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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> N's Parents v Somerset County Council [2005] EWHC 1107 (Admin) (20 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1107.html Cite as: [2005] EWHC 1107 (Admin)

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

		Royal Courts of Justice Strand London WC2
		20th April 2005

1. MR JUSTICE WALKER: The appellants appeal to this court under section 11 of the Tribunals and Inquiries Act 1992. They challenge the decision of the Special Educational Needs and Disability Tribunal, dated 18th November 2004, to dismiss their appeal against the contents of a Statement of Special Educational Needs in respect of their daughter.
2. I have made an order under section 39 of the Children and Young Persons Act 1933 to protect her anonymity. I shall refer to her as N, and in any report of this case the appellants should be referred to as N's parents.
3. N is an 11-year old school student who suffers from dyslexia and severe visual impairment. She is registered blind. N was first issued with a Statement of Special Educational Needs in May 1998, shortly before commencing her primary school. In September 2003 she transferred to the Danesfield Middle School, which I shall refer to as "Danesfield". Danesfield is a local mainstream maintained school.
4. The Statement of Special Educational Needs was amended in June 2004, so that Part 6 of the Statement named Danesfield as the school which would meet N's educational needs. The appellants particularly wanted their daughter to attend the West of England School in Exeter. This is an independent non-maintained special school for children with visual impairment. I shall refer to it as "WES".
5. The appellants disputed the amended Statement of Special Educational Needs and lodged an appeal with the Special Educational Needs and Disability Tribunal. In a decision, promulgated on 18th November 2004, the Special Educational Needs and Disability Tribunal dismissed the appellants' appeal.
6. The challenge made in this court can be divided into two parts: first, and this is by far the major part of the challenge, subparagraphs (i) to (v) of paragraph 2 of the Grounds of Appeal identify a series of matters which are said individually and cumulatively to vitiate the Tribunal's decision as a whole. Second, subparagraph (vi) of paragraph 2 of the Grounds of Appeal complains that the Tribunal failed to resolve a specific dispute expressly put to it for resolution. This dispute concerned access to support for information technology equipment. I have now been told that the parties have reached agreement on the specific dispute and accordingly I will not need to resolve it.
7. At the close of the appellants' oral submissions earlier today, I was satisfied that the major part of the challenge failed. In this judgment I give my reasons for coming to that conclusion. As will be seen, in my view the facts of this case do not bring it within the legal principles relied upon in order to mount the challenge. This conclusion is one which will come as a great disappointment to the appellants. I feel great sympathy for them and for their daughter. However, after hearing all that their counsel wished to say, and I believe all that reasonably could be said, I have reached the conclusion that the facts do not meet what their own counsel describes as "the relevant legal tests". That conclusion means that no useful purpose is served by prolonging the hearing. It also means that my judgment in this case is not to be regarded as having any wider value.

Background

8. The appellants explained the background to the case in paragraphs 2 to 5 of their skeleton argument as follows:

"2. [N] has recently turned eleven years old. She suffers from a combination of dyslexia and a severe visual impairment consisting of severe photophobia, nystagmus and cone dystrophy. In layman's terms, the cone dystrophy deprives her of the central 'section' of her vision, although she retains some peripheral vision. This has a profound effect on her learning, and particularly, her reading. [N] is registered blind.

3. Her parents' appeal to the Tribunal was against Parts 2,3 and 4 of [N's] statement (ie description of needs, provision and placement), but Part 4 (placement) was the key issue. [N's parents] sought a placement at an independent special school, the West of England School (WES), which specialises in teaching visually impaired children. It was accepted by the parents that WES was significantly more expensive than Danesfield, the school named by the LEA. They put their appeal on the basis that Danesfield could not meet [N's] needs, it not being disputed that if they established that, Danesfield could not be 'appropriate' within the meaning of section 324 of the Education Act 1996 (R v East Sussex CC ex p Tandy [1998] AC 714 and the London Borough of Havering v SENT [1996] EWHC 73 applied).

4. The parents adduced a great deal of expert evidence in support of their appeal, including from two independent educational psychologists and from Professor Michael Tobin, Emeritus Professor of Special Education (Visual Impairment) at the University of Birmingham, who is well known in the field. The evidence was detailed and complex, dealing with the interaction between [N's] dyslexia and her visual impairment and how best to provide for it. The original Tribunal bundle was nearly 500 pages long, and there was significant additional evidence, in the form of updates, further reports from the LEA educational psychologist, and recent teaching assessments of [N].

