DECISION

Decision: The appeal is allowed. The decision of the First-tier Tribunal (HESC Chamber) (“the Tribunal”) sitting at London on 14 January 2013 under reference SE208/12/00020 involved the making of an error of law and is set aside. The case is remitted to the First-tier Tribunal (HESC Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in the final paragraph of the Reasons below.

REASONS FOR DECISION

Introduction

1.	Central to this case is a distinction between two of the ways in which “small groups” can be used in secondary school teaching. The difference may be important to a child whose special educational needs are being addressed. One kind of small group is a small self-contained group with its own dedicated teacher: I shall call this a “small class”. The other kind of small group is a small supported group doing differentiated work within a whole class setting: I shall call this a “small supported group”.

2.	I made orders for anonymity and reporting restrictions in this case. “JJ”, as I shall call her, is thirteen years old and attends a mainstream secondary school (“the Mainstream School”), said by the local authority (“the Authority”) to be suitable for JJ’s educational needs. JJ’s parents (described in the judgment heading as “K & K”) say that the Mainstream School is not suitable and have expressed the preference that JJ attend an identified independent school (“the Independent School”).

3.	At the outset, I express my gratitude to the legal representatives on both sides for the assistance I received from their written and oral submissions: Amelia Walker of Counsel instructed by Kevin McManamon, for JJ’s parents; Jennifer Thelen of Counsel instructed by Oluchi Onwere, for the Authority.

4.	On 22 May 2012 the Authority made a statement of special educational needs in respect of JJ (“the 2012 Statement”). Part 3 of the 2012 Statement specified the appropriate special educational provision for JJ and said this (emphasis added):

“JJ should be taught in small groups of less than ten pupils for English, maths, science, modern foreign languages and technology”.

I shall refer to this as “the TSG Provision”. It related to “English, maths, science, modern foreign languages and technology”, which I shall call “the Five Academic Subjects”.

5.	On 14 January 2013 the Tribunal heard an appeal by JJ’s parents under section 326 of the Education Act 1996, arising out of the 2012 Statement. The Tribunal’s determination was issued on 28 January 2013. My task on this appeal is to decide whether that determination involved the making of an error on a point of law. In approaching that task, I agree with the Authority when it submits that (1) this was a specialist tribunal to be afforded an important latitude and margin for judgment, and (2) the Tribunal’s reasons are to be approached in a non-technical way, remembering that the Tribunal is not required to deal with every point raised.

6.	At the time of the 2012 Statement, JJ was in Year 7 at the Mainstream School. In Year 7, the provision for JJ for the Five Academic Subjects involved small classes. A Consultant Educational Psychologist (Ms Fenty) had prepared a Report in January 2012, in which she described this small classes provision as JJ being “in a small teaching group of 10 children” and being “taught in small groups in Year 7”. The same Report had expressed the opinion that: “Provision should include … Teaching in a small group for all academic subjects”. In supplying the 2012 Statement, the Authority’s covering letter (22 May 2012) had described the TSG Provision as being a “reference to JJ being placed in small classes at her current school in Year 7”.

7.	By the time of the January 2013 hearing before the Tribunal, JJ was in Year 8 at the Mainstream School. By now, there had been a material change. For two of the Five Academic Subjects – science and technology – JJ was no longer in small classes but was in small supported groups. Ms Fenty’s January 2012 Report had seen this coming: “unfortunately, JJ will revert to large classes in the mainstream in Year 8”. In a later November 2012 report, Ms Fenty had repeated her view that “Provision should include … Teaching in a small group for all academic subjects”, and had stated that being “taught in a class of less than 10 pupils” was “the recommended class size for JJ”. JJ’s parents had commenced judicial review proceedings, on the grounds that the Authority was in breach of a duty to make provision for small classes in accordance with the TSG Provision of the 2012 Statement. 

8.	Preparations for the January 2013 hearing before the Tribunal included a ‘Working Document’ version of the 2012 Statement, updated to show the competing positions of the parties to the appeal: JJ’s parents and the Authority. The Working Document recorded as the parties’ agreed position that Part 3 should still include the TSG Provision, for all of the Five Academic Subjects. It therefore repeated:

“JJ should be taught in small groups of less than ten pupils for English, maths, science, modern foreign languages and technology”.

9.	A Summary of Facts prepared by the Authority for the appeal quoted the TSG Provision and stated: “The local authority is aware of its legal obligations to implement the provision as set out in part 3 of the Statement and have every intention of fulfilling that duty”.

