IN THE UPPER TRIBUNAL	Case No.  S/558/2009
ADMINISTRATIVE APPEALS CHAMBER

Before: 	Upper Tribunal Judge Rowland, Upper Tribunal Judge Levenson and Deputy Upper Tribunal Judge Oliver

For the Appellant:	Mr Jonathan Auburn of counsel, instructed by the Head of Corporate and Legal Services, Hampshire County Council

For the Respondent: 	Ms Anne Lawrence of counsel, instructed by Mr Felix Moss, solicitor of Accrington.

Decision:  	Permission to appeal is granted on ground 2, permission having already been granted on the other grounds of appeal.

	The decision of the First-tier Tribunal dated 11 November 2008 is erroneous in point of law but is not set aside.

REASONS FOR DECISION

1.	This is an appeal brought under section 11 of the Tribunals, Courts and Enforcement Act 2007 by Hampshire County Council against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 5 November 2008, amending a Statement of Special Educational Needs in respect of a child, N.  Crucial to this appeal are the amendment to Part 3 of the statement, to include a sentence that reads –

“He needs a waking day curriculum provided 52 weeks a year”,  

and then the amendment to Part 4, so that it reads –

“Placement at a school for pupils with Autistic Spectrum Disorder and complex learning difficulties on a day basis first at [O] School and then once a 52 week placement at [PV] is available on a residential basis for fifty two weeks a year at [PV] School.”

2.	N, who had just reached the age of 17 at the time of the First-tier Tribunal’s decision, has a diagnosis of autistic spectrum disorder and severe learning difficulties. He has had a statement since 1996 and attended O School, a local authority maintained special school, from September 2002, at which time N was living with foster parents.  His mother, who is the Respondent to this appeal and had separated from her husband when N was very young, had increasingly found it difficult to manage N’s behaviour.  In April 2004, the statement was amended.  This followed the  diagnosis of autism in September 2003 and also O School’s move to new premises in the same month.  Later in 2004, the foster placement broke down and N returned to live with his mother but with periods of respite care.  However, in September 2005 the Respondent asked that a residential placement be found for N because she was finding his behaviour too difficult to manage.  From November 2005 N was a “looked after child”.  From then until May 2008, he lived at O School’s residential unit during the week in term time and with his mother most weekends and holidays, although he continued to be placed in respite care frequently, mostly (but not always) at a children’s home in Winchester.  In April 2008, the Respondent told the local authority that she could no longer look after N full-time when he was not at school and so he was accommodated in a children’s home – not the one in Winchester – under section 20 of the Children Act 1989, although he continued to spend some time with his mother.  He remained living at O School during term-time weeks until the end of the school year in July 2008, but he moved to the post-16 unit in June 2008, primarily because of his behaviour as he had not quite reached the end of Year 11. 

3.	Meanwhile, in 2006, the Respondent had appealed to what was then the Special Educational Needs and Disability Tribunal against a refusal by the local authority to reassess N’s special educational needs.  What she was seeking at that time were amendments to the statement of special educational needs so that it recognised what she regarded as N’s educational need for a residential placement.  The local authority’s view was that his needs outside normal school hours were social care needs, rather than educational needs, and he had been living in the residential unit at O School on that basis.  Nonetheless, the local authority did agree to reassess N and the appeal appears to have been withdrawn.  In any event, the local authority issued an amended statement on 16 May 2008, but it still did not include in Part 3 any reference to a need for a residential placement.  The Respondent therefore appealed against that amended statement.  Her appeal was registered on 2 July 2008.  

4.	In her appeal, the Respondent challenged Parts 2, 3 and 4 of the statement of special educational needs.  As to the drafting of Parts 2 and 3, she maintained that it did not identify adequately in Part 2 what she believed (on advice) were complex deep-seated problems that N had. The Respondent said that her concerns related to matters identified by both occupational therapists and speech and language therapists.  She maintained that Part 3 did not properly identify all of the educational provision that N needed and in particular did not deal with his occupational therapy and speech and language needs.   Finally, and most importantly, the Respondent also maintained that N’s needs were such that the provision that he needed to meet those special educational needs could only be met in a school with autistic spectrum disorder expertise, which offered a waking day curriculum fifty-two weeks a year. She wished Part 3 to be amended to that effect and had identified PV School as the school she wished the tribunal to name in Part 4.