5. It is submitted that the Tribunal missed and/or misunderstood various material steps in the argument and evidence presented by [N's parents]. It is their case that it erred in law by a combination of failing to reach material findings of fact, by irrationality, absence of sufficient reasons and by making mistakes of fact that resulted in unfairness to them (E & R v SSHD [2004] EWCA Civ 49 applied)."

The Tribunal decision

9. The decision was promulgated, as I have said, on 18th November 2004. That was some ten days after the hearing. It recorded the bare bones of the appeal and then set out a preliminary section. I quote some parts of that preliminary section as follows:

"Preliminary

The appeal is against the school named in Part 4 of the statement. The named school is Danesfield Middle School, a maintained mainstream school.

N's Parents wish to have named The West of England School in Exeter. This is a non maintained special school for children aged 3-19 with visual impairment. A weekly boarding place is requested.

...

At the outset of the haring, Dr Armstrong conceded that there was a significant difference in cost between the two placements, of some £10,000 as a year. The parents' case would proceed on the basis that [N's] needs were not, and could not be met, at Danesfield School, the current placement."

There was then a section headed "Facts", which essentially recorded not only various undisputed matters, but also the reports of various experts and accounts given by various witnesses.

10. After setting out this material the decision contained a section giving the Tribunal's conclusions. In the light of the detailed arguments put forward on behalf of the appellants, I need to set this out in full:

"Tribunal's conclusions, with reasons:

a. Two keys issues raised within the papers and within the hearing related to whether [N] is making satisfactory progress within her current placement, and

whether [N] has an educational need to learn braille or another tactile code. In this decision, we deal with our conclusions in relation to these matters first.

b. The very comprehensive annual review documents for February 04 suggest progress in reading and increased independence in writing. The evidence of Mrs Tidsley indicates an improvement in NC levels between May and October 2004, with teacher assessment indicating improved levels at the end of the current year. We do not consider that the Year 5 optional SATS results are incompatible with this, as we note that in May 04 her Year 5 level for English is given as 2A, that is one level below Level 3C.

C. It is very difficult to evaluate what is a satisfactory level of progress for a child with [N's] difficulties, and we have no evidence before us to indicate a view as to what her levels should be, given her difficulties. We are satisfied however, that progress is being made in respect of literacy at Danesfield School.

d. We are therefore not able to include within the statement the sentence suggested by N's parents that: 'The latest evidence suggests that her reading scores have reduced in real terms.' The problem with this statement is that it compares [N] to the generality of children, and that is not appropriate for a child with her complex difficulties.

e. We would expect [N] to make further progress given the level of the specialist dyslexia programme in place for her and we intend to strengthen this by amending the statement to state that she should work with the specialist teacher for at least one hour of the three hour weekly programme.

f. With regard to the issue as to whether [N] should now learn Braille, we find this a difficult issue to determine on the evidence before us which is conflicting.

g. We note there has been a substantial change within the parental case with regard to this issue, presumably on the basis of Professor Tobin's recommendation. The initial case statement referred only to preparatory steps with regard to auditory and tactile learning 'in order to prepare for the possibility of having to learn Braille.' This is now a request for the presentation of Braille or Moon materials, options of Braille and monitoring of [N's] multi sensory programme by specialist teacher qualified and experienced in both Braille and specific learning difficulties within the working document.

h. Dr Corley refers to the learning of Braille as a prospect for [N] should it become necessary which appears to refer to a possible deterioration in her sight. The present medical evidence does not indicate a progressive condition.

i. Professor Tobin's recommendation is that Braille (but only at Grade One) should be introduced now. We note that in making his recommendation Professor Tobin had not seen [N] in school to evaluate her success at using print materials within the school setting, nor does his report explore the use of ICT provision which is a major part of the West of England Assessment Report.

j. Mrs Shorters evidence is that Grade One Braille could be a useful adjunct to [N's] print reading, but it is an option that would be evaluated within the school, rather than being a route implemented straight away on admission. We note that almost 75% of pupils at the West of England School use print and that a small number of the remaining children use both print and Braille.

k. It was common ground within the hearing that to learn Braille requires regular specialist teaching and daily practice.

