[New search]
[Help]
Mrs. T. VU V London Borough of Lewisham and Special Education Needs Tribunal [1999] EWHC Admin 827 (2nd December, 1999)
CASE NO: CO/1590/1999
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
31st July 2000
BEFORE:
HIS HON MR JUSTICE RICHARDS
-------------------
Mrs. T. VU
V
1. London Borough of Lewisham
2. Special Education Needs Tribunal
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
MR J. FRIEL (instructed by Messrs Conningsbys) appeared on behalf of the
Applicant
THE RESPONDENT did not appear and was not represented
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE RICHARDS:
1. This is an appeal from a decision of a Special Educational Needs Tribunal in
March 2000 on an appeal from a decision by the London Borough of Lewisham as to
the terms of a statement of special educational needs in respect of the
appellant's son, Cuong. The appellant is Cuong's mother. She and her family
are Vietnamese and do not have a command of English, a fact which lies at the
heart of this case.
2. I can deal very briefly with the background to the appeal. Cuong was born
on 10 September 1994 and is autistic. A final statement of his special
educational needs was made in May 1999. An appeal against that statement was
brought in August 1999. Between the date of the appeal and the date of the
Tribunal hearing there were important changes in circumstances. At the time of
the statement Cuong had been attending the Akwaaba Centre. In September 1999
the appellant was informed that he could no longer attend the Centre. Cuong
then spent some months at a Pupil Referral Unit. The appellant sought a
placement for him at Griffin Manor, but just before the Tribunal hearing fixed
for 2 December 1999 an expert report was received to the effect that Griffin
Manor would not be suitable. The hearing was adjourned to enable an
alternative placement to be found. Cuong was assessed for the Helen Allison
School, one of the schools operated by the National Autistic Society. In the
light of that assessment the school offered a day placement to Cuong from
January 2000. Lewisham eventually agreed to this and Cuong started at the
school on 26 January. Discussions followed between the appellant's
representative and Lewisham concerning the detailed content of parts 2 and 3 of
the statement. By the date of the adjourned Tribunal hearing on 2 March 2000
agreement had been achieved. Further modifications were agreed during the
hearing. In the result only two issues were left for resolution by the
Tribunal.
3. The Tribunal decided one of the outstanding issues in the appellant's favour
and it is no longer of concern. The Tribunal decided the other against the
appellant and it is that issue which is the subject of the further appeal to
this court. The issue relates to what is described as "interpreting support".
The appellant sought an amendment to part 3 of the statement so as to add the
following to the statement of special educational provision:
"Interpreting support to enable parents to contribute to planning initial
programmes, participating in termly review/consultative meetings and the Annual
Review. Support to assist with preparation, the actual meetings and the
implementation of proposals."
4. The appellant's case for the provision of interpreting support was, in
summary, that the school needed to work with Cuong's family in order to make
its educational programme effective, yet none of Cuong's family spoke English
and no-one was available to translate adequately at home; an interpreter was
therefore essential. Interpretation had been provided through a voluntary
support worker, but funding for that was being withdrawn. Lewisham contended
that interpreting support could not be regarded as an educational need. The
Tribunal gained the impression that the appellant's representative had not
tried to persuade them to the contrary, but in a witness statement before this
court she firmly denies that. In any event what matters is that the Tribunal
accepted Lewisham's contention. It concluded:
"We do not regard 'interpreting support', however much it is desirable or
needed in this case, as educational provision. We do note that the LEA has
been told that interpreting services can be made available to Ms Vu to enable
her to contribute to and participate in the termly school review including the
annual review. We have no jurisdiction to include this or more in Cuong's
statement."
5. In a short affidavit filed for the assistance of the court, the chairman of
the Tribunal has confirmed that the Tribunal's decision was taken on the basis
that the interpreting support sought by the appellant was not educational
provision which the Tribunal could order under part 3 of the statement; and the
Tribunal concluded that it did not have jurisdiction to order specific
provision in part 3 which did not accord with one of Cuong's special
educational needs under part 2. The view taken by the Tribunal is neatly
summarised in the chairman's observation in his affidavit that the interpreting
support sought by the appellant was "support for the mother" rather than for
Cuong.