5.	Between the appeal being registered and the statements of case being lodged, which under the procedural rules then in force was to be done by both parties simultaneously, there was what the local authority regarded as a major change of circumstances.  The Children’s Services Department identified TP, a privately-run care home for young people with learning disabilities, as appropriate accommodation for N.  Because TP was primarily accommodation for young adults, it was potentially available to N until he was aged at least twenty-four.  N moved to TP on 18th August 2008 and staff were specifically recruited to work with him.  

6.	The local authority’s written case on the appeal was that N’s educational needs could properly be met at O School on a day placement basis in its post-16 unit, that he had no requirement for a waking day curriculum, and no requirement for a fifty-two week curriculum.  It maintained that TP would best meet N’s social care needs and that placement at a school offering a fifty-two week waking day curriculum, such as PV School, would be an unreasonable use of their resources, costing the public purse an extra £62,000 compared with the cost of N’s placement at O School and his residential placement at TP.  In other respects, the local authority did not oppose the suggested amendments to Parts 2 and 3 of the statement.

7.	Essentially, there was common ground between the parties that N’s autism required him to have a considerable degree of consistency in his life if he was to make any progress and that that had been lacking.  He reacted badly to change and he needed what he learned at school to be reinforced in a consistent manner outside normal school hours.  It was the Respondent’s case that an appropriate degree of consistency could be provided only through a residential placement.  In a report dated “20 November 2007 – 15 January 2008”, the local authority’s educational psychologist had suggested that “[t]hough not an educational need per se, in my view [N] would continue to benefit from residential provision to further his overall development” but that statement did not appear in her report of 4 March 2008, perhaps precisely because residential provision was not recognised by the local authority as an educational need in this case.  In any event, by November 2008, it was the Appellant’s case that N’s needs could be provided through the combination of O School and TP and that the placement at TP had the added advantage that it would provide continuity when N came to leave school.

8.	On 3 November 2008, the functions of the Special Educational Needs and Disability Tribunal were transferred to the First-tier Tribunal established under the Tribunals, Courts and Enforcement Act 2007.  The Respondent’s appeal was heard two days later.  The First-tier Tribunal agreed with  her case.  Its decision  was issued on 11 November 2008, setting out the evidence and then the “conclusions with reasons”.  In paragraph B of the conclusions and reasons, the First-tier Tribunal found that N’s main special educational needs arose from his autism and his learning difficulties and it continued –
 
“C.	Dealing then with the issue of the provision to meet [N’s] special educational needs, we have accepted all of the evidence which we identified in the facts from Ms Fenty, Ms Arnaud and Ms Rush, which is supported by the Report from Connexions to which we have referred (and, most importantly, the evidence of Ms O’Donnell). This evidence leads us to a clear conclusion that [N] has a need for a provision of a waking day curriculum.  [N] has only eighteen months of school education left and if he has an opportunity to reach a level of independence which will enable him to live in a housing situation such as that currently being provided and not in an institutionalised setting, it is essential that the skills that he needs to acquire for everyday living are acquired over the next eighteen months.

D.	Similarly we are satisfied that [N] requires a placement at an autistic specific placement.  Again we accept the evidence of Ms Fenty, Ms Rush and Ms Arnaud in that respect.  Having reached that conclusion we asked ourselves whether the unit at [O] School could be regarded as an ASD specific provision and we are satisfied that the unit itself could be so described.  All of those therefore attending its residential provision are on the spectrum.

E.	We were very mindful of the powerful argument advanced by the LEA that removing [N] from his housing situation currently being provided and which is available until he is aged at least twenty-four and placing him at [PV] School on a thirty-eight week a year basis would mean that he would have to return to a series of respite care providers at weekends and during the holidays.  The past history leads us to conclude that this is likely to result in [N’s] behaviour deteriorating rapidly and likely that he becomes destructive and violent and that his learning will again cease.  The evidence of what happened in early 2008 is compelling that that is likely to be the outcome.  Such behaviours and effects mean effectively that [N's] education will undoubtedly suffer.  His anxiety levels will be raised to such an extent that he will make little, if any, progress educationally and indeed is likely to regress.  Again, given the short time left in education, and again a point forcibly made to us by the LEA, it is essential that any Order that we make and any placement which we order maximises [N’s] potential over the next eighteen months.  We are mindful of the Connexions’ view of the need for ongoing post-16 boarding placement as offering the degree of stability that [N] required.