l. The view of Mr Carter of the LEA was directly opposed to the recommendation of Professor Tobin. We bear in mind that the policy of the LEA is not to teach Braille unless a child is not able to access suitable sized print, and Dr Armstrong urged us to be wary of that blanket policy. However, we were convinced by the reasons Mr Carter gave to explain why the LEA did not consider [N] needed to learn tactile code.

m. Considering the evidence carefully, we do not consider that the case that [N] should learn a tactile code, Braille, now is made out. The condition of cone dystrophy has not been diagnosed as progressive. [N] is able to use print material effectively, so long as this is prepared properly, and at present the focus of development of new skills needs to be in the area of ICT.

n. The West of England School gives a full assessment of the ways in which ICT can greatly assist [N]. Our view of the evidence regarding ICT is that ICT provision will have a key role for [N], and much careful work will need to be done in equipping her to use this, and also to enabling her to accept its usage.

o. Learning Grade One Braille will require specialist tuition and daily practice, and with other curriculum pressures and the need to improve literacy and learn full use of ICT, we do not consider that the time at present can be justified in view of its possible benefit as ' an adjunct'.

p. The LEA contend that [N's] needs are being suitably met at Danesfield Middle School, and whether this is the case forms the key decision to be made in determining the issue of placement in this case. The parental case is that the placement is not, and cannot meet her needs and that a specialist placement is required.

q. N's parents point to inadequacies in mobility training, ICT provision, the poor progress in literacy, the need for [N] to have a tactile code option and the inadequacy of differentiation among other criticisms of provision for her. They have appreciated the efforts of the staff at the school, but consider that only a specialist placement can meet her needs.

r. We consider that tactile code option is not currently an educational need for [N], and we have concluded that progress is being made within the current provision.

s. We are not convinced there are other areas of need or provision which Danesfield School is unable to meet and which require a change of placement at this time.

t. We are dismayed by the slowness of ICT provision, and the lack of mobility training for a period was most unfortunate but these two matters do not lead us to conclude that Danesfield School is unable to provide for [N].

u. A further element of N's parents' case, and one that we have considered very carefully, is N's state of mind and views about her school.

v. We disagree with Dr Armstrong that there has been a diagnosis of depression, though we note the finding of Mr Parkhouse and Mr Rees regarding [N's] anxiety, self-esteem etc. Mr Rees refers to [N's] possible confusion about what is happening to her.

w. We find it difficult to understand how a child who is thoroughly miserable at school would be able to hide this to the degree suggested in the parents' case, such that Mrs Tidsley should have seen no evidence of it within [N's] time at the school, nor have been told of it by other staff.

x. [N's] own view as recorded by Mr Rees does not indicate a wish to leave her present school because of unhappiness, and indicates reluctance to go to Exeter and leave her friends. There is no evidence of social isolation in school and she named six friends in her comments for the 2004 Annual Review.

y. On that basis we find that there is no need on emotional or social grounds for [N] to change placement.

z. Since we have recorded a conclusion that the current placement is meeting [N's] needs, we accordingly dismiss the appeal in respect of the named school.

aa. With regard to Parts 2 and 3, we do not consider the statement needs fundamental amendment. We have made minor alterations to the statement consequential on the evidence heard. These are referred to within the Order made."

11. Those conclusions, in large part, resulted in the appeal being dismissed. It is important to note, however, that in certain respects the Tribunal ordered that the Statement of Special Educational Needs be amended, in particular, in paragraph 3, at Item 8 an amendment was directed. Prior to the Tribunal's decision, Item 8 of Part 3 described a structured, cumulative multi-sensory literacy programme as follows:

"This programme should be devised and monitored by a specialist teacher qualified and experienced in working with children with a specific learning difficulty (dyslexia]. N should receive at least 3-hours per week on a 1:1 basis working on this programme, which should include at least 30 minutes with the teacher responsible for the programme;"

The Tribunal directed this be amended so as to read.

"at least 60 minutes with the teacher responsible."

Further, Item 21 of the Statement of Educational Needs had read:

"a dedicated PC and a range of software, including 'Intellitalk' - a word processing package."

The Tribunal directed that the following should be added to item 21:

"A portable CCTV will be provided. Training to use the items will be given on a fortnightly basis."

