IN THE UPPER TRIBUNAL			Case No  HS/718/2015
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD 

Decision:  The appeal is dismissed.   The decision of the First-tier Tribunal sitting at Taunton on 15 December 2014 under reference SE/933/14/00016 did not involve the making of an error of law.

REASONS FOR DECISION

1. The appeal raises questions concerning the right to an assessment of special educational needs under s323 of the Education Act 1996 (“the 1996 Act”).  I write as if the 1996 Act remains in force, although that is decreasingly so in England.  It deals with the matter solely under that Act and thus, as the Children and Families Act 2014 achieves greater prominence, may have a diminishing application.

2. John, aged 7 at the date of the tribunal’s decision, has (as is common ground) special educational needs.  Following earlier difficulties and a previous tribunal hearing he joined a new school in October 2014 (two months before the tribunal hearing) where the special educational provision for him included being supported 1:1 by a teaching assistant (TA) on a full-time basis.

3. The headteacher and the local authority accepted that John had an ongoing need to continue to receive his current level of TA support. Neither indicated there was any suggestion of his level of TA support being reduced in the foreseeable future.  Whilst some local authorities required a statement of SEN to access resources, that was not the case in Somerset.  Evidence was given as to the mechanism by which schools in Somerset are funded.  While the evidence was that schools were not required to re-apply for SEN funding on an annual basis, it was stated more specifically that funding for John’s current level of support was guaranteed until the end of the academic year i.e. July 2015 (which to me suggests that some form of re-application might have been required).  For the purposes of the present appeal, I proceed on the latter basis.

4. The tribunal found as fact that the local authority routinely made consultation with external agencies as part of a planned transfer of a pupil with SEN from one local authority school to another and noted that such consultations were incomplete at the time of the hearing.

5. The tribunal reviewed the extent of existing assessments, of which there were a significant number.  It noted that no new areas of potential need had been notified to it.  It concluded that it did not accept that “any noteworthy additional evidence regarding the nature, extent and cause of John’s learning difficulties would emerge through the statutory assessment process.”  As regards the likely effect of the pending further assessments of speech and language and occupational therapy needs as part of the process described at [4], the tribunal indicated that “we do not view that additional needs will emerge, although it is to be hoped that the reports will provide both updated programmes of support for John and guidance for the staff working with him in school.”

6. The tribunal recognised that it was too early in John’s time at the school to determine whether or not the school would need additional support over and above that already proposed or whether this provision would prove to be effective. 

7. At para 41 it noted that “The evidence suggests to us that John’s learning difficulties are responding sufficiently to relevant and purposeful measures taken by his school and external specialists.”  In the context of [6], that can only mean that it was a case of “so far, so good”.

8. Under s329, the parent of a child who does not have a statement can ask for an assessment under s323.  The authority does not have to comply if an assessment has been made within the preceding six months. It is required to do so where “it is necessary to make an assessment under [s323]” and if it considers it is not necessary, it has to give written notice accordingly and the parent has a right of appeal to the tribunal.  Under the section requests may be made from time to time - the six month restriction applies where there was a previous assessment, not a previous request – so in a case where an assessment had previously been adjudged not to be “necessary” but one then became “necessary” there is nothing to stop a parent from making a further s329 request.

9. Under s323 a local authority has to make an assessment where they are “…of the opinion…that the child falls, or probably falls, within subsection (2)” : s.323(3)(b).  A child falls within subsection (2) if:

	“(a) he has special educational needs; and
	(b) it is necessary for the authority to determine the special educational 	provision which any learning difficulty he may have calls for.”

(In the present case it is limb (b) which is the issue.)  Contrary to what is apparently the local authority’s submission, the impact of the “probably falls” test is not confined to when a local authority is deciding whether to trigger the assessment process under s323(1).

10. The carrying out of an assessment under the 1996 Act is regulated  by the Educational (Special Educational Needs) (Consolidation) Regulations 2001/3455.  These make relatively detailed provision for other agencies concerned with the child to be notified, the advice the local authority is to seek and matters to be taken into account.  There are time limits: broadly speaking a local authority has 6 weeks to decide whether or not to make an assessment  and, where it has decided to do so, 10 weeks from when notice of that decision is given to complete the assessment.  The process is thus a significant one, requiring careful and prompt attention and the involvement of a number of agencies.

11. The significance of an assessment is that under s.324 (1):

	“ if, in the light of an assessment under section 323…it is necessary for 	the local authority to determine the special educational provision which 	any learning difficulty he may have calls for, the authority shall make 	and maintain a statement of his special educational needs.” 

