IN THE UPPER TRIBUNAL			Case No  HS/1287/2015
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD 

Attendances:	

For the Appellant:	Mr S Bowers, Baker Small

For the Respondent:	Ms M Michaelson, IPSEA

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Cambridge on 27 February 2015 under reference SE/873/14/00047 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (HESC Chamber) for rehearing before a differently constituted tribunal.

I direct that the file is urgently to be placed before the Deputy Chamber President, HESC or other appropriate judge of the First-tier Tribunal for listing and other case management directions.

REASONS FOR DECISION

1. This case concerns the education of C, a boy born in March 2003 and who would thus, if he were attending school, be expected to be in Year 7.  He has autistic spectrum disorder (ASD) and a number of other diagnoses, the detail of which does not matter, apart from the need to note the existence of mental health concerns.  He had been attending a mainstream primary school in year 6, where his behaviour had gradually deteriorated in the 3-6 month period to March 2014, being reported as twice coming close to exclusion based on behaviour said to be a danger to himself and others.  For his transition to secondary education, his mother wanted him to attend G School, an independent school for pupils with an ASD; the local authority wanted him to attend C College, a secondary academy, with a place in its specialist resource unit for children with autism.  A previous attempt to place him at another mainstream secondary school had proved unsuccessful.

2. By a decision dated 16 March 2015, the First-tier Tribunal (“FtT”) named G School in part 4.  On 2 April the authority’s application for permission to appeal was refused by the FtT.  On 7 April, Baker Small, acting for the authority, lodged an application for permission to appeal and for a stay of the FtT’s decision with the Upper Tribunal.  On 10 April I directed a telephone hearing of the application for a stay, which took place on 15 April.  Both parties’ representatives and Ms F, C’s mother, took part.  Having obtained further evidence and a limited undertaking from the local authority, on 20 April I ordered a stay.

3. Meanwhile on 15 April I had given permission to appeal, indicating a provisional, but reasonably detailed, view of the merits.  On 19 April Baker Small applied for permission to amend their grounds (which was given), inter alia abandoning two which had not been well-received in my initial consideration of them and pursuing a further ground.  The numbering of the original grounds has been maintained (which is why there are apparent – but not real - gaps in the discussion below), while the additional ground was added as ground 7.

4. Time was abridged and following written submissions on the merits an oral hearing was held on 8 May 2015.

5. I am grateful to both representatives who have acted professionally and with commendable speed to enable this case to be dealt with on a timescale which allows the legitimate interests of the authority to be considered, while minimising the extent of unavoidable further disruption to C’s education.  As this case shows, the Upper Tribunal is ready to act with considerable speed in cases which require it and in which the parties and their advisors are ready to co-operate to facilitate speedy resolution.

6. The FtT received oral evidence from Ms H, the headteacher of G School, who was called by Ms F, while the authority’s witnesses were Dr H, an educational psychologist and Mr A, the head of the specialist unit at C College.

7. The structure of the decision was that the issues for resolution were identified in para 8, while in paras 9 to 25 the FtT set out material from the documentary and oral evidence.  In paras 26 and 27 it set out a summary of each party’s position, then giving its “conclusion with reasons” in a section so headed from paras 28 to 37.  It is necessary to set out paras 35 to 37 in full (like other quotations in these reasons, in anonymised form):

	“35. [C college] is clearly a very good school where there is good 	provision for students who have an autistic spectrum disorder.  Had C 	been offered a place in [the specialist resource unit] to start at the 	beginning of Year 7 and had the benefit of [a] careful transition plan, it 	may have been possible for him to settle there.  However, it is an 	extremely large school and he would have to spend most of his time in 	the mainstream setting.  We find that even if he had been able to start 	with his Year 7 cohort, this may have been difficult for him. We had 	some concern that Mr A was not able to set out a coherent transition 	plan were C to attend the school now.  We also had concerns that the 	curriculum would largely be mediated by teaching assistants.  We 	understood from Mr A’s evidence that some teachers were better than 	others at understanding the needs of the autistic students.