10.	The Tribunal came to recognise, at its January 2013 hearing, that there was a key disagreement between JJ’s parents and the Authority, as to the true meaning of the TSG Provision. As I have explained, it was a provision which had been contained in the 2012 Statement and was agreed content for the continued statement, in the Working Document. But there was a dispute about what it meant. JJ’s parents were arguing that “small groups” in the TSG Provision meant small classes for the Five Academic Subjects, as had been provided in Year 7. The Authority was arguing that the TSG Provision instead allowed for small supported groups, as with science and technology in Year 8.

11.	The Tribunal in its determination described this as: “The key issue” (§5). The Tribunal did not, however, resolve it. It decided not to retain the TSG Provision for the Five Academic Subjects, despite the parties’ agreement. It decided to recast the agreed TSG Provision into a new provision (“the Modified TSG Provision”) applicable only to English, maths and modern foreign languages. The Modified TSG Provision read:

“JJ should be taught in small groups of less than ten pupils for English, maths, modern foreign languages”.

12.	The essential consequences of this were as follows. First, Part 3 of the statement now contained no reference to small groups for science and technology. Secondly, Part 3 included the Modified TSG Provision, for English, maths and modern foreign languages. Thirdly, the Tribunal retained disputed wording without explaining who was correct about what it meant.

13.	In its determination, the Tribunal went on to conclude, in essence, as follows: that the Mainstream School could provide for JJ’s educational needs, including in accordance with the Modified TSG Provision; and that the Independent School was over-provision and would involve unreasonable public expenditure.

English, Maths and Modern Foreign Languages

14.	I start with the Modified TSG Provision, which covered these three academic subjects: English, Maths and Modern Foreign Languages. JJ’s parents submit on this appeal that the adoption of the Modified TSG Provision by the Tribunal and the reasons relating to it were vitiated by the making of an error of law, which can be characterised as (a) a lack of clarity, (b) the failure to resolve a material dispute, and/or (c) the giving of legally inadequate reasons.

15.	The Authority’s essential response is twofold. First, it is said by the Authority that the Tribunal was reasonably entitled not to resolve the meaning of the TSG Provision. That is because the crystallised dispute ‘on the ground’ related only to the small supported groups used in science and technology; everyone was happy with the small classes still used for English, Maths and Modern Foreign Languages. There being no problem, there was no need to decide what the Modified TSG Provision meant. Secondly, it is said by the Authority that in fact the Tribunal did produce clarity, a resolution of the dispute, and legally adequate reasons. That is because the Modified TSG Provision has a meaning which is clear and leaves no room for doubt. That clear meaning is that “small groups” does not mean small classes, but allows for small supported groups – for English, Maths and Modern Foreign Languages – provided that this were otherwise consistent with the Statement read as a whole. On the basis of these points, it is said that there was no public law error in the Tribunal’s approach or reasoning.

16.	I accept the submissions made on behalf of JJ’s parents, and will explain why. The true meaning of “taught in small groups” in the TSG Provision was one of the principal issues on the appeal, as the Tribunal recognised. To retain that phrase, without giving any reasons as to whether and how that dispute had been resolved, was to perpetuate an unnecessary controversy, leaving it embodied in the revised statement which was the product of the Tribunal’s determination of the appeal.

17.	A key function of a statement is to “specify” the provision to be made to meet a child’s special educational needs (see section 324(3)(b) of the 1996 Act). That specificity is important to make the Statement practical and effective, and to facilitate its enforceability. It is engaged on an appeal against the contents of a statement (section 326). In my judgment, it was incumbent on the Tribunal to produce clarity. I cannot therefore accept the Authority’s first submission.

18.	By replicating language known to be controversial, with no reasoning as to whether and why the language was in fact considered to be clear, the Tribunal left JJ’s position as to English, Maths and Modern Foreign Languages in a vulnerable position. The contents of Part 3 of a statement are in my judgment still important, in identifying what is legally required, where there is a recognised dispute but no present threat in terms of what is actually currently provided. The position as the Tribunal left it can be tested. Suppose the Mainstream School decided to switch JJ to small supported groups for one of these three subjects, as it had earlier done with science and technology? Suppose the Authority had decided no longer to fund small classes in one or more of these three subjects?

19.	In fact, the Authority’s second submission (summarised above) powerfully demonstrates this vulnerability. Driven, understandably, to say what the Modified TSG Provision means, the Authority’s contention is that it would allow small supported groups for English, Maths or Modern Foreign Languages, provided that this is consistent with the rest of the Statement. In my judgment, there was a principal controversial issue which the Tribunal should in law have resolved, and the Tribunal needed to produce a statement which was clear and readily enforceable.