12. The key effect of a statement for present purposes is then provided by s.324(5):

	“Where a local authority maintain a statement under this section, 	then— 
	(a) unless the child's parent has made suitable arrangements, the 	authority—
	(i) shall arrange that the special educational provision specified in the 	statement is made for the child, and
	(ii) may arrange that any non-educational provision specified in the 	statement is made for him in such manner as they consider 	appropriate, and
	(b) if the name of a maintained school… is specified in the statement, 	the governing body of the school shall admit the child to the school.” 
 
13. Section 312 contains relevant definitions:

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

	“(4) In this Act “special educational provision” means —
	(a) in relation to a child who has attained the age of two, educational 	provision which is additional to, or otherwise different from, the 	educational provision made generally for children of his age in schools 	maintained by the local authority (other than special schools).”

14. Section 313 provides for the issue of a Code of Practice.  Local authorities are under a duty to have regard to it by subsection (2) and, by subsection (3), the First-tier Tribunal “shall have regard to any provision of the code which appears to the tribunal to be relevant to any question arising on the appeal.”  Reference is made below to particular provision of the Code where necessary.  In NM v LB Lambeth [2011] UKUT 499(AAC), Upper Tribunal Judge Mark rightly observed that where the statute and the Code are in conflict, the former must prevail: however, in relation to the parts of the Code which I rely upon in this decision, I do not see such a conflict.

15. In the present case permission to appeal was initially refused by Upper Tribunal Judge Wikeley on the papers.  The application was renewed at an oral hearing held in Exeter on 24 April 2015 at which John’s mother was represented by Mr Holland of counsel, following which I gave permission to appeal.  In its subsequent submission on the appeal the authority indicated, inter alia, that since the tribunal’s decision funding had “been agreed at this same level until 31 August 2019” (a date which, allowing for the fact that John is in a class which is one year below his chronological age, would represent the end of his primary education.)  No reply was received in behalf of the appellant, which prompted me to ask whether – even though the claimed agreement of funding for the next four years could not be relevant to whether there had been an error of law – there was in practice any point in pursuing the appeal. In a written submission Mr Holland indicated that the appeal continued to be pursued and why.  Neither party has asked for an oral hearing of the appeal and I am satisfied that I can properly determine it without one.

16. The grounds of appeal, put shortly, were (A) that the tribunal did not properly consider the statutory test required by s323 and (B) that it had apparently confused the test of whether or not to perform a statutory assessment with the process of determining whether or not to make a statement.  These are, in essence, the same point put in two different ways.

17. The tribunal did not mention, much less recite, s323.  In assessing whether it nonetheless applied it, I place no weight on the formulaic recital in para 29 that the tribunal “took account of…the relevant sections of the Education Act 1996”, a recital which occurs in the majority of statements of reasons seen in the Upper Tribunal in SEN matters.  Far more important is what the statement reveals about the tribunal’s thought-processes.  

18. By virtue of the combined effect of s323(3)(b) and s323(2) the question mandated by the statute, so far as matters were in dispute, was whether  John “falls, or probably falls” within the category of those for whom “it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.”

19. Why might it be “necessary” to take that step?  It might be if there was insufficient awareness of the special educational provision which a child requires.  It might be if the child needed to have a statement of SEN to access the relevant provision.  (There are other possibilities too, but it was these two that were key in the present case.)

20. Was it probably necessary to do so in order to ascertain the special educational provision that John required? This comes down to how one should fairly read the statement of reasons, taken as a whole.  The tribunal did not expect that a statutory assessment would yield “any noteworthy, additional evidence regarding the nature, extent and cause of John’s difficulties.” They observed that “no new areas of potential need were identified to us”.  The point can be made that the phrase “the nature, extent and cause of John’s difficulties” leaves open the question of what provision is needed to respond to them, but in my view that would be to treat the tribunal’s reasons, wrongly, as a statute.  It is inappropriate to pore over a minor infelicity of expression.  Where the tribunal indicated that “no new areas of potential need were identified to us” it was in my view referring to the lack of any claimed unmet need for provision.  While it was mindful that it was early days (para 36) the indications so far were positive ones (para 41).  What about the SLT and OT reports which were pending?  The tribunal concluded (para 33) that additional needs (in the sense, in my view, of unmet requirements for additional provision) would not emerge.  In my view the tribunal’s “hope” as to what would emerge from the therapy reports once available (see [5] above) was doing no more than recognising that these reports, which had been sought as a matter of routine, might have benefits in terms of fine-tuning, through a process of “updating”, the provision on offer to John, rather than indicating anything quantitatively or qualitatively different.  While it may be objected that one does not know what an assessment will produce until it has been completed, this was a specialist tribunal, capable of evaluating likely outcomes on the material before it and required to do so. The statement of reasons could have put it more overtly, but in my view it is quite clear that the tribunal was asking itself the question:  is John probably among those for whom it is necessary for the authority to determine the special educational provision which his learning difficulty calls for and answering it, so far as a need to ascertain the provision is concerned, in the negative.