	36. In considering whether C’s needs could be met at C College, we 	took into account that he is now in an extremely fragile mental and 	emotional state. He has not received the support he should have had 	from CAMHS to address his difficulties and enable him to be more 	stable.  He had been out of school for a long time.  We do not think that 	at the present time he would be able to settle at C College. We found 	that to place him there would be to set him up to fail.  We consider that 	the priority for him at this stage is to help him to be more emotionally 	stable, to have an understanding of the implications for him of his 	autistic spectrum disorder and to have a regular routine of school 	attendance.  We considered that the factors set out above would 	militate against that.

	37. Whilst we acknowledge Dr H’s concerns about C being in a school 	where all his peers have an autistic spectrum disorder, we conclude 	that, on balance, his social, emotional and mental health needs as well 	as his educational needs will be better met in such a setting where he 	can be in a small class and will not be overwhelmed  by a busy 	mainstream environment.  In this respect, we took into account the 	evidence of Ms R, who has known C over a long period of time.  We 	found that his needs could be met at G School and that he would have 	peers working at his level, although he would be one of the most able 	in his cohort.  We concluded that G School should be named in Part 4 	of C’s statement.”

8. I deal with each of the grounds of appeal in turn, using the headings originally provided by Baker Small, although as developed some grounds have ranged a little more widely.  That is not intended as a criticism: it merely reflects that public law challenges can often be described in a number of overlapping ways.  I am satisfied that Ms Michaelson has had a fair opportunity to address the points put forward.

Ground 2: the FtT erred by challenging the suitability of C College on the ground that Mr A was not able to set out a coherent transition plan

9. Part 3 of the agreed working draft of C’s statement required there to be:

	“A carefully planned move to his next placement, allowing a period of 	handover so that C is properly prepared for the change including a 	well-planned slow re-introduction to schooling; a clear & predictable 	routine with warning in advance prior to changing routine.” 

10. Mr Bowers suggests that even School G was arguing for the need for there to be a transition plan, by reference to its recommendations in a report dated 5.2.15 which appears (in my bundle) at p876.  That appears to be slightly different, being concerned with the situation “pending availability of places” at School G.  However, that does not detract from the extract from the working document quoted above.

11. The FtT noted Mr A’s evidence in the second of two paragraphs at para 20 of its statement of reasons in the following terms:

	“In relation to transition, he said that they would arrange for C to visit 	and be introduced to students from [the resource unit]. They would also 	do a home visit and would consider enlisting the support of the home 	tutors. He said that he would expect the transition to take a month 	before C was attending full time.  He said he would expect him to be in 	mainstream classes for 80% of the time with five different teachers in a 	day but would reduce that if he appeared not to be coping, in which 	case he could work in the [resource unit] with a TA…He would monitor 	the school data system which scored performance and attendance 	from 1 to 5 in each lesson.  He would look for patterns to see if C was 	struggling or not attending mainstream for 80% of the time and would 	put in interventions accordingly.”

12. There was no evidence, oral or written, from School G about any transition plan they were proposing, above the need for one mentioned above.

13. The FtT dealt with the transition plan in para 35 of its decision.  Transition was clearly consider by the tribunal to be of particular importance in relation to a mid-year start by this vulnerable pupil at an “extremely large” school such as C College.  That is readily understandable.  What is not understandable is what the FtT thought was wrong with C College’s proposal in that regard.  The complaint made was that it was not “coherent”; yet the tribunal had been able to record it in some detail, as set out above.  If one applies a test of adequacy of reasons in enabling the losing party to understand why they lost, this does not meet it.  If C College’s proposal for a plan (it was not required, at that stage, to be the actual plan) was incoherent, the tribunal needed to explain why, when, on the face of it, as set out in the decision it was not.  Even if, as Ms Michaelson submits, Mr A had never met C, it is not for the Upper Tribunal to speculate whether this had any impact, and if so what, upon the tribunal’s views.

