LTA 1999/5119/4
BAILII Citation Number: [1999] EWCA Civ 3038
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION 
(MR JUSTICE OWEN)

Royal Courts of Justice
Strand
London WC2

Date: Wednesday 26 May 1999

B e f o r e:

LORD JUSTICE EVANS
LORD JUSTICE MUMMERY
LORD JUSTICE SEDLEY
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LONDON BOROUGH OF BROMLEY
Appellant/Applicant

- v -

SPECIAL EDUCATIONAL NEEDS TRIBUNAL & OTHERS
Respondent
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(Transcript of the Handed Down judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
- - - - - -

MR T STRAKER QC and MR D WOLFE (Instructed by The Borough Secretary & Solicitor of LB Bromley, Bromley, BR1 3UH) appeared on behalf of the Appellant.

MR R GORDON QC and MISS K MARCUS (Instructed by Leigh & Day & Co, London, WC1X 8PP) appeared on behalf of the Second and Third Respondents.
- - - - - -
JUDGMENT

LORD JUSTICE SEDLEY:  

This is an appeal by a local education authority (LEA) against the decision of Owen J., given on the 14th January 1999.  Owen J. dismissed the LEA’s appeal against the decision of a Special Educational Needs Tribunal (SENT), the first Respondent, given on 24th August 1998.  The Tribunal had allowed the appeal of the second and third Respondents against the Appellants’ formulation of the special educational needs of their son, S.  An order under section 39 of the Children and Young Persons Act 1933 has been in force throughout these proceedings to protect the identity of the child from disclosure.

Owen J. refused leave to appeal.  Because of the complexity of the issues the renewed application for leave to appeal has been listed before us with the appeal to follow if leave is granted.  It is apparent that this is a proper case for leave, and I would accordingly grant it.  What follows relates, therefore, to the substantive appeal.  Before us, as before Owen J., the Tribunal has taken no part in the proceedings.

S is now 12 years old.  At his birth on 4th July 1986 he suffered severe trauma which has resulted in life-long mental and physical incapacitation.  S’s disability, and the central question of law arising from it, are set out in the following passage of Owen J’s judgment:

"To understand the problems which S presented and presents to his parents and to the L.E.A. it is necessary to have some realisation of S’s disability.  S, who is now 12 years of age, has spastic, quadriplegic cerebral palsy, epilepsy and impaired vision.  He cannot walk, sit up or stand and is totally reliant on adults for all his mobility needs with the exception of head movements.  He is totally reliant on adults for dressing, washing, toileting and feeding:  he cannot feed himself.  At most he understands some words and phrases but only in contexts which are very familiar to him.  Diane Coggings says that S has no speech.  Others say that he communicates “through simple vocalising, facial expressions and some body movement”.  He is considerably developmentally  delayed and most of his functioning is said to be below the 12 month level (emphasis added).

However education is defined, S’s capacity for education is severely limited.  Accepting the O.E.D. definition of “systematic instruction, schooling or training given to the young  in preparation for life” and bearing in mind that much of S’s functioning is below the 12 month level Mr. Reid’s evidence to the Tribunal “that the purpose of education for S is to maximise his control over his own environment and that education for S involves a series of over-learning the basic functions of his day, eating, drinking, toileting, dressing etc. and co-operating with them” is, in my judgment, readily and reasonably acceptable.  Mr. Reid concluded that S’s needs were exceptional, which clearly is so, and that there was a real cognitive need for their provision.  I see no reason why the Tribunal should not have accepted this evidence from Mr. Reid and certainly I cannot say that they behaved in a Wednesbury unreasonable way or erred in law in so doing.  Once the Tribunal accepted that the purpose of education for S was to maximise his control over his own environment and that education for him involved a series of over-learning the very limited functions of his day it was easy and, inevitable, for the Tribunal to accept the statement of Diane Coggings considered by the Tribunal that he should be exposed to physical activities which will help to develop his physical potential.  I see no reason why such development and such exposure should not be regarded as educational."

(Diane Coggings is a paediatric phsyiotherapist consulted by the parents;  Albert Reid is a chartered educational psychologist who likewise has advised the parents.  The citation from the Oxford English Dictionary is the third and narrowest of the dictionary definitions of education.) 

Before us, and no doubt before Owen J., the case has been excellently argued on both sides.  

The central issue is the meaning and ambit of “special educational provision” in Part IV of the Education Act 1996.  It arises out of the Tribunal’s conclusion that S’s acknowledged need for physiotherapy, occupational therapy and speech and language therapy formed part of his special educational needs, with the consequence that the provision of these therapies was part of the special educational provision which the LEA must make for him.  This, as will be seen, had major consequences for S’s placement and, in turn, for the cost to the LEA of providing for his special educational needs. 

Within Part IV of the Education Act 1996 (which is principally though not solely a consolidating statute) section 323 requires a local education authority to assess the educational needs of a child with special educational needs.  If the assessment so requires, the LEA must then make and maintain a statement of the child’s special educational needs, the form and content of which are prescribed in and under section 324:

"324.  Statement of special educational needs (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 sub-section (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 and which they consider should be specified in the statement.
   