Legal framework

12. The appellants' appeal to the Tribunal arose under section 326 of the Education Act 1996, which, as amended, includes the following:

"(1) The parent of a child for whom a local education authority maintain a statement under section 324 may appeal to the Tribunal -

...

(b) if an amendment is made to the statement,

...

(1A) an appeal under this section may be

against any of the following -

(a) the description in the statement of the local education authority's assessment of the child's special educational needs,

(b) the special education provisions specified in the statement (including the name of a school so specified)

..."

13. In appealing further to this court, under section 11 of the Tribunals and Inquiries Act 1992, it is for the appellants to show that the Tribunal erred in point of law. Dr Armstrong, on behalf of the appellants, referred me to two authorities. He started with R(L) v the London Borough of Waltham Forest and Another [2003] EWHC (Admin) 2907, [2004] ELR 161. At paragraph 13 of that case Beatson J noted that:

"There is a burgeoning line of cases on the duty of special educational needs tribunals to give reasons. The statutory requirement is that reasons be given in summary form."

14. In paragraph 14 Beatson J summarised aspects of the requirements which were central to the case before him. Dr Armstrong relies on the first principle identified in paragraph 14. This is that:

"Reasons must, first, deal with the substantial points that have been raised so that the parties can understand why a decision has been reached.

15. In that regard Beatson J noted a comment of Grigson J in the case of H v Kent County Council [2000] ELR 660:

"that what was necessary was that the aggrieved party should be able to identify the basis of the decision."

16. Dr Armstrong also relied on the third principle identified in paragraph 14. This was that "mere recitation of evidence is no substitute for giving reasons." In that regard Beatson J cited the decision of Gibbs J in LJ v Devon County Council [2001] EWHC (Admin) 958, [2001] All ER (D) 155.
17. The judgment in J v Devon County Council was the second authority to which I was taken by Dr Armstrong who drew my attention to the last sentence at paragraph 50. This is as follows:

"It seems to me that the absence of reasons here is so stark as to destroy the confidence of the objective observer that the issues dealt with by the experts were addressed and taken into consideration by the Tribunal properly or at all."

18. The submission, on behalf of the appellants, was that there had been a failure to engage with the points put to the Tribunal with the result that the principles identified by Beatson J in the case of L were infringed. The appropriate order was not simply that one should have sent the case back to the Tribunal to give reasons, rather the failure to give reasons on matters, where reasons ought to have been given, should lead the court to hold that the Tribunal's decision could not stand and that the matter should go back for fresh consideration by a differently constituted Tribunal.

Ground (2)(i): visual fatigue and deterioration

19. The first point taken under this ground concerned visual fatigue. This was dealt with very briefly in the Grounds of Appeal. The error in question was described simply as a :

"Failure to reach material findings and/provide adequate reasons in respect of N's visual fatigue ... "

20. The point was, however, elaborated in the appellant's skeleton argument at paragraphs 8 to 10:

8. The first clear error in respect of the present position is that the SENDisT has reached no finding as to [N's] visual fatigue. This was a critical part of the parent's case, highlighted in a number of places (see eg Professor Tobin bundle page 121 para (a) and the WES assessment pages 97 and 98) but particularly emphasised by the LEA's own evidence. In a report dated 11 May 2004 the LEA educational psychologist reported low energy levels (in line with the parents' evidence) and (page 149, 1st bullet point):

'visual fatigue does present a big problem for [N] due to her severe sight difficulties. The combination of specific learning difficulties and visual problems makes the problem greater and making access to tasks continues to be essential. Though her stamina is greater for well-loved subjects like Art, methods to reduce visual fatigue are in place and should be monitored closely for effectiveness. Again, a pertinent question in relation to this issue is whether alternative provision could address her visual fatigue any more successfully, and under what arrangements.'

9. By October, however, the same expert was recording (pages 130 and 131):

'[N] did feel that she experiences a lack of energy and constant feeling of tiredness, expanding in the following way: 'I feel tired most of the day. I think it's all the work I get all through the day. I would get just as much at another school, probably worse.' She feels it also adversely affects her concentration, weight and thoughts about death...'

