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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A, R (on the application of) v Chair of Special Educational Needs Tribunal [2002] EWHC 2391 (Admin) (31 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2391.html Cite as: [2002] EWHC 2391 (Admin), [2003] ELR 464

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		31 October 2002

1. MR JUSTICE PITCHFORD: This is a statutory appeal from the decision of the Special Educational Needs Tribunal, issued on 21 May 2002. The decision concerned a statement of special educational needs made for the claimant's daughter, whom I shall call A, made pursuant to part 4 of the Education Act 1996. The Tribunal does not appear. The Cambridgeshire County Council, the local education authority, or LEA, is represented by Mr Sheldon. There are three grounds of appeal advanced by Mr Squires on behalf of the claimant which I shall, in a moment, identify in the order in which they were argued before me. I extended by one day the time for issuing the notice of appeal and gave permission to amend a ground of appeal abandoned in consequence of the Tribunal's correction of a clerical error in its decision. I am grateful for the lucidity of the submissions which I have received from counsel on behalf of both parties.
2. Ground C: the Tribunal upheld part 4 of the statement providing that A's special educational needs could continue to be met by attendance at Samuel Pepys Special Day School, St Neots, in Cambridgeshire. Having found that A required special educational provision throughout her waking hours, the Tribunal, (1), erred in law by requiring the claimant, Mrs J, to make special educational provision outside school hours or, (2), reached a judgment which no tribunal of fact could rationally have reached, that the claim would make such provision. Ground D: the claimant put forward her preferences for a residential school which was identified. The Tribunal made an error of law in failing before it rejected that preference, to consider the educational merits of the parent's choice. Ground E: the Tribunal failed adequately to specify the provision of speech and language therapy by a trained therapist, or the intervals of monitoring the work of an assistant. Ground A: the claimant and the LEA at the invitation of the Tribunal, following submissions, agreed amendments to be made to the statement. The Tribunal, it is argued, unlawfully declined to accept an agreed amendment describing A's disabilities, and substituted its own without evidence in support.
3. By section 312, subsection 1 of the Education Act 1996, a child has special educational needs if she has a learning difficulty which calls for special educational provision. Subsection (2), in its material parts, provides:

"A child has a learning difficulty for the purposes of this act if (a), he has a significantly greater difficulty in learning than the majority of children of his age. (b), he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local educational authority; or (c), he is under compulsory school age and is, or would be if special educational provision is not made for him, likely to fall within paragraph (a) or (b) when of that age."

4. Section 321 requires the LEA to act with a view to identifying children such as those contemplated by section 312. Section 323 requires the LEA to make an assessment of special educational needs, and section 324, to provide a statement of those needs.
5. I should read section 324, (1) - (5)(a) in their entirety.

"(1) If, in the light of an assessment under section 323 of any child's educational needs, and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

(2) The statement shall be in such form and contain such information as may be prescribed.

(3) In particular the statement shall (a), give details of the authority's assessment of the child's special educational needs and (b), specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection 4.

(4) The statement shall (a), specify the type of school or other institution which the local education authority consider would be appropriate for the child, (b), if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and (c), specify any provision for the child for which they make arrangements under section 319 (otherwise than in schools) and which they consider should be specified in the statement.

(4)(A): subsection (4)(b) does not require the name of the school or institution to be specified, if the child's parent has made suitable arrangements for the special educational provision specified in the statement to be made for the child.

(5) Where a local education authority maintain a statement under this section then (a), unless the child's parent has made suitable arrangements, the authority --

(i) shall arrange that the special educational provision specified in the statement is made for the child, and

(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate."

6. It has, at least since 20 September 2000, been the view of the claimant that her daughter should be funded to take up a place in a specialist residential school. She appealed the LEA's statement in order to seek such provision. It was that issue which dominated the appeal to the Tribunal and the hearing before me. Before the Tribunal was a substantial bundle of reports, letters and other documents which trace the history of A's development, and I have been provided with that bundle. At the hearing before the Tribunal, two witnesses gave evidence, Miss Linda Cresswell, educational psychologist on behalf of the LEA, and Miss Rukhsana Meherali, educational psychologist on behalf of the claimant.
7. It is necessary to consider the history in a little detail. A was born on 21 February 1995. At the age of 19 months she was diagnosed as being "probably" autistic. The first letter in the bundle referring to the medical condition, is dated 11 March 1997 from Dr Louise Cormack, a consultant community paediatrician at Hinchingbrooke Health Care NHS Trust to Ms Jackie Shortt, who was then a student assessment officer employed by the LEA in Huntingdon. Dr Cormack writes:

"I have just seen A who appears to have very substantial learning difficulties and probably autism. She strikes me as a child who would benefit from a special school placement and I have now referred her to the preschool learning support teacher and our specialist speech and language therapist. I enclose a copy of my report which you may share with your educational psychologist. A's parents are very keen to do as much as possible for her."

8. Just over a year later, on 30 March 1998, Dr Cormack wrote to A's general practitioner. The problem was stated to be autism and learning disability:

"I saw A at home with her mother on 16 March 1998. A is currently at Springfield school and is now aged 3 years, 1 month. There was a recent meeting at Springfield school between A's class teacher, the head, and Mrs J to discuss A's ability to access the curriculum via TEACCH. A has considerable learning difficulties and is at an early developmental stage still. She is the youngest in the class and most of the other children are functioning at a social and cognitive level above the age of two. A's current level of functioning is probably closer to 12 to 15 months. A, however, has started to make some progress since I last saw her."

