Vk and Norfolk County Council and The Special Educational Needs and Disability Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 17 December 2004 |
| Neutral Citation | [2004] EWHC 2921 (Admin) |
| Date | 17 December 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3303/2004 |
[2004] EWHC 2921 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stanley Burnton
Case No: CO/3303/2004
Sam Grodzinski (instructed by Alexander Harris) for the Appellant
Jane McCafferty (instructed by Legal Services, Norfolk County Council) for the First Respondent
Katherine Olley instructed by the Treasury Solicitor) for the Second Respondent
Introduction
This is an appeal by VK, the mother of a 14-year old boy, JS, against the decision of the Second Respondent Tribunal dated 10 June 2004 dismissing her claim that he had been discriminated against within the meaning of the Disability Discrimination Act 1995 ("the DDA") in relation to the educational provision for him made by the First Respondent ("NCC") as the local authority responsible for his education under the Education Act 1996 ("the EA").
The appeal raises an important question as to the appropriate practice of this Court on an appeal against a SENDIST decision in which it is alleged or established that the tribunal's reasons were inadequate. Both the appellant and, interestingly and significantly, the SENDIST itself submitted that the lawfulness and validity of its decisions should be judged on the basis of its written reasons as sent to the parties; and that remission for its reasons to be supplemented was inappropriate. NCC submitted that this Court should adopt the procedure signalled by the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, and adopted by the Employment Appeal Tribunal, of remitting decisions that were inadequately reasoned to SENDIST to enable it to supplement its reasons.
The facts
It is common ground that JS is a disabled person within the meaning of section 1 of the DDA. The primary cause of his disability is a neurodevelopmental disorder. He has symptoms that have been variously labelled as dyslexia, dyspraxia, and DAMP, an unfortunate acronym for Deficits in Attention, Motor Control and Perception. His most significant weakness is in short term auditory memory, so that he finds it hard to retain information if presented orally. His literacy and numeracy skills are very weak. JS also has some physical disabilities, primarily gastro-intestinal and mobility problems. Nonetheless, and as confirmed by the Report prepared by NCC's Educational Psychologist dated 29 th January 2003, JS has general conceptual and language skills that are above average for his age.
Prior to living in Norfolk, JS resided with his mother in Hampshire. Hampshire Local Education Authority had issued a SEN Statement in relation to JS in January 2000. It had last been amended in October 2002. The SEN statement issued by Hampshire LEA named a mainstream secondary school (Crestwood School) in part JS received some individual support for his learning difficulties at that school, but only attended part time.
VK decided to move with JS to Norfolk on 15 November 2002 so as to be nearer to her parents. She gave NCC advance notice of her intention to move by email on 3 November. Shortly before her move, VK had lodged an appeal with the Special Educational Needs and Disability Tribunal against Hampshire LEA's alleged refusal to re-assess JS's needs. However in a letter of 9 December 2002, the NCC agreed to assess JS, with the result that the Hampshire appeal was withdrawn.
NCC's Educational Psychologist assessed JS on 29 January 2003.
Between 15 November 2002 and early February 2003 JS received no education. In early February 2004, NCC began to provide JS with education for 1 3/4 hours per week, consisting of 3/4 hour divided equally between English and Maths and 1 hour of woodwork, provided through the Visiting Teacher Service ("VTS") by a visiting teacher, Mr John Scott.
On 10 March 2003 NCC issued a draft Special Education Needs ("SEN") statement for JS. It was finalised on 21 May 2003. The statement did not name any school for JS to attend. Part 3 of the statement stated that whilst a school placement was being identified, JS should receive "individual support/contact time from the Visiting Teacher Service to total not less than 2 hours per week".
On 20 June 2003 JS's mother lodged at the Tribunal:
(a) a claim under the DDA in relation to NCC's discriminatory treatment of JS; and
(b) an appeal under section 326 of the EA against the contents of JS's SEN statement.
In the disability discrimination claim VK complained (so far as is relevant to the present appeal) of NCC's failure to provide any education for her son between November 2002 and February 2003, and of the small amount and inappropriateness of the educational support provided by it through its VTS. In summary, she complained:
My son has received no educational support for the special needs therefore since arriving in Norfolk in November 2003.