10. It was a key part of the parents' case that this visual fatigue would not be as pronounced at school. Their evidence was that it was caused by the strain of having to rely on print materials. It could, therefore, only be countered by using other methods alongside, including Braille. The visual fatigue was therefore a principal component of the argument that Danesfield was not meeting [N's] needs, and that WES could. It also goes directly to the point at paragraph (m) of the Tribunal's reasons that '[N] is able to use print material effectively'. There is however no finding on visual fatigue nor reference to it anywhere in the Tribunal's determination."

21. Dr Armstrong began his oral submissions in this regard by noting that it was very tiring for N to work from printed materials. He drew my attention to the evidence of the educational authority of Somerset County Council, which is the first respondent to this appeal. In that evidence it was accepted that this visual fatigue presents as a big problem. That was the evidence before the Tribunal. It was supported by other passages which Dr Armstrong showed me. Before this court it is accepted in a witness statement of Mr Brelstaff, on behalf of the authority, that the appellants relied strongly on visual fatigue. Dr Armstrong described it as a key part of the appellant's case that if a child was tired by reading then one had to find other ways of acquiring information and a tactile code, for example, Braille was one such way. The Tribunal had made no reference to visual fatigue, said Dr Armstrong, so a big chunk of the submissions made by the appellants to the Tribunal had gone. Dr Armstrong accepted that visual fatigue was unfortunately just one of the difficulties facing N and was one element in the overall case that N's performance at school was deteriorating. He said, however, that it was one of the most significant and the most pressing.
22. When one looked at the conclusions at a to e (quoted earlier in this judgment) they did not mention tiredness of any kind. If a child was put in a situation where the child was only learning at the expense of being very tired, then, submitted Dr Armstrong, that is, first, an adverse reaction which the child is entitled not to have and, second, something that inhibits the child's education because the child is not learning as well as would otherwise be the case.
23. I drew Dr Armstrong's attention to what the Tribunal had said about deterioration. This included a general conclusion at paragraph c pointing to the difficulties of evaluation and the lack of any evidence to indicate a view as to what N's levels of progress should be given her difficulties. That paragraph in the conclusions added that the Tribunal was satisfied that progress was being made in respect of literacy at Danesfield School.
24. In this context one may note that what was sought by the appellants from the Tribunal was a sentence as follows:

"the latest evidence suggests that her reading scores have reduced in real terms."

25. Dr Armstrong explained to me that the expression "in real terms" was intended to mean by comparison with the generality of children - in other words, that the gap between N and her mainstream peers had increased. The difficulty, it seems to me, that faces Dr Armstrong's submission in this regard in relation to visual fatigue, is that the Tribunal's conclusion was that a sentence of the kind sought by the appellants was one which was not appropriate for a child with N's complex difficulties. If that is the conclusion then it is difficult to see why, in this particular context, the Tribunal needs to go into visual fatigue at all.
26. It was suggested by Dr Armstrong that the presence of visual fatigue showed that she was not doing as well as she could do, and second, that to the extent that she was doing as well as she could do at school, it would be at greater personal cost in that she is having to work harder to achieve that gain. There was a further point which was that there was a specific measure which would help in reducing the visual fatigue and that was the use of Braille. I will come on to the question of the use of Braille later in this judgment.
27. As to the question of visual fatigue, in the context of the appellants' claim that there should be an additional sentence in the terms I have quoted, it seems to me that it simply does not arise. The fact that she suffered from visual fatigue was accepted on both sides. The question whether by comparison with the generality of children the gap between N's levels of achievement and those other children's levels of achievement was increasing, and, if so, whether this is something appropriate to record in a Statement of Special Educational Needs, is quite separate. It seems to me that in this context the question of visual fatigue did not call for any specific mention by the Tribunal.
28. That brings me to the remainder of Ground 2(i). This complains of errors as follows:

"Failure to reach material findings and/or provide adequate reasons in respect of N's visual fatigue and the evidence of a widening gap in literacy attainment between her and her peers. This includes failing to resolve a conflict of evidence as to N'S Year 5 SATS scores, between the scores and the evidence of Mr Peter Parkhouse and Professor Michael Tobin, and whether work samples were created with help. It also includes wrongly concluding that there was no evidence as to what N's levels should be having regard to her learning difficulties, and failing to record and/or weigh concessions offered by LEA witnesses as to deterioration".