The second page of the letter:

"A's brother S, is now aged 4 years, 9 and a half months and is said to be very good with her and helpful in her development, however the family remain very concerned about A's future and future development."

At page 3:

"A has considerable problems in understanding the purpose of any communicational play and I think it is hard to assess her level of ability until we can get a little more in the way of communication. She is at an early stage of her development and will require a range of sensory activities to try and encourage her communicative ability.

"It may be that she is not ready for the TEACCH programme as done in Springfields as she does not have a relevant peer group at Springfields. It may be helpful for education to discuss further what other opportunities for education are available and perhaps a further look at Spring Common School or Pepys Road School which would be appropriate for A."

9. Those remarks by Dr Cormack were reflected in a statutory assessment of special educational needs prepared for the purposes of the Education Act 1993, the predecessor of the 1996 Act, in or about June of 1998. In it, Dr Cormack and Dr de Cates put their signature to this opinion:

"A has autism and learning disability and is at a pre-verbal level. She is fully dependent on adults for her support. A has severe developmental disability and although she may make progress, she will require support throughout her schooling."

10. To similar effect was the opinion of a consultant educational psychologist, Miss Kathy Notley, in what is called psychological advice prepared for the purposes of the assessment. On the third page of that advice she says:

"A's skills in all areas remain at an early stage of development and as a result she needs to take part in activities and learn new skills which are appropriate to her developmental level rather than her actual age. In particular, she needs access to motor-sensory curriculum where the emphasis upon learning through concrete experiences and structured play activities with the aims being to develop a broad range of skills. She needs a highly structured learning environment where routines are predictable and therefore secure. Tasks are broken down into small stages so that each small stage can be awarded. Environmental stimulation is carefully controlled to keep distractions to a minimum.

"In terms of communication, A is still in the early pre-verbal stages. As A enjoys physical contact and singing games, these sort of activities should be used to develop her non-verbal communication skills (attention control, eye contact, turn taking, concentration, etc).

11. The view of Heather Brace, A's class teacher at Springfields, was expressed in a form of educational advice received by the LEA on 21 September 1998. In it Miss Brace makes these observations amongst many others:

"A was non-verbal, but had a range of babbling sounds. TEACCH was used with A at Springfields. She was introduced to an object schedule but did not appear ready to access this method of communication yet. A was functioning well below her chronological age. A did not interact with other children in her class, but their level of functioning was more advanced than hers. A had a tendancy to bite other individuals, both children and adults."

12. She observed an unawareness by A of the need for continence. Further:

"The TEACCH routines, scheduling and classroom organisation were too rigid for A and, at that time, did not provide enough sensory stimulation. A had severe learning difficulties and was possibly functioning just over the one year level."

13. On 26 April 1999, the LEA carried out a level two needs assessment. In it, it was observed that by now, A was attending Samuel Pepys School. The author made these observations amongst others.

"A has a severe learning disability. Her progress according to Dr Miles (December 1998)is slow but with no loss of skills. She does show signs of classical autism but she is beginning to make a few pleasing steps of progress. She will occasionally use eye contact and is enjoying using the computer which has a touch screen. A is, at this moment, 4 years old and is not able to vocalise words at all. She is making lots of noises and is quite vocal but not using words. She is still in nappies and has, therefore, several developmental delays compared to other 4 year-olds. Fortunately, according to Dr Miles, there has not been any deterioration in her behaviour during the past years. Because of her learning difficulty there is a lot of concern for her normal development. One of the biggest concerns, certainly, is if she will be able to talk.

"According to A's child minder, Jackie Aldens, A became more exploring in the last couple of months. When she is finishing playing with something she will go into the play room searching for something else that interested her. A definitely has special educational needs. She has a statement of special educational needs since 1998. As previously mentioned, A has a severe learning disability, autism and associated behavioural problems. She needs full-time support at school."

14. Unhappily, at around this time, A's parents separated. The claimant commenced a relationship with a gentleman who became the father figure in the household and whom I shall call Mr M. Dr Cormack wrote to the general practitioner on 24 June 1999.

"Her development has been much the same but she has been happier in herself as has the whole family since there has been a change in the domestic circumstances."

15. On 20 September 2000, the claimant wrote a letter to Jackie Short, who was by now the special needs officer:

"We feel that A has not really learnt anything in the last year to 18 months, and the time for her is slipping away."

16. Later in the same letter, having specified her concerns in 11 numbered paragraphs:

"I think that one of the things that concerns us most is the effect that A and everything that goes with her has on her brother, S, and us as parents. She is very demanding."

17. Jackie Shortt consulted the headmaster of Samuel Pepys School, Dennis Baldry, and he replied in terms which included the following:

"Reference to her last annual review in December 1999, shows that at that time there was steps of progress, albeit small, albeit inconsistent. This enabled family and school to be optimistic about what had been achieved and about the future. Nevertheless, whilst our expectations were set in a school context, A's parents had, and continue to have in mind, the context of her progress and development within the family. School continues to believe that A's needs are being met with positive effect and slow progress. But for the parents this is not sufficient."

18. In his final paragraph Mr Baldry wrote:

"To comment on Mrs J's letter, I feel a huge degree of sympathy and can readily empathise with her, her partner and the challenges of family life. Any successful resolution at Mrs J's request, will not come simply from focussing on A's progress and needs at school but must fully take account of the family dynamic. I strongly support this request for a residential placement."