F.	Given the above we then asked ourselves whether or not there was compelling evidence that [N] required a fifty-two week placement for educational reasons.  We accept the advice given by Ms Rush that fifty-two weeks a year education is required and we prefer her views to any of the views expressed to the contrary by the LEA’s witness, Ms Currie.  We are persuaded that there is compelling educational reasons why [N] requires a placement for 52 weeks a year for the next 18 months.  The outcome of that period of education will determine what residential, care and further educational package will be required thereafter to meet his adult needs. To look at his housing and care needs now and decide that we cannot order his educational needs to be met because he has a settled housing position would be wrong as a matter of law.

G.	The LEA accepts that [PV] School can meet [N’s] needs and the evidence suggests that is clearly the case.  If this was a case where we believed that a thirty-eight week placement a year would meet [N’s] needs we would have concluded that [O] School could also meet his needs and for those reasons would have named [O] School.  However, for the reasons which we have set out in this Decision, we have concluded that in this exceptional case [N] does require a fifty-two week placement and that it would not be appropriate to place him at [PV] School.  However we are not going to put his housing in jeopardy until [PV] School are able to offer him a fifty-two week placement.  On that basis we are going to order that he continues to remain at [O] School on a day basis until such time as [PV] School can offer him a fifty-two week placement.  We hope this will be in January 2009.”

9.	On 9 December 2008 the local authority applied for permission to appeal on the basis that the tribunal had erred in law on four grounds, namely:
(1) 	by ordering a placement in Part 4 that was not definitely available for another nine months;
(2) 	in finding in paragraph C of its conclusions that N required a waking day curriculum in the absence of any evidence and/or perversely;
(3) 	in finding in paragraph F of its conclusions that N required a 52-week placement in the absence of any proper evidence and/or perversely;
(4) 	by failing to give adequate reasons.
 
10.	The tribunal judge who chaired the hearing considered the application for permission to appeal on 4 February 2009 and gave permission to appeal to the Upper Tribunal on the first, third and fourth grounds.

11.	A place became available at PV School in February 2009 and N started there on 26 February 2009, his placement at O School having broken down.

12.	On 4 March 2009 the local authority, having already been granted permission in relation to grounds 1, 3 and 4, appealed to the Upper Tribunal and also renewed its application for permission on its second ground.  Since then, it has decided not to cease funding N at PV School even if successful on the appeal but it has wanted at least the first of its grounds of appeal to be considered in any event.

13.	As the local authority was not intending to cease funding N, Ms Lawrence urged us to conclude that the entire appeal was academic because the local authority could obtain no practical advantage from it.   Even if the decision might be relevant while N was in a school, she argued that once he transferred to adult services in 18 months there would need to be a fresh and thorough assessment on an entirely different basis. 

14.	Mr. Auburn, on the other hand, argued that the appeal was not academic, except in respect of the first ground of appeal, because, if the First-tier Tribunal’s decision were allowed to stand, the local authority would be bound by the continuing effects of its conclusion that a fifty-two week residential placement was an appropriate provision.  This, he submitted, would be relevant if the placement at PV School broke down and on the next annual review.  Moreover, he submitted, there were important points of law that required clarifying, including the point arising on the first ground of appeal the arguing of which would not add significantly to the costs of the case.

15.	We accept Mr Auburn’s argument to the extent that we agree that a starting point on any reassessment of a child’s needs following a breakdown of a placement or on an annual review should be that a recent decision of the First-tier Tribunal was right at the time it was given and on the material that was before the Tribunal.  However, it is obvious that, if the placement directed by the First-tier Tribunal has broken down in practice, the reasoning of that tribunal is likely to have been undermined or at least there will have been a change of circumstances that is likely to justify taking an entirely fresh approach to the case.  We also accept Ms Lawrence’s point that, given N’s age, the annual review in this case is unlikely to be much influenced by the reasoning of the First-tier Tribunal. The fact that a child is actually attending a school named by the First-tier Tribunal will always be of crucial importance on any annual review but the reasoning behind the placement may be of less importance.  Moreover, a decision of the First-tier Tribunal does not bind anyone except the parties to the particular case being decided – indeed, First-tier Tribunal decisions concerning special educational needs are no longer even published – and as between the parties, it seems to us to be open to a local authority to make it clear to the other party that it considers the reasoning of the First-tier Tribunal to be flawed and is only not appealing because it does not challenge the conclusion.  In our judgment, our decision in this case is unlikely to be of as much practical effect in relation to N as the Appellant has suggested but we do not consider that it will be wholly academic except as regards the first ground of appeal.  Moreover, grounds 2 to 4 raise issues of general importance in this field of the law upon which we consider guidance should be given.