(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 a manner as they consider appropriate, and

(b)	if the name of a maintained, grant-maintained or grant maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.

A new subsection (5)(A), not material to this case, has been added by the School Standards and Framework Act 1998.]

(6)	Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.

(7)  Schedule 27 has effect in relation to the making and maintenance of statements under this section."

Schedule 27 contains substantive as well as procedural provisions, but none upon which any issue in the present case turns.  The form of a section 324 statement is prescribed under statutory powers by the Education (Special Educational Needs) Regulations 1994.  It includes the bracketed rubric to each part of the statement which can be seen in S’s statement set out below.  It is supplemented by guidance contained in a Code of Practice issued by the Secretary of State under section 313, which also makes it the duty of local education authorities and, on appeal, SENTs, to have regard to the Code’s provisions.  

S’s statement, following the formal introductory material in Part 1 (which included a  list of 12 specialist reports on S’s needs) took the form set out in Appendix A to this judgment.  The parts prescribed by the Regulations are shown there in bold type and in their full prescribed form;  S’s statement, for intelligible reasons, condenses or omits some of them.  The reason why nothing turns upon the LEA’s condensation of some of the prescribed rubrics in the case of S’s statement is that, by Regulation 13, a form “substantially corresponding” to that which is prescribed is sufficient;  and it is plain that the references to the National Curriculum, for example, have no real  relevance to a child as disabled as S. It follows from the content of S’s statement that, despite his disabilities, he is educable.

The concrete challenge offered by S’s parents to the statement was to the proposal to keep him at Rectory Paddock School.  Their reason, however - and this is what raises the present question of law - was that S’s needs for therapy out of school hours and out of term-time were, at least in part, educational needs, and that these could not be addressed at a day school such as  Rectory Paddock.  Their contention was that the special educational provision which the LEA was obliged to make for S was residential provision throughout the year.  The way in which this argument was presented and the grounds upon which it succeeded can be most conveniently seen from the full text of the SENT’s decision, issued on 24th August 1998 following a hearing on the 17th July.  It is set out in Appendix B to this judgment.

The material conclusions of the SENT were, first, that physiotherapy, occupational therapy and speech therapy were all part of S’s educational needs, and that Part 2 and 3 of the statement should be correspondingly amended;  and secondly, that S should be placed at Coney Hill School, with an appropriate amendment to Part 4.

Before us, as before Owen J., the principal critique advanced by the London Borough of Bromley of the Tribunal’s decision is that it classifies or treats as educational provision forms of treatment which in law cannot be so classified or treated.   In addition, Mr. Timothy Straker QC argues that the amendments to the statement ordered by the Tribunal lack specificity; and, lastly, that even if the Tribunal were entitled to allocate S’s needs and provision as they did, it did not follow that the only alternative to Rectory Paddock School was Coney Hill School, so that the LEA should have been given an opportunity - particularly in view of the fact that the true cost of the latter was not £46,000 but £63,000 a year - to put forward alternatives.  

This appeal therefore raises two interlocking issues: the meaning, or perhaps more accurately the limits of possible meaning, of “special educational provision” and the interpretative function of the Tribunal in relation to it.

The following sections of the Act are relevant:

312	Meaning of “special educational needs” and “special educational provision” etc

(1)  A child has “special educational needs” for purposes of this Act if he has a learning difficulty which calls for special education provision to be made for him.

(2)  ...  a child has a “learning difficulty” for the purposes of this Act if –he has a significantly greater difficulty in learning than the majority of children of his age, [or]

(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 education authority ...
   ........
   
(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 education authority (other than special schools) or grant-maintained schools in their area, .....

319	Special educational provision otherwise than in schools

(1)  Where a local education authority are satisfied that it would be inappropriate for –

(a)  the special educational provision which a learning difficulty of a child in their area calls for, or

(b)  any part of such provision

to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

(2)  Before making an arrangement under this section, a local education authority shall consult the child’s parent.

322.  Duty of Health Authority or local authority to help local education authority

(1)  Where it appears to a local education authority that any Health Authority or local authority could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of the authority, specifying the action in question.

(2)  An authority whose help is so requested shall comply with the request unless
  
(a)  they consider that the help requested is not necessary for the purpose of the exercise by the local education authority of those functions, or
   
(b) subsection (3) applies [viz the Health Authority consider compliance unreasonable having regard to their resources, or a local authority consider the request incompatible with or unduly prejudicial to their own functions].

Section 324 is set out earlier in this judgment.  It is important to observe in relation to it that, in addition to the requirement in subsection (4)(c) that the statement must spell out any requisite non-school educational provision under section 319, subsection (5)(a) differentiates explicitly between special educational provision and “non-educational provision”.  It thus  anticipates that both will appear in the statement, and it prescribes a duty on the LEA to arrange for the former and a discretion in the LEA to arrange for the latter.  As has been seen, the form prescribed by the Regulations adopts the dichotomy.  