29. Dr Armstrong submitted that the Tribunal's reasons indicated that the Tribunal had not been listening. The appellants had been arguing that N was not progressing to the extent that she should be. The evidence was that N was falling more and more behind her mainstream peers. In her own personal terms she may have been progressing a little but they were accelerating. That meant that in real terms she was slipping. Indeed it had been accepted by the authority that there was a widening gap, although there was an issue as to the extent of that gap.
30. Dr Armstrong took me to some specific passages in the evidence. One was that the authority had suggested, before the Tribunal, that steady progress on the part of N was shown by improvement from level 2A, at the end of Year 5 up to 3C in October 2004, which was just over a month into the start of Year 6. That particular evidence had been challenged before the Tribunal as not credible: first, it was not enough time to make such a jump; second, the assertion that at the end of Year 5 N was at level 2A was not borne out by the detailed marks that were before the Tribunal. Those marks were far lower than level 2A which made it even more incredible that N had improved to that extent over the holidays and in September.
31. In reaching a suggested level 3C the authority had had regard to subjective assessments by the Special Educational Needs Co-ordinator at Danesfield, who herself had an interest in showing that N had been achieving. Moreover, part had been drawn from work summaries which the appellants were able to explain to the Tribunal were not unaided work. Further, a reading test had been used which was appropriate for those up to the age of 10-years, six months, but in October 2004, the date of the test, N had reached the age of 11-years, one month. Thus the test that had been used was seven months too young.
32. Dr Armstrong noted the Tribunal's conclusion b that progress had been made in February 2004 and that the authority's evidence indicated an improvement in levels between May and October 2004. The teacher assessment indicated improving levels at the end of the current year. The Tribunal added this:

"We do not consider that the Year 5 optional SATS results are incompatible with this, as we note that in May 04 her Year 5 level for English is given as 2A, that is one level below Level 3C."

33. I pointed out that the Tribunal's conclusions on these aspects were not wholly unfavourable to the appellants, in particular, at conclusion e the Tribunal reached the view that the dyslexia programme for N should be strengthened so that N should work with the specialist teacher for at least one hour of the 3-hour weekly programme. The reply was that if the Tribunal had accepted the appellant's evidence, then far from simply directing an increase to an hour in the specialist dyslexia programme, the Tribunal would have accepted the main case put forward by the appellants that provision needed to be provided at a specialist school.
34. I return to the key finding made by the Tribunal on the question of deterioration. This addressed the main thrust of the argument as developed before the Tribunal by Dr Armstrong who was, as in this court, acting for the appellants. The whole foundation of the case being put before the Tribunal was one which depended on an assertion that the admitted increasing gap between N's level of achievement and the mainstream children's level of achievement was something to which significance should be attached for the purposes of the Special Educational Needs Statement. That way of approaching the matter was completely rejected by the Tribunal. It was not appropriate, said the Tribunal, for a child with N's complex difficulties, to proceed to make a finding in the Statement of Special Educational Needs of the kind that Dr Armstrong was urging. That being so, it seems to me that it simply was not necessary for the Tribunal to go into the minute level of detail which Dr Armstrong urges in this court.
35. It is fair to say that the Tribunal dismissed, very briefly, in the last sentence of conclusion b, the matters relied upon by the appellants to challenge the achievement levels described by the authority. They could have gone into it in much more detail. In the context, however, of a decision which was already running to ten pages, and a case in which they were faced with many and varied points of detail put to them on the part of the appellants, I do not consider that there was any need to resolve the particular points identified in the passage from paragraph 2(i) of the grounds that I have quoted above.
36. Overall the conclusion was that the Tribunal would expect N to make further progress and that to that end the statement should be strengthened. It was not incumbent on the Tribunal to go through the minutiae as to why they considered that a strengthening, so as to have a specialist teacher for at least 1 hour of the 3-hour weekly programme on dyslexia, would suffice, given that the central way in which the appellants put their case, seeking to attach particular significance to the extent of the widening gap between N and her peers, had been rejected.

Ground 2(ii): benefits of specialist teaching and support

37. This ground was as follows:

"Failure to reach a finding as to the benefits or otherwise of specialist teaching and support other than those expressed in terms of combining print and tactile codes."

Dr Armstrong identified evidence which had been put forward by Dr Gianetta Corley on behalf of the appellants. This was to the effect that visually impaired students needed teachers who were visual impairment specialists with their special expertise. They were better placed to teach concepts of, for example, light in physics, the chemical reactions which involved a colour change in chemistry and the concept of an escapement in geography. As to this, it can be seen from the way in which Ground (ii) is framed, that the Tribunal had examined specifically one aspect of the benefits of specialist teaching, that is, the suggestion that at a specialist school N's learning might combine print and tactile codes. That is a matter of separate complaint, which I will come on to later in this judgment.

