Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals,
Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference SE825/12/00028,
made on 27 March 2013, did not involve the making of an error on a point of
law.
The suspension on the effect of that decision, imposed in
the grant of permission to appeal, is removed.
Reasons
for Decision
1.
This case raises some difficulty issues on the interpretation and
application of the legislation governing a request for an assessment when a
child is about to move from primary to secondary education. It also deals with
how a local authority should act pending a challenge to the First-tier
Tribunal’s decision.
A.
History and background
2.
Eloise was born on 2 November 2001. She joined her primary school in
2006. The school placed her on its special needs register at School Action in
2009, moving her to School Action Plus later that year. In July 2012, Eloise’s
mother asked the local authority to make an assessment of her special
educational needs. That request was made under section 329(1) of the Education
Act 1996. The authority refused and her mother exercised her right of appeal to
the First-tier Tribunal. That appeal was made under section 329(2)(b) of the
Act. The tribunal allowed the appeal on 27 March 2013, by which time Eloise was
due to move to secondary school in September 2013 and the tribunal’s reasoning
show that it took that move into consideration. The decision required the
authority to make an assessment.
3.
I suspended the effect of the tribunal’s decision and gave the authority
permission to appeal to the Upper Tribunal. I held an oral hearing of the
appeal on 13 September 2013. Mr Sean Bowers of Baker Small solicitors appeared
for the local authority. Ms Jane McConnell of IPSEA appeared for Eloise’s
mother. I am grateful to them both for their helpful arguments and interesting
discussion.
B.
The Education Act 1996
4.
These are the relevant provisions:
312 Meaning
of ‘special educational needs’ and ‘special educational provision’ etc
(1) A child has ‘special
educational needs’ for the purposes of this Act if he has a learning difficulty
which calls for special educational provision to be made for him.
(2) Subject to subsections (3)
and (3A) 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 authority, or
(c) he is
under compulsory school age and is, or would be if special educational
provision were not made for him, likely to fall within paragraph (a) or (b)
when of that age.
…
(4) In this Act ‘special
educational provision’ means —
(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 in schools maintained by the local
authority (other than special schools), and
(b) in
relation to a child under that age, educational provision of any kind.
323 Assessment of educational
needs
(1) Where a local authority are
of the opinion that a child for whom they are responsible falls, or probably
falls, within subsection (2), they shall serve a notice on the child's parent
informing him—
(a) that
they are considering whether to make an assessment of the child's educational
needs,
(b) of
the procedure to be followed in making the assessment,
(c) of
the name of the officer of the authority from whom further information may be
obtained, and
(d) of
the parent's right to make representations, and submit written evidence, to the
authority within such period (which must not be less than 29 days beginning
with the date on which the notice is served) as may be specified in the notice.
(2) A child falls within this
subsection if—
(a) he
has special educational needs, and
(b) it is
necessary for the authority to determine the special educational provision
which any learning difficulty he may have calls for.
(3) Where—
(a) a local
authority have served a notice under subsection (1) and the period specified in
the notice in accordance with subsection (1)(d) has expired, and
(b) the
authority remain of the opinion, after taking into account any representations
made and any evidence submitted to them in response to the notice, that the
child falls, or probably falls, within subsection (2),
they shall make an assessment of
his educational needs.
(4) Where a local authority
decide to make an assessment under this section, they shall give notice in
writing to the child's parent of that decision and of their reasons for making
it.
(5) Schedule 26 has effect
in relation to the making of assessments under this section.
(6) Where, at any time after
serving a notice under subsection (1), a local authority decide not to assess
the educational needs of the child concerned they shall give notice in writing
to the child's parent of their decision.
329 Assessment of educational
needs at request of child's parent
(1) Where—
(a) the
parent of a child for whom a local authority are responsible but for whom no
statement is maintained under section 324 asks the
authority to arrange for an assessment to be made in respect of the child under
section 323,
(b) no
such assessment has been made within the period of six months ending with the
date on which the request is made, and
(c) it is
necessary for the authority to make an assessment under that section,
the authority shall comply with
the request.
