BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. MR JUSTICE RICHARDS: This is a statutory appeal under section 11 of the Tribunal and Enquiries Act 1992, against a decision of the Special Educational Needs Tribunal, the first respondent, concerning a statement of Special Educational Needs in respect of a child to whom I shall refer as "C". "C" was born on 19 April 1982 and is now 16 years old. He has had emotional and behavioural difficulties since he was at primary school. These have resulted in his exclusion from two mainstream secondary schools.

2. The second respondent, the LEA, is a local education authority with responsibility under the Education Act 1996 for making provision for special educational needs of those for whom it is responsible in its area. "C" is a child for whom the LEA is responsible. Although he is 16, I refer to him as a child because he falls to be so treated for the purposes of the relevant provisions of the 1996 Act.

3. The LEA has made and maintains a statement of Special Educational Needs for "C" under the provisions of Part IV of the 1996 Act. The appellant, "C"'s father, took issue with the terms of the statement and appealed to the Tribunal. The hearing of the appeal took place in May 1998. The appellant was represented at the hearing by Mr Walby, a retired head teacher and volunteer with the Independent Panel for Special Educational Advice. The LEA was represented by Mr Trotter, a Senior Assistant Education Officer with the authority. They and the appellant have all sworn affidavits in the present proceedings, to which it will be necessary to make reference in due course.

4. The Tribunal issued its decision on 28 May 1998. Small amendments, not material for present purposes, were made to the decision on 18 June. The appellant now appeals to this Court contending that the Tribunal erred in law in reaching its decision. The Tribunal, although properly named as a respondent to the appeal, was not represented in the course of argument before me. The chairperson had, however, helpfully provided some relevant documentary material that I shall mention later. The argument in front of me has been between the appellant, represented by Ms Mountfield, and the LEA, represented by Mr Wolfe.

5. Before looking more closely at the Tribunal's decision, I should explain that the question at the heart of this case was whether the Tribunal erred in holding that the appropriate placement for "C" was at the Greenwich Pupil Referral Unit, or PRU, or that part of the PRU referred to in the papers as the Briset Site or unit. A PRU is included within the definition of "school" in section 4 of the 1996 Act, and provision for education in PRUs is made by section 19 of and schedule 1 to the Act.

6. I turn to the decision itself. It starts with a recitation of material facts and submissions. I mention in passing paragraph 12, which refers to an Ofsted report in respect of the PRU, a report which had been described by an educational psychologist instructed by "C"'s parents as damning. The Tribunal stated, however, that they had been provided with a copy of that report and did not form the same conclusion about its findings.

7. Paragraph 13 was in these terms:

8. The Tribunal went on to consider various points in relation to part 3 of the statement, to which I need not refer at this stage. Paragraphs 18 to 21 concern part 4 and I quote:

9. There followed the Tribunal's conclusions and reasons. They dealt with part 2 of the statement on which agreement had been reached, and went on as follows at paragraphs 2 to 5:

10. The order then sets out the amended part 2 of the statement. In relation to part 3, long term objectives were to stand as in the original statement. The following, however, was provided under the subheading "Educational Provision to Meet Needs and Objectives":

11. Under the final subheading "Monitoring", provision is made for the details to be as in the original statement. In part 4 the Greenwich PRU was identified as the relevant placement.

12. I turn to deal with the grounds of appeal and shall look first to those that relate to part 3 of the statement, as determined by the Tribunal, before turning to part 4, the placement of the PRU.

13. Ground 1 contends that the Tribunal erred by failing to record with sufficient, or any, specificity the provision necessary to meet one of the needs identified in part 2, namely, that "his fine motor control is immature for his age and is affected by his dyspraxia." The appellant says in his affidavit that it was agreed before the Tribunal that provision needed to be made for occupational therapy, that there was some debate about the appropriate wording, and that a form of wording was eventually agreed, such that "occupational therapy provision would be delivered by an occupational therapist or someone with at least those skills." Mr Trotter, for the LEA, in his affidavit has denied the existence of such an agreement.