20.	I do not agree with the Authority that the Modified TSG Provision means – clearly and with no room for doubt – that small classes were not necessarily required and small supported groups permissible. In my judgment, it is far more likely that the wording used is apt to describe a need for small classes. That, in my judgment, is a natural meaning of the phrase “taught in small groups”. Moreover, the position is in my judgment strongly supported by the purpose and context. Seen in context, the TSG Provision when introduced was surely reflecting the Year 7 position and Ms Fenty’s expert opinion. Moreover, had the Tribunal intended “small groups” to include small supported groups, why did it delete science and technology? Why not retain the TSG Provision, for all of the Five Academic Subjects? I certainly do not consider that the Authority can establish that the meaning is clear and contemplates small supported groups.

21.	In my judgment, the Tribunal was wrong in law not to resolve the point. After all, the Tribunal specifically decided to include the Modified TSG Provision within the statement. It must have been intended to be a significant part of the content of the statement. It must have been intended to identify provision which was needed, in relation to English, Maths and Modern Foreign Languages. The Tribunal, in my judgment, had a choice. It could have addressed and resolved the controversy, and if it decided that the true meaning was clear, then it could justifiably have retained that wording. Alternatively, it could have avoided the controversy, and adopted alternative and clearer language to deal clearly with what the statement was intended to mean. What in my judgment was legally unsatisfactory was to retain wording known to be disputed, without addressing the dispute.

22.	Although an important starting-point is no doubt that “the specificity/ flexibility of Part 3 [of a statement] is pre-eminently an area within the area of expertise of the First-tier Tribunal”, this in my judgment is a case to which the observation of Sullivan J (as he then was) applies, namely that the tribunal ought to have ensured that:

Part 3 of the Statement … set out with particularity what provision had to be made to meet [the] needs, resolving the dispute between the parties … so as to leave no doubt as to what was necessary …

23.	This conclusion, in my judgment, justifies remittal of this case for consideration afresh. I agree with the Authority that this is not a case in which it would be appropriate for me, as an appellate tribunal exercising an error of law jurisdiction, to re-make the decision. It is for the Tribunal, as the primary independent adjudicative decision-maker whose latitude and judgment command respect, to revisit and resolve the problem.
Science and Technology

24.	I turn to the two subjects from the Five Academic Subjects – science and technology – which were deleted by the Tribunal when the (agreed) TSG Provision was replaced with the Modified TSG Provision.

25.	Among the grounds advanced by JJ’s parents on this appeal are submissions that the Tribunal’s deletion of science and technology from the TSG Provision to produce the Modified TSG Provision was vitiated by (a) a lack of clarity, (b) the failure to resolve a material dispute, and/or (c) the giving of legally inadequate reasons.

26.	The Authority’s essential answer is twofold. First, the Authority says that the Tribunal reasonably regarded small supported groups for science and technology, rather than small classes, as being sufficient to meet JJ’s educational needs, given in particular (a) the Tribunal’s reliance on its own expertise and (b) the evidence of JJ’s progress under the Year 8 arrangements. Secondly, the Authority says that the Tribunal reasonably regarded it as unnecessary and undesirable to “spell out” provision for small supported groups in science and technology, because it wished to avoid undue specificity and wished instead to allow for flexibility ‘on the ground’ as to specialist arrangements at the Mainstream School. On the basis of those answers, the Authority submits that there was no public law error in the Tribunal’s approach or reasoning.

27.	I accept the submissions made on behalf of JJ’s parents, and will explain why. I agree with the Authority that the Tribunal must have concluded that small classes were unnecessary for JJ in relation to science and technology. I do not accept that such a conclusion involved no (or no clear) departure from Ms Fenty’s evidence. I agree with the Authority that, in principle, a Tribunal may reasonably rely on its own expertise, and may reasonably depart from expert opinion before it. I also accept that it is permissible for a Tribunal to consider evidence as to whether existing provision is working, to ‘influence’ its conclusion as to what provision is needed. What, in particular, I cannot accept is that the Tribunal gave legally sufficient reasons to explain what it was doing, and why, in this case.

