IN THE UPPER TRIBUNAL	Case No.  HS/2097/2011
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Attendances:

For the Appellant:	Mr. Denis Edwards, counsel

For the Respondent	Ms Jay Murphy

Decision:  1. The Applicant is granted permission to appeal.
	        2. The appeal is allowed. I set aside the decision of the tribunal and substitute my own decision that the Respondent shall comply with the request of the Applicant to arrange an assessment in respect of her son, L, under section 323 of the Education Act 1996.

REASONS FOR DECISION

1.	The Applicant has applied for permission to appeal a decision of the First Tier Tribunal (Special Educational Needs and Disability) given on 23 May 2011dismissing the appeal of the Applicant, NM, against the refusal of the London Borough of Lambeth to conduct a statutory assessment of her son, L.  The decision is dated 6 June 2011 and followed a hearing on 23 May 2011.  Several grounds of appeal were put forward, and an oral hearing of the application was sought, which I granted.  I also directed that if permission was granted the hearing of the appeal would take place at the same time.

2.	At the hearing of the appeal before me, NM was represented by Denis Edwards of counsel, who had not been NM’s counsel in the First Tier Tribunal, and Lambeth was represented by Jay Murphy, its SENDIST and conciliation officer.  I am grateful to both of them for their clear and helpful submissions.

3.	L was born in July 2003.  He attends a mainstream primary school.  Although in many respects of average intelligence and abilities, he has significant learning difficulties as a result of dyslexia and memory problems and also has problems with handwriting.  His school has attempted to address these difficulties but NM was not satisfied with his progress and sought to get Lambeth to provide a statement.  Lambeth decided that a statement was not necessary, and NM appealed that decision.

4.	In essence the issue was whether Lambeth ought to have undertaken an assessment in respect of L following a request by his mother pursuant to section 329 of the Education Act 1996.  The question in this case, under section 329(1)(c), was whether it was necessary for Lambeth to make an assessment under section 323 of the Act.  Under section 323(1)-(3), the question for the local authority is whether it is of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2) of that section.  If it is of that opinion, then it is required by subsection (3) to make an assessment of his educational needs.  A child falls within subsection (2) if he has special educational needs (which is not in dispute in the present case) and whether it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.  The question here for the tribunal therefore was whether it was probably necessary for Lambeth to determine the special educational provision which any learning difficulty L had called for.

5.	For this purpose, a common assessment framework form was completed by a SENCo at his school on 27 April 2010.  She identified, in particular, concerns regarding his fine motor skills, significant difficulties with his speech and language, dyslexia, which impacted greatly on both his literacy and his maths, a need for 1-1 and very small group support to help him access the curriculum, and a poor working memory making it very hard for him to retain information.  He had been assessed at the Bloomfield Learning Centre at cost to the school and while his cognitive ability was within average range, his progress and achievement was being affected by his difficulties in issues with decoding and encoding when reading, motor planning abilities, auditory sequential memory, delaying recall of visual information, some aspects of phonological memory and visual discrimination of some letters.  In relation to writing, maths and reading, she stated that he had made progress in all three areas, but this had been with lots of support, “which cannot continue at the level it is currently without funding from a statement”.

6.	Lambeth’s decision letter is dated 27 July 2010.  It concluded that Lambeth accepted the evidence of special educational needs, but was of the view that L’s level of needs fell within the range of need which the authority expected to the school to make provision for using delegated resources available at this stage of the SEN process.  The letter also stated that L was making progress with the current level of support and intervention strategies in place and the conclusions of the Learning Assessment Clinic report indicated that although there were some areas of weakness, L’s overall performance scores and cognitive ability fell within the average range for his age.

7.	NM appealed and the matter came before the First Tier Tribunal on 23 May 2011, some 10 months later.  NM was represented by counsel.  Surprisingly the Bloomfield Learning Centre assessment had not been put before the Tribunal by Lambeth despite Lambeth’s apparent reliance on it in the decision letter, and an application for it and earlier educational psychologists’ reports to be admitted late was rejected by the Tribunal..  

8.	Details of the provision said to be being made in the autumn term of 2010 and in the spring term of 2011 are set out at pp.138-140 of the hearing bundle before the First Tier Tribunal.  These pages indicate weekly support with speech and language, separate weekly support in relation to dyslexia, daily support with reading, twice weekly support for writing, daily support for maths in a group of 2 and support once a week in relation to visual discrimination.  Reference is also made to additional support tools available.