14. The matter was taken further, however, by a letter from the Treasury Solicitors, dated 8 September 1998, which supplied, as an exceptional course in the light of the conflict of evidence, the chairperson's note of the proceedings before the Tribunal, and stated in the last paragraph:

15. In a subsequent affidavit, Mr Trotter stated there was nothing in the Tribunal's notes to cause him to alter his recollection. It was explained in later correspondence that his attention had not been drawn at the time to the letter from the Treasury Solicitor setting out the chairperson's understanding of the position, and that in the light of that letter the LEA was prepared to accept that the Tribunal had intended to include the wording referred to by the chairperson.

16. The result is that both parties agree that there was an error requiring correction. However, they are not agreed about how it should be dealt with. Ms Mountfield submits that I should remit the decision to the Tribunal on this point. There was an error in failing to make specific provision for an occupational therapist in the first place. As regards the need for a high degree of specificity in the statement, including specific provision in part 3 in respect of the part 2 needs, she has referred me to relevant provisions of the statute and the Code of Guidance, to Regina v Secretary of State for Education and Science ex parte E (1992) 1 FLR 377 at 389 F-G, and to L v Clarke and Somerset County Council (1998) ELR 129 at 136H-137B. Laws J makes the observation at 136H:

17. At 137B he states that the real question is whether the statement is so specific and so clear as to leave us room for doubt as to what has been decided is necessary the individual case.

18. As to what should have been included by way of part 3 provision in this case, the appellant's evidence as to what was agreed goes further than the provision set out in the letter from the Treasury Solicitor. The appellant refers to an agreement as to the provision of occupational therapy to "C" himself, not simply guidance from an occupational therapist to the school. It is further submitted that the reference to guidance to the school is, itself, insufficiently specific; it does not make clear what the Tribunal says is required. Therefore, it was submitted that this is not a matter that I should deal with myself.

19. Mr Wolfe, on the other hand, contends that there was no error of law here. He says that there is provision in the existing part 3 relevant to the need identified in part 2. He refers to the general form of words at the beginning of part 3 as to the need for an individual educational programme which, through specialist support, addresses the needs arising from "C"'s uneven cognitive development. He submits there was no clear failure to make provision for a significant need, and it is only a clear failure that will justify intervention on the part of the Court.

20. In that respect, he refers me to Re L (1994) ELR 16 at 22B-F. He submits that all that has happened here is a technical error where a further element that the Tribunal intended to include in part 3 has been omitted by an oversight. In those circumstances, I am invited to exercise my powers under Order 55 Rule 7(5) to correct the decision so as to incorporate the chairperson's additional wording as set out in the Treasury Solicitor's letter. He submits that I would be wrong to remit the case on this ground.

21. In my judgment, the points raised by the appellant do justify the case being remitted on this ground. The omission of reference to an occupational therapist amounted to a failure to include specific provision that ought to have been included in part 3, as the Tribunal effectively recognised in the Treasury Solicitor's letter. There is a question mark over the appropriateness of the formulation set out in that letter drawn from the Tribunal's notes. The circumstances are, in my view, not clear-cut enough to justify my exercising the court's powers to correct the decision without asking the Tribunal to consider it further. Of course, if I decide to remit the decision on other grounds, this aspect of the dispute will lose its significance anyway.

22. A separate point raised in respect of part 3 of the statement (though it comes further down the grounds of appeal, as ground 4), relates to the provision made by the Tribunal for "C" to have an assessment of the extent to which he can properly be expected to follow the whole National Curriculum. As is apparent from the passages that I have quoted from the decision, the Tribunal found that it had insufficient evidence to make an order as to whether the National Curriculum should or should not be disapplied, and it took the view that part 3 provision therefore needed to include provision for an assessment of this kind.

