West Sussex County Council HS 962 2010
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Pearl |
| Judgment Date | 28 September 2010 |
| Neutral Citation | 2010 UKUT 349 AAC |
| Subject Matter | Special educational needs |
| Respondent | ND & LD |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 962 2010 |
| Appellant | West Sussex County Council |
IN THE UPPER TRIBUNAL Case No. HS/962/2010
ADMINISTRATIVE APPEALS CHAMBER
Before His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal
Attendances:
For the Appellant: Ms A Bicarregui of Counsel
For the Respondent Mr R Holland of Counsel
Decision: Permission to appeal is granted, and the substantive appeal is dismissed.
REASONS FOR DECISION
- This is a renewed application by the Local Authority for permission to appeal the decision of the First-tier Tribunal which is dated 10th March 2010
- The first matter that I need to decide is whether to grant permission. I have decided that the appropriate approach to take in this case is as suggested by Sullivan J (as he then was) in the case of The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said
"…I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimant's case arguable? …I am in a position to determine the substantive application for judicial review on its merits."
- Applying this approach in the current context of a renewed application for permission to appeal, I therefore grant permission and go on to consider whether there has been an error of law.
- The case concerns the decision taken by the Local Authority to place M (who is now 16 years of age) at the Royal National College for the Blind (RNCB) rather than at West of England School and College for people with little or no sight (WESC).
- In their successful appeal to the First-tier Tribunal, the parents maintained before the Tribunal that M would not be appropriately placed in RNCB. They said that there were insufficient students of a similar age to M and too many older students. They said also that there is inadequate night supervision in view of M’s particular needs. The parents relied very heavily on M’s strongly held views regarding RNCB, and therefore they asked the First-tier Tribunal to allow their appeal and to have WESC named as the school in Part 4 of the Statement.
- It would seem that in argument before the First-tier Tribunal, the Local Authority did not dispute that WESC would be an appropriate placement for M, but that for her to attend there, there would be an unreasonable public expenditure. The annual cost of educating M at RNCB had been calculated by the college at £42,303 and the annual cost at WESC was calculated by WESC at £73,974.
- The First-tier Tribunal heard evidence from M, and her evidence is summarised in paragraph 11 of its Decision:
“M told us that in December 2008 her vision deteriorated quite quickly and a lot. She found it frightening and scary. She realised she could not do some of the things she used to do like reading text messages. She found it difficult to follow the programmes on TV and had to practice how to make tea or manage in shops. She couldn’t see bright colours. She was worried her vision would change again and how this would affect her future. She said that when her vision changed she lost self-esteem, developed obsessive compulsive disorder (OCD) and began to have panic attacks. When she thought about RNCB it felt she was being thrown in the deep end of a swimming pool compared to WESC which felt like getting in the shallow end. RNCB felt too big and scary. She said she was not going to RNCB and when asked by Ms Hall [the Assistant Director of RNCB] whether she would come and try it out, she said that she would not.”
- M’s counsellor (Mr Best) also gave evidence before the First-Tier Tribunal, and he told the Tribunal that he was concerned that at the RNCB, there would not be enough support in the evenings and at night time to facilitate the coping strategies that M needed. He said that M tended to relate to young people of 16 or less.
- In arriving at its conclusion, the Tribunal said that it had carefully considered the written evidence submitted in advance, as well as the evidence presented at the hearing. The witnesses, besides M herself, were Mr Best (M’s counsellor), Ms S Joseph (an educational psychologist), Mr Ellis (the head teacher of WESC), Ms Hall (Assistant Director of RNCB), and Ms Lynas (an educational psychologist).
- The Tribunal identified the issue before it in this way: “Since there was a substantial difference in cost between the two placements, we needed to consider whether RNCB was an appropriate placement for Maria.” In paragraph E of its decision, the Tribunal concluded that it was satisfied, having considered the evidence of Ms Hall, that the RNCB could provide the core academic skills as well as additional needs arising from M’s visual impairment, such as Braille, mobility and independent living skills. The Tribunal looked also at the concerns expressed by Mr Best about night time support, and concluded, again on the basis of Ms Hall’s evidence, that RNCB could provide the night time support. In particular, the Tribunal stated that RNCB had experience of OCD and it could access outside support if further professional help were needed. Counselling was also available.
- The next two paragraphs (F and G) contain the reasons why, notwithstanding its conclusions in paragraph E, it decided that RNCB was not an appropriate placement. As these two paragraphs are at the heart of Ms Bicarregui’s challenge, it is important to quote them in full.
“F. Mr and Mrs D [the parents] and M said that the student group at RNCB was not suitable. There were only 6 pupils aged 16 compared to 11 at WESC. However one third of the intake at WESC were children with more complex learning needs than M reducing the cohort of children of similar ability and needs from whom M would be likely to find friendship to a smaller group not substantially different from RNBC. Ms Hall had indicated that if M preferred learning with a similar age group at RNCB this could be arranged. Residential accommodation at RNCB was arranged separately for the 16-18 age group whereas there was a possibility that the ages would be mixed at WESC. RNCB was larger overall with a total of 149 learners compared to 63 at WESC. On the other hand attendance during the day at Bicton College would put M in a busy FE college with a wide age range. Of the 149 students at RNCB 43 were over the...
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