Section 333 of the Act begins:

"(1)	There shall continue to be a tribunal known as the Special Educational Needs Tribunal which shall exercise the jurisdiction conferred on it by this Part."

The material element of the Tribunal’s jurisdiction is this:

326.	Appeal against contents of statement

(1)  The parent of a child for whom a local education authority maintain a statement under section 324 may –

(a)  when the statement is first made,
   
(b)  where the description in the statement of the authority’s assessment of the child’s special educational needs, or the special educational provision specified in the statement, is amended, or

(c)  where, after conducting an assessment of the educational needs of the child under section 323, the local education authority determine not to amend the statement,

appeal to the Tribunal against the description in the statement of the authority’s assessment of the child’s special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact.
........

(3)  On an appeal under this section, the Tribunal may –

(a)  dismiss the appeal,
   
(b)  order the authority to amend the statement, so far as it describes the authority’s assessment of the child’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c)  order the authority to cease to maintain the statement.

(4)	On an appeal under this section the Tribunal shall not order the local education authority to specify the name of any school in the statement (either in substitution for an existing name or in a case where no school is named) unless –

(a)  the parent has expressed a preference for the school in pursuance of arrangements under paragraph 3 (choice of school) of Schedule 27, or

(b)  in the proceedings the parent, the local education authority, or both have proposed the school.

(4)  Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement.

Provision is also made by and under section 328 for regular by the LEA review of the contents of statements.

Although before both Owen J. and this court reference has been made to dictionary definitions of the word “education”, the word is protean.  It can range from a meaning as narrow as instruction in numeracy and literacy to the Renaissance concept adopted by Lord Hailsham LC in Inland Revenue Commissioners v. McMullen [1981] AC 1, 16.  It is, however, of interest that the generous meaning of education adopted by Lord Hailsham in relation to charitable trusts was derived by him from sections 7 and 53 of the Education Act 1944.  The material words of the first of these sections are now to be found in section 351(1) of the 1996 Act:

"The curriculum for a school satisfies the requirements of this section if it is a balanced and broadly based curriculum which –

(a)  promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and
(b)  prepares pupils at the school for the opportunities, responsibilities and experiences of adult life.”

The section goes on to require the Secretary of State, LEAs, governing bodies and head teachers to work towards these aims.  Without doubt, therefore, Parliament has historically adopted and continues to adopt a catholic view of the reach of state education.  It does not necessarily follow, however, that the approach can be straightforwardly translated into the statutory regime for children with special educational needs.  The particular question which repeatedly arises is whether the physical and emotional help  required by many of the children who have such needs lies within the sphere of education or of treatment.  

The existing provision for children with special educational needs derives from the 1978 report of the Committee of Enquiry into the Education of Handicapped Children and Young People (Cmnd 7212), known as the Warnock Report after the Committee’s distinguished Chairman, now Baroness Warnock.  She spoke (paragraph 3.19) of the likelihood that special educational need would include “the provision of special means of access to the curriculum through special equipment, facilities or resources, modification of the physical environment or specialist teaching techniques.”  She noted (paragraph 6.11) the variety of institutions, many of them outside mainstream educational provision, needed to cater for different kinds of special educational need.  And she devoted a chapter (Chapter 15) to the role of the Health Service and the personal social services in meeting special educational needs, singling out (paragraphs 15.31 to 3) speech therapy, physiotherapy and occupational therapy as potentially integral elements in special educational provision.  The White Paper containing government’s response,  Special Needs in Education (Cmnd 7996, 1980), accepted (paragraph 69) that “for many children with special educational needs, a wide range of services needs to be made available by social services departments and Health Authorities; and voluntary organisations also have an important role.”  Although, therefore, the consequent provision made by the Education Act 1981, now to be found in Part IV of the Act of 1996, had behind it a clear recognition of the possible range of special educational needs, it is to the meaning and effect of the legislation itself that attention must principally be directed in deciding where the obligation of local educational authorities to make special educational provision ends, and  whether it is here or elsewhere that their power to make ancillary provision begins.  