16.	It is, of course, the first ground of appeal that the Appellant particularly wishes to be considered.  The arguments against deciding academic issues are familiar.  Experience shows that points of law are better decided when they really matter and the parties’ arguments are based on real practical considerations.  If a binding decision is wrong, it can major cause problems but the party against whom the case is decided may be inhibited from appealing further if the point is academic.  Office of Communications v Floe Telecom Limited [2009] EWCA Civ 47 stands as a warning against a tribunal giving unnecessary guidance about the way a public authority should make decisions.

17.	On the other hand, it was held in R. v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 that, in a public law case, it can be appropriate to determine an appeal even though it has become academic, but only in some cases.  Lord Slynn of Hadley, with whom the other members of the House agreed, said –

“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

That was a decision of the House of Lords, but the same approach has been taken in a number of cases in the Administrative Court, although in R. (McKenzie) v London Borough of Waltham Forest [2009] EWHC 1097 (Admin), to which we were referred, it appears that the deputy judge, erroneously in our respectful judgment, considered that the two examples of types of case that it would be appropriate to determine given by Lord Slynn in ex parte Salem, were conditions that must be satisfied in every case.

18.	In the present case, the first ground of appeal was not academic when permission to appeal was given, it has been fully argued before us against a genuine factual background, it is a short point and it is, in our view, linked to the other grounds of appeal.  In all of the circumstances, we are prepared to determine this ground of appeal even though it does seem to us to be academic.

19.	This first ground of appeal is that the First-tier Tribunal erred in law in ordering a placement in Part 4 that was not definitely available for another nine months. The Appellant’s skeleton argument suggested that it was unlikely that a tribunal would be satisfied by a local authority’s offer to make appropriate provision nine months in the future.  Mr Auburn pointed out that nine months represented half of N’s remaining schooling and three-quarters of the period between annual reviews and he referred to the duty of local authorities to implement a decision of the First-tier Tribunal within 28 days.  He argued that it was wrong for the First-tier Tribunal to leave a child in what it had found to be unsuitable accommodation for as long as nine months, and he cited Richardson v Solihull Metropolitan Borough Council [1998] E.L.R. 319 for the proposition that the tribunal was not obliged to name a school in Part 4 of the statement of special educational needs at all.  

20.	Ms Lawrence, on the other hand, pointed out that a place at PV School had been available in September 2008 but it had been given to someone else by the time the tribunal sat in November 2008.  She argued that the First-tier Tribunal had taken a pragmatic approach to a difficult situation.

21.	We are not satisfied that the First-tier Tribunal erred in law merely because there was a risk that a place at PV School would not be available for nine months.  Generally, a local authority can be expected to make necessary provision available within a much shorter time span.  However, in this case, the Respondent had looked at a number of schools and considered PV School to be the one most likely to meet N’s needs.  Assuming for this purpose that the tribunal was entitled to find that N required to be placed in a residential school, looking at other schools would have involved a substantial amount of further effort on her part – and, indeed, work on the part of the local authority and possibly disagreement between the parties – and, more importantly, stress for N, which might in any event be of no practical advantage if a place at PV School became available anyway.  The most important point is that there was only a risk that N would have to wait nine months.  Although the First-tier Tribunal said that it “hoped” that a place would become available at the beginning of the next term, it had heard evidence from the head teacher of PV School and we are satisfied that it must have considered there to be a substantial likelihood of a place becoming available then.  It is not without significance that the Respondent herself judged that waiting for a place at PV School was preferable to continuing the search elsewhere.  In our view, the First-tier Tribunal was entitled to consider that the amendment it made to Part 4 of the statement of special educational needs was the best that could be achieved for N once it had accepted his need for a placement in a residential school.

22.	Nonetheless, there are substantial arguments to be made against the First-tier Tribunal’s approach.  The local authority suspects that the decision of the First-tier Tribunal in fact contributed to the breakdown of N’s placement at O school.  Although the decision may have provided more certainty for N in the short-term than continuing the search for other schools, it still left a degree of uncertainty in his position because he knew that at some, as yet unspecified, time over the next nine months he would have to change schools and then he would have a complete change when he left school altogether.  Moreover, a willingness to risk N having to remain at O school for as long as nine months raises the question as to whether it really was unsuitable for N and whether the advantages to N of going to PV School really justified the extra expenditure that there would be.  However, in the circumstances of this case, all these points are really collateral challenges to the First-tier Tribunal’s finding that N required a residential placement.  Because we consider that that finding was flawed in any event, it is unnecessary for us to consider these challenges further.  As far as this first ground of appeal is concerned, it is sufficient that we state that we are not satisfied that the form of the decision was improper merely because a place at PV School might not have become available for nine months.

