolled-up” application for permission to bring judicial review and, if permission is granted, to claim judicial review. The Claimant, HR, is a 14-year old girl with Autistic Spectrum Disorder (more commonly known as Asperger Syndrome) and related mental health problems including a severe anxiety disorder. These were only diagnosed comparatively recently. The Defendant is the unitary authority for the part of Kent where H and her family live, and is responsible for education and social services under the Children's Services Directorate.
The factual background
In January 2008, H was placed under the care of the CAST Team due to feelings of general anxiety. In October 2008 they made an initial referral to the child and Adolescent Health Service (CAMHS) due to concerns with her self-harming, suicidal thoughts and low moods. She was initially prescribed anti-psychotic medication, but this ceased after 2–3 weeks as there were no ongoing symptoms of psychosis, and she was prescribed anti-depressive medication by her GP. Sadly her mental state failed to improve with community management. Her original secondary school placement at a Grammar school broke down after a fellow pupil overheard her threatening to kill herself. H did make two attempts on her own life at around that time, and on 5 th November 2008 following the second of these attempts she was admitted to an Adolescent Unit of the local hospital where she received psychiatric care. There have been no further episodes of self-harming since her discharge as an inpatient on 17 th December 2008. CAMHS has continued to monitor her and to offer medical and therapeutic support to her and her family.
H exhibits challenging behaviour which is linked to her condition, and has complex needs which require her to be treated with considerable sensitivity. Asperger Syndrome is a form of autism, but unlike those with “classic” autism, those who suffer from it are often high functioning individuals. They have particular difficulty in communication and interaction with others and in the area of social imagination, which can lead to high levels of anxiety and confusion. A package of measures to give H the help and support that she needs has been put together by the Defendant under the overall responsibility of Juliet Sevior, a former teacher and a qualified educational psychologist with 12 years' experience in that field.
There is no complaint about the social care that H is receiving, which includes respite placements with a foster carer, and regular visits from a social worker from the Children's Disability Team. The complaint in this case is that the Defendant is in breach of its duty to provide H with suitable education pursuant to section 19 of the Education Act 1996, read in conjunction with Article 2 of Protocol 1 to the European Convention of Human Rights.
H is a high achiever who has the potential, with the correct support, to achieve good academic qualifications. Her cherished ambition is to become a vet. She comes from a loving and supportive family, and I should make it clear at the outset of this judgment that both her parents have always had her best interests in mind, and that that is the paramount consideration driving their objections to the schooling options that she is being offered by the Defendant.
Following her discharge from hospital in December 2008 it was decided that it would be wholly inappropriate to return H to mainstream education as it was recognized she would be unable to realise her full academic potential in that environment. Neither party challenges that assessment. H began to attend a hospital special school maintained by the Defendant which I will call “School A”. A operates from two sites, a room in a hospital which caters for up to 15 students at a time, and a main site which is larger, and provides mainly for learners with emotional needs. Over 50% of its students have a diagnosis of autism. An unspecified number have Asperger Syndrome and the head teacher told Mr Holme, the Claimant's expert educational psychologist, when he visited the school in February 2010, that as a result of training provided the staff had a good understanding of the condition. The school provides home tuition when learners cannot attend either site. I have seen an Ofsted report following an inspection of School A in July 2009 which is full of praise, with the highest possible score being given to the school for care, guidance and support, and personal development and well-being.
H's placement at School A was originally intended to be short-term pending determination of where she should be educated in the longer term. At that time her parents fully supported the decision to place her there. On 18th September 2009 the Defendant made a Statement of Special Educational Needs (“SSEN”) in respect of H under section 323 of the Education Act 1996. Part 2 of the SSEN sets out the assessment of H's special educational needs, Part 3 deals with the special educational provision which the Defendant intends to provide to meet those needs, and Part 4 deals with placement. Although a specific educational establishment need not be identified in Part 4 it is quite common for the local education authority to do so, and in this case, Part 4 identified a community special school and named School A.
However by the time of the SSEN, H's parents, particularly her mother, had become convinced that School A was unsuitable for H's needs. Mrs R's statements (which I have read with care) paint an unhappy picture of H's time at School A, both before and after the SSEN. By way of example she describes an incident in July 2009 when H initially refused to go to the school and upon arrival ran away from the site, refusing to return, and a teacher had to collect her from the local park. The Defendant's evidence is that on that occasion, once in school H behaved perfectly well, and that the teachers never managed to find out what the trigger was for her initial refusal to go. Mrs R also describes H's difficulties in interacting with her peers and the distress that H suffered in respect of an incident when a fellow pupil self-harmed in the classroom.
However, there is also a plethora of contrary evidence adduced by the Defendant which paints the picture of a teenager who was settling in well, including a statement from her social worker, Julie Arnold, in August 2009 in which H was reported as being extremely frightened of any change and saying that she wanted to remain at School A, and a progress report from the Head Teacher, Mrs Rogers, dated 4 th February 2010. The logs in the school monitoring notebook for H for the period from September 2009 and 3 rd November 2009 appear to be positive, with very few references to worries or anxiety. However, appearances can be deceptive. The nature of H's condition is such that the anxiety can be suppressed and lie under the surface, so that it is only after she returns home from school that her frustration manifests itself in violent outbursts.
As for H herself, she has stated that she feels that the teachers at School A do not understand autism or Aspergers sufficiently. She says that they treat her like everyone else when everyone is different and they do not understand her. At her school “there are lots of different types of children and it's really hard being around kids that are constantly feeling down or upset all the time.” She also specifically mentions the distress she felt at the incident when a boy in her class started to self-harm in the classroom. On the other hand she liked the fact that the classes were small and she seemed to have developed a good relationship with one of the teachers, the deputy head. It would appear from the evidence, taken in the round, that H's attitude to School A is at best described as ambivalent and at worst as antipathetic. In her latest statement dated 1 st March 2010 she says “I don't like going to [School A] and I don't want to go back…. It has been really hard work for me to get to feeling like I can go into a school again and I don't want to have to do it all over again.” She also says that she “hates that other people are deciding what is best for me schoolwise when I can tell you.”
There is another local specialist school, which I shall call School B, which H has visited and which obviously formed a favourable impression on her. It would appear to be more expensive for the Defendant to place H at School B, and that is a legitimate consideration if both schools are suitable. However if a placement at School B is the only means by which the Defendant can satisfy its statutory obligations to H, the cost becomes irrelevant. Both H's parents and the Defendant are agreed that School B is suitable for H. However, the Defendant disagrees with the parents' claims that the provision offered at School A was or is unsuitable for H, and has concerns that School B may be a worse option. The aim of these proceedings is to compel the Defendant to place H at School B...
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