Until the welcome setting up of the Special Educational Needs Tribunals by the Education Act 1993, challenges to LEAs’ statement, could be made only on questions of law by way of judicial review.  In one such case, R. v. Lancashire County Council, ex parte M [1989] 2 FLR 279, this court upheld the conclusion of a Divisional Court that speech therapy was capable of forming part of “special educational provision” within the regime now found in Part IV of the 1996 Act.  From that point it was, at least in principle, for the LEA to decide whether particular speech therapy for a particular child ought or ought not to be listed in Part 3 of the child’s statement.  In the new regime, the first independent arbiter of this question is the Tribunal.  Unlike the High Court, it is a specialist tribunal with a lawyer chairman and lay members chosen for their knowledge and experience (see section 334(2) and the Special Educational Needs Tribunal Regulations 1995, Regulation 3).   In my view this restructuring has jurisprudential implications.  Where previously the parent’s only resort from the local education authority was to the court, which had therefore to do its best to construe the statutory language insofar as construction was an appropriate exercise, there is now interposed a specialist tribunal whose remit is not necessarily the same.  In particular, where a court has to limit itself to the interpretation of terms of legal art and the setting of outer limits to the meaning of ordinary words in their statutory context, the Tribunal is empowered to take a much closer look at the content of the LEA’s statement.  Indeed for many purposes it stands in the LEA’s shoes, re-evaluating the available information in order if necessary to recast the statement.  But in carrying out this function it also has a supervisory role - to interpret and apply the relevant law.  Where that law is expressed in words which, while not terms of legal art, have a purpose dictated by - and therefore a meaning coloured by - their context, it is clearly Parliament’s intention that particular respect should be paid to the Tribunal’s conclusions.  By virtue of the Tribunals and Inquiries Act 1992, section 11, the High Court retains an appellate jurisdiction which undoubtedly requires it to intervene where an error of law or jurisdiction or due process can be shown; but the area of expert judgment bounded by the High Court’s jurisdiction is large.  This is so both because the nature of the subject matter of appeals to and from the SENT makes it appropriate and because the statutory scheme requires it.  

In G. v. Wakefield City MAC [1998] 96 LGR 69, Laws J. said:

"It will be obvious that, notwithstanding Parliament’s lexicon in section 312, the concepts of “learning difficulty” and “special educational provision” are not tightly defined.  The Court of Appeal has held in R. v. Lancashire County Council, ex parte Moore (1989) 86 LGR 567 that speech therapy may or does fall within the meaning of “special educational provision”.  What I think clear is that measures taken by a local education authority which are subject to appeal before the SENT under section 326 must be correctly related to the child’s learning difficulties.  Economic problems faced by the child’s parents, where for example different and perhaps more spacious living accommodation would in an ideal world be suitable for the family because of the child’s physical disabilities, are not ordinarily within the remit of the SENT.  Nor are difficulties associated with the parent’s disabilities, where the effect is that the child is, in physical terms, more difficult to look after.  Problems of this kind, in my judgment, will generally fall to be dealt with not under the 1996 Act, but (so far as they may be met by public provision) under social welfare measures made in other statutes and delegated legislation.  However, while that is, in my judgment, the general position, I should say that I certainly accept that there is no hard edge.  As a matter of common sense and ordinary human experience conditions in the home are almost always bound to have some effect, for better or worse, on a child’s learning capacity and educational chances.  That is a general fact of family life;  but for present purposes it must be distinguished from circumstances, which I acknowledge it is clearly possible to envisage, where some kinds of day to day domestic problems may directly relate to the child’s learning difficulties.  Such a direct relation must in my judgment be shown in order to involve such problems in the Tribunal’s jurisdiction under section 326."

This exegesis, helpful as it is, poses a further question in the present case:  are the therapies which S needs directly related to his learning difficulties?  This, once again, must be principally a matter of judgment first for the LEA and then for the SENT.  If it is contested as a question of law, it is to the statute that the court must turn for the answer.  

The Tribunal in the present case posed the question for themselves in exactly the terms described by Laws J., and they answered it in the affirmative.  Mr. Straker submits that the character of the therapies which S needs is such that to treat them as part of his special educational provision is to collapse the distinction which the Act itself recognises between educational and non-educational provision.  If regard is had, as the law requires, to that distinction, the therapeutic provision required by S can only be allocated, Mr. Straker submits, to the non-educational category.  Mr. Straker accepts, however, that the medical and the educational are not mutually exclusive in this context, and he offers the following formula for non-educational provision:  

"The family or social support given to the child, together with his lifetime health and welfare support, enabling him to lead as normal a life as possible."

Mr. Richard Gordon QC for the parents does not demur to this formula;  but he resists any proposition that there is between the educational and the non-educational a “hard edge”, in Laws J’s phrase, or a common frontier, as it was put in argument.  There is, he suggests, an area of potential overlap in which either description or both can properly be applied.  Equally, Mr. Gordon submits, the Act does not warrant a division between educational and non-educational provision depending upon when or where it is made:  that is to say in or out of school term or school hours, or in or outside school premises.  Any of these may be useful guides, but none can, conformably with the Act, be treated as legally definitive.  

If one returns to sections 312 and 324, some indications of Parliament’s intention begin to emerge.  Special educational provision is, in principle, whatever is called for by a child’s learning difficulty.  A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities.  What is special about special educational provision is  that it is additional to or different from ordinary educational provision (see section 312(4)).  So far the meaning is open ended.  It is when it comes to the statement under section 324 that the LEA is required to distinguish between special educational provision and non-educational provision;  and the prescribed form is divided up accordingly.  Two possibilities arise here:  either the two categories share a common frontier, so that where the one stops the other begins;  or there is between the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either.  It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could easily have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in section 312.  Moreover, to interpose a hard edge or a common frontier does not get rid of definitional problems:  it simply makes them more acute.  And this is one of the reasons why, in my judgment, the second approach is the one to be attributed to Parliament.  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 educational is illustrated by section 322, permitting as it does the enlistment by the LEA of other statutory providers 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 section 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 that 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 the duty.  