38. As to other aspects, the Tribunal had in paragraph 13 specifically recorded what was said by Dr Corley. It is, I believe, fair to say that the concentration of the appellants' case, put before the Tribunal orally, is reflected in paragraph 13. At any rate, that paragraph refers not merely to WES as offering immediate access to Braille tuition if and when it became advisable for N to learn Braille, it also referred to there being other advantages of the WES placement in Dr Corley's view.
39. In considering this point I return again to the way in which the Tribunal dealt with the general thrust of the case being put forward by the appellants. Their conclusion was one which, as regards Danesfield School, was broadly very positive. The reasons for it being broadly positive in that way appear from their conclusions. It was not necessary for the Tribunal, in that context, to deal with what I regard as essentially minor points of the kind complained of under this Ground of Appeal.

Ground 2 (iii): "noise"

40. Evidence had been put before the Tribunal that N was distracted by class noise. One of the points relied on was that other children shouted when the teacher was out of the class. It was said by Dr Armstrong that the case put before the Tribunal was that WES would not have the bustle of a mainstream school. It was a different culture and a different climate. During the course of oral submissions, Mr Oldham for the Respondent objected that there was no evidence that this point was raised before the Tribunal. I need not go into that. It does not require any great knowledge of education to take judicial notice that when a teacher leaves the class there are quite likely to be children shouting.
41. Dr Armstrong said there is a smaller class at WES, merely six rather than 20 children in the class. The suggestion that the reasons given by the Tribunal need to stoop to the level of detail of comparing the noise that might be made by six children to the noise that might be made by 20 is one which I regard as unconvincing, to put it no higher.

Ground 2 (iv): Braille or other tactile code

42. This read as follows:

"Failure to reach proper findings and/or give proper reasons for its finding on Braille or other tactile code. This includes failures in respect of the distinction between whether to provide a Code and how to provide it; the relevance of Professor Tobin not having conducted his assessment at school; the evidence of Mrs Jenny Shorters as to how daily teaching and practice of Braille could be delivered; misunderstanding and/or taking into account an irrelevant consideration with regard to the evidence of Tony Carter; and misunderstanding and/or taking into account an irrelevant consideration as to whether or not [N's] consideration as to whether or not [N's] condition was progressive or not."

43. Dr Armstrong began by saying that the Tribunal had rejected Braille because of its disadvantages and had failed to recognise that it could be provided in a specialist setting in a non-obtrusive way. In that regard he cited paragraph o of the Tribunal's conclusions. I drew attention to paragraph m. This followed a detailed account at paragraphs f through to l of the evidence in submissions relevant to Braille or other tactile code.
44. The Tribunal's conclusion is simply that no case is made out for N to learn now a tactile code. That being so, the Tribunal's later comment in paragraph o, that learning Braille would carry disadvantages, is no more than an aside. It was said by Dr Armstrong that paragraph n had wrongly focused on the condition of cone dystrophy not being diagnosed as progressive. He accepted that it had not been diagnosed as progressive. However, Professor Tobin, who gave evidence for the appellants, had said that the need for Braille was entirely unrelated as to whether the condition was progressive or not.
45. Reading paragraph m, however, in the context of the Tribunal's reasons as a whole, the point made is that N is able to use print material effectively so long as this is prepared properly and that at present the focus of development of new skills needed to be in the area of ICT. Having reached that conclusion it was not incumbent on the Tribunal to rehearse points made by Professor Tobin and explain why they did not affect that conclusion. If the Tribunal were to conduct an exercise of this kind, the decision letter would no longer be a summary of reasons, which is all that the statute requires.
46. A further point was that the Tribunal accepted reasons given by Mr Carter, on behalf of the authority, for not providing Braille, but Mr Carter had accepted, under cross-examination, that he had no experience of the sort of learning process which Professor Tobin was advocating. Even if it is right that Mr Carter made such a concession, it does not seem to me that it is necessary for the Tribunal to record this. It is an example of a yet further point of detail that would weigh down the reasons quite unnecessarily.
47. Before I leave the question of Braille I should return to the issue of visual fatigue. It is said that visual fatigue was something that might be reduced, or avoided, by N having education which embraced both Braille and print. It may be that it is in that context that the Tribunal made the finding that it did in conclusion o. It pointed out that learning Grade One Braille will require specialist tuition and daily practice, and with other curriculum pressures and the need to improve literacy and learn full use of ICT the time required could not be justified by the suggested possible benefit.
48. Dr Armstrong complains that there is a failure to take account of evidence to the effect that in a specialist setting, as would apply at WES, the disadvantages of learning Braille are slight. There is a longer school day. Some of the practice could be taken over into mainstream school time. There was a further point, which he made orally, and that was a failure to mention that in order to meet N's literacy needs at Danesfield the decision had been taken not to provide to N the full curriculum in subjects such as science.
49. I can see no reason to infer from the way in which the Tribunal expressed itself in paragraph o that it had failed to take account of such of these points as had been before it. It stands to reason that learning Grade One Braille is going to require a considerable amount of new skills to be acquired and in that context the criticisms of paragraph o seem to me unfounded.