19. In October 2000, the level two assessment was updated and in it the author recorded the following:

"A's brother, S, is very close to his sister and misses her when she is not there. He has his own educational and special needs and is currently waiting to see an educational psychologist. Mrs J feels that she is simply being contained at school, at home and with the child minder, and is determined that A should change schools and that her educational needs would be fully met at Priors Court. Mrs J's main aim and big priority is for A to start to attend at Priors School at the earliest opportunity. Mrs J feels it would be the best thing for her. She would have a chance in life. At the moment she does not have a clue. Mrs J said, 'I fail her every day. I am not doing the best for her. I want her to be the best she can be. All we can do is love, feed and clothe her but Priors Court would give her a chance as they know how to reach the children. A has the ability to learn'."

20. The community nurse, Sarah Harcourt, prepared an assessment on 21 November 2000, in which she opens with this paragraph:

"This assessment was carried out from observations of A at home, discussion with Mrs J and Madelaine Gorton, occupational therapist. A is a 5 year-old girl who lives with her mother and her partner and has a brother, S, who is 7 years of age. A has contact with her natural father -- she and her brother spend Friday evenings and nights at his house and are returned home on Saturday afternoons."

21. In summarising A's needs she said:

"A is clearly a demanding girl who requires a lot of support. She needs 24 hours' supervision and help with every aspect of her daily living. A finds it difficult to understand her environment and to make sense of what is expected of her. This leads to A exhibiting challenging behaviours which are stressful to deal with on an ongoing basis. A needs consistency in all environments and a communication system to help her understand her environment, carers who have a good sound understanding of autism, her environment made safe for her, carers who can keep her safe, and environment and carers who can meet her basic living skills and teach her new skills in daily activities of living, and carers who can carry out programmes consistently to improve her challenging behaviour."

22. The school, in an educational review of 8 January 2001, reported that A had severe learning difficulties:

"At school it is felt she has made satisfactory progress. The objective set out in her current statement remain appropriate to her developmental needs."

23. In a section entitled "parental comments", it is recorded:

"Mrs J feels that A is not progressing at home. She observes the same behaviours now as some two to two and a half years ago. Mrs J acknowledges that A is very excited about school but that her needs are not being fully met. She restated her belief that A needs a consistent 24-hour programme and felt that Prior Court School offered just the type of provisions that were needed. Mrs J recognised the support provided for the family to support A at home, however she acknowledged that family pressures and demands make it impossible for her to begin the programmes that are being suggested, eg, by SALT and the community nurse."

24. In a review of arrangements for the purposes of the Children Act 1989, it was noted that Mrs J was very keen for A to attend Priors Court School:

"An education review was held recently where her present school felt they were meeting her educational needs so would be funding this placement. Mrs J intends to appeal against this decision in due course."

25. The current placement was described as approaching breakdown since the Link carer provided care for a number of children for the Links scheme, and that carer felt that she needed to cut down the number. A record of discussion reveals A's behaviour remained very demanding. She required constant attention and supervision. Mrs J had found it impossible to cope during the summer holiday. Mr M and Mrs J believed that the present school did not meet A's needs and she had made little progress over the last year.
26. Mrs J wrote to the headmaster, Dennis Baldry, on 22 January 2001, and in that letter she expressed the opinion that A was quite a "bright little girl" and "far more capable than appears at the moment". She felt that in the right environment such as Priors Court, she could come on in leaps and bounds. In responding to comments which had been attributed to her in the review, she said:

"The last bit in my supposed comment does not make a lot of sense to me. What I did say was, if given a practical and sensible programme to use in the home, then I would put it in place, but we do have to live as normal a life as possible which includes things such as cooking, cleaning, washing, ironing, bathing, and all other such things that take time. We also have a son that does need some of our time and love."

27. In a review by Samuel Pepys School on 19 June 2001, the head teacher, Mr Baldry, commented:

"There has been progress in supporting A's communication and understanding about school and classroom routines through the use of symbols and a schedule. She is able to make her wants and needs known and is very clear about likes and dislikes. Although she needs adult support for most daily activities, there is some progress towards self help; for example, when feeding. Within the class, A is able to concentrate on group and individual activities for longer periods."

28. In a summary report for the statutory annual review, dated 29 June 2001, it was noted:

"A is showing greater interest in things around her and is communicating with adults and peers. She has a receptive vocabulary and Makaton signs. She expresses her need by gesture, the use of objects and by physical prompting. She is beginning to use symbols in the PECS. A is more cooperative with dressing and will pull off her clothes, trousers and socks to help the adult. She has shown recent improvement with feeding. She has made no progress in toileting. A has been more settled with her peer group, a much calmer girl. She does show glimpses of awareness of others and has been observed to interact with other pupils in class. The objectives in the current statement remain appropriate."

29. In her speech and language therapy report of 8 August 2001, Jane Martin, a specialised speech and language therapist, recommended that A required a high level of support from specialist staff, school and therapists who are able to offer a structured and consistent approach. The consistency would need to be followed through into all of her environments.
30. Finally, for present purposes, there was a draft school report for annual review which, although dated in my copy, 22 May 2002, some days after the Tribunal hearing took place, was presented, I am told, to the Tribunal on the day of the hearing. I note that it is referred to in the Tribunal's decision as a report of April 2002. In it, the author says:

"A found the start of the year very difficult. Her mood on arrival generally set the tone for the day. She was often very distressed and difficult to calm. She would come in distressed and this mood could be difficult to shift unless she was outside of the classroom in the computer suite, or running in the hall or playground. We have seen a marked improvement in this in the last few months. Since we started in the new classroom, she has rarely been distressed. She is generally much more contented and interacting more positively with staff. She is much happier and more able to sit and be part of group activities. She has made good progress at dinner and in recognition of symbols."