For these reasons I prefer Mr. Gordon’s approach to the meaning of “special educational provision” in Part IV of the Act.  Whether a form of help needed by the child falls within this description is a question primarily for the LEA and secondarily for the SENT’s expert judgment.  If, but only if, the SENT has gone wrong in law will the High Court overset its judgment.  

Mr. Gordon has not gone so far as to assert  - for he had no need to - that the Tribunal’s decision was the only one open to it. So to contend would have placed him in exactly the same difficulties as Mr. Straker has encountered in making the opposite submission.  It follows, no doubt, that there will be in cases like this a potentially large area of judgment in which LEAs and SENTs can legitimately come to opposite conclusions on the same or similar facts.  Such a situation is less than ideal, but it is an intelligible choice on Parliament’s part where the alternative is a rigid categorisation productive of far more doubt, dispute and litigation than what I would hold to be the method of Parliament’s choice.

The Tribunal’s reasoned decision can be seen, in this light, to have proceeded without legal or logical error from findings to conclusions.  The Tribunal’s conclusion that  physiotherapy, occupational therapy and speech therapy were all measures which related directly to S’s learning difficulties, and therefore amounted to a special educational provision, was a conclusion  properly open to it, provided that it is not read as meaning that these therapies were exclusively educational.  What mattered was that in the Tribunal’s judgment the therapeutic input listed in Part 3 could not be delivered by the combination of Rectory Paddock and Pitt Cottage consistently with S’s other needs, but could be so delivered by Coney Hill.  In brief, S’s education called for day-long and year-round attention to many of his physical needs.  

Two consequences, both criticised by Mr. Straker,  were spelt out by the Tribunal.  The first was that Part 4 be amended to substitute Coney Hill School for Rectory Paddock School.  This conclusion has caused the LEA understandable anxiety on account of its very high cost.  But Mr. Straker’s criticism of the Tribunal for failing to afford the LEA a further opportunity to canvass alternatives to Coney Hill is in my view misplaced.  While proceedings before SENTs are not expected to mimic litigation, a SENT is in the ordinary way entitled to expect each side to bring its full case forward, at least to the extent of putting down the necessary markers.  No such marker was put down by the LEA.  Even so it will have an early opportunity to propose any alternative placement it considers appropriate to S’s needs, because the occurrence of a change of setting has made a review of the statement possible in the very near future.  If a placement unacceptable to S’s parents is now inserted, their remedy lies, as before, in an appeal to the Tribunal. 

The second criticism is that the bare requirement that “Parts 2 and 3 be amended to reflect our decision as to occupational therapy, physiotherapy and speech therapy” is so unspecific as to amount to non-compliance with the duty to maintain the statement.  Mr. Gordon, consistently with his approach to the main question, does not meet this criticism head-on by contending that the decision simply requires the contents of Part 6 to be transposed to Part 3.  The content of Part 6, he submits, is appropriate, since there is therapeutic provision needed by S which is not educational, as well as an element which is educational and justifies his placement at Coney Hill. 

In my judgment Mr. Straker’s critique is right to the extent that the second limb of the order is too imprecise to be reliably translated into an amended statement free from further dispute.  As Laws J. said in L. v. Clarke and Somerset County Council [1998] ELR 129, 137.

"The real question, as it seems to me, in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case.”

The same must logically apply to SENT decisions.  But if one looks again at Part 6, one sees that - as Mr. Gordon submits - it sets out total strategies for treating S planned by health professionals but to be delivered by S’s carers; while Part 3(b) describes the delivery of these forms of support in the educational environment.  It is, in fact, a very well-drawn statement.  In my view the parents’ appeal could properly have been allowed, as it was, in relation to the named school placement, without interfering with the allocation of functions between Parts 3 and 6.  Nobody has been able to suggest in the course of argument how the Tribunal’s decision could be translated into an amendment of Part 2, and for my part I see no need to give it effect by modifying either Part 6 or Part 3.

I would therefore allow this appeal to the limited extent of removing from the Tribunal’s order the direction that Parts 2 and 3 of the statement be amended.  For the rest, and on the issues which have formed the core of this appeal, I would dismiss it.

LORD JUSTICE MUMMERY:  I agree.

LORD JUSTICE EVANS:  I agree.

Order:  Appeal dismissed with costs save as to the amendments to parts 2 and 3 as indicated.  Leave to appeal to House of Lords refused.

APPENDIX  A

PART 2:  SPECIAL EDUCATIONAL NEEDS

(Here set out the child’s special educational needs, in terms of the child’s learning difficulties which call for special educational provision, as assessed by the authority).

S had a traumatic birth and suffered asphyxia.  He has spastic quadriplegic cerebral palsy, epilepsy and impaired vision.  He currently lives at Pitt Cottage, a residential children’s respite home and visits his family at weekends.

