The Learning Trust v (1) MP (2) Special Educational Needs and Disability Tribunal

JurisdictionEngland & Wales
JudgeAndrew Nicol QC
Judgment Date09 July 2007
Neutral Citation[2007] EWHC 1634 (Admin)
Docket NumberCase No: CO/1386/2007
CourtQueen's Bench Division (Administrative Court)
Date09 July 2007

[2007] EWHC 1634 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Before:

Andrew Nicol QC, Sitting as a Deputy Judge of the High Court

Case No: CO/1386/2007

Between
The Learning Trust
Appellant
and
(1) MP
(2) Special Educational Needs and Disability Tribunal
Respondent

Holly Stout (instructed by Tom Brooke, The Learning Trust ) for the Appellant

Mary Hughes (instructed by John Ford, solicitors) for the 1 st Respondent

Hearing dates : 12 th and 13 th June 2007

Judgement

Andrew Nicol QC

Andrew Nicol QC :

1

The Learning Trust carries out most of the education functions of the London Borough of Hackney. It brings this appeal against the decision of the Special Educational Needs and Disciplinary Tribunal ('SENDIST') of 11 th January 2007. A right of appeal against a decision of SENDIST is given by s.11 of Tribunals and Inquiries Act 1992 to a party who is dissatisfied in point of law with the decision.

2

This decision concerned a statement of special educational needs in respect of a boy who was then aged 11 and who, in consequence of an order of Walker J. on 16 th March 2007, has been referred to as 'P'. Walker J.'s order under the Children and Young Persons Act 1933 and the inherent jurisdiction of the court in essence prohibited the identification of the child or his school (actual or intended). It also required P's mother, who was the Appellant before SENDIST, to be referred to as 'MP'. I heard this appeal at the same time as an application for judicial review which P has brought against the London Borough of Hackney in relation to various care assessments which the Council had made (CO/9262/2006). I will be giving a separate judgment in that matter. Although there is much in common with the factual background of the two cases, they raise distinct legal issues. Walker J.'s reporting restriction order applies equally to both.

3

P suffers from autism. As the Tribunal recorded, he has particular difficulties with social interaction and communication and concentration. His behaviour is sometimes aggressive and intimidating. He is highly motivated by food and is now significantly over-weight. MP cares for P as a single parent. There has been a statement of special educational needs in place for P since 1999 which was before P began attending primary school. P began his secondary education in September 2006. The appeal to SENDIST commenced a few months before that and, at its heart, was the question of whether the statement prepared by the Learning Trust should be amended so as to name a residential school for P. This was what his mother (the appropriate appellant before the Tribunal) wished. The Tribunal ordered that the statement should be so amended and it is the Learning Trust's argument that in doing so they erred in law. Ms Hughes, on behalf of MP, says that there was no such error. The Tribunal itself is only a nominal party to the proceedings. It has not appeared or been represented.

4

P's first primary school was BL. The school was new, its routines not established and there was a high turnover of staff. P was unsettled and there was concern that his needs were not being met.

5

MP was having difficulty in coping with P. In about 2002 she put P up for adoption. That did not happen, but during the week MP's mother (JP) allowed P to live with her and P's three uncles. He returned to MP at the weekends. In 2004 the family court made a residence order giving MP and JP joint residence responsibility for P.

6

P transferred to his second primary school (W) in September 2004. Within W school, P was placed in the Autistic Resource Base. He made good progress and settled well.

7

In September 2005 JP went abroad for some 6 weeks. P returned to live with MP. Unfortunately, by the time JP came back to the UK, her house had been re-possessed and she had to live in a room in a friend's flat. P's uncles moved elsewhere and he remained living with his mother. The Tribunal commented that P reacted very badly to these events. He had frequent aggressive outbursts, overate and put on substantial weight.