On 30 June 2003, the amount of education provided by NCC was increased to 5 1/2 hours per week. This lasted for a few weeks until the summer vacation, during which no education was provided.
At the end of June 2003 JS issued Judicial Review proceedings seeking orders in relation to NCC's duty under section 19. Those proceedings were withdrawn by consent on agreed terms on 20 October 2003. They are irrelevant to this appeal.
On 9 October 2003 NCC issued a further SEN statement, naming (in part 4) Hethersett High School, a mainstream school with a Special Learning Difficulties Centre.
The Tribunal hearings of the claim and the appeal referred to above first took place on 29 October 2003. The Tribunal dismissed the appeal against the contents of the SEN Statement. It accepted that Hethersett High School should be the named school. It also amended the Statement in respects that are irrelevant to the present appeal.
It had been intended that the Tribunal would also deal with the claim under the DDA. At the outset of the hearing, however, the Tribunal expressed the view that it did not have jurisdiction to deal with this claim because JS was not a "pupil" within the meaning of section 3(1) of the Education Act 1996. That view was later accepted by the Tribunal to be wrong. In a decision dated 4 December 2003 (made by the President of the Tribunal, who had not participated in the October hearing) it found that JS was receiving education otherwise than at school within the meaning of section 19 of the EA, so that he did fall within the scope of section 28F of the DDA.
The discrimination claim was therefore re-listed and was heard by the Tribunal on 23 April 2004.
At the outset of the hearing, a question arose as to the admission in evidence of reports on JS of John Mallen, an educational psychologist, dated 11 and 22 April 2004, which VK wished to put before the Tribunal. NCC did not object to their admission on grounds of their late appearance, but submitted that they were irrelevant to the discrimination claim. The Tribunal refused to accept the reports. There is a dispute as to what was said by the Tribunal, and in particular whether its decision to reject the reports was announced during the hearing, but in the event nothing turns on this.
The decision of the Tribunal
The written decision of the Tribunal, incorporating its reasons, was issued on 10 June 2004. It held that VK's complaint was out of time in so far as it related to acts occurring before 21 December 2002 by virtue of the 6 month time limit in paragraph 10(1) to Schedule 3 of the DDA. There is no appeal against that part of its decision. VK's complaint in relation to subsequent acts of NCC was dismissed on the merits. The parts of the decision relevant to the issues on this appeal are set out in the Appendix to this judgment. In its reasons, the Tribunal referred to NCC as "the Responsible Body", abbreviated to "the RB", and to NCC's Visiting Teacher Service as "the VTS". In the Appendix, VK's and JS's names have been replaced by those initials.
The grounds of appeal
The grounds of VK's appeal are as follows:
(a) The Tribunal misdirected itself in law, at paragraph g of its reasons, in requiring VK to establish that "the treatment JS received related solely to his disability" (italics added).
(b) The Tribunal misdirected itself in law in suggesting, at paragraph i of its reasons, that the relevant comparison for the purposes of the DDA was whether "all pupils whether disabled or not receive the same level of VTS".
(c) The Tribunal's decision under the sub-heading "Was the treatment justified?" is vitiated by inadequate reasoning and illegality. In particular, the Tribunal failed to explain on what basis it accepted that there was a substantial reason that was material to the circumstances of the case justifying the very low level of educational provision pending placement at a school.
(d) In so far as the Tribunal did find that there was such justification, such a conclusion was irrational and unlawful. In particular, NCC could not lawfully have justified its less favourable treatment of JS (in the provision of a suitable education under section 19 of the EA) by reference to any issue of resources.
(e) The Tribunal acted irrationally and unfairly in refusing to accept Mr Mallen's reports in evidence.
The contentions of the Respondents
Miss McCafferty, for NCC, submitted that the Tribunal asked itself the correct questions as a matter of law, and that Mr Mallen's reports had been irrelevant, and were correctly rejected by the Tribunal on...
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