Ground 2(v): rejection of evidence concerning N' unhappiness at school

50. Conclusions v through to y, quoted above, in my view give quite sufficient detail as to why that evidence was rejected.

The appellant's complaints as a whole

51. In opening Dr Armstrong said this case was about whether the errors identified by the appellants amounted to errors of law. The question was whether they were so serious as to cross the threshold into becoming errors of law. He added that if one has ten steps in an argument and the Tribunal failed to engage with eight of them, even if individually those matters did not amount to errors of law, cumulatively they did.
52. Accordingly I stand back and ask the questions identified by Gibbs J in the case of J v Devon County Council and Strowger:

"Does [the Tribunal's reasons] deal with the substantive points that have been raised so that the parties can understand how a decision has been reached?"

53. I answer that unhesitatingly "Yes"'. The conclusion is that N's needs can be met at Danesfield. N is making progress and can be expected to make further progress both through the strengthening of the dyslexia programme and through the learning of full use of ICT. The case put against that, based on attaching significance to the degree to which the gap between N and her mainstream peers has widened, is rejected because of the problem inherent in it: comparing N with the generality of children is not appropriate for a child with her complex difficulties. On the key issues of Braille and of whether or not N is unhappy at school, the Tribunal's conclusions go into the matter in at least that degree of detail which is called for in a summary.
54. Other points raised do not, to my mind, have anything like the significance that requires them to be specifically mentioned in this summary.
55. Can the aggrieved party identify the basis of the decision? I unhesitatingly answer this "yes" for the same reasons as those arising on the first question.
56. Turning to the third question: "Have the Tribunal done more than merely recite the evidence?" again I unhesitatingly answer this question "Yes" and for the same reasons.

Conclusion

57. Accordingly my conclusion is that the major part of the appellants' challenge fails. I do not doubt the strength or sincerity of the appellants' belief that N would be better off at WES. As indicated earlier, I feel deep sympathy for N and for the appellants. I am heartened that the appellants have been able to reach agreement with the authority on the remaining aspects of the challenge. The vital task now in N's best interests is to work with Danesfield to ensure that N achieves her full potential. I shall hear counsel as to the terms of my order.
58. MR OLDHAM: My Lord, I am grateful. The ICT issue having been settled between the parties, I think my learned friend and I agree that the orders that your should make are an order that the appeal be dismissed, first of all, and secondly, and I think lastly, an order for costs in the following terms: that the appellants pay the first respondent's costs to be assessed, if not agreed.
59. MR JUSTICE WALKER: To be the subject of detailed assessment, if not agreed.
60. MR OLDHAM: I suppose so, my Lord. If we got that far, yes.
61. MR ARMSTRONG: My Lord, I cannot resist that application. On the behalf of the appellants we are happy that on the agreement reached it is not necessary to include the terms in the order.
62. MR JUSTICE WALKER: Very well. Before leaving this case I would like to express my thanks to both of you for the very helpful assistance provided in the written skeleton arguments and orally, and to those who have been part of your respective teams because it has been assembled in a way which has enabled me to reach a clear view and without any of the sort of difficulties that one sometimes encounters. Thank you both very much. Perhaps I had better keep the bundle of authorities with the papers.