14. I further consider the tribunal’s reasoning on this point was inadequate in that it failed to explain why, given that Part 3 required a transition plan, the lack of (any) such plan from one from School G did not matter when the lack of (a coherent) one from C College did.

15. I accept of course that given the widely differing nature of the two schools, what needed to go into the plan might have been different. However in both cases there would be the change involved with a re-introduction to schooling and in either case, as was common ground, that needed to be worked through and incorporated in a plan.  That is unsurprising, given that other professionals, external to either school, such as C’s existing tutors, might also have to be involved and all would need to have a clear understanding of the part they were required to play.

16. With respect to Ms Michaelson’s suggestion that a transition plan was less of an issue at School G because C had visited it, on Ms F's evidence twice by the time of the FtT hearing, and liked it, that may have been relevant to the content of the plan and the ease with which it could be implemented.  It does not provide a sufficient answer to why the lack of a transition plan required by the working document was taken against C College but not against G School. There is no self-evident explanation requiring to be implied and the tribunal gives none.

Ground 3: The FtT made a material error of fact in respect of the role of the teaching assistants at C College.  Mr A did not advise the FtT that the curriculum would be taught by teaching assistants

17. There was extensive reference in the agreed working draft to the involvement of teaching assistants (TAs) (see section B, paras 1,2,3,4,5 and 6.)  It was common ground there that C required 32.5 hours of TA time, though there was an issue as whether it should be provided by one TA, or by several working flexibly.  The working draft did not differentiate, as it could have done, between what was required in the context of 80% of attendance at mainstream classes in a large school on the one hand, and attendance at very small classes in specialist provision on the other.

18. Mr A explained (FtT Reasons, para 20) that the school, timetabled 

	“learning support assistants for different subjects, meaning that C 	would be supported by a number of people throughout the day…He 	said that, of the 32 teaching assistants, 23 were trained to deliver 	occupational therapy programmes.  He added that teaching assistants 	would break work down, re-phrase and re-write work to ensure that C 	could access the language…He said that teaching assistants were 	responsible for much of the work and that some teachers were good at 	providing suitable materials for autistic students and others less so.  He 	pointed out that two of the teaching assistants had autism themselves 	and all were well-qualified.”

19. The tribunal dealt with this by saying in para 35 that :

	“We also had concerns that the curriculum would largely be mediated 	by teaching assistants.  We understood from Mr A’s evidence that 	some teachers were better than others at understanding the needs of 	the autistic students.”

There has been an issue about whether Mr A did in fact use the word “mediated” and if so, what he meant by it.  Mr Speirs, who was Ms F’s representative at the FtT, has provided a witness statement in which he recalls the emphasis placed by Mr A on the role of TAs.  It suggests that the FtT’s decision at para 20 is a substantially accurate record of what was said.  Insofar as the witness statement filed by Mr A deals with the meaning of the word “mediated” and attempts to provide further evidence about the role of TAs, I am not assisted by it in the context of an appeal on point of law.  In my view, the word “mediated” is the tribunal’s.  It is an unsurprising word, bearing in my view in this context the connotation of being an intermediary concerned in interpreting and conveying a message, in this case the requirements of the curriculum and the response needed, to the pupil. 

20. The question is, what was wrong with that, in the tribunal’s eyes? Whether or not C would actually require the TA provision for which the working document provided if he were to attend School G, it was common ground that he needed it (in one form or another) if he were to attend C College.  Interpreting and conveying the curriculum and the response required to a particular pupil or group of pupils is, in large measure, what TAs do, through processes of breaking tasks down, re-working, re-writing and so on.  C College was not suggesting that the 80% of mainstream lessons would not be given by a teacher, rather that there would be a TA present to assist C.  It is in my view wholly opaque why the FtT should have concerns about the curriculum being “mediated” by teaching assistants, when the appropriateness of a TA being provided was acknowledged in the working document.  Far from being immaterial as Ms Michaelson invites me to conclude, the error goes to the heart of the form of provision the authority was proposing.