9.	NM put forward both an educational psychology report based on an assessment of L on 15 February 2011 and a speech and language therapy report based on an assessment of L on 17 February 2011.  In relation to cognitive ability, the educational therapist found that in general L was at the low end of average, but in relation to working memory she found that he was within the first percentile – that is that under 1 per cent of children would have a worse working memory than he had.  In relation to basic word reading he fell within the second percentile, and in relation to spelling he fell within the 14th percentile.  His better comprehension skills were typical of a dyslexic student.  He also had poor mathematical skills reflecting his weak working memory capacity.  His weak working memory and dyslexia were his principal problems.  His handwriting skills were also weak and he would benefit from an occupational therapy assessment and advice.  Strategies to meet his needs included various suggestions including activities to develop working memory.

10.	The speech and language therapist reported that L fell within the second percentile in relation to core language skills, the first percentile in relation to concepts and following directions, the second percentile in relation to sentence structures, and the fourth percentile in relation to expressive language index, with some skills only in the first and second percentiles.  She concluded that L’s “significant and persisting difficulties in receptive and expressive language development will be affecting his learning and ability to access curriculum tasks and he therefore needs a Statutory Assessment of His Special Educational Needs that will lead to a Statement with direct and regular speech and language therapy intervention in Part 3.  The speech and language therapy intervention has not been on a regular basis over the past year [I interpose that the factual basis for this observation was not made out before the tribunal or before me] and his language difficulties remain moderate to severe.  He needs a speech and language therapy programme as follows:
•	A weekly session of speech and language therapy intervention with a qualified therapist, either on an individual basis or within a small group depending on what the therapist feels is most appropriate at the time… for a minimum of forty minutes and be given in conjunction with a member of the support staff…”

11.	 I note that the actual programme for the Spring of 2011 was for language development in a small group run by a teaching assistant supported by a speech therapist, and that the evidence at the hearing before the Tribunal was that the therapist reviewed his progress half-termly.

12.	I was told that the reports had only reached the school in April 2011, and the evidence before the Tribunal, as recorded in its decision, was that the headteacher had only just given the speech and therapy report to the school’s speech and language therapist and would seek her advice and act on her recommendations.  The headteacher also told the Tribunal that L had made 2 levels of progress in reading in the past 6 months.  This contrasts with the educational psychologists’ report, admitted 3 months earlier that L’s basic word reading was only in the second percentile and that he had made no progress at all over the previous 16 months.  There is no evidence of any change of approach leading to a sudden increase in the period since mid-February and the Tribunal had elected not to admit the earlier reports into evidence which could have provided some evidence of how current performance compared with performance in late 2009 and early 2010.

13.	There was also a report under cover of a letter dated 21 February 2011 from the school’s speech and language therapist addressed to NM’s solicitor.  It consisted of two brief descriptions of targets, one dated 6 October 2010 which showed that two of three targets had been achieved and one not achieved and two new targets which had been set in February 2011.  The tribunal accepted the evidence of the school’s speech and language therapist and described the provision given by the school.  It concluded that L was receiving significant intervention at school action plus and that progress was being made in terms of national curriculum and objective measurements.

14.	The Tribunal also recorded the oral evidence and stated that it had carefully considered all the evidence at the hearing and the papers and had taken into account the Code of Practice on Special Educational Needs 2001 and in particular paragraphs 7.34 and 7.50, which it cited.  It dismissed the appeal.  A judge of the First Tier Tribunal refused permission to appeal.  NM then sought permission from the Upper Tribunal to appeal.  