8

This was P's final year in primary school. In October 2005 Melissa Burleigh, the head of the Autistic Resource Base at W, contributed to the annual review of P. She reported on what she called P's 'social difficulties'. Her report began,

'[P] would benefit from a place in a residential school for the following reasons. [P] has educational and social needs that could be met through a consistent and continuous placement that has set routines and a high level structure. [P] benefits from being around his peers and having access to the community but he needs support to be able to do this.'

She commented on P's aggressive behaviour both in school and the wider community. She noted that he found it very difficult to cope with changes in his routine which needed to be calm and consistent from all the adults around him. She thought that P would benefit from a residential school because it would provide this consistency.

9

Between December 2005 and March 2006 Hackney's Social Services Department carried out a Core Assessment of P's needs. This is a lengthy document. It records MP's wish that her son should be placed in a residential school 'so that a routine is established for him and according to her it will help him to settle and address the social difficulties that he has at present.' It also recorded the tensions over the role of JP in P's life. His grandmother still wanted to have a role, but his mother thought that JP should discontinue her role as P's carer. The assessment also referred to the strain that looking after P was having on MP's own life. Because of the demands he placed on her, she found it difficult to have a social life of her own and, while he was at home, she also found it difficult to find work and was slipping into financial difficulties in consequence. The social worker commented 'It is my view that [MP] feels that [P]'s disability has impacted on her ability to work, her ability to have a social life. She feels that she is a carer all the time. MP is pessimistic about the future and the only way that she perceives a difference in [P]'s and her life is when he goes to residential school which will meet his needs, MP is of the view that [P]'s needs cannot be met adequately in the community that they live.' In summary the assessment concluded that while the Education Department would pursue MP's wish for P to be placed in a residential school, there was more potential for JP to provide support. In order to do so, JP's housing situation needed to be resolved and some help should be given to JP in this regard. MP would benefit from respite. P would benefit from Kids Adventure play group and needed to be supported out of the house when he needed adult supervision at all times.

10

An amended statement of Special Educational Needs was completed by the Learning Trust in February 2006. Part 2 of the Statement considered what P's special educational needs were. It included the following paragraph

'[P] has recently had difficulty controlling his behaviour and anger. He is displaying much inappropriate behaviour at school, he has frequent aggressive outburst and appears to be angry and upset a lot of the time. [P] has had huge changes in his home environment and these appear to be the cause of his anxiety. Previously, [P] was cared for by his grandmother, but since July 2005 he has been cared for by his mother. [P] needs a clear, consistent and structured environment both at home and at school. He finds it hard to cope with changes to his routine. [P] reacts strongly to confrontation and quickly becomes very upset and volatile if spoken to harshly or shouted at. He also needs a very consistent, clear and firm approach to his behaviour. [P] needs to know what the boundaries are. If he understands the consequences of his actions and all adults around him use the same approach he can become cooperative.'

Part 2 of the Statement concluded by listing the areas in which P had special educational needs. They included 'social skills'.

11

Part 3 of the Statement turned to the special educational provision which was needed to meet P's special educational needs. They included an individual education plan whose elements were to include 'a behaviour modification programme to encourage and reward positive behaviour, drawn up in liaison with [P]'s mother to ensure consistency between home and nursery /school…a language and communication programme devised by a Speech and Language therapist, with regular opportunities to participate in structured language activities in small groups.' Part 3 also provided that there should be monitoring arrangements: 'The school should ensure there is close liaison with [P]'s parent and other professionals in order to promote continuity in his learning…'.

12

Part 4 of the Statement named W school until July 2006 and then the H School. The H school is a special school that is maintained by Hackney. It had accepted children with autism in the past. However, it had not previously catered for children whose autism was as severe as P's. In January 2006 plans were started to set up an Autism Resource Base ('ARB') at the H School with effect from September 2006. Ms. Burleigh was closely involved with this project and it was intended that P should be placed in this ARB at H School together with about 5 other children.

13

In April 2006 MP lodged a notice of appeal to SENDIST. Her challenge was limited to the naming of the H School in Part 4 of the statement. The appeal was still pending in September 2006 and, in accordance with the statement...

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