21. Nor is the rationale in my view helped by the tribunal’s reference to “some teachers being better than others at understanding the needs of the autistic students.”  That in itself is unsurprising in the context of a large school.  If what the tribunal thought was that some teachers were not qualified to provide lessons which could, with the aid of mediation by a TA, be appropriate for an autistic child it needed to say so; likewise if it thought the amount of mediation which would be required in order to interpret the instructions given by those teachers with less facility in this regard would be beyond the scope of the TA provision it was ordering.  However, it did neither and the reader is left merely with an impression of ill-defined unease.

22. On this ground, also, the tribunal’s reasons fall short of the legal standard required.

Ground 5: the FtT has erred in law in its consideration of the evidence of Ms R, Occupational Therapist, in deciding that a mainstream environment would be unsuitable for C

23. Ms R, who had known C over several years, had provided several written reports.  Her evidence was not that mainstream provision was unsuitable for C.  She drew attention to C’s needs for consistency and predictability and for staff with well embedded strategies and drawn attention to some of the features of secondary school life which were likely to provide difficult for C, before making a number of recommendation for OT provision. The tribunal summarised parts of her evidence at para 16.  Ms R’s recommendations were incorporated within the working document.  There is no suggestion that C College would be unable to deliver those recommendations.  There was also evidence that C had been able to use OT strategies successfully in the past.

24. Ms Michaelson submits that the tribunal’s reasons for not favouring C College were those at paras 35 and 36, rather than Ms R’s reasons, and were not dependent on her evidence.  It is clear from para 37 that the tribunal did take into account the evidence of Ms R in concluding that C’s needs could “better” (see Ground 7) be met in a setting with small classes.  It is what is not dealt with that is the problem:  why the provision included in the working document in response to the evidence of this witness, whose evidence was clearly considered by the tribunal to merit some weight being given to it, was not considered to enable C College to be (or be made to be) appropriate provision.

Ground 6: the FtT has made a mistake as to a material fact in concluding that at G school, C would have peers working at his level and had failed generally to take into account the local authority’s concerns about the suitability of the placement

25. At the end of primary school, C was at level 5c in reading, mathematics and science and 4c in writing. The only evidence recited by the tribunal as to the educational attainment of the peer group at G School  was that provided by Ms H, the headteacher. As recorded by the tribunal at para 23:

	“She agreed that C would be at the top of the cohort in terms of his 	achievement although one of the students who had language 	difficulties and was at National Curriculum level 2a for English had 	played a computer game with C at a high level…She did not believe 	that he would not be academically extended as work was highly 	differentiated for each student.”

26. It is common ground that there was in evidence G School’s answers to a questionnaire put by the authority’s solicitors.  Via this, and an accompanying email, the four pupils who would be in a class with C at G School were (anonymously) identified and particulars of their National Curriculum scores given. Those scores ranged  from a pupil with scores all at levels 2 and 3 to one with scores all at levels 4 and 5. Mr Bowers accepts that the latter pupil would be within an acceptable band of academic attainment for peer group purposes.