23. Strictly speaking, it is no longer appropriate in this case to talk in terms of formal disapplication of the National Curriculum (even if that was correct at the time of the Tribunal's decision). There is a question which I think it unnecessary to decide, whether the PRU is obliged in the ordinary course to provide the National Curriculum to its pupils. In any event, in the circumstances now prevailing, including in particular the fact that "C" is over compulsory school age, it seems clear that "C" has no right to the National Curriculum.

24. However, the submission made on behalf of the appellant does not depend on the statutory requirements as to the National Curriculum, but is based on the terms of "C"'s statement of special educational needs. What is said is that, as appears from part 3, the Tribunal was of the view that "C" needed a broad and balanced curriculum, and was also of the view that it might be appropriate for him to follow the whole National Curriculum, though that was thought unlikely. The Tribunal failed, however, to determine whether it was in fact appropriate for "C" to follow the whole curriculum. The submission is that the Tribunal should and could have done so. If it lacked the necessary evidence, it could have used its powers to obtain more information (see regulation 24(5) of the Special Educational Needs Tribunal Regulations 1995). Instead, it provided for an assessment to be made by someone else (without even specifying by whom) and left the whole issue up in the air. It thereby put in place an extra-statutory assessment process by which there would be no right of appeal. In the event, the PRU has carried out the assessment, forming its own view of what "C" is capable of doing; and "C"'s parents disagree with the outcome of the assessment. The matter, it is submitted, is one that should have been resolved by the Tribunal at the time of its decision rather than being left open in this highly unsatisfactory way.

25. Mr Wolfe accepts that it would have been necessary for the Tribunal to deal further with the National Curriculum in the case of a child to whom the National Curriculum requirements applied directly. He submits that in "C"'s case, it was not necessary to do so. To the extent that the Tribunal has done so, it was not exceeding its powers, but equally it was not discharging any duty placed upon it to reach a decision as to the elements of the National Curriculum appropriate for "C". The Tribunal did not decide and did not need to decide the matter for itself, and cannot be criticised for putting in place a process that would enable the extent of the curriculum requirements to be determined in due course. There was no unlawfulness in its so acting, nor is there an absence of sufficient specificity. It is recognised in the Code (see in particular paragraph 4.28) and in the authorities (see in particular L v Clarke at 136 H, a passage which I have already cited) that there will be cases where flexibility should be retained. This, he submitted, is one of those cases.

26. I accept that there will be cases where flexibility is required, but I do not accept that in this case the provision for assessment in part 3 of the statement is lawful. I have serious doubts whether it is open to a Tribunal to make a provision for future assessment of this kind - an assessment calculated to determine the extent of a child's curriculum needs. It is the Tribunal's responsibility on appeal to determine what the needs are and what provision is required for them. It is far from clear to me that it can, in effect, delegate that responsibility to someone else, thereby creating just the kind of problem that has arisen here where the outcome is disputed but there is no avenue of appeal.

27. In the present case, however, it is sufficient to decide the matter by reference to the particular circumstances of the case. One difficulty in this case is that the Tribunal has failed to specify who is to carry out the assessment, leaving that provision in part 3 unduly vague on an important particular. A greater difficulty is that, as will be apparent when I come to consider the submissions on part 4, the outcome of the assessment has an important bearing on the appropriateness of the part 4 placement. Whether it is appropriate to place "C" in the PRU depends, in substantial measure, on the extent to which his curriculum needs can be met within the PRU or would have to be met by outside provision, in particular by way of courses at a local further education college. Unless and until the Tribunal had reached a conclusion on the appropriate split between PRU and outside provision, a conclusion dependent in turn upon what the appropriate extent of what the National Curriculum was in "C"'s case, I do not think that it was in a position to form a proper view on the appropriateness of the PRU as a placement. This is a point picked up in submissions in relation to part 4, to which I now turn. So far as concerns the particular issue of the provision in part 3 for an assessment, the appeal succeeds.

28. With regard to part 4, placement at the PRU, the appellant relies on a number of grounds that, to a considerable extent, interrelate. I shall bear in mind that it is their cumulative effect upon which Ms Mountfield places reliance.