31. In connection with literacy and communication:

"A has made good progress with her recognition of symbols related to classroom activities. She shows her understanding of these by going in the right direction or moaning if it is something she does not like. She recognises: hello, drink, play, dinner, computer, toilet, soft play, writing, PE, minibus and swimming. She recognises all the snacks symbols. In structured situations she exchanges the symbol. When she is really hungry or thirsty she has, on occasions, taken a symbol to give to an adult when we have been engaged in an unrelated activity. She also recognises the command symbol WAIT and will sit more calmly to wait (for example for food at drinks time). A is able to interact with adults but it can take time for her to become involved and to initiate interactions. She is at her most animated in PE -- rough and tumble type activities. She gives lovely eye contact and requests repeat by coming back up to you (for example after a swing or by taking your hand to repeat the action). She is very aware of the other children in the group and loves to follow particular children but it is unusual for her to initiate an interaction with them. She is obsessed by drawing and will make any available pencil shaped object into something to draw with.

"A has developed in her ability to listen to stories and getting pleasure from stories you repeat over a couple of weeks. She looks intently at the pictures and understands to turn the pages of the book. She will sit and look at a book independently, especially ones that have photos of activities she has been involved in."

32. The decision was published on 21 May 2002. Summarising the facts as they are recorded by the Tribunal, the Tribunal noted that both experts who give evidence, Miss Cresswell and Miss Meherali, agreed that A had very significant cognitive delay coupled with autism. The difference of view lay in the precision of diagnosis. Miss Cresswell did not believe it was possible to say that A's learning difficulties could be attributed to one or both causes, and it was her opinion that lack of progress over a long period suggested that A's general cognitive difficulties were profound. On the other hand, Miss Meherali believed that it was right to approach the problem by treating autism as her primary need with very specialised input delivered over 24 hours each day; by that means A might make better sense of her environment than she was currently.
33. Paragraph 5 noted the improvement to which I have just referred, in the school report dated April 2002. The Tribunal noted Mrs J's and Mr M's view that A remained a totally dependent child who needed attention throughout her waking hours. Mrs J had found it increasingly difficult to cope at home, particularly since she had received less support by means of respite care during the previous 18 months. The Tribunal noted that the social services department had recently indicated that they would offer Mrs J, 24 days respite per annum, but Mrs J was sceptical as to whether that would materialise.
34. At paragraph 7, the Tribunal recorded what they were told by Mrs J about her preferred choice of school, Priors Court. It was a residential and day school for children diagnosed as being on the autistic spectrum with moderate to severe learning difficulties aged 3 to 19 years. The pupil's day was highly structured using the schools own approach which combined the strengths of "daily life therapy" and TEACCH. The school provided a two to one student to staff ratio from 6.45am to 9.15pm. Night care officers covered sleeping hours. The school followed a five term model of organisation allowing for close contact and frequent returns to the family home:

"We were informed that A had been assessed by the school although the assessment report was not included in the Tribunal bundle. The school was able to offer A a place from September 2002. The annual fees for her placement are £94,550 plus travel costs."

35. At paragraph 10, the Tribunal noted:

"The reports which have been submitted on behalf of the claimant are from Miss Meherali, Patricia Rush, occupational therapist, Nancy Arnaud, a speech and language therapist and Roger Weissmann, an independent social work consultant."

36. In referring to the views of Mr Weissmann, the Tribunal observed that Mrs J was pessimistic about her ability to continue to cope with A's needs and he believed that there were grounds for her fears. He considered that the level of support that had been provided for Mrs J was totally inadequate. He recommended reinstatement of respite care as a matter of urgency.
37. At Paragraph 11, the Tribunal recorded the fact that the community nurse, Sarah Harcourt, had originally supported a residential placement but had advised her local manager that she believed A's disabilities were such that she could be managed at home with the appropriate package and that Priors Court would not necessarily be the most appropriate placement for her.
38. There was a differential cost of her attendance at Samuel Pepys School (£17,000) and Priors Court (£94,000) of £77,000.
39. At paragraph 14, the Tribunal recorded:

"Miss Meherali and Miss Cresswell agreed that A has very significant developmental delay which gives rise to severe learning difficulties which are compounded by A having an autistic spectrum disorder. Miss Cresswell submitted that A's very slow development of skills and her inability to generalise skills was indicative of profound cognitive impairment of which her autistic symptoms were a feature. She believed that A requires a developmental programme which should be delivered consistently by staff experienced in working with pupils with profound and multiple learning difficulties and reinforced at home by a similar approach to managing A. She did not accept that the only approach which would work for A was one which had regard to her autistic tendancies. She believed that A had begun to slowly respond to the program she had been receiving at Samuel Pepys. She was beginning to use and understand signs as a means of communicating. She is able to feed herself at lunchtime. She enjoys school and is becoming more a part of group activities. Miss Cresswell believed that it would not be in A's interests to remove her from the school where progress is being made, albeit slow."

40. On the other hand, in paragraph 15, the Tribunal noted:

"Although Miss Meherali agreed that Samuel Pepys was a caring school with staff committed to the well-being of their pupils, she also believed that A's autism was the major hindrance to progress, and that given an environment geared to autistic pupils, she would expect to see considerable progress."

41. In Paragraph 16, the Tribunal recorded the views of Mrs J and Mr M. The natural father took no part in the Tribunal hearing, nor, as I understand it, did the Tribunal receive any statement from him.
42. In their conclusions, at paragraph A, the Tribunal said:

"A) A is a young girl who is fully mobile but has very significant cognitive delay which is compounded by her having an autistic spectrum disorder. Her communication skills are at the 12-month level and have remained fairly static since she started full time education. We were offered alternative explanations for A's very slow progress.