23.	In relation to the second ground of appeal – that the tribunal erred in finding in paragraph C of its conclusions that N required a waking day curriculum in the absence of any evidence and/or perversely – Mr Auburn submitted that the tribunal failed properly to distinguish between N’s educational needs and his social care needs.  This, he submitted, is shown by the First-tier Tribunal’s misunderstanding of the evidence of Ms O’Donnell, the headteacher of O School, and its reliance on her evidence when finding that N needed a waking day curriculum.  In paragraph 18 of its decision, the First-tier Tribunal recorded that “[i]n her view, [N] did require a waking day curriculum and she considered that [O] School could provide that for him”.  However, Ms O’Donnell has made a witness statement in this appeal, saying that that is not quite what she said.  She says –

“4.	…  I tried to explain that the set up in place at the time ([O] School and [TP], a residential placement for young adults with learning difficulties) was what he needed to ensure that he has success in future and post-19.  I said that if this was what the Tribunal considered to be a waking day curriculum then that was what he needed, and that it could be provided equally well either by way of the [O] School/[TP] combination, or by [O] School as a residential placement.

“5.	I did say that this form of 24 hour provision was to ensure that he developed the skills he needs for the future when he is no longer at school, and that ideally this would be the [TP]/[O] School combination as he would retain links with the local community, and [TP] would be able to support him after he left school.”

Her evidence in that witness statement has not been challenged before us.

24.	The First-tier Tribunal refused permission to appeal in respect of this second ground on the basis that it did not place decisive weight on Ms O’Donnell’s evidence, notwithstanding the use of the phrase “most importantly” in paragraph C of its conclusions.  However, we consider the error to be significant.  The error also shows how unhelpful the term “waking day curriculum” can be. 

25.	Under the “Every Child Matters” agenda, reflected in the Children Act 2004 which has encouraged the bringing together of education services and children’s social services, children’s needs must be considered holistically and the distinction between educational needs and social care needs might be thought to be less important than it was.  Nonetheless, there is, as Mr Auburn submitted, a jurisdictional issue.  In considering the content of a statement of special educational needs, social care needs and the way they are to be met are not irrelevant (see O v Lewisham London Borough Council [2007] EWHC 2130 (Admin); [2007] ELR 633) but the First-tier Tribunal has no power to direct that a child’s social care needs be met in any particular manner (see W v Leeds City Council [2005] EWCA Civ 988; [2005] ELR 617), whereas that is precisely what it must do in respect of educational needs.  The practical difficulty of distinguishing between educational and social care needs was considered by the Court of Appeal in London Borough of Bromley v Special Educational Needs Tribunal  [1999] ELR 260, where Sedley LJ (with whom Mummery and Evans LJJ agreed) referred to the “potentially large intermediate area of provision which is capable of ranking as educational or non-educational” as to which the local authority and, if necessary, the Tribunal had “to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate”.  He added –

“The potential breadth of what can legitimately be regarded as educational is illustrated by section 322 [of the Education Act 1996], 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’.”

26.	Mr Auburn argued that the type of help that it was said that N required out of normal school hours was the type of training or care that would normally be regarded as social care or the functions of parents, notwithstanding that it was designed to reinforce what had been learned at school.  He made the point that, even at a residential school such as PV School, care might be delivered outside normal school hours by care staff rather than teachers or other professionals.  However, in the light of Sedley LJ’s view that provision might be considered educational in one context and non-educational in another, that seems to us to be to ask the wrong question and, indeed, it is difficult to see how any residential education could be provided without the child being provided with some care that might ordinarily be classified as social care.

27.	Equally, on the other hand, it would be inappropriate to reason from the fact that the care needed by N outside normal school hours would reinforce what had been learned during the school day that N needed a “waking day curriculum” with the overtones of education that the word “curriculum” carries.  Where children do not have special needs, they are not regarded as always being at school rather than on holiday merely because much play and engagement in leisure activities outside school hours may have an educational value and support what is taught at school.  In The Learning Trust v MP [2007] EWHC 1634 (Admin); [2007] ELR 658, Mr Andrew Nicol QC, sitting as a deputy judge of the High Court, pointed out at [41] that “a need for consistency is not to be equated with a need for educational provision outside of normal school hours”.