29. First, (ground 2 in the notice of motion), it is submitted that the Tribunal erred in law in failing to change the school named in part 4, because it misinterpreted its powers and/or failed to take into account relevant considerations, or took into account irrelevant considerations.

30. The contention that it misinterpreted its powers is based on the suggestion that the Tribunal erroneously addressed itself to the question of what sort of provision could be agreed between "C"'s parents and the LEA, instead of the correct statutory question of what type of school could meet "C"'s special educational needs. The same point is expressed in terms of the contention that the Tribunal imposed a fetter upon its discretion by considering the issue in this way.

31. It is accepted on behalf of the appellant that there were in fact two options open to the Tribunal, namely (i) to affirm the LEA's choice of the PRU and (ii) to set out a description of a type of school which could meet "C"'s needs and required provision. It is further accepted that the Tribunal correctly identified those options at the beginning of paragraph 18 of the facts, which I have already quoted. It is said that the Tribunal then closed its mind to the option of naming a type of school because, as paragraph 18 went on to say, "giving a general description would not resolve matters for "C" as it seemed unlikely" that the LEA and his parents would be able to reach agreement as to an appropriate school. It then proceeded to consider the matter on the basis that the only options were (i) the PRU or (ii) an alternative school which was the subject of agreement between the parents and the LEA which, in the absence of such agreement, meant in practice that it considered that it had no option but to name the PRU.

32. I simply do not read the decision as involving any such misinterpretation by the Tribunal of its powers, or any application of a self-imposed fetter upon its discretion. The Tribunal had clearly in mind the options actually opened to it, that is to say the PRU, or description of a type of school. It was understandably concerned about the implications of the latter option in a situation where "C" needed urgently to return to education. But it did not then go on to consider that option on an erroneous legal basis, namely, that it was the only effective option. It went on to choose the PRU, not because it thought there was no other option but because it considered it to be the appropriate option. To the extent that Ms Mountfield invited me to infer that there must have been a misdirection because the Tribunal could not otherwise have opted for the PRU, I decline to make any such inference. Whether the Tribunal's selection of the PRU was sustainable in law is a separate matter. If it was sustainable, the point cannot in any event avail the appellant here. If it was not, the decision will fall for that reason.

33. The appellant submits further, under this head, that by focusing on the question whether the parents and the LEA were likely to reach agreement on a school, the Tribunal failed properly to take into account a relevant consideration, namely, that the PRU could not itself fully meet "C"'s needs in various respects. Those points are, to my mind, more usefully addressed under ground 3 to which I turn.

34. Under ground 3, it is contended that the choice of PRU as the part 4 placement is simply not consistent with the Tribunal's findings as to needs and provision in parts 2 and 3. The unsuitability of the PRU is said to be apparent on the face of the decision.

35. To set the scene for her submissions on this issue, Ms Mountfield referred me to R v Kingston Upon Thames Council and Hunter (1997) ELR 223. The material part of the decision under challenge in that case is set out at page 229 letter H. The Tribunal said:

36. The point made in the case was that there was no disapplication of the National Curriculum by the Tribunal. It was plain, as a matter of fact, that Four Oaks PRU could not provide the full National Curriculum. It was accepted that L's problems were such that she could not be taught elsewhere. In those circumstances, there was an inconsistency between the inclusion of the full curriculum requirements in part 3, and the choice by way of placement of a PRU that was incapable of providing the full requirements. It was said (page 234-D):

37. I was also referred to L v Kent County Council and the Special Educational Needs Tribunal (1998) ELR 140. In essence, that was a case about reasons, and the decision was quashed because it was not possible to follow precisely what the Tribunal meant in relation to the particular aspect of part 3 of the statement. I think it less pertinent and less helpful than the Kingston Upon Thames Council and Hunter case.