6. Mr Friel, for the appellant, submits that the Tribunal erred in law in
reaching that conclusion. There are two limbs to his case. He submits first
that the interpreting support sought by the appellant was properly to be
regarded as special educational provision, since it arose from Cuong's special
educational needs and was on true analysis support for Cuong, not for his
mother. His second and alternative submission is that Lambeth had a discretion
under s.324(5)(a)(ii) of the Education Act 1996 to provide interpreting support
as non-educational provision and that the Tribunal, in determining an appeal,
was placed in the shoes of the authority and had the power to exercise the same
discretion as to non-educational provision.
7. Neither the Tribunal itself nor Lewisham has appeared or been represented
before me. It has therefore been left to Mr Friel to satisfy me in their
absence that the appeal is well founded. He has succeeded in satisfying me on
the basis of his first submission. In the circumstances I have not thought it
appropriate to go on to consider the second submission, interesting though it
is. It is a point best decided after full argument.
8. Mr Friel does not contend that an interpreter or interpreting support would
normally count as special educational provision. However, I accept his
submission that it does so in this case because of Cuong's particular special
educational needs and the nature of the school's programme for meeting those
needs. Part 2 of the original statement includes the following:
"Cuong's language is severely delayed in both English and Vietnamese and he has
been diagnosed as having difficulties on the autistic spectrum. Formal
assessment of Cuong's cognitive skills was very difficult because of both his
language delay and his limited concentration, but it is clear that he is
experiencing significant delay in all areas, with relative strengths in his
fine and gross motor skills.
Cuong communicates mainly through gestures and sounds. He has a range of
repetitive behaviour, with particular difficulties in eating, drinking and
sleeping. Cuong has no sense of danger, and can become very angry when he is
frustrated. He is able to make some choices.
Cuong has difficulty in:
* communicating with others
* developing his early learning and play skills
* interacting appropriately with his peers
* maintaining eye contact
* coping with change
* understanding what is going on around him and what he is supposed to do
* concentrating
* consistently behaving appropriately
* understanding danger"
9. The agreed amendments to part 2 add to the definition of his communication
disorder and reinforce the nature of the problem. In particular, a new
paragraph states:
"Cuong can demonstrate communicative intent but his language is severely
delayed in both English and Vietnamese. He has been diagnosed with autistic
spectrum disorder and at recent psychological testing showed that he can become
frustrated if he cannot undertake a task or if he is uncertain, which is
typical of intelligent autistic children. Despite Cuong's intelligence he is
not yet able to incorporate people easily into his world and cannot yet use
language to engage with others. The signs of emerging recognition indicate
that he is poised to break through into a social world."
10. The admission assessment for the Helen Allison School develops upon those
points. It places emphasis, for example, on Cuong's very limited skills in
social interaction and social communication, and on the ways in which the
school would seek to develop those skills. In this connection Mr Friel has
pointed out that autism is described as a triad of impairments, in
communication, social interaction and imagination, and that one of the keys to
development is generalisation out of the school environment and into the home
and wider society. It is in that connection that proper liaison between the
school and the family is so important. Cuong's placement is a day placement,
not residential, yet the educational programme needs to be extended into the
home in order to make it work. That extension into the home cannot succeed if
the school and the family are unable to communicate by reason of a language
barrier.
11. These matters are further explained and illustrated in a witness statement
of Patricia Smith, Deputy Principal of Helen Allison School, who also gave
evidence before the Tribunal. I have found her statement very compelling and
will quote a number of passages from it:
"The [school] prospectus itself makes it clear that links with parents are
essential as are the parental contributions to parent meetings and annual
reviews. However to limit the school's participation with a parent to annual
reviews and parental meetings to discuss progress would be to misunderstand the
nature of all education but particularly education for autistic spectrum
disorders where social communication is one of the main elements of the triad
of autistic impairments which needs to be approached, developed, and
generalised to maximise the individual child's chance of independence and
success in life.
...