21. Was it probable in John’s case that it was necessary to do so in order to open the door to the issue of a statement and with it the enforceability of rights via s324(5)?  The tribunal accepted evidence that John did not require a statement in order to access the level of provision, that there was no threat to the provision in the foreseeable future and that it was protected until the end of the academic year.

22. I accept that there are real benefits to having matters included within a statement in terms of enforceability.  Even though a statement is subject to annual review, the starting point is ascertainment of the child’s needs rather than budgetary constraints, and there is a right of appeal against an unsatisfactory outcome.  However, the majority of children with SEN have not had statements and their needs have been addressed through the mechanisms of “School Action” and “School Action Plus”. It has only ever been a minority who have had the protection of a statement and with it, rights under s324.  The question in my view is how much of a bright line is there intended to be between those who do not require statements and those who do.   The structure of s323 opens the door both via “probably” to evaluation and via consideration of what may be “necessary”, to taking a wide range of factors into account.

23. Perusal of the Code of Practice, to which the tribunal was required to, and evidently did, have regard, suggests that it is not at all a bright line and moreover that the operation of the test may in practice to a degree be affected by the financial arrangements prevailing in different local authority areas.

24. Para 7.36 prefaces the guidance provided with the observation that:

	“the questions are not exhaustive: there will be other factors particular 	to an individual child that the LEA will wish to pursue.  Nor does the 	guidance set out hard and fast rules whereby, if all the questions were 	answered in the affirmative, an assessment must always be made. Still 	less should an affirmative answer to any one question be taken as 	indicating that a statutory assessment is necessary.  Decisions must be 	made by local education authorities in the light of all the circumstances 	of each individual case…”

25. Para 7.37 contemplates that LEAs may operate moderating groups “in the interest of establishing agreed local interpretation”.  It is clear too (paras 7.50 and 7.54) that it is the availability of resources to schools in the particular authority’s area which falls for consideration, in the sense that if needs cannot reasonably be met from within them, that will be a relevant factor in deciding whether an assessment is required.

26. While the provision to John (including a full-time TA) would seem to exceed what is envisaged by School Action Plus (as described in paras 5.54 to 5.61 of the Code), the evidence was that in this particular authority, he did not need, and, so far as reasonably foreseeable, would not need, to be statemented in order to access the provision he needed.  Thus it was that the tribunal felt able to conclude (para 41) that “we do not accept that he requires special educational provision which cannot be provided within the resources normally available to mainstream schools and settings in the area.”  It followed that, on the resources issue, it was not probably necessary to determine the special educational provision his learning difficulties called for either.

27. This may have the consequence (which might be suggested to be an odd one) that the more that is already known about the provision a child requires and the more he is able to access such provision, the less likely he is to be eligible for a statutory assessment.  I am not sure that it is such an odd consequence:  if the important thing is seen as that the child is receiving the relevant provision he needs, the legislator’s choice that an assessment (as noted in [10], a process of some complexity and therefore cost) should only be required when it is probably necessary is an understandable one.

28. I have not had the opportunity to consider the evidence about this particular authority’s mechanisms but I am mindful that as a general principle local authority finance falls to be conducted on an annual basis and that attempts to preserve the availability of revenue funds beyond one year in any wholly watertight way can be problematic.  Particularly when public finances are under pressure one can understand a degree of nervousness that provision should continue to be available.  But such matters must be taken as being within the awareness of a specialist tribunal operating in this field and in this case the tribunal received and accepted evidence about the funding of provision which it regarded as sufficient to enable it to conclude that John did not probably fall within the category of those envisaged by s323.  Nor is it irrelevant that, as noted above in discussing s329, a parent is free to make further requests for an assessment, backed up by time limits and rights of appeal, where no statement is in existence, should a problem of resourcing subsequently emerge.

29. It seems to me therefore that the tribunal reached a conclusion which was open to it on the evidence and that its reasoning process was consistent with the proper application of s323, not involving a confusion between the tests for an assessment and a statement,  and was sufficiently explained, even if it did not “show its working” quite as clearly as might have been ideal.  I therefore dismiss the appeal.

CG Ward
Judge of the Upper Tribunal
21 August 2015