S is reliant on adults for all mobility needs with the exception of head movement.  S can lift his head up and hold it steady for a few seconds when there is a strong stimulus for him to do so.  S has a specially adapted chair, he also has a standing frame and body brace for change in body position throughout the day.  School staff report that S can grasp objects in his hands and that he demonstrates some arm movement.  His grasping does not yet appear to be purposeful.

He has heightened reflexes (eg startle reflex to loud noises or music).  He is totally dependent upon adults for dressing, washing, toileting and feeding.  He demonstrates lateral chewing movements and will eat small pieces of food when encouraged.  He will drink from a spouted cup when it is offered up to him.

S understands words and phrases in contexts which are very familiar to him.  The spoken language used within S’s environment needs to be simple and unambiguous.

S communicates through simple vocalising, facial expressions and some body movement.  He will raise his head if interested in an activity or sound and laughs and vocalises for pleasure.  He cries when upset.  He loves one-to-one contact and enjoys cuddles and being sung to.  He enjoys outings and appears to be stimulated by the company of others and has the opportunity to join in sessions with children from the local primary school.

S has a significant visual impairment.  He can track a light from right to left for about 30 seconds and can locate a light shining on bright objects held at 30 cm from his eyes.  He loses visual interest quite quickly but can sometimes manage to sustain it for about ten minutes.

S’s range of difficulties makes it impossible to carry out conventional psychometric testing.  Observations confirm that he has profound multiple learning difficulties and that he is considerably developmentally delayed.  Assessment carried out by Albert Reid, Education Psychologist, using scales for visually impaired children with additional handicaps suggest that much of his functioning is below the 12 month level.

S has access to multi-sensory curriculum and is in a class whose members are all working towards National Curriculum Level 1.  He has attended Rectory Paddock School since 1992 and is making progress albeit slowly.  He is a popular member of his class and benefits from the individually differentiated curriculum on offer.  He continues to require the highest possible level of support to address his needs and maximise his potential.

Mr and Mrs C. feel that S requires a residential placement as they believe this would ensure continuity and consistency of educational and care programmes.  They are supported in this view by Albert Reid, Independent Chartered Educational Psychologist.  It is however the LEA’s view that the other advice received towards S’s reassessment indicates that his educational need s are being met at Rectory Paddock School and his care needs are being met through his placement at Pitt Cottage.  If he was placed at a residential school, social services would not necessarily be able to provide respite at a particular establishment.  This would appear to be less satisfactory than the continuity of care which he currently receives.

PART 3:  SPECIAL EDUCATIONAL PROVISION

Objectives

(Here specify the objectives which the special educational provision for the child should aim to meet).

S needs:

to follow a developmental curriculum which is adapted to his own particular needs

to have a physical management programme that takes into account his own special needs.  This programme to be discussed and implemented by all concerned in meeting his needs throughout the day.

to have the above programme carefully monitored and reviewed on a regular basis

wherever possible to experience a wide range of therapies, particularly focusing on therapies that motivate S into responding to others

to experience as few caregivers as possible and to have opportunities or individual sessions with key adults to ensure continuity of approach and familiarity of relationships.

Educational Provision to Meet Needs and Objectives

(Here specify the special educational provision which the authority consider appropriate to meet the needs specified in Part 2 and to meet the objectives specified in this Part, and in particular specify

(a)	any appropriate facilities and equipment, staffing arrangements and curriculum,

(b)  any appropriate modifications to the application of the National Curriculum,

(c)  any appropriate exclusions from the application of the National Curriculum in detail, and the provision which it is proposed to substitute for any such exclusions in order to maintain a balanced and broadly based curriculum; and

(d)  where residential accommodation is appropriate, that fact.)

S will have access to the National Curriculum and Religious Education.  This will be augmented by an individual education programme devised and monitored by the staff at the school in consultation with the assigned Educational Psychologist, Physiotherapist, Occupational Therapist and Speech Therapist employed by the Ravensbourne NHS Trust and a representative of the Sensory Support Service.  The National Curriculum will be differentiated to take account of his particular needs and modified on an in-house basis to ensure the maximum flexibility and attention to his academic and personal development.
   
To meet his particular needs S would benefit from:

the development and multi-sensory curriculum on offer in a special school catering for children with severe learning difficulties and complex learning needs

consistent and holistic approaches to all learning both at home and school.   This may involve regular planning and review meetings with all relevant adults who work with S

opportunities to experience a wide range of therapies particularly music, which is a great motivator for S

S needs to be in an environment where daily events are interpreted for him in a way he can understand

he should be offered the opportunity to communicate his needs and choices and have access to augmentative communication aids, eg touch switches, objects/smells of reference etc

access to sessions in a sensory room

having the opportunity to be with pupils who are active and vocal

continued monitoring by the Vision Support Team who will also provide advice and support to school staff as and when required.