(2) If in any case where
subsection (1)(a) and (b) applies the authority determine not to comply with
the request—
(a) they
shall give notice in writing of that fact to the child's parent, and
(b) the
parent may appeal to the Tribunal against the determination.
(2A) A notice under subsection
(2)(a) must inform the parent of the right of appeal under subsection (2)(b)
and contain such other information as may be prescribed.
(3) On an appeal under
subsection (2) the Tribunal may—
(a) dismiss the appeal, or
(b) order
the authority to arrange for an assessment to be made in respect of the child
under section 323.
C.
The Code of Practice
5.
Chapter 7 of the Code deals with assessments. I was referred to various
paragraphs. I do not need to set out most of them. It is sufficient to make two
points. First, the guidance refers only to assessing present needs rather than
anticipating possible, or even probable, future needs. Second, paragraph 7.34
says:
In deciding whether to make a
statutory assessment, the critical question is whether there is convincing
evidence that …
D.
Analysis
6.
The First-tier Tribunal had before it an appeal under section 329(2)(b).
The issue it had to decide was whether the local authority should arrange for
an assessment to be made under section 323. That section would only apply if
the conditions in section 323(2) were satisfied.
7.
There are two conditions in that subsection. One was a matter of fact:
did Eloise have special educational needs? The other was a matter of judgment:
was it necessary to determine the special educational provision that any
learning difficulties she might have called for?
The issue of fact
8.
Special educational needs are defined in section 312. There are two
requirements: Eloise must have a learning difficulty and it must call for
special educational provision. These requirements must be met at the time when
the local authority or tribunal makes its decision. However, they only have to
be proved to the civil standard of the balance of probabilities and section
323(1) itself recognises that certainty is not required by providing that ‘a
child … falls, or probably falls, within subsection (2)’. This provision
reflects the uncertainty that may exist until an assessment has been made.
Learning difficulty
9.
The grounds of appeal criticised the First-tier Tribunal for failing to
make the necessary findings of fact. They argued that Eloise did not have
learning difficulties. Any difficulties she had were not significant and would
be addressed by the time she finished primary education. Mr Bowers maintained
this position at the hearing. In response, Ms McConnell argued that this had
never been challenged before the First-tier Tribunal and was amply demonstrated
on the evidence.
10. The
tribunal had to be satisfied that the necessary factual basis existed to
trigger the duty under section 323. However, it did not have to deal with
issues that were not in dispute. I accept Ms Connell’s argument that these
matters of fact were not in issue before the First-tier Tribunal. I have taken
account of the following considerations. (a) Neither she nor Mr Bowers were
present at the hearing before that tribunal, so they could not speak to what
took place. (b) Mr Small, who wrote the grounds of appeal, was present and may
be assumed to know what was in issue. (c) The fact that the tribunal did not
deal with the factual issues is open to two interpretations: either they were
not raised at the hearing or the tribunal did not make the findings that it was
required to make. It would be surprising if it were the latter, given the
narrow compass of the hearing. (d) The local authority’s reasons for refusing
to make an assessment were that ‘Eloise’s special educational needs can continue
to be met by School Action/School Action Plus.’ I regard this as significant.
That statement was not written for the tribunal, but it was written in a formal
response to a statutory request. The choice of language in that context is
significant and implies that Eloise has special educational needs. (e) In its
written response to the appeal before the First-tier Tribunal, the local
authority identified in paragraph 12 three issues as being in dispute. They
reflect the terms of the legislation and include ‘Whether Eloise has special
educational needs.’ However, that seems to be merely a formal summary of the
applicable legislation, as later the Grounds of Response at paragraph 24
state:
The Council submits that
Eloise’s needs do not require provision over and above that already provided by
the school. As such it is not necessary for the Council to carry out an
assessment.
This too I regard as significant. It is consistent with the
reasons given earlier for refusing the request to make an assessment and is
directed to the separate issue of special educational provision. It does not
refer to learning difficulty.