Miss Cresswell's evidence was that her learning difficulties are profound and her failure to develop and generalise skills reflects this fact. Miss Meherali's evidence was that although A does have very significant general learning difficulties, her autism represents the major hurdle to her progress. We found Miss Cresswell's evidence more persuasive.

B) As a pupil with profound general learning difficulties and an autistic spectrum disorder, A will require a considerable amount of input from a specialist teacher."

43. The Tribunal then considered what the nature of the teaching should be:

"C) Like all pupils with severe learning difficulties, the programmes used in A's educational setting will need to be re-enforced in her care setting because her educational needs extend throughout her waking day. This can be done by those caring for A, participating in devising her education programme and being guided on how to support her educational programme in the home setting by those working with her at school."

44. Mr Squires makes the following submissions. Firstly, conclusion C is a finding by the Tribunal that A needs special educational provision throughout her waking day.
45. Secondly, that being the case, section 324, subsection 5(a)(i) and (ii), requires the LEA to make provision. He referred me to the decision of Collins J in R v London Borough of Hillingdon ex parte Governing Body of Queensmead School [1997] ELR 331. The court was there reviewing the withdrawal of funds from grant maintained schools. Collins J considered the statutory obligation of the LEA to make provision for special needs under the 1993 predecessor of the 1996 act. He said, at page 345 of the report:

"Budgetary constraints and lack of funds can play no part in the assessment of the child's special educational needs. This seems to me to follow from the decision of the Court of Appeal in R v Gloucestershire County Council ex parte Barry [1996] 4 All ER 421, at p 442A. Financial constraints can be considered in deciding how those needs are to be met, provided always that they are met. It cannot be said that a need exists but it would be too expensive to provide for it. The requirement is to meet the needs, but the provision made may be the minimum necessary to meet them. The LEA has a duty which is non-delegable, to arrange that the special educational provision specified in a statement is made for the child."

46. Thirdly, argues Mr Squires, the responsibility for provision is ultimately the LEA's whether or not the provision required is teaching. He points, in this respect, to the terms of section 319 which provides that a local educational authority can make provision otherwise than in a school -- section 322 -- under which the LEA can seek assistance from other authorities who are obliged to assist, and to the terms of section 324, sub section 5(a) to which I shall return.
47. Mr Squires relied on a passage in the judgment of Sedley LJ in London Borough of Bromley v SENT and others [1990] ELR 260, to demonstrate the breadth of the concept of educational needs and provision. The issue was whether a range of therapy comprised part of provision for special educational needs. At page 294, Sedley LJ said:

"The potentially large intermediate area of provision which is capable of ranking as educational or non-educational, is not made the subject of any statutory prescription precisely because it is for the local education authority and, if necessary, the SENT, to exercise a case by case judgment which no prescriptive legislation could ever hope to anticipate. The potential breadth of what can legitimately be regarded as education is illustrated by section 322, permitting, as it does, the enlistment by the LEA of other statutory powers to help in the exercise of any of their functions under this part. It is true that the LEA's functions which include both powers and duties (see s 579(1)) will include the elective making of arrangements for non-educational provision, as well as the mandatory making of arrangements for educational provision pursuant to section 324(5)(a); but it is the fact the health social services and other authorities can be enlisted to help in the making of special educational provision which gives some indication of possible breadth of duty."

48. On the facts of the case, the Court of Appeal held that the therapy provided was therapy provided in the course of meeting a child's special educational needs.
49. Fourthly, argues Mr Squires, the LEA is thus liable to pay for all the out of school hours' provision which the Tribunal found in its Conclusion C was needed. It is at this point that the Tribunal acted, he submits, in excess of its jurisdiction.
50. The conclusions continue:

"D. We were satisfied by the evidence that we received that Samuel Pepys School, which all the witnesses agree is an excellent school, can meet the educational provision A requires during her school day. The school has teachers trained to teach pupils with severe learning difficulties, able to work with A directly and supervise others working with her. The school is a special school and should also be able to train a learning support assistant in the skills necessary to work with A full-time and implement programmes devised by others. The school has access to both speech and language and occupational therapists and can arrange for those therapists to devise programmes for A and work directly with them. E. The central issue in this appeal was whether the consistency of provision A, like so many pupils with special educational needs requires, can be made by a combination of the placement at a suitable day special school, ie Samuel Pepys, and her continued residence at home.

The evidence of Miss Cresswell and Sarah Harcourt was that it should be possible to meet A's out of school hours needs at home. We found this evidence persuasive. We accepted that it was feasible for A's parents to participate in devising her education programme and be advised on how to support that programme at home, provided they took a constructive approach to the advice given.

We recognised that A is a demanding child whose condition causes a considerable amount of stress within the family, but it seems to us that these stresses result from inadequate support having been given to the family in the form of respite care and social services intervention. This lack of support we understood is now being addressed by the provision of respite care and greater social services involvement."

