A v Hertfordshire County Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeJUDGE GILBART QC
Judgment Date20 December 2006
Neutral Citation[2006] EWHC 3428 (Admin)
Docket NumberCO/5861/2006
Date20 December 2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before

His Honour Judge Gilbart QC

CO/5861/2006

The Queen on the Application of A
(Claimant)
and
Hertfordshire County Council
(Defendant)

MR S GRODZINKSI (instructed by TSS Law) appeared on behalf of the CLAIMANT

MR N SHELDON [MISS J CLEMENT attended for judgment] (instructed by Hertfordshire County Council) appeared on behalf of the DEFENDANT

1

In this matter the Claimant parents appeal against the decision of the Special Educational Needs and Disability Tribunal ("SENDIST") of 20th June 2006. That Tribunal had rejected the appeal of the Claimant parents against the terms of Part 4 of the Statement of Special Educational Needs made by Hertfordshire County Council in respect of their daughter.

2

For the purposes of this judgment I shall refer throughout to the claimants as Mr and Mrs A and to their daughter as D, so that their identity is protected. The title of the judgment will appear as A v Hertfordshire County Council.

3

D is now 11 years old. She has been diagnosed with ataxic hypotonic cerebral palsy and global development delay. She has severe learning difficulties. Hypotonia affects her musculature. Her hips are dislocated and she has a mild scoliosis. She has the motor skills of a child of 7 to 10 months, the socialisation of a child between 4 and 9 months (depending on the function in question), the daily living skills of a child between 7 and 18 months (again depending on the skills in question), the communication skills of a child of between 13 months and 18 months (of which 13 months are expression and 18 months for receptive skills).

4

Happily, she has some character. She is described in a report from her current school as "delightful … strong willed and can be determined to have her own way". She has the ability to recognise and use symbols on a Tech Talk machine. She enjoys music and can recognise her favourite songs. She can call out and point to objects, and can make noises and point to objects which she wants adults to bring to her. She can make noises to show that she is happy. She enjoys hearing songs and has some favourites. She also has favourite books which she likes being read to her. She enjoys the company of other children, but prefers that of adults. She is taken swimming, which she enjoys, and has been taught how to float independently and propel herself with her hands. She uses a pony walker, and can propel herself independently. She takes part in music sessions and can hold an instrument. She has been taught how to pick up objects and move them, and has been making some progress. She can use a crayon or brush to make marks and prefers to do so independently. She can use a feeder cup and can feed herself with help in loading the spoon. She needs help in dressing but cooperates by pushing her arms in and out of her clothes. She is not continent and wears nappies rather than being placed on the toilet.

5

She requires care throughout the day.

6

She comes from a very caring Orthodox Jewish family. The statement which they put into SENDIST shows that she enjoys the family life which is a central part of Jewish culture, and is familiar with the observation of the Sabbath. The family describe the excitement and enjoyment she feels during the weekly Sabbath and at festivals.

7

The family is caring indeed. The responsibility of looking after D is a very heavy one, and they are understandably concerned to see her looked after and educated in life skills as far as possible. I am impressed by the dignity they have shown in these proceedings, and the obvious care for their daughter given the very substantial burdens placed upon them by her disabilities.

8

As D has approached the age of 11, the question has arisen of the appropriate educational provision to be made for her secondary education. Hertfordshire County Council prepared a statement of needs under section 324 of the Education Act 1996. That identified at Part 3 the objectives of Special Educational Provision for D, and the educational provision required. With amendments later agreed to by Hertfordshire in a document which is called "Working Document for SEN Tribunal", Part 3 read:

" a) OBJECTIVES

1. To develop and improve [D's] early learning skills and cognitive development.

2. To develop and improve [D's] linguistic and communication skills.

3. To develop and improve [D's] mobility and gross and fine motor skills.

4. To develop and improve [D's] independence and self -help skills.

5. To develop and improve [D's] social interaction and awareness of others.

b) EDUCATIONAL PROVISION to meet the needs and objectives

The following provision is set out to corresponded numerically with the Objectives listed above. The school should provide [D] with an Individual Education Plan which addresses the Objectives of this Statement and is compiled in collaboration with her parents and other professionals involved. This should be reviewed termly.

Educational

1. The school will provide [D] with a caring and supportive environment in which she will be given access to a broad and stimulating multi -sensory based curriculum, appropriately differentiated to enable her to develop her learning skills and conceptual understanding. Opportunities will be provided for considerable one to one and small group work and access to computer programmes with appropriate learning software. Strategies will be employed aimed at developing [D's] ability to make choices and exert more control over her environment.

Communication

2. With the advice of a Speech and Language Therapist programmes will be devised to develop and improve [D's] alternative and augmentative communication skills. These programmes will be specifically aimed at developing her yes/no and other communicative responses. The programmes will be delivered on a daily basis either individually or in small groups by teaching or support staff as appropriate.

Motor and Sensory Skills

The school will provide [D] with a highly structured educational programme designed to improve her mobility and to develop her gross and fine motor skills. These programmes will be devised by a fully qualified physiotherapist and occupational therapist and delivered by teaching and support staff [on a daily basis]. [D] will receive [10] sessions per annum of specialist physiotherapy and [10 sessions of] occupational therapy for the forthcoming academic year or until the next review. Each session will last approximately for one and a half hours and will consist of any of the following:

• observation

• assessment (either formal or informal)

• direct intervention (either individual or in a group)

• demonstration of specific activities

• training of teaching/support staff

• joint planning with teaching/support staff of appropriate targets for inclusion in the IEP

• attendance at review meetings

• liaison with parents, carers and other professionals

• writing of report and programmes

[D] will be given support to ensure that she is able to access the curriculum and classroom equipment safely. These programmes will be designed in close association with a physiotherapist and an occupational therapist as appropriate and [D's] equipment requirements will be provided in accordance with supporting advice from the relevant professionals. [Hydrotherapy will be provided for 2 x 20 minute sessions per week].

Personal, Social and Emotional

4. The school will encourage the development of self -help skills, particularly in relation to dressing skills and personal hygiene. [D] will receive sensitive encouragement, teaching and support to enable her to develop confidence, independence and motivation to overcome her difficulties.

5. [D] will be provided with adult support, intervention and mediation to promote relationships with peers to whom she can relate both socially and academically; and work with, both cooperatively and collaboratively. She will have opportunities to engage in small group activities and be encouraged to take an active part."

9

At the end of the subparagraphs within section 3 it states:

"Good home/school links will be maintained to ensure consistency of approach.

This provision will be made by the school using its existing resources."

10

I need not refer to the next part of section 3. There is a reference then to monitoring and that is described as taking place in consultation with D's parents and the appropriate professionals to establish short -term educational targets and the strategies to meet them.

11

Section 4 of the Statement of Special Educational Needs reads thus:

" APPROPRIATE SCHOOL OR OTHER ARRANGEMENTS

[D] will attend her current primary school until July 2006. From September 2006 [D] will attend [B] School, a special school which caters for children with severe learning difficulties."

12

The parents appealed against the terms of Part 4. They contended that, first, D needed a residential school where she would live through out the year; second, her education included work to be done outside the normal school hours; third, the school was unsuitable for various reasons, including its facilities and the travel time of up to an hour in each direction from the family home; fourth, the appropriate school was the AL residential school in Berkshire.

13

The Local Education Authority resisted that appeal. It contended that, first, D's educational needs would be met by a non -residential school and she did not require 24 hour educational provision; second, the facilities at the B school was appropriate; third,...

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