11. Before
I leave this point, it provides a convenient opportunity to make some comments
on how disputes like this might be avoided. The First-tier Tribunal could (i)
ensure that it dealt with all relevant matters of fact and (ii) avoid grounds
of appeal like this one if it took a more structured approach to explaining its
decisions. And of course that is much easier to do if the decision-making is
also structured. The decisions that I have seen in special educational needs
cases tend to take the form of a general statement of the evidence and
arguments, followed by a loosely structured analysis. If the reasons in this
case had specifically addressed the factual questions that arose individually
and in an appropriate order, it would have been immediately obvious – to the
tribunal itself, to the parties and to the Upper Tribunal - whether it had made
the necessary findings of fact. It would also have helped if the tribunal had
identified the precise issues that were in dispute. And of course it would
greatly assist a tribunal if the parties were to agree at the start of the
hearing on a statement of the issues that the tribunal had to decide.
Special educational provision
12. The
grounds of appeal also argued that the First-tier Tribunal ‘failed to identify
the special educational provision that was required to meet those needs in
accordance with s 312(4) Education Act 1996.’ That misstates the position. The
tribunal did not have to identify the special educational provision that Eloise
required to meet her needs. That would be the purpose of the assessment. In
order to satisfy the definition in section 312, it is only necessary for a
local authority or tribunal to be satisfied that a child has learning
difficulty (as defined) that calls for special educational provision. It is not
necessary for the learning difficulty or the provision required to be
identified with the precision that would be required in a statement. The
purpose of an assessment is identify them more precisely.
13. Despite
the way that the ground of appeal was worded, in substance it concerned the
issue whether Eloise needed some provision that could not be met from the
provision made generally for children of her age. That is how it was argued by
Mr Bowers. He argued that the resources available to the school, including
School Action and School Action Plus, were on the evidence sufficient to meet
Eloise’s needs. Therefore, she would have no need for any special
educational provision and an assessment was not necessary. I do not accept
that. Special educational provision is defined in section 312(4)(a). The
issue was whether Eloise’s needs could be met from the educational provision made
generally for children of her age. I read that as meaning provision that is
made for all children regardless of any special needs. School Action and School
Action Plus are not made generally for children of a particular age. They are
additional to the provision that is made generally. Any progress that Eloise
was making was not being made as a result of provision made generally for
children of her age. Her learning difficulty did call for some special
educational provision. The issue that arose in her case was whether the
provision being made for her rendered an assessment of her precise needs unnecessary.
That was a matter of judgment, to which I now turn.
The issue of judgment
14. The
issue of fact was whether Eloise had a learning difficulty that called for
special educational provision. The issue for judgment was whether it was
necessary to determine what that special educational provision was. Those few
words give rise to a host of problems of interpretation and application.
15. I
did not hear argument on the conceptual and practical difficulties in applying
a probability assessment to an issue of judgment, whether as the standard of
proof or under the wording of section 323(1). I merely record that any analysis
of that issue would require a study, at least, of these authorities: Secretary
of State for the Home Department v Rehman [2003] 1 AC 153; R(N) v Mental
Health Review Tribunal (Northern Region) [2006] QB 468; Thompstone v
Tameside & Glossop Acute Services NHS Trust [2008] 1 WLR 2207; and In
re O (Minors) (Care: Preliminary Hearing) [2004] 1 AC 523.
16. There
may well be sufficient flexibility in the meaning of necessary to avoid
any such discussion. Although in the dictionary this word is defined in terms
of what is essential or indispensable, in practice it is used less strictly. That
meaning is captured by the European Court of Human Rights in The Sunday Times
v United Kingdom (1979) 2 EHRR 245 at [59]. The Court said that it was
neither synonymous with indispensable nor equivalent to useful, reasonable
or desirable. Rather it connoted a pressing social need. That
would not be an appropriate test in the context of the Education Act, which is significantly
different from the European Convention on Human Rights. But the point remains
valid. Necessary sets a standard that is somewhere between indispensable
and useful or reasonable. I am not going to define it more
precisely. It is a word in general usage and it is that usage that the tribunal
must apply.
17. Like
Judge Mark in NM v London Borough of Lambeth [2011] UKUT 499 (AAC) at
[16], I do not understand why paragraph 7.34 of the Code refers to the need for
convincing evidence. It may be that this is intended to emphasise that
the test is one of necessity. Be that as it may, I agree with Judge Mark that
local authorities and the First-tier Tribunal must apply the statutory wording.
