R v City of Wakefield Metropolitan District Council and Another ex parte Karen Lisa Greenwood
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LAWS |
| Judgment Date | 29 January 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0129-16 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 January 1998 |
| Docket Number | CO/939/97 |
[1998] EWCA Civ J0129-16
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Justice Laws
CO/939/97
MR J FRIEL with MR C RAWLINGS (Instructed by Messrs Ridley & Hall, Huddersfield) appeared on behalf of the Applicant.
LORD CAMPBELL OF ALLOWAY QC with MR L WILSON (Instructed by District Council Legal Services) appeared on behalf of the Respondents.
( )
Thursday, 29 January 1998
This is a statutory appeal brought under s.11 of the Tribunals & Inquiries Act 1992, so that my jurisdiction is to consider grounds of law only. The appeal is directed to a decision of the Special Educational Needs Tribunal ("SENT") which was given on 19th February 1997. By that decision the SENT amended the statutory statement maintained by the first respondent local education authority in respect of a very severely disabled child named Kelsey Greenwood. The appellant before the Tribunal, and before me, is the child's mother.
In light of one of the issues I must decide it is convenient at once to set out the provision which confers the jurisdiction of the SENT. S.326 of the Education Act 1996 ("the 1996 Act") is in part in these terms:
"(1) The parent of a child for whom a local education authority maintain a statement under s.324 may -
..
appeal to the Tribunal against the description in the statement of the authority's assessment of the child's special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact
..
(3) On an appeal under this section, the Tribunal may (a) dismiss the appeal,
(b) order the authority to amend the statement, so far as it describes the authority's assessment of the child's special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or
(c) order the authority to cease to maintain the statement."
Kelsey was born on 19th July 1990. Her very grave difficulties and disabilities are variously described in the papers before me, but I understand there to be no dispute that this summary, given in para 3 of the appellant's affidavit, is accurate:
"My daughter has profound and multiple learning difficulties which arise from a severe developmental delay. She also suffers from epilepsy and is blind. Kelsey cannot walk and has great difficulty making controlled movements. She can sit for short periods of time but this requires careful positioning techniques. Generally Kelsey is passive and seems to be content but she can have outbursts and temper tantrums especially in reaction to changes. Kelsey does not sleep well and takes medication to help. Even with this she can be heard making whining noises in the night. Because of her disabilities Kelsey is not always aware of her surroundings and does not communicate."
I may describe the history leading ultimately to the SENT appeal as follows. In May 1992, when she was not yet 2 years old, Kelsey was admitted full-time to the Fieldhead Hospital School, which is a day special school, pending the outcome of a statutory assessment under the 1996 Act. For some considerable time she had the advantage of what is called "respite care" in the household of the Steel family in Pontefract for 5 weekends out of 6. That arrangement, however, ceased at New Year 1997. As I shall show, the desirability and availability of respite care figures large in the case. A Statement of Special Educational Needs was first made in respect of Kelsey on 7th May 1993. On 19th January 1996 her parents wrote to request that she be re-assessed under the relevant legislation. They indicated their belief that
"Kelsey would benefit from a school which could offer facilities for total care offering a 24 hour curriculum, this will also enable physio and speech therapy to be provided as standard.. We believe Kelsey needs to be moved from Fieldhead and placed in a school that can offer these kind of facilities, we believe that Holly Bank School at Mirfield can offer such facilities, and would suit all of Kelsey's needs."
In a document headed "Parental Views" the parents' elaborated the basis of their request. Her mother, the appellant, wrote
"Kelsey has deteriorated in the last 12 months in many areas including walking, feeding and potty training and we feel she needs intensive intervention if she is ever going to reach her full potential. One of the reasons she has deteriorated is the lack of continuity of care caused by myself being disabled with a knee and back injury which stops me from working with Kelsey after school.. If Kelsey was moved to Holly Bank not only would this be beneficial to her education but to her daily care meaning she doesn't have to go to a respite carer as frequently and I wouldn't need a community carer on a morning except holidays."
The appellant makes other points, relating for example to the difficulty in moving Kelsey up or down stairs, the need for her to be washed and changed in the living room, and the problem of carrying her to the school taxi.
At length a further statutory statement was made on 29th September 1996. Part 2 is headed "Special Educational Needs" and contains a narrative description of the difficulties. This Part was in due course amended by the SENT with the agreement of the first respondent so as to reflect concerns expressed by the parents. Part 3 is headed "Special Educational Provision", and after a sub-heading "Objectives" sets out the following under a further sub-heading "Educational Provision to meet Needs and Objectives":
"The special educational provision which the authority considers appropriate to meet the needs specified in Part 2 and to meet the objectives specified in Part 3 is as follows:
(a) Kelsey needs to follow an individualised developmental curriculum and the National Curriculum taught at a pace and level appropriate to her attainment and rate of learning. Kelsey needs to be in a small class group which has a high ratio of adults to children.
(b) Kelsey will need to follow individualised small steps programmes of learning designed to develop her physical, self help, social, communication and sensory skills.
(c) advice, support and input, as appropriate, from the physiotherapist, occupational therapist and speech and language therapist will be essential in the development and implementation of appropriate programmes of learning.
(d) the advice and support of the Advisory Teacher for Visual Impairment.
(e) Kelsey will need access to information technology to enhance her learning and specialist equipment to aid her gross motor development and provide her with high levels of stimulation.
(f) Kelsey needs to be with adults who are experienced with teaching children with profound and multiple learning difficulties.
(g) a system to enable close liaison with home and school to take place.
The requirements of the National Curriculum apply but with modification to the content, pace and delivery appropriate to Kelsey's level of development.
Monitoring
The Statement and its provision will be monitored through the school's normal processes and practices for considering a pupil's progress and will be reviewed annually in consultation with parents and other advice-givers.
(a) The school, in partnership with the parents, will regularly monitor progress in meeting the objectives specified in Part 3.
(b) The school, in partnership with the parents, will establish targets in furtherance of these objectives and regularly monitor these targets.
Summary
Kelsey's special educational needs can continue to be met by attendance at a day school which caters for the needs of pupils who have profound and multiple learning difficulties."
Part 4 is headed "Placement" and states "The required continuous placement is available at Fieldhead Hospital School within the resources normally available to a special school."
Kelsey's mother launched an appeal under s.326 against Parts 2, 3, and 4 of the statement. Her grounds of appeal are not before me, but it is plain from her affidavit and other material in the case that as regards Part 3 she sought an amendment indicating that Kelsey required a "24 hour curriculum", and she desired to have Part 4 amended so as to name Holly Bank School which, as I have indicated, is a residential school. A report of a consultant educational psychologist, Ann Stockburn, was obtained and in due course deployed on the appellant's behalf before the SENT. (Unaccountably, Lord Campbell's skeleton argument for the respondent suggested that this report was not before the Tribunal. The documents in the case demonstrate that it was. The submission to the contrary, which was early abandoned by Lord Campbell in the course of his address to me, was not helpful.) The report is very full and I will not cite from it at length. Under the heading "Kelsey's Special Educational Needs" Miss Stockburn stated, amongst other things, "She needs access to an extended school day and 24 hour curriculum so that learning can take place beyond the classroom situation." Then there is a heading "The Importance of the 24 hour Curriculum for Kelsey". Miss Stockburn states:
"The 24 hour curriculum covers not only the academic subjects traditionally taught in school, but also the physical and communication programmes, the acquisition of the skills of daily living, and education in the purposeful and pleasurable use of leisure time.
Kelsey's education would begin on waking and continue throughout the day...
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