(c) Monitoring

(Here specify the arrangements to be made for –

(a)  regularly monitoring progress in meeting the objectives specified in the Part,

(b)  establishing targets in furtherance of those objectives,

(c)  regularly monitoring the targets referred to in (b),

(d)  regularly monitoring the appropriateness of any modifications to the application of the National Curriculum, and

(e)  regularly monitoring the appropriateness of any provisions substituted for exclusions from the application of the National Curriculum.

The school will regularly monitor S’s progress in meeting the objectives set out above.  Within two months of the Final Statement the staff at the school, in consultation with S’s parents and carers, will establish short-term educational targets.  The child’s achievements in the light of these targets should then be considered at the first annual review and new targets set.

PART 4:  PLACEMENT
     (Here specify:

(a)  the type of school which the authority considers appropriate for the child and the name of the school for which the parent has expressed a preference or, where the authority are required to specify the name of a school, the name of the school which they consider would be appropriate for the child and should be specified, or

(b)  the provision for his education otherwise than at a school which the authority considers appropriate.)

A school for pupils with severe learning difficulties 
Rectory Paddock School

PART 5:  NON-EDUCATIONAL NEEDS

(Here specify the non-educational needs of the child for which the authority consider provision is appropriate if the child is to properly benefit from the special educational provision specified in Part 3).

S has spastic quadriplegic cerebral palsy with epilepsy, severe learning difficulties and limited vision.  He has increased tone throughout his body and asymmetry.  The only voluntary movement he can control are his head, and squeezing of hands.

He is dependent upon other people in activities of daily living, eg feeding, dressing, toileting, washing etc and has major communication difficulties, being at a pre-intentional level of language and communication, and without any speech.

PART 6:  NON-EDUCATIONAL PROVISION

(Here specify any non-educational provision which the authority propose to make available or which they are satisfied will be made available by a district health authority, a social services authority or some other body, including the arrangements for its provision.  Also specify the objectives of the provision, and the arrangements for monitoring progress in meeting those objectives.)

Regular medical review at school.

Physiotherapy: 	

Programmes designed by the physiotherapist to be carried out daily in class by education staff, aimed at minimising further deformity.

Contact with the physiotherapist on a minimum once-monthly basis to monitor his physical status, model therapy techniques, and update programmes with advice to staff and carers, and on request.

Access to hydrotherapy

Orthotics management

Review of equipment needs in school and in residential care

Wheelchair management

Further physiotherapy management will be detailed in subsequent reports for annual review.

Occupational Therapy:

Will continue to review S’s equipment and splitting needs termly and provide advice and recommendations as appropriate.

Speech and Language Therapy:

Advice and monitoring

	APPENDIX B

FACTS

1.	S has spastic, quadriplegic cerebral palsy, epilepsy and impaired vision.  He currently lives at Pitt Cottage, a residential childrens’ respite home and visits his family at weekends.  He is totally reliant on adults for all his mobility needs with the exception of head movement.  Similarly, he is dependent upon adults for dressing, washing, toileting and feeding.

2.		He understands words and phrases in context which are very familiar to him and he communicates through simple vocalising, facial expressions and some body movement.  He is considerably developmentally delayed and much of his functioning is said to be below the 12 month level.

3.		He attends Rectory Paddock School, an LEA maintained special school.

4.		Mr & Mrs C. have always considered that S required a residential school placement which provided a 24 hour curriculum and a 51 week a year placement.  It is their case that S requires an integrated approach both to his education and care and they have argued for a placement at a variety of specialist residential placements and finally argue that S should be placed at Coney Hill School, an independent residential school run by the Shaftsbury Society.

5.		In addition to the argument as to placement, S’s parents maintain that Part 3 of the Statement should give specific detailed and quantified provision as to occupational therapy, speech and language therapy and physiotherapy and that reference to these therapies should be in Part 3 and not in Part 6.

6.		We heard evidence from Mr Albert Reid, an Educational Psychologist on behalf of Mr & Mrs C. and from Mrs Miller, the Headmistress of Coney Hill School.  We heard evidence from Dr Hinchcliffe, the Head Teacher of Rectory Paddock School and from Mary Cava, an Educational Psychologist of the LEA.

7.		Mrs Cava’s evidence was that S had many multifaceted needs.  First he had physical needs across the board.  He needed a whole day programme of physio and this needed to spread into the home environment.  This was for his health and safety and to encourage long term movement.

8.		He secondly had educational management needs which included the need for regular monitoring of speech and therapy.  Mrs Cava’s view was that his educational needs were well met at his existing placement.  She accepted that there was need for stimulation to be provided to S outside of the school.  She accepted that he had physiotherapy needs which needed to be met on a regular every day basis.  She said that S’s IEP was also on display at Pitt Cottage.  Pitt Cottage is a small respite care provision in which two children, of whom S is one, reside permanently.  She accepted that there was no provision to cope with S’s visual impairment at Pitt Cottage and she accepted that there was evidence that although clear physiotherapy and occupational therapy needs have been indicated to Pitt Cottage, the staff found it difficult to carry out the required programmes.