18. Whether
something is necessary assumes a reason and a purpose. The reason and
purpose is obviously to identify whether a child needs further educational
provision and, perhaps, a statement of special educational needs.
19. Although
the assessment must be made on the basis of evidence and that evidence will
relate to the past and present, the purpose of an assessment looks to the
future. This led me to ask in my grant of permission to appeal whether the statutory
language allowed the tribunal to look to the future. That may not make much
difference when the child is not in or approaching a transitional phase. But
Eloise was.
20. Ms
McConnell argued that the tribunal was right to look to the future. She relied on
Wilkin v Goldthorpe and Coventry City Council [1998] ELR 345. In that
case, the local authority made a statement naming a particular school at which
the child should finish his primary education. The tribunal made its decision
one month before the end of his primary education and limited its decision to
that period. Kay J decided that that was wrong; the tribunal could and should
have considered the future as part of the overall picture. Mr Bowers argued
that circumstances of that case were different from this in that the child had
a statement and regulation 19 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (SI No 3455) would apply. That regulation deals
with phased transfers and requires a local authority to name to school to which
the child will move on transfer. I accept that there are differences between
this case and Wilkin. I do not need to decide if they are distinctions,
because an analysis of the language alone shows that the same approach is
appropriate.
21. The
statutory test inevitably directs attention to something that will happen after
the assessment has been made. The assessment is made for a purpose. That
purpose involves identifying provision necessary to meet a child’s needs. The
assessment cannot realistically limit itself to the immediate present. When
there will be a change of circumstances in the near future, it is impossible to
ignore that future. I put to Mr Bowers the possibility that a tribunal was
hearing an appeal on a child’s very last day at primary school. He argued that
the only assessment that could be made would be on the basis of the child’s
performance and needs in the primary school. I accept that there may be
practical problems in making an assessment when the evidence will predominantly,
if not exclusively, relate to a situation that will shortly pass. That may
affect the judgment whether an assessment is necessary at that stage. It may
also make it difficult for a parent to judge whether to ask for an assessment
in advance of a transition. But I can see no reason in principle why it should
not be permissible to take account of the future, subject to the practical
evidential problems that this may involve. There is some support for this, as
Ms McConnell pointed out, in paragraph 5.66 of the Code, which refers to the
importance of planning ahead when transferring schools. It would be strange if,
in the midst of so much statutory provision for a child with special
educational needs, there were no provision requiring or even allowing for those
needs in a new school to be anticipated, at least to the extent that that is
possible.
22. I
am not troubled by the emphasis in the Code on the present. That reflects the
fact that the evidence will predominantly, if not exclusively, relate to the
present and that most cases will not involve a transition. It does not require
me to interpret section 323 differently.
E.
Pending an appeal
23. Mr
Bowers asked me to provide guidance for local authorities on how they should
proceed if they wished to challenge a decision of the First-tier Tribunal. He
was concerned that implementing a decision that might be overturned could waste
resources.
24. The
legal position, as I said at the hearing, is clear. A decision is binding as
soon as it is promulgated by the First-tier Tribunal. That tribunal has power
to suspend the effect of its decision under rule 5(3)(l) of the Tribunal
Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber)
Rules 2008 (SI No 2699) pending the determination of an application for permission
to appeal. The Upper Tribunal has power to suspend under rule 5(3)(m) of the
Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698). The sooner that a
local authority applies for permission to appeal to either tribunal, the sooner
an application for suspension can be considered. This is not a perfect solution
to the problem identified by Mr Bowers, but it is the best the law can offer.
F.
The effect of my decision
25. I
have dismissed this appeal. That leaves the tribunal’s decision in place. I
have removed its suspension. At the hearing, I discussed with Ms McConnell
whether it would not be wise for Eloise’s mother to ask the local authority
again to make an assessment in order to protect herself in case I set aside the
tribunal’s decision. I do not know whether she did so. If she did, it is
possible that the authority has already agreed to undertake an assessment. If
it has, the First-tier Tribunal’s decision is now redundant; it is not
necessary to make two assessments at the same time. If it has not, it must now
implement the decision in this case.
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Signed on original
on 20 September 2013
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Edward Jacobs
Upper Tribunal Judge
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