28.	In the key passage in its determination, the Tribunal said this (§§31-32):

… [JJ’s solicitor’s] arguments cannot be sustained because even at [the Independent School], JJ would be in some classes where she would be the eleventh child. Given that there is general agreement that JJ needs to be taught and supported in small groups, we conclude that an unduly technical approach is not helpful. We have excluded science and technology and our expectation is that following whole class demonstrations or similar, the work would be differentiated and JJ would be supported in a smaller group even if within a bigger class. That is what happens now.

We are satisfied that JJ’s needs are being met in [the Mainstream] School. It is a large school but in our experience they are exceptional in the arrangements they have made for pupils like JJ who need support to be educated and supported in very small groups…

29.	I must not take a technical, nit-picking or legalistic approach to a tribunal’s reasons. However, there is in my judgment no getting away from the following straightforward points, which arise out of the Tribunal’s reasoning in the present case. (1) The Tribunal does not say it is relying on own experience to depart from Ms Fenty’s expert opinion (it did refer to its ‘experience’ in describing the Mainstream School as ‘exceptional’). (2) The Tribunal does not refer to Ms Fenty’s evidence as to JJ’s need for small classes, including in science and technology (an earlier discussion of Ms Fenty’s evidence at §§18-19 did not mention the small classes point), nor articulate a reason for departing from Ms Fenty’s opinion. (3) The Tribunal does not here refer to progress (in an earlier passage at §19 the Tribunal did refer to progress, over one term in year 8, but made no mention of technology, as to which Ms Fenty’s evidence had included observation-based current concerns).

30.	Further, leaving aside whether science and technology could be taught using small supported groups rather than in small classes, the Tribunal did not in my judgment give legally adequate reasons for making no provision at all as to science and technology in the Statement. The Tribunal’s reasons do not say that it wished to avoid undue specificity as to science and technology and wished instead to allow for flexibility ‘on the ground’ as to ‘specialist’ arrangements at the Mainstream School. The Tribunal does not explain why, if this was its approach, specificity was retained elsewhere in the statement, including the “ten pupils” formula in the Modified TSG Provision for English, Maths and Modern Foreign Languages.

31.	For these reasons, I cannot accept the Authority’s defence of the Tribunal’s decision, in circumstances where the reasons do not in my judgment support the characterisation sought to be placed on them. As to the reasons which were given, references to the “eleventh child” and avoiding an “unduly technical approach” did not answer the question whether JJ needed small classes (and the Tribunal retained a “ten pupils” formula for the other 3 subjects). Nor did references to an “expectation” based on “what happens now”, and satisfaction that “needs are being met”, explain why small classes were not needed (and the Tribunal did not even carry the expectation through into a provision in the statement).

32.	The question whether JJ needed small classes for Science and/or Technology clearly had knock-on implications as to the choice of placement at a suitable school. JJ’s parents’ case was, and remains, that the Mainstream School could not be identified as suitable for JJ, once her need for small classes was recognised. That would have needed answering. In particular, if the Authority wished to put forward available modifications at the Mainstream School, it would be necessary to conduct a very different analysis of cost of placement (dealt with by the Tribunal at §§12 and 35-36).

33.	On this basis too, the case needs in my judgment to be remitted for consideration afresh.

Other Points

34.	On this appeal, several other points were raised by JJ’s parents, and responded to by the Authority. For example, there was an argument about whether it was unfair to disturb an agreed position without clear notice. There were arguments that the Tribunal should have raised at the hearing the prospect of departing from Ms Fenty’s opinion, ought to have raised the prospect of using its own expertise to decide an issue, and should have raised the question of an adjournment to allow Ms Fenty to attend. There was an argument that the Tribunal allowed Part 4 placement impermissibly to influence Part 3 provision. There was also an argument that – independently of the ‘small groups’ questions – the Tribunal ought to have adopted an ‘extra teacher’ approach and/or had regard to alternative funding mechanisms in assessing cost of placement at the Mainstream School, there being a “cogent reason” for not following the more conventional approach.

35.	It is unnecessary, in my judgment, to deal with these further arguments and the counter-arguments. The submissions on behalf of JJ’s parents, which I have already accepted, are sufficient to call for this case to be remitted for reconsideration afresh. On remittal, all relevant questions of substance and procedure, of merits and law, will be open for consideration by, and submission from, the parties. It is preferable, and legally sufficient, that the newly-constituted tribunal hearing the remitted appeal will be able to consider all and any points that are made.

Directions

36.	The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and any others which the tribunal concludes merit consideration. The tribunal must deal with such procedural questions as may arise, and consider all aspects of the case, both fact and law, entirely afresh.

MJ Fordham QC
Judge of the Upper Tribunal
5 December 2013