The current position explains why an interpreter is essential. The school try
and communicate with all parents as much as possible and that is made clear
from the brochure .... It is our policy to link with parents so that children
do not compartmentalise the proceedings at school but instead generalise their
learning into everyday life.
A major problem with autism, is that it is often a difficulty that children do
not generalise skills learnt at school into everyday life and therefore they
are disruptive at home and disruptive in society. It is part of the specialist
education we provide and part of our policy to ensure that generalisation takes
place.
We therefore have to work with the home towards the same end and carrying out
the same programmes with regards to communication and/or behaviour. Social
interaction is a well known problem for all autistic children and is the second
of the triads of impairment.
....
Cuong can use words and we can exploit his ability to communicate. We cannot
do this effectively at the moment because complicated concepts are not
understood by Ms Vu or indeed Cuong's siblings who can read some English.
Further we are using the Picture Exchange System which uses symbols and photos
to develop communication. In order to use the Picture Exchange System
effectively and to generalise, it must be explained to the parent and it is
then used by the parent at home as well as at school. The Picture Exchange
System nationally known as 'PECS' requires explanation and use both at home and
at school. Of course this simply cannot be done at the moment."
Although that practical experience to some extent post-dates the Tribunal's
decision, in my view it can be taken into account as illustrating the nature of
the problem in this case.
12. On those facts I am satisfied that the interpreting provision sought by the
appellant in this case counted as educational provision for Cuong's part 2
needs and that the Tribunal erred in law in holding to the contrary. It is a
mistake to categorise such provision as support for the mother rather than for
Cuong himself. The mother and other members of the family have a vital role
to play in the educational provision for Cuong, for the very reason that the
school's programme extends into the home and has to extend into the home if it
is to be effective. Communication between Cuong's family and the school is
part and parcel of the educational provision for Cuong's needs. Interpretation
for the purpose of enabling such communication to take place is equally to be
regarded as part and parcel of the educational provision.
13. Mr Friel has referred me to the discussion in London Borough of Bromley
v. SENT [1999] ELR 260 at 295-6 concerning the meaning of "special
educational provision" and the difference - and overlap - between educational
provision and non-educational provision. The view that I have reached that
interpreting support counts here as educational provision seems to me to be
consonant with the court's observations in that case.
14. Accordingly I hold that the Tribunal's decision on this point was in error
and that its decision must to that extent be quashed.
15. There remains the question whether I should remit the matter to the
Tribunal for reconsideration or should exercise the power of this court to make
an order itself as to the amendment of part 3 of the statement.. The fact that
Lewisham has not appeared on this appeal makes me hesitant to exercise the
latter power. But I can see no objection of substance to the appellant's
proposed amendment and I see great merit in avoiding a further Tribunal hearing
and further delay. It appears that before the Tribunal the only point raised
by Lambeth on the appellant's proposed amendment was whether interpreting
support counted as educational provision at all. No point was taken on the
actual wording or content of the proposal. Moreover the responsible nature of
the appellant's proposals as a whole is shown by the fact that all the other
amendments were agreed between the parties or ordered by the Tribunal. In all
the circumstances I have decided to exercise the court's power to order an
amendment.
16. I will therefore (i) quash the Tribunal's decision in so far as it declined
to order part 3 of the statement to be amended to include the following
wording, and (ii) order part 3 to be amended to include the wording:
"Interpreting support to enable parents to contribute to planning initial
programmes, participating in termly review/consultative meetings and the Annual
Review. Support to assist with preparation, the actual meetings and the
implementation of proposals."
17. No order for costs is sought against the respondent. There will, however,
be an order for assessment of the appellant's costs for legal aid purposes.
- - - - - - - - - -
MR JUSTICE RICHARDS: I am handing down a judgment in this matter for the
reasons given in the judgment handed down. The appeal against the decision of
the Special Educational Needs Tribunal is allowed.
In addition, although no order for costs is sought against the respondent,
there will be an order for detailed assessment of the appellant's cost for
legal aid purposes.
MS HAY: My Lord, I am grateful. I need not make any applications in the
circumstances.
MR JUSTICE RICHARDS: Thank you very much for being in attendance, Ms Hay.
© 1999 Crown Copyright
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/827.html