9.		Dr Hinchcliffe gave evidence to us as to Rectory Paddock.  He considered that S was well placed there and that he received a very good education based on his complex needs.  He indicated that communication between the school and Pitt Cottage had got relatively better and that the key worker from Pitt Cottage had been to the school.  He accepted that at a meeting after the issue of the Statement, he had agreed that he had stated that he had heard a compelling case made out for a 24 hour regime.  He accepted that education for S was more than that which took place in the classroom and needed also to happen at home.  He accepted that physio, occupational and speech therapies were all “educational” and were required to access the curriculum.  In acknowledging there was a convincing case he was accepting that the consistency of approach both at school and in the home environment was all important for S and that S would benefit from a highly consistent approach and an approach from people who were used to dealing with children with sensory impairments.

10.	Mr Reid gave evidence to us that the purpose of education for S was to maximise his control over his own environment and that education for S involved a series of over-learning the basic functions of his day, eating, drinking, toileting, dressing etc. and co-operating about them.  He considered that S’s needs were exceptional and needed to be addressed 51 weeks a year and that there was a real cognitive need for this provision.  He was particularly concerned that if S’s physio needs were not met on this basis he would regress and this would have an undue impact on his life expectancy.

11.	He had visited Pitt Cottage, there was no peer group for S and he did not believe that the other provisions in the Cottage were suitable for S.

12.	Mr and Mrs C. told us that there was no holiday input from the therapists.  As a result, they were paying for additional therapies, two sessions every three weeks of term time and once a week outside of school time.  They had seen an improvement in S’s condition as a result.  We heard evidence from Mrs. Miller, the Head of Coney Hill School.  She told us that the school shared a campus with Nash Further Education College.  She told us of the staffing provisions at the school and how there was a deliberate overlap between those of the care staff who worked both in the evening and mornings with the children before they went to school and then in the classroom for a period of time.  She accepted that teachers only taught for 38 weeks a year, but she maintained that for the remainder of the year the care staff and learning support assistants continued with programmes developed during the school time.  She told us that S was likely to be in group 3 of the school with seven other children with profound learning difficulties.  She gave evidence as to the qualification of her care staff.  She accepted that there may be difficulties about lack of stimulation for S from more able pupils but said he would get plenty of peer integration throughout the school.  She described in detail a school day.

13.	Finally, we heard evidence from the LEA that the current arrangement cost the LEA’s direct budget some £26,000 a year, whereas a placement at Coney Hill would cost in the region of £46,000 a year.

TRIBUNAL’S CONCLUSION WITH REASONSTRIBUNAL’S CONCLUSION WITH REASONS

1.  	The LEA’s case was S was receiving an excellent education at his present placement.  Their case was that effectively Mr & Mrs C. were seeking residential placement for care reasons and not educational reasons.  The LEA indicated that this could be demonstrated merely by looking at the educational costs of Coney Hill as against the non-educational costs.

2.		The LEA relied particularly on the case of G v. Wakefield Metropolitan District Council & Anor (Knights’ Local Government Report 96 LGR page 71) a decision of Mr Justice Laws.

3.		In that case, which had similarities as to the degree of disability and learning difficulties of the child in question, the parents were arguing for a school which offered a 24 hour curriculum.  The evidence was that at home the parents could not cope with the child.  The Tribunal in that case had concluded that the child was getting satisfactory education at her placement at an LEA special school which in any event operated an extended school year of 45 weeks.  Mr Justice Laws had cautioned against the use of the expression “24 hour curriculum”.

4.		For the reasons we have set out above, this case is different materially in the facts in that S does not live at home and the issues here relate to whether or not the various therapies in particular need to be provided on a 24 hour a day, 51 weeks a year basis for educational reasons.  We have asked ourselves whether all of the measures which are argued for by Mr & Mrs C are measures which relate directly to S’s learning difficulties.  We have concluded on the evidence that we have heard and which we have recorded above that they are.

5.		Having reached that conclusion, we have asked ourselves whether the current arrangements are satisfactory to meet those needs.  In our view they are not currently satisfactory.  That does not mean that we consider that Rectory Paddock School is doing anything other than meeting S’s educational needs exceptionally well whilst he is in their care and control.  However, we are satisfied that S needs something greater than Rectory Paddock’s standard opening hours and their 38 weeks a year provision.

6.		Therefore we consider that the existing provision at the school and at Pitt Cottage does not currently meet S’s needs.  We have asked ourselves whether it follows from that, that we should allow the appeal and order that S be placed at Coney Hill School.  We have concluded that it does.

7.		It is clear from the evidence that physiotherapy, occupational therapy and speech therapy are all educational needs in this case.  Parts 2 and 3 need to be amended to reflect this and our decision on placement.

ORDER

That the appeal be allowed and:

1.	Part 4 be amended to read Coney Hill School;

2.  Parts 2 and 3 be amended to reflect our decision as to occupational therapy, physiotherapy and speech therapy.