Ws (by His Litigation Friend, Mr S) v ((1) The Governors of Whitefield Schools and Centre (2) Chair of The Special Educational Needs and Disability Discrimination Tribunal
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE DOBBS |
| Judgment Date | 07 May 2008 |
| Neutral Citation | [2008] EWHC 1196 (Admin) |
| Date | 07 May 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10907/2007 |
[2008] EWHC 1196 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Dobbs
CO/10907/2007
Mr S (acting as Litigation Friend) appeared on behalf of the Appellant
The Respondents did not attend and were not represented
Introduction
In this case Mr S challenges the decision of the Special Educational Needs and Disability Tribunal (SENDisT) of 12 November 2007 dismissing his claim that the First Respondent: (1) failed to ensure W's prompt return to school after a SENDisT decision in May 2006 and (2) to make reasonable adjustments to ensure that W could return during the academic year 2006/2007. There was a preliminary issue raised by Mr S, namely that, strictly speaking, he should be the Appellant, not his son. Moreover, he should have added the Chair of the Tribunal as a Respondent. He undertook, with permission, to amend the first matter. He points to the fact that the Second Respondent has taken no point on the second issue and nothing, it is submitted, turns on it. It is correct that the Second Respondent has taken no point on this issue and given the response or rather lack of substantive response of the Second Respondent to the proceedings as a whole, the point is an academic one in the circumstances.
This is a statutory appeal, expedition having been directed by Deputy Master Knapman on 3 March 2008, in order to have this matter heard before the Appellant's related, but not linked, case in the Court of Appeal. Having read the transcript of the judgement of the Court of Appeal which granted leave to appeal, it is difficult to see what relevance this case has to that appeal, which:
a) gave leave on three grounds:
i) whether the judge exercised his discretion wrongly in relation to an extension of time;
ii) whether a claim for PI was appropriately pleaded;
iii) whether the judge erred in finding that he had no jurisdiction to consider timetable and curriculum issues,
b) deals with events which precede the post-May 2006 events with which SENDisT was concerned.
Brief mention needs to be made about the background to the hearing of the appeal. The application notice was issued on 6th December 2007. The First Respondent filed its notice on 21st December 2007. Counsel representing the First Respondent submitted a skeleton argument in response to the grounds on 2 January 2008, indicating on 3 January that he proposed to send in a revised skeleton argument once he had seen the Appellant's skeleton argument. The Appellant's skeleton argument, a 40-page document, is dated 14 January 2008. On 17 January 2008, the Treasury Solicitor, representing the Second Respondent, indicated that it was considering its position with regard to the appeal.
By the time of the hearing, the court had received a letter from the First Respondent indicating that, in the interests of saving costs, their representative did not intend to attend the hearing. No revised skeleton argument was enclosed. The Appellant showed the court a letter from the Treasury Solicitors indicating that the Second Respondent also did not intend to be represented at the hearing. The court was not satisfied, in the light of the lack of the further submissions by counsel for the First Respondent, that the Appellant's lengthy skeleton argument had been received by the two Respondents. Mr S indicated that he had served the papers, but had no documentation with him to indicate when this happened and whom he served. The court took the view, in the circumstances, that in order not to waste court time by adjourning, the hearing should take place, but that the parties should be served with the skeleton argument and the judge's note of the court proceedings, to enable them to decide, whether they wished to be heard on another day or wanted to make further written submissions. This course of action was agreed by the Appellant, as I shall now call him. Pursuant to the order of the court, the two Respondents have replied. They do not wish to be heard. The First Respondent has made brief submissions, contained in a letter dated 15 April 2008. What also transpires from the letter is that counsel for the First Respondent had contacted the court by phone and e-mail to indicate the First Respondent's position, followed by a letter dated 19 March. This information was not before the court at the time when enquiries were made and the consequent order made.
The issue in brief
The Appellant's son (W) is a severely autistic young man (he was born on 24 February 1990), who attended Whitefield school (the First Respondent) for over 10 years before he was excluded and his name taken off the school roll. The conditions for his re-admission are challenged as being discriminatory. There is an additional challenge to the failure to provide certain recreational facilities.