28.	We note that paragraph 8.74 of the Code of Practice on Special Educational Needs specifically states that –

“… LEAs are likely to consider that there is a need for residential provision where there is multi-agency agreement that … the child has severe or multiple special educational needs that require a consistent programme both during and after school hours that cannot be provided by parents with support from other agencies [or] the child is looked after by the local authority and has complex social and learning needs, and placement is joint-funded with the social services department …”

(On an appeal to the First-tier Tribunal, the fact that the social care part of a children’s services department has or has not agreed to joint funding of a residential placement cannot be conclusive.)

29.	In the context of the present case, where the issue was whether N’s need for consistency required a residential placement on educational grounds or not, it seems to us that the question was whether his need for a consistent programme was such that his education could not reasonably be provided unless he was accommodated on the site where he was educated.

30.	We do not consider that the First-tier Tribunal was bound to decide the present case in favour of the local authority, but we do accept that its reliance on the evidence of Ms O’Donnell was a flaw in its reasoning and that its misunderstanding of her evidence may suggest a deeper flaw.  Ms O’Donnell had accepted the need for continuity in N’s life but had not conceded that he needed residential education.  The First-tier Tribunals’ failure to appreciate that distinction in her evidence suggests that it may have failed to draw a proper distinction between educational needs and social care needs.

31.	Mr Auburn also criticised the last sentence of paragraph C but we are not persuaded that it shows perversity.  Although one might expect that a child will better learn skills relevant to living in accommodation such as TP while actually living there, the First-tier Tribunal was entitled to reason that, if N were not educated in a residential school, his life would be disrupted to the extent that he would learn too little to be of any use.

32.	In view of the First-tier Tribunal’s misunderstanding of Ms O’Donnell’s evidence, we grant permission to appeal on the second ground of appeal.  As has been pointed out in The Learning Trust v MP [2007] EWHC 1634 (Admin); [2007] ELR 658 at [39], misunderstanding evidence is liable to result in an immaterial consideration being taken account, which is an error of law.  We allow this appeal partly on this ground.  

33.	The third ground of appeal – that the First-tier Tribunal erred in finding in paragraph F of its conclusions that N required a 52-week placement in the absence of any proper evidence and/or perversely – is based substantially on the argument that the First-tier Tribunal relied solely on the evidence of Ms Rush who, it is submitted, was not qualified to express a view on that issue because she was an occupational therapist rather than an educational psychologist. 

34.	In the courts, there is a general rule that a witness may not give evidence as to his or her opinion unless he or she is qualified as an expert in the relevant field.  Indeed, in the absence of a conflict between experts, a court is entitled to accept the opinion of an appropriately qualified expert without enquiring as to his or her reasons for holding the opinion.  Thus, an occupational therapist might legitimately give evidence as to the suitability of any type of provision for meeting a child’s needs for occupational therapy but could not comment on matters that more properly fell within the competence of, say, an educational psychologist. In tribunals, such strict rules of evidence do not usually apply but the weight to be attached to an opinion expressed on a matter beyond the professional expertise of a witness is likely to be limited and reliance on such an opinion is likely to require some explanation by a tribunal.

35.	In the present case, it is unnecessary for us to consider whether Ms Rush’s opinion as to N’s need for a 52-week was in fact an opinion on a matter outside her professional expertise, because the First-tier Tribunal’s reasoning on this issue is plain enough and is adequately explained without reference to her evidence.  This part of the decision was based on the premise that N needed residential education for at least 38 weeks per year and the First-tier Tribunal was considering whether he needed it for the whole year.  It was clearly accepted by the local authority’s educational psychologist in her oral evidence that if N were placed at PV School for 38 weeks per year, he would lose his placement at TP and would have to rely on respite care, which would be “difficult and disruptive”.  The First-tier Tribunal plainly understood, probably correctly in our judgment, that the same would apply if he had a 38-week per year residential placement at O School (or anywhere else) and it was plainly its view that such social care provision would not adequately support his education.  Assuming for this purpose that the tribunal’s premise that N required a residential placement was justified, it is easy to see why it found that he required a 52-week placement.  Accordingly, we reject the third ground of appeal.