38. Against that background, the submission made on behalf of the appellant is that the finding by the Tribunal that the PRU would, in practice, be able to meet the provision identified in part 3 was inconsistent with the known facts about the PRU and manifestly untenable. Three particular points are relied on under this ground:

39. Mr Wolfe prefaces his submissions on this issue by a number of general observations about the way in which the Tribunal approached its decision. This was not the ordinary case of a child of compulsory school age. The Tribunal was dealing here with an unusual case and an urgent problem. The priority was to get "C" back into education, while at the same time dealing with his emotional and behavioural difficulties. It was looking at and catering for "C"'s needs in the period up to the next annual review, without in any way foreclosing future possibilities. It had to make a set of very difficult educational judgments - and this is an area where the Court should be very slow to intervene. As was observed in Kingston Upon Thames and Hunter at page 231B, the court, as a "layman" in matters of educational judgment, should be suitably cautious before condemning an opinion of a Tribunal as irrational.

40. So far as concerns the suitability of the PRU in this case, Mr Wolfe submits that the Tribunal had abundant evidence about the PRU. It had heard from Mrs Martin and had the Ofsted report. It was well able to judge whether the PRU was able to meet the requirements set out in part 3. It was plainly well aware of the package it was putting in place, with the possibility that some part of the curriculum would be provided at a further education college. This was an entirely appropriate case in which to leave the boundary flexible; and the Tribunal must have been satisfied that, to the extent that part of the curriculum was, in practice, provided at a further education college, it would still be possible for the range of part 3 requirements to be met. The Tribunal was, in effect, satisfied that "C"'s needs could be met in the round. This is a very different case from that of Kingston Upon Thames and Hunter , where there was a big hole on the face of the statement since the Tribunal took the view that there was no disapplication of the National Curriculum, yet the PRU could not provide the full National Curriculum. Here the provision of part of the curriculum by an outside college was expressly contemplated by the Tribunal, and it was evidently their view that it was appropriate to meet the relevant requirements set out in the statement.

41. I accept, of course, that the Court should be slow to condemn as irrational the judgment made by a Tribunal in a matter of this sort, and must be very cautious generally about entering into the area of educational judgment. Making all due allowance for those considerations, I do have substantial concerns about the Tribunal's approach to the issue of placement in this case.

42. The likelihood must be that the PRU is not, itself, capable of meeting the required provision of a broad and balanced curriculum. By itself, the PRU would be trading the full range of GCSEs for getting "C" sorted out socially and emotionally (as Mrs Martin put it in her evidence to the Tribunal). To an indeterminate extent, depending on the assessment to be carried out, it is necessary for part of the curriculum to be provided at a local college.

43. The other specific points raised under ground 3 as regards access to an appropriate peer group of similar age, and the requirement that "C" be taught in small groups of pupils with similar problems for a significant amount of his teaching time, causes me less concern than the wider question whether the Tribunal could have been properly satisfied, on the material before it, that the part 3 requirements as a whole including, in particular, those related to "C"'s emotional and behavioural problems, could be met in circumstances where he would be attending an unidentified further education college for an undetermined proportion of his time.

44. There is a very real tension, if not direct inconsistency on the face of the decision, in respect of these matters. On the one hand, there is the uncertainty about the nature and the extent of educational provision outside the PRU. On the other hand, there is apparent certainty that the PRU, together with such outside educational provision, would be appropriate to meet "C"'s needs. It is simply not clear how the Tribunal could have been satisfied of that in the circumstances, and it does not spell out any detailed reasoning in support of its view.

45. However, before I express my conclusions on this issue, I think it sensible to look at and embrace the issues that are raised under the other grounds.

46. I shall take grounds 5 to 7 together. They really develop the issue of unsuitability of the PRU, putting forward a number of further reasons why it is said that the Tribunal acted unlawfully and irrationally in its choice of the PRU. To a large extent they are different aspects of the general problem to which I have referred.