27. The tribunal’s conclusion that “he would have peers working at his level, although he would be one of the most able in his cohort” was not stated to have been arrived at by reference to any particular piece of evidence.  I conclude that the tribunal was relying upon the answers in the questionnaire, which entirely supports the conclusion it reached.  It is not suggested that Ms H was cross-examined about the reliability of the questionnaire if the most she could say in oral evidence was that there was a pupil a few NC levels below who had been able to play a difficult computer game; if it was wished to take such a point, she needed to have been.  Given the existence of the questionnaire, I consider that in all probability Ms H was making a point with regard to C’s ability to fit socially into a very small class (clearly a matter she was also seeking to address in her evidence) - that common ground could be found including with one of the more academically challenged pupils - and that the point has been recorded in slightly misleading terms by the tribunal, essentially by running together a point about social compatibility and one about achievement into one sentence.  Be that as it may, the tribunal had evidence for its conclusions on the aspect of achievement but did not refer to it.  It is long established that a tribunal need not refer in terms to each and every piece of evidence before it.  As there was no challenge to the questionnaire, I do not consider that the tribunal was obliged to refer to it explicitly and with fuller consideration. Further, when regard is had to the totality of the evidence, the reporting of Ms H’s evidence takes on a different colour and is not such as to impair the quality of the tribunal’s reasons on this aspect to an unacceptable degree.

Ground 7: the FtT erred in law in considering the suitability of the schools under consideration. The FtT was required to identify whether the schools were suitable and appropriate for C and not which was best for C to attend

28. It is not in dispute that the task for the tribunal was to consider whether the schools were appropriate.  If it considered both were, section 9 of the Education Act 1996 would have to be applied, which would result in a form of cost/benefit comparison.  The task for the tribunal was not, as such, to consider which school was “better” (see e.g. R v Cheshire CC ex p C (1996) 95 LGR 299 and A v Hertfordshire CC [2007] ELR 95) and certainly not to do so otherwise than within the framework of a section 9 exercise.  The question here is whether that is what it was erroneously doing.

29. Ms Michaelson invites me to conclude that in paras 35 and 36 the tribunal is indicating a view that C College is not appropriate and in para 37 that G School is. I agree that such is a possible reading but, I have concluded, not the right one.

30. The most compelling argument in support is the tribunal’s indication that “to place him [at C College] would be to set him up to fail” (this appears to adopt the conclusion of evidence given by C’s GP.)  The force of the point is a little diminished by its place in the paragraph, apparently as one factor among many, rather than as a conclusion.  I would also normally anticipate that a tribunal would be alive to the implications of section 9 if more than one school was considered appropriate, for that is a regular part of what tribunals in this jurisdiction deal with, and yet there is no hint of a section 9-type evaluation.

31. There are however a number of indications to the contrary.  If paras 35 and 36 were concluding that C College was not appropriate, the remaining question would be whether G School was appropriate.  That was not a question which required to be reached either on a comparative basis (“better”) or “on balance”.  Further, the reliance on the evidence of Ms R here tends to support the view that the tribunal was indeed carrying out a balancing exercise. As already noted, it is not possible to read Ms R’s evidence as saying that mainstream was not suitable; it is possible however to read her evidence as suggesting that G School might be preferable.  Further again, the vagueness of the tribunal’s conclusions in the three concluding sentences of para 35 suggest that what it was doing was weighing less than keenly- focussed concerns in a balancing exercise, which came down against C College.

32. I have concluded that the tribunal was not, as Ms Michaelson invites me to conclude, merely expressing itself in infelicitous terms, but, no doubt out of a wish to ensure that the needs of this child were met, wrongly did allow itself to consider which school was better or, if I am wrong in that, that its reasons once again fell below the legal standard in conveying the impression that it was.

33. The tribunal’s decision thus in my view contains a number of errors of law. While my view is that ground 7 is a substantive error, even on the remaining errors, which are those of inadequate reasons, I would conclude that this was an appropriate case in which to exercise my discretion to set aside the tribunals’ decision.  The question here is ultimately whether the authority’s proposals for meeting C’s educational needs have received and can sufficiently be seen to have received, fair consideration.  Given that there will be a likely cost differential over C’s secondary education, that is a matter of proper concern to the authority.  While I set the decision aside with some hesitation, acknowledging that the result will be a further delay to the education of this child, the particularly important thing now is that his schooling should be sorted out in time for the new school year in September and I am confident, having spoken to the Deputy Chamber President of the First-tier Tribunal, that it can be.

CG Ward
Judge of the Upper Tribunal
11 May 2015