W v Leeds City Council and Special Educational Needs and Disability Tribunal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge,Lord Justice Thomas,Lord Justice Wall |
| Judgment Date | 29 July 2005 |
| Neutral Citation | [2005] EWCA Civ 988 |
| Docket Number | Case No: C1/2004/2565 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2005 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE MCCOMBE
Lord Justice Judge
Lord Justice Thomas and
Lord Justice Wall
Case No: C1/2004/2565
Mr J. Friel (instructed by Felix Moss) for the Appellant
Mr P. Oldham (instructed by Leeds City Council) for the First Respondent
The Second Respondent was not present nor represented.
The appellant is the mother of a boy we shall identify as "C". He was born in March 1995. He suffers from severe autism. His mother appeals the decision of Mr Justice McCombe dated 9th November 2004 dismissing her appeal from the decision of the Special Educational Needs and Disability Tribunal ("the Tribunal") dated 11th June 2004, dismissing her appeal under s 326 of the Education Act 1996 ("the Act") against the contents of a Statement of Special Educational Needs ("the Statement") made by Leeds City Council, the Local Education Authority ("the LEA") on 15th July 2003.
The litigation has a lengthy history. Its genesis is found in an assessment of C's special educational needs made by the LEA in May 1998. The assessment was carried out pursuant to s 323 of the Act, and in accordance with s 324, the LEA issued a Statement of Special Educational Needs in the format prescribed by the Education (Special Educational Needs) Regulations 1994 ("the 1994 Regulations"). The diagnosis of autism was set out in Part 1 of the Statement, and in Part 2, C's special educational needs were described in detail. Thereafter the LEA set out the objective to be met in respect of the needs identified in Part 2. In June 1999, an appeal was brought under s 325 of the Act against the content of the Statement, and in July 2002, the Tribunal ordered that Part 2 of the original Statement of Special Needs should be amended. At that stage the short observation, "sleeping difficulties, which lead to him becoming aggressive", was inserted. The Tribunal's decision was then challenged by a statutory appeal to the High Court under s 11 of the and Tribunals and Inquiries Act 1992 on the basis that the Tribunal's amendment of the Statement was deficient because, notwithstanding the amendments made to Part 2 of the Statement, the Tribunal failed to amend Part 3(B). Following an appearance before Newman J, the LEA carried out a review and in June 2003, a number of changes were made, but this led to a further appeal by the appellant against Part 3 and Part 4.
In July 2003 the entire Statement was revised, and a fresh Statement was issued by the LEA. This fresh Statement was the subject of a second appeal to the Tribunal by the appellant, and it is the appeal currently before us. The appeal before the Tribunal was first listed for hearing in December 2003. At that stage the appellant's case statement included the following proposal to deal with C's sleeping difficulties. "Professional intervention to approach his problems with sleep and rest to include where appropriate access to a psychologist and if necessary appropriate (health) service officials", the word "health" being added later in manuscript. The first hearing was then adjourned without evidence being heard. It was reinstated in the list in May 2004. On the second day, in the face of the strongest possible objections from Mr Friel, who has appeared on behalf of the appellant throughout, the LEA proposed that the words related to sleeping difficulties should be removed from Part 2 as they did not constitute a special educational need. No specific reasons were advanced by Mr Friel against the proposed amendment save that it was, and indeed it was, very late. No application was made for an adjournment of the hearing, which proceeded to a conclusion. When the decision was promulgated on 11th June 2004, the Tribunal concluded that no educational need in respect of sleep was established. Accordingly the Statement was amended by the removal of the observation "sleeping difficulties, which lead to him becoming aggressive", and the provision suggested by the appellant was refused.
The decision to allow the amendment was criticised before McCombe J, a contention repeated before us, which was linked to an application by Mr Friel to adduce fresh evidence, made not to McCombe J himself, but again at a very late stage of the process, to us. I shall return to these issues later in the judgment.