47. Firstly, criticism is made of the Tribunal's holding that the part 4 placement might be appropriate, in that if "C" needed access to parts of the National Curriculum which the PRU was unable to offer, he might be able to receive tuition in another college. That this was the way the Tribunal approached the matter is said to be apparent from the fact that in paragraph 4 of its conclusion, the Tribunal referred to the desirability of a placement in which the core subjects would be available and "C" would have access to other subjects, perhaps at another local college, if the assessment proved that the provision of the National Curriculum would be appropriate. In the corresponding paragraph of part 3 of the statement, it refers to a placement where the full National Curriculum could be made available, if necessary through subsidiary studies at a local college.

48. The Tribunal is said to have been wrong to rely on these vague and uncertain possibilities of access to a local college, without having formed a final view as to the nature and extent of outside tuition that might be needed, and without considering whether, in the light of "C"'s emotional and behavioural difficulties and earlier exclusions from other schools, appropriate tuition could be given by such a local college.

49. For example, it is said that it is inconceivable that in the environment of a further education college, there could be appropriate and unintrusive monitoring to quickly defuse potentially difficult situations, or that teaching and non-teaching staff at a college could have the necessary familiarity with "C"'s needs as identified in the statement.

50. Concern is also expressed about the Tribunal's failure to consider whether the course adopted would put "C" outside the protection of the statement, at the end of his period at the PRU, because of the risk that the LEA would no longer be responsible for him at that time. In that connection, I have been taken through various statutory provisions but do not think it necessary to recite them or to pursue this point further. It seems to me that there is a relatively remote risk of the LEA ceasing to be responsible, or disclaiming responsibility, for "C" at the end of his year at the PRU. This is not a matter which merits detailed further consideration in the context of the case as a whole.

51. It is also submitted on behalf of the appellant that the choice of PRU conflicts with the need for "C" to be educated in one place rather than two. That need is said to be implicit in part 3 of the statement, for example where it is stated that he needs an educational setting where teaching and non-teaching staff are familiar with the needs arising from his uneven cognitive development, and are able to make provision for that support; and an anchor person being a specified teacher who will be responsible for "C"'s pastoral care within the teaching setting. It is further submitted that the parties at the hearing before the Tribunal expressed agreement that "C" needed to be educated in one place rather than two.

52. Whether there was any agreement is the subject of some dispute in the evidence before me. I note that the chairperson's notes and accompanying letter from the Treasury Solicitor do not support the existence of such an agreement. Nor do I consider it to be entirely clear, even on the appellant's own evidence, that there was an agreement precisely to the effect stated. I declined to hear oral evidence-in-chief and in cross-examination, taking the view that any dispute of fact on this matter was neither sufficiently clear-cut nor of sufficient centrality to justify the adoption of such an exceptional course.

53. That still leaves the general criticism that for "C" to be educated in two establishments - the PRU and, to an uncertain extent, outside colleges - could not reasonably meet the requirements of part 3, or at least the Tribunal could not reasonably be satisfied that it could meet those requirements and has not adequately explained how it could meet them. Added to that is further consideration that, as was common ground and was clear to the Tribunal, "C" could only remain at the PRU for one year. The GCSEs that the PRU might be able to provide were all two year courses. In those circumstances, it was said that the PRU was again plainly unsuitable, and there was nothing to show that the Tribunal had taken a sufficiently long term view as to the achievement of "C"'s National Curriculum goals. As to the taking of a long term view, I refer to Wilkin v Goldthorpe and Coventry City Council [1998] ELR 345 at 349 D-G.

54. Mr Wolfe's submissions on these issues traversed ground which I have already largely covered. He again emphasised that the Tribunal did not form a final view on curriculum, but had put in place a regime which could make the necessary provision. It took full account of "C"'s emotional and behavioural difficulties and, indeed, identified them as a priority. This was a major factor leading them to conclude that the PRU was the appropriate placement. The Tribunal was manifestly aware that "C" might fall to be educated at two establishments and had formed an educational judgment, a judgment that was reasonably open to it, that that would be appropriate. It was also fully aware that the PRU could only provide one year's education. It had made the best provision for that year, without foreclosing opportunities for the future.