36.	The fourth ground of appeal is that the First-tier Tribunal did not give adequate reasons for its decision and, in particular, for its finding in paragraph C of its conclusions that any residential placement at all was required to meet N’s needs.  The only reason the tribunal gave for its decision on this key issue was that it accepted the written evidence of Ms Fenty, Ms Arnaud and Ms Rush, the report from Connexions and the oral evidence of Ms O’Donnell.  

37.	We have already explained why reliance on Ms O’Donnell’s evidence was inappropriate.  A different difficulty arises in relation to the other evidence.  The fact that an expert has given an opinion is not in itself an adequate reason for a tribunal to adopt that opinion unless the opinion is unchallenged.  In the event of a conflict of opinions, it is necessary for a tribunal to give a reason for preferring one opinion rather than the other.  Where an opinion is fully reasoned, a tribunal accepting the opinion may be taken to have adopted the reasoning and in those cases merely referring to the opinion may be sufficient provided that the expert has given adequate reasons for disagreeing with any opposing view.  However, in the present case that can certainly not be said of Ms Arnaud, Ms Rush and Connexions for the simple reason that their reports, commissioned in the cases of Ms Arnaud and Ms Rush by the Respondent, were written before N moved to TP and they were not present at the hearing to be asked for their views as to whether N’s placement there made any difference to their opinions.  It was therefore necessary for the First-tier Tribunal to give its own reasons for saying why that change of circumstances, upon which the local authority placed considerable weight, made no difference.

38.	Ms Fenty, who was an educational psychologist instructed by the Respondent, had on the other hand written a supplementary report, dated 17 October 2008, supporting the Respondent’s case despite N’s move to TP.  She said that, while N had settled more in school, he was still anxious and had incidents of unpredictable behaviour and still needed “a 24 hour waking curriculum on one site to meet his total needs”.  She specifically said that she did not consider the liaison between O School and TP to be enough.  Against that, the First-tier Tribunal had the evidence of Ms Currie, the local authority’s educational psychologist, who had recently taken over N’s case, and Ms O’Donnell, who had also only recently been appointed as headteacher at O School.  Ms Currie said that her area of disagreement with Ms Fenty was narrow but that she considered that the placements at O School and TP together met N’s needs.  Both she and Ms O’Donnell considered that N’s behaviour had improved over the previous few weeks and she gave evidence as to the links between O School and TP which ensured that programmes in place at the former were also in place at the latter.  She also stressed the advantages to N of potentially being at TP until he reached the age of at least twenty-four and said that a further move was likely to unsettle him and cause his behaviour to deteriorate again.  

39.	We acknowledge that the First-tier Tribunal was hampered by the fact that, although Ms Currie and Ms O’Donnell attended the hearing and gave oral evidence, Ms Fenty did not and so could not be cross-examined or asked questions by the tribunal to answer the specific points made by Ms Currie.  Nonetheless, where there is a crucial disagreement between experts and “the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other” (Flannery v Halifax Estate Agencies Limited [2001] 1 WLR 377 (CA)).  

40.	In the present case, the First-tier Tribunal gave no reasons at all for preferring Ms Fenty’s evidence to that of Ms Currie and Ms O’Donnell.  Nor did it give any reason for relying on the evidence of Ms Arnaud, Ms Rush and Connexions in the face of the argument that N’s placement at TP provided him with a more stable life outside school than he had known for some time.  In view of the First-tier Tribunal’s misunderstanding of Ms O’Donnell’s evidence and the distinct possibility that it had made that error through failing adequately to distinguish between educational needs and social care needs, it was particularly important for the First-tier Tribunal to give reasons that made it clear that it had applied the correct test when deciding whether to adopt the evidence given on behalf of the Respondent.  Accordingly, we are satisfied that the First-tier Tribunal’s decision is erroneous in point of law because it gave inadequate reasons for its conclusion that N required residential education and we allow this appeal principally on this fourth ground.

41.	However, as N has now been placed at PV School and the local authority is content to fund him there – with, we understand, part of the funding coming from its social care budget – it is unnecessary for us to set aside the decision of the First-tier Tribunal and accordingly we exercise our power under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to do so.  It is sufficient that the parties should know that we consider the reasoning of the First-tier Tribunal to be flawed and inadequate so that its finding that N required residential education need not be given weight in any review of N’s special educational needs.

Mark Rowland

H. Levenson

Simon Oliver

23 November 2009