The Tribunal further decided that the LEA's obligation in relation to the issue of the supervision of C's activities was limited to providing supervision during school hours, and did not extend to the supply of constant supervision outside the school. This decision, too, was challenged and eventually rejected by McCombe J.
The basic facts are conveniently set out by McCombe J in paragraphs 2 and 3 of his judgment. I shall adopt them as part of this judgment.
"2. It is convenient to set out the basic facts by a simple citation of Part 2 of the Statement. This part summarises the material facts relating to C. Further an important part of the argument centred upon the contents of Part 2. Its recitation here in full will facilitate consideration of that aspect of the case. (The following quotation is from the Statement in the form issued after the Appeal which excludes one sub-paragraph of paragraph 9 of Part 2. That exclusion also gives rise to an issue here, as it did before the Tribunal, to which I shall return. (The omitted sub-paragraph was as follows: "(b) Sleeping difficulties, which lead him (sic) becoming aggressive".))"
[This is a reference to the deletion suggested by the LEA and accepted by the Tribunal.]
"PART 2: SPECIAL EDUCATIONAL NEEDS
[Here set out the child's special educational needs, in terms of the child's learning difficulties which call for special educational provision, as assessed by the authority.]
1 [C] has a diagnosis of autism which is his primary condition and which should determine his educational management.
2 [C] is able to take himself to the toilet to urinate, but still soils himself. He can dress himself independently, but he needs some help with the laces and buttons. He has considerable trouble with food; unless fed, he will only eat a limited amount of food, if he is allowed to use his hands. He refuses to use cutlery. He communicated by gestures or by use of PECs.
3 [C] responds to some sounds and will turn to musical instruments. He shows some understanding of gestured (sic) and is able to communicate his needs by sounds or by pointing or leading. He is making good progress with motor skills, although he can be unsteady.
4 [C] needs to learn social interaction skills and appropriate behaviour.
5 [C] needs to learn to develop his attention and listening skills in order to apply himself to a particular task and to maintain concentration for increasingly longer periods.
6 Medical reports indicate that [C] is in good general health, although he suffers from respiratory infections. He has otitis media in winter months. There are no medical conditions which would have a bearing on his general educational development.
7 [C] bites people, and also bites and mouths objects which include electric cables.
8 [C] can be physically aggressive to his mother and those around him.
9 [C] needs constant supervision. He has no sense of danger. ABA therapy had modified the severity of [C's] behavioural difficulties. However, the following major issues remain:
(a) Self-stimulatory behaviours, which can rapidly develop into major incidents or regression unless controlled.
(b) If left to himself, [C] can become both angry and/or isolated in his autism.
3. Part 3 of the Statement sets out (in its section A) objectives to be met by the provision for C and (in its section B) the actual provision proposed to be made. Importantly for present purposes section B specified that C should be placed in a school with facilities and resources that would enable C to be part of a small class group receiving provision in 13 separate areas, including "Constant adult supervision during school hours from staff experienced or trained in meeting the needs of autistic children", "A highly structured and consistent environment" and "Continued close liaison between home and school and any other agencies involved with C …". Part 4 of the Statement specified that C should be placed at a named special school, with the opportunity for sessions at another named primary school when these were judged appropriate for C."
McCombe J then summarised what he described as the rival contentions before the Tribunal. Again I can conveniently adopt the relevant passages from his judgment:
"4. Before the Tribunal, Mr. Friel of Counsel, who appeared for the mother (as he did in the present appeal) argued that the following provisions should be added to section B of the Statement, as indicated in the following passage from the Tribunal's decision where the Council's requirements and Mr. Friel's counter proposals are set out.
"C requires:
LEA: Constant adult supervision during school hours from staff experienced or trained in meeting the needs of autistic children. Other: constant adult supervision during his waking day from staff experienced or trained in meeting the needs of autistic children.
LEA: A behaviour management programme designed to reduce self-stimulatory behaviours. Other: A behaviour management programme designed to reduce self-stimulatory behaviours, to occupy C's time. This could be achieved by a physical exercise programme similar to the Higashi methods.
LEA: A...
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