15.	First it is said by Mr. Edwards that the tribunal misdirected itself by failing to set out its reasons for departing from the opinion of independent experts instructed by NM to assess L.  Secondly it is said that the tribunal erred in applying the code of practice, and thirdly it is said that the tribunal failed to take account of the significant additional support being provided over and above that covered by school action plus.  This last point was contrasted with Ms Murphy’s statement in  the penultimate paragraph of her written submissions to the tribunal by letter dated 14 February 2011, that Lambeth was satisfied that L’s needs were being adequately met at school action plus.  As counsel pointed out, in the context of an assessment, if and when it comes to be made, what would be required by a local authority is advice as to the provision which is appropriate for a child in the light of the features referred to in paragraph 7 of the Education (Special Educational Needs)(England)(Consolidation) Regulations 2001 (see paragraph 7(2)(c) of those regulations).  As pointed out by Thorpe LJ in C v Buckinghamshire CC, [1999] ELR 179, at p.189E-H, appropriate is not the same as adequate, and the assessment must be of what is appropriate.  In considering whether to make an assessment, it appears to me that a local authority should consider what is appropriate and not just what is adequate.  Otherwise one ends up with a two tier approach in which the local authority only has to consider what is appropriate on an assessment if it has first decided that the existing provision is less than adequate rather than that it is not appropriate.  

16.	In paragraph 7.34 of the Code of Practice, it is stated that the critical question is whether there is convincing evidence that, despite the school having, with the help of external specialists, taking relevant and purposeful action to meet the child’s learning difficulties, these difficulties remain or have not been remedied sufficiently and may require the LEA to determine the child’s special educational provision.  I am unclear how the requirement of convincing evidence can be reconciled with the “probably” provision of s.323(2).  It seems to me that what should be required is evidence sufficient to satisfy the statutory requirement and not evidence that goes beyond that.

17.	Further, as counsel pointed out, paragraph 7.35 of the Code of Practice requires LEA’s to pay particular attention to, inter alia, “evidence that where some progress has been made, it has only been as the result of much additional effort and instruction at a sustained level not usually commensurate with provision through Action Plus”.  That makes it plain that, although the critical question will usually be that in paragraph 7.34, it is not the only criterion.  If that action has been taken in the way described in paragraph 7.35, an assessment may still be required.  This could, for example, provide some protection to a child where additional funding ceased to be available in the absence of a statement.  It could also assist a child if he moved school or if there was a change in relevant teaching staff.  

18.	In this case, there was clear evidence, as accepted by Ms Murphy for Lambeth, that there had been effort and instruction that went well beyond a level usually commensurate with provision through Action Plus, and which, according to Ms Murphy, was funded from additional funding currently delegated to the school by Lambeth, but the Tribunal made no reference to this.  It was in error of law in failing to do so. 

19.	 Further, the evidence of NM’s experts that in many respects L fell into the first or second percentile and that there had been no improvement over a relevant period of 16 months was inconsistent with the school’s evidence of regular improvement, as was the school’s own assessment that in one of three respects the targets set had not been achieved.  Again this is not considered by the Tribunal, and again in my judgment it fell into error of law in this respect.   

20.	I consider that the recommendation by the speech and language therapist that L should be seen by a therapist and not by a teaching assistant  was not ignored by the Tribunal.  It was entitled to take into account the headteacher’s statement that the school’s therapist would consider the report and if appropriate give effect to it, and conclude that if there was more that should be done it would be done within the school.  I am not satisfied that there was an error of law in this respect.  

21.	 In that the Tribunal’s decision was in error of law as found above, I must give permission to appeal, allow the appeal and set aside the decision of the tribunal.

22.	 The question then arises as to whether I should remit the matter for rehearing by a new tribunal or determine it myself.  I bear in mind that I do not have the expert qualifications that the tribunal members have in this respect, and all else being equal I would remit the matter.  However, all else is not equal.  It is now nearly 18 months since Lambeth’s decision.  It will be several months before the matter is reheard.   Any rehearing could lead to a further appeal which could take many more months.  In the meantime, L’s education is at risk.  Conducting an assessment does not commit Lambeth to making a statement and if it decides not to do so, having made an assessment, that could also lead to an appeal.  Further, it is open to NM to seek an assessment regularly while L is at school, after 6 months have elapsed since each decision of Lambeth in this respect.

23.	It appears to me that the apparent lack of any significant improvement in L’s performance in many respects, as indicated by the experts’ reports, and the admitted additional costs beyond that involved in Action Plus, leads me to conclude that it is probably necessary for Lambeth now to make an assessment of L’s educational needs.  It also appears to me to be a cheaper course for Lambeth than to engage in repeated appeals on the matter with further expert evidence being called for.  I therefore allow the appeal and substitute my own decision as set out above.

(signed on the original)	Michael Mark
				Judge of the Upper Tribunal

				21 December 2011