51. What the Tribunal has done, submits Mr Squires, is to place upon the claimant the responsibility for delivering out of school hours, special needs provision when that is the statutory duty of the LEA. If and In so far as provision is non-educational, the LEA has a discretion to arrange it as they consider appropriate, see section 324, subsection 5A(ii) but they and not the parents must provide it. Mr Sheldon, for the LEA, makes two central submissions: the claimant has misinterpreted the Tribunal's decision. It is not for me, submits Mr Sheldon, to construe the decision as though it were a statute. Read as a whole, the Tribunal was not saying that A required round-the-clock, highly structured and expertly delivered programme of learning. The Tribunal found that what was required was day school attendance at which the programme was delivered and a measure of continuity of approach to A at home. Input from the parents was not envisaged to be the full panolpy of one-to-one learning such as A would receive at school, but efforts of communication compatible with the educational programme whose planning the parents should share. The reason that desirable objective had not been achieved so far was the poor level of support the family had received from respite care and social services. That failure was being addressed.
52. There was no evidence before the Tribunal, submitted Mr Sheldon, that A's parents and Mr M could not or would not cope with the burden of caring for A in the manner proposed once those hurdles had been removed. It was one thing for the claimant to express her preference, it was quite another to say that if she did not get her way, the requisite level of support would be removed. The claimant had said no such thing. Secondly, and in any event, submitted Mr Sheldon, the LEA was entitled, when considering its statement of the child's needs, to assume a reasonable degree of input from the parents. It would make a mockery of the statutory scheme for the parents simply to be able to express their intention not to cooperate in order to achieve a statement and therefore provision of choice. The statutory scheme, he said, was founded upon an assumption of partnership between parents, school and LEA.
53. He referred me to section 110, School Standards and Framework Act 1998, in which parental responsibilities are identified in a home/school agreement. I did not find the analogy helpful since the agreement for which provision is made in section 110, presupposes the attendance of the child at a school. It does not, I think, assist on the question how far selection of the appropriate school can depend upon out of school participation by the parents.
54. Of more assistance was Mr Sheldon's reference to the Special Educational Needs Code of Practice, issued November 2001, pursuant to section 313 of the Education Act 1996. By section 313(2):

"It shall be the duty of:

(a) local education authorities, and such governing bodies, exercising functions under this Part, and

(b) any other person exercising any function for the purpose of the discharge by local education authorities, and such governing bodies, of functions under this part.

To have regard to the provisions of the code."

55. At paragraph 8.74 appears:

"In general, LEAs are likely to consider that there is a need for residential provision where there is multi-agency agreement that  . . . ".

56. And there are specified four separate possibilities, one of which is:

"The child has severe or multiple special educational needs that require a consistent programme both during and after school hours that cannot be provided by parents with support from other agencies."

57. That guidance, submits Mr Sheldon, assumes in appropriate cases, the lawful consideration by the LEA of the parents ability to provide an after hours programme with, if necessary, support from other agencies before identifying a day or residential school. I asked both counsel whether this meant that in making their statement, the LEA was entitled to consider what the parents could reasonably achieve in caring for the child out of school and to discount an unreasonable resistance. Yes, said Mr Sheldon, it could not be right to divorce from the statutory consideration of needs, that which the reasonable parent in this parent's position could be expected to achieve, otherwise the statutory scheme would be at the mercy of the unscrupulous. No, said Mr Squires. This is a straightforward question of statutory construction. Section 324, subsection 5(a), imposes the duty on the authority unless the child's parent has made suitable arrangements. The subsection does not say, "Save for such arrangements as the parent could reasonably make".
58. Mr Squire's submission requires a more detailed look at the proviso to subsection 5(a). The words, "Unless the child's parent has made  suitable arrangements", identify arrangements that have already been made for (i) special educational provision, and (ii) any non-educational provision for the child. The fact that those arrangements have already been made, absolves the LEA from responsibility for making similar special educational provision itself.
59. It does seem to me, as Mr Squires submitted, that the phrase is wide enough to embrace suitable arrangements for provision by others or by the parent herself. The section imposes a duty to make provision unless those arrangements have been made and are suitable. It may, therefore, be the duty of the LEA to intervene if the arrangements made are objectively unsuitable; for example, if the parent is with the best will in the world, personally unable to provide the necessary service whether teaching or therapy or otherwise. I do not, however, consider that that construction disposes of Mr Sheldon's argument. Special educational provision is defined by section 312(4) of the Act as:

"(a) In relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age and schools maintained by the local authority (other than special schools)."