Chronology
The chronology of events is taken largely from the decision of the Second Respondent. On 20 July 2005, the First Respondent terminated the Appellant's placement at Whitefield school, because it took the view that he should be more appropriately placed at a residential special school. His parents disagreed with this view. In December 2005 the LEA issued a new final statement.
An appeal to SENDisT against the contents of W's Statement of Special Educational Needs, which, inter alia, failed to name a school under Part 4, resulted in a decision of 23 May 2006, ordering the LEA to name Whitefield School under Part 4 of the Statement. On receipt of the decision, the school held a strategy meeting to formulate a re-integration plan for W, since (a) he had been out of school for one year, and (b) when he had been at Whitefield, he had not been part of a class group. A risk assessment was required before re-admission. He also needed to form relationships with the adults who would be responsible for him before he could be placed with a group of pupils. The school wished to train additional staff and to consider appropriate accommodation. On 25 May 2006, the school wrote to the parents inviting them to attend a meeting to agree a re-integration plan —they declined.
On 7 June, a copy of the re-integration plan was sent to the parents. On 9, June a meeting was held with the parents, after which, on 12 June, they wrote to the school clarifying their views on the management of re-integration. This was responded to by both the local authority and the school in letters dated 14 June. Further correspondence ensued, and on 4 July, Mr Chapman sent a letter to the parents indicating how the school intended to carry out re-integration. There then followed further correspondence, the parents not being happy with what was proposed. The school term ended on 20 July. Eventually Mr S suggested that his son should start school in September. The school proposed that he should start on 7 September. The plan was for W to join a small group of pupils after he had spent a short time off-site developing relationships with the adults who would support him on a 2:1 basis. The rest of the chronology will be dealt with under the issues the Tribunal had to deal with.
Issues before the Tribunal
The first ground of the claim before the Second Respondent was the failure by the First Respondent to ensure W's prompt return to school after the SENDisT decision in May 2006. The Tribunal needed to consider whether the treatment complained of was for a reason relating to his disability and if it was, whether it was less favourable treatment than others who were not disabled would receive. If it was less favourable, was it justified? In short, the Tribunal found against Mr S. Their reasons will be considered later on in this judgement.
The second ground of complaint was that W's fixed term exclusion from 12 to 29 September 2006, which was upheld by the discipline committee of the governing body, amounted to discrimination by less favourable treatment.
The evidence before the Tribunal on this issue related to an aggressive outburst by W on 8 August 2006 during a respite holiday placement in Newquay which was arranged by Social Services. It was said that whilst walking with his workers to get an ice cream from a café, W became very agitated. He assaulted a young boy. The matter was reported to the police. The police took no action as the parents had pressed no charges. The school was told about this incident. There was concern that the risks presented by W were greater than had been anticipated, especially as the school had children as young as 3 years. Mr Waddington, the Head of Vulnerable Children Services at the LEA, took the view that a fuller investigative report was required, and advised Mr Chapman that a fixed-term exclusion would be justified. A letter was written to Mrs S conveying the decision to impose a fixed-term exclusion of 14 days in order to do a revised risk assessment. Mr S appealed the decision. This was considered by three governors on 12 October 2006, who decided that the period imposed by the school was justified and correct. However, the Tribunal found that the treatment of W was less favourable because of his disability, and concluded that reasonable adjustments could have been made to avoid the need for a fixed-term exclusion; that whilst it was appropriate for Mr Chapman to make further assessment, it could be done within the context of W continuing to receive an education,...
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DC S 1497 2009
...as to be irrational or perverse” (per Dobbs J. in W.S. (by his litigation friend Mr S) v Governors of Whitefield Schools and Centre [2008] EWHC 1196 (Admin) at paragraph 27). 12. It necessarily follows from the Upper Tribunal’s focus on the decision of the First-tier Tribunal that it is not......
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GC & JC HS 356 2011
...as to be irrational or perverse” (see Dobbs J. in W.S. (by his litigation friend Mr S) v Governors of Whitefield Schools and Centre [2008] EWHC 1196 (Admin) at [27]). 27. Other tribunals might have spent rather longer explaining their analysis of the relevant evidence. That does not mean th......