60. In my view, those words are important. That which is encompassed by the section 324 duty, is the provision of any educational service not generally available in the LEA maintained schools. Such a service would, in my opinion, include speech and language and communication skills training outside the experience of the mainstream. The duty under section 324(5)(a) does not require the provision of a service which is not educational in the wide sense approved by the Court of Appeal in the London Borough of Bromley case. I therefore accept Mr Squire's submission that if the Tribunal found special educational needs included, for example, the provision of specialist communication skills training in the home, the LEA, and not the parent, was under a statutory duty to provide it. Only if any separate arrangements made by the parent for provision were objectively suitable, would the LEA be relieved of that duty. In my judgment, the LEA would not be performing its statutory duty if directly or indirectly it imposed upon the parent, when specifying special educational provision under section 324(3), an obligation to meet part or all of that provision herself.
61. It is Mr Squires' position that that is precisely what the LEA has done here. While it is not spelt out in the statement as amended, when the statement is read together with the decision, that is its effect (see E v Flintshire CC and the SENT [2002] ELR 378, [2002] EWHC 388 (admin) per Newman J at par 38). The statement, as amended by the Tribunal, Mr Squires' submits, is unlawful.
62. I therefore need to return to the question whether the Tribunal did decide that A's special educational needs included a continuation of special provision at home. I am bound to say I have found this question does not admit of an easy answer. The conclusion I have reached, however, is that the Tribunal did not make an unlawful decision.
63. I reach my conclusion by an examination of the Tribunal's step by step approach to their ultimate conclusion. It clearly distinguished between the regime to be achieved in school and the desirability of reinforcement at home, although the use of language was not always consistent. The Tribunal used the phrase, "Because her educational needs extends throughout her waking day". In what sense was that expression used? It seems to me that the Tribunal was mindful of the fact that this little girl communicated and behaved at the most basic level. She could not, on a return home from school, exercise the same capacity for play and communication which the ordinary seven year-old could. For this child, all communication was an educational process. The Tribunal did not, however, say that her educational needs should be met by special educational provision throughout her waking day. The special educational provision needed was that which would be provided in school; that is, the expert delivery of one-to-one tuition and support with many repetitions and daily communication skills training with speech and language therapy. What, it seems to me, the Tribunal had in mind when considering A's home circumstances was the desirability that such communication with A, as was possible, could be best achieved by the claimant's understanding of what the agreed programme at school was seeking to achieve. There would be no point in the school adopting a teaching strategy only to find that the strategy was being undermined at a basic level of communication at home. Hence, in my view, the reference in conclusion E to supporting the programme at home, in other words, adopting a constructive and compatible approach at home during times of non-educational care.
64. I do not wish it to be thought that I underestimate the burden of caring for A; that burden is plain for all to see. However, the Tribunal was not, in my view, requiring the claimant to provide part of A's special educational needs, nor assuming that she would do so. It found that with good will which was present, and support which soon would be, the claimant's care of her daughter would take place in a context supportive of that which it was sought to achieve at school.
65. In principle, this is no different to any parent's wish, in the case of a child in the mainstream, to give her child assistance with reading, writing and arithmetic at home, in a manner compatible with the teaching techniques used at school. It does not mean that those attempts are an expression of the need. In A's case, however, the level at which care and support would be given by the claimant was basic communication. The advice proposed was not advice designed to turn the claimant into a teacher or therapist, but advice designed to improve the claimant's ability to provide care and nurture to this damaged child. I have said, not without some doubt and with a good deal of sympathy, I do not consider the Tribunal in this respect made an unlawful decision. A's special educational needs did not, on the Tribunal's finding, embrace out of hours provision. I believe this finding disposes of both limbs of ground C.
66. However, at paragraph F of their conclusions, the Tribunal introduced a new consideration, that is the desirability of removing A from her home to a strange place with strange people. This brings me to ground D.
67. At paragraph F, the Tribunal said:

"Having concluded that A's placement at Samuel Pepys, coupled with close consultation with her carers at home, can meet her special educational needs, we did not need to consider whether or not Priors Court School could meet her needs. The evidence we received suggested that that school would have the expertise and resources to make appropriate provision for A. However, we were not persuaded by any of the evidence we received, that it would be in A's interest for her to be placed in a residential school at the present time. A has weekly contact with her father and a close relationship with her brother. It seems to us to be essential for A to maintain these strong connections with her family, which apparently bring her pleasure. It would seem that Mr J has a considerable commitment to A and that commitment should not be lightly interfered with. We agree with Mr Weissmann that Mr J should be consulted on issues relating to A, and should be engaged, if possible, in ensuring that the educational provision she receives at school is reinforced in all its settings. Having decided that it was contrary to A's interests at present for her to attend a residential school, we did not consider Priors Court to be suitable for her, having regard to its location. We did not have to consider the issue of resources."

68. Mr Squires' argument is that nowhere in their decision did the Tribunal demonstrate its consideration of the merits of each school before reaching the conclusion that one was more appropriate than the other. Insofar as the Tribunal decided removal from home was against A's interest, they had no evidence, expert or otherwise, on which to found that decision. I disagree. The service Priors School was able to offer was fully described in paragraphs 7, 10, 15 and 16 of the decision. In addition, the Tribunal had in front of it, a detailed prospectus from the school. Samuel Pepys School was fully described in paragraphs 4, 5 and 16 of the decision. The Tribunal had evidence that A was now making encouraging progress and the school believed it could deliver outcomes consistent with A's ability. The Tribunal summarised the competing cases in paragraph F, and concluded that on the one hand, Priors Court School could give 24-hour care, while on the other, attendance at Samuel Pepys would enable A to continue enjoying the stable home environment to which the reports had referred. The Tribunal was entitled, in my judgment, to reach the conclusion in the context of needs, that at this stage of A's development, to uproot an uncomprehending little girl to a strange place would not be in her interests.
69. The Tribunal noted at paragraph 7, that although told that A had been assessed at Priors Court School, no assessment report had been provided. It seems to me that in this respect the claimant was on difficult ground. The Tribunal was being asked to amend the statement upon the assertion of the claimant, the generality of the prospectus, and expert evidence to a limited extent. The Tribunal had no information from the school itself about the nature of the assessment carried out, the findings upon that assessment, the particular regime planned for A as a result, or the outcomes intended. To this extent, it would not have been a straightforward exercise to complete the comparison of merits in the claimant's favour.
70. There was disagreement following the Tribunal hearing whether A's natural father had relieved the claimant of both children on Fridays. As I have observed earlier in this judgment (see paragraph 20), that was the evidence before the Tribunal and they could not be criticised for so finding. In any event, I regard the issue as secondary. Disruption of A's home life, requiring her to live away from familiar places and faces for long periods, was at the forefront of the decision and, in my view, lawfully so.
71. At conclusion G, the Tribunal amended paragraph 1 of part 3 of the statement, in part, to read as follows:

"The communication programme should be delivered daily by a learning support assistant (LSA) trained by the speech and language therapist. The programme should be reviewed not less than monthly and the LSA therapist should participate in devising A's IEP and in training other staff working with A, and should liaise closely with A's parents."

72. Mr Squires submits, in support of his Ground E, that that amendment lacks specificity. The Tribunal should have specified at what intervals the therapist should monitor provision and how often the therapist should deliver the service personally. Mr Sheldon argues that the claimant has three hurdles to overcome. The first is two short passages in the judgment of Laws J in L v Clarke and Somerset County Council [1998] ELR 129, 136H - 137B, to the effect that to be lawful, it is not in every case in which the minutiae of provision needs to be identified, although it is the norm that details should be included. Secondly, there was no evidence before the Tribunal what particular interval should be identified. Thirdly, the provision identified is, in fact, more favourable than that which was suggested in Miss Arnaud's report, submitted on the claimant's behalf, at page 222 of the bundle.
73. In my judgment, the amendment is sufficiently explicit in the circumstances of the case. A failure to identify day-to-day provision would, in my view, have been a defect. Day-to-day provision was specifically provided and the provider identified. Review was to take place once a month. The intervals between sessions personally delivered by the therapist rather than by the learning support assistant were likely to need flexibility in the absence of any proposal by the claimant before the Tribunal. I consider that the use of the word "occasional" was appropriate and sufficient.
74. Finally, I turn to Ground A: Mr Squires complains that the claimant, having been invited to agree a diagnosis to be inserted into the statement, she did so, but the Tribunal then chose to reject it and composed their own which reads:

"A has a complexity of need in which profound developmental delay interacts with an autistic spectrum disorder. Her aggression and behaviour at the end of last year resulted in a recent investigation for Rett's Syndrome which has proved negative. Her diagnosis has been confirmed as severe learning difficulties compounded by a severe communication disorder, autism and pica. She has not developed neurological foundation skills and so has not been able to develop more complex behavioural skills."

75. The agreement was that developmental delay was not "profound" but "significant", and that that interacted with her autism rather than with an "autistic spectrum disorder". Furthermore, the parties had agreed that the diagnosis had been confirmed as "classic autism which includes a severe communication disorder with severe learning difficulties and pica", rather than a diagnosis of "severe learning difficulties compounded by a severe communication disorder, autism and pica".
76. The Tribunal explained its decision as follows. At paragraph 13, it noted that the parties had been able to agree several amendments. They are set out at appendix one to the decision. A document signed by the party's representatives as evidence of their agreement sets out amendments. At paragraph G of their conclusions the Tribunal said:

"We have amended the statement to include the amendments agreed by the parties where we were satisfied that the evidence supported these amendments."

77. Mr Squires concedes that the changes would not affect the judgment of which was the appropriate special school, and the argument is, therefore, rather an empty one. He accepts that regulation 42, paragraph 2, Special Educational Needs Tribunal Regulations 2001 (SI 2001/600) provides that a Tribunal may, if it thinks fit, make a decision in terms agreed in writing. It is conceded it was not unlawful for the Tribunal to express itself as it did, if the form of words used was supported by the evidence.
78. At paragraphs 14 and 15 of the Tribunal's description of the evidence, the Tribunal recorded the difference between Miss Cresswell on the one hand, and Miss Meherali on the other. In a less than complete note of Linda Cresswell's evidence at the hearing, the claimant's solicitor noted the witness as saying that A's learning difficulties were profound and complex. The Tribunal made it clear that they preferred the evidence of Miss Cresswell which they found persuasive.
79. It seems to me, having considered the Tribunal's and Miss Franklin's summary of the evidence, and read the reports of the educational psychologists, the form of words used by the Tribunal to describe A's condition was well within the permissible limits of their discretion and judgment. In any event, the variation from the agreed proposal was a matter of emphasis which did not alter the nature of the special educational needs required.
80. For these reasons, I am unable to accede to the claimant's submissions to me and the claim must be dismissed.
81. MR SHELDON: My Lord, I am extremely grateful for that. There is one small correction. In terms of the costs differential, you referred to there being a £17,000 differential. In fact, that is the cost of the LEA provision.
82. MR JUSTICE PITCHFORD: That is what I meant. I probably expressed it in terms which made it look like the difference between the two.
83. MR SHELDON: That is how I heard it.
84. MR JUSTICE PITCHFORD: I will correct that if and when I am asked to examine the transcript.
85. MR SHELDON: Much obliged. I understand that the claimant is in receipt of CLS funding and so any costs application would remain with the court, but I am asked formally to apply for our costs, obviously not to be enforced and not to be assessed without leave of the court.
86. MR SQUIRES: My Lord, I do not object but I do ask an order be made that our funding be assessed.
87. MR JUSTICE PITCHFORD: There will be a funding assessment for the claimant. There will be an order for costs to be paid by the claimant but that order shall not be enforced without leave of the court.
88. MR SQUIRES: My Lord, may I make one further point?
89. MR JUSTICE PITCHFORD: Yes, please.
90. MR SQUIRES: My Lord, the claimant is grateful that letters were used rather than the names but I would wonder if formally an order can be made that nothing be said to identify because I notice that reporters were present yesterday and an order had not been made at that stage.
91. MR JUSTICE PITCHFORD: I make an order under section 39 of the Children and Young Persons Act 1933, that no details from which the identity of the child, who is the daughter of the claimant in this case, should be revealed. I have to be more precise than that. Identification by photograph, by school --
92. MR SQUIRES: My Lord, I understand as far as the parents are concerned, simply their names and their childrens' names would suffice. There is not a concern about the school.
93. MR JUSTICE PITCHFORD: I did not, as in some cases happens, refer to the school by initials because it seemed to me probably the school was big enough with children of similar disabilities that A would not be identified, so if that is the parents' view, that is the order that I shall make. Thank you.