55. The points made on behalf of the appellant add up to a strong case reinforcing the concern that I have expressed in relation to ground 3. There is a danger of trying to slice this problem into too many pieces. At the heart of the matter is that the PRU was not capable of providing a full curriculum to "C", and whatever it could provide could only be provided for one year, so it was not capable of taking "C" through to GCSE in any subject. The Tribunal had not formed a view on the extent to which it would be appropriate for "C" to pursue subjects not available to PRU. That was an assessment it had left over to someone else. It thought it unlikely that "C" could appropriately follow the whole National Curriculum at that stage, but had reached no conclusion on it. It had not formed a view on whether any additional subjects that might be appropriate could be offered at another college in conjunction with the PRU, or in what conditions any such other subjects would be taught. There was simply no way in which it could be satisfied that whatever tuition might be necessary would be provided in the first year in such a way as to meet the part 3 requirements for "C", or that the first year placement would provide a satisfactory basis for completion of "C"'s school education thereafter.

56. I would add, though any final view on this must, of course, be a matter for decision by the Tribunal in the light of the evidence before it, that a division of tuition between a PRU geared towards those of compulsory school age (and therefore younger than "C") and a further education college with, as seems likely, a more adult environment and a lesser ability to provide the kind of attention and teaching required by "C", does not seem well calculated to meet the part 3 requirements.

57. If such an approach were to commend itself to a Tribunal, I would expect to see a clear statement of reasons as to how the apparent problems inherent in such a situation could be met.

58. I have considerable sympathy for the position of the Tribunal in this case, which was understandably and rightly impressed by the urgency of the matter - the need to get "C" back into schooling and to deal with his emotional and behavioural problems - and was properly concerned that any other solution than the PRU might give rise to further delay.

59. However, for the reasons I have given, I take the view that this has led the Tribunal to reach a decision as to placement that was not reasonably open to it on the material before it. Separate submissions were advanced under ground 8 in respect of inadequacy of reasons. To the extent to which the points are important, I have dealt with them under the other grounds. I propose to say nothing further about reasons as a self-standing topic. For the reasons I have given, this appeal is allowed.

60. MS MOUNTFIELD: In those circumstances, may I ask your Lordship to remit the matter for urgent rehearing to a differently constituted Tribunal. I should say, I do not think your Lordship has any power to expedite. I note at the end of the L v Clarke and Somerset case, the order made, although the discussion is not reported, is "case remitted for urgently desired rehearing by differently constituted Tribunal". If your Lordship gave that indication it might help.

61. MR JUSTICE RICHARDS: The right course is to remit for rehearing by a Tribunal, but to include in the order an indication that in the view of this Court, an urgent rehearing of the matter is very desirable, and rehearing by a differently constituted Tribunal.

62. MS MOUNTFIELD: The second point I would like to make, and I doubt that there is opposition, is that your Lordship referred to the appellant's son as "C". I request an order under section 39 of the Children and Young Persons Act, that it be reported only in those terms and no other reference by which he may be known.

63. MR JUSTICE RICHARDS: Yes, and any references to "C"'s parents will be "Mr and Mrs R".

64. MS MOUNTFIELD: "C" is not a child for the purposes of this Act, but he is a young person because he is under 17. I am grateful for that order. The third point are two matters that your Lordship raised in the judgment, which I am not sure if they were slips of the tongue. It was one point under ground 2 where I think I heard your Lordship say there were two options available to the PRU. I think you meant in context of the Tribunal.

65. MR JUSTICE RICHARDS: If I said "PRU" it was entirely an error.

66. MS MOUNTFIELD: The other one I am not sure if it was an error. The first time you referred to L v Clarke and Somerset you suggested that I referred you, in particular, to 136H. I hope that I had referred, in particular, to 137B, although I read the whole passage. I say 137B is where the ratio is.

67. MR JUSTICE RICHARDS: You are quite right because I marked 137B as another passage to mention, which I had failed to do as I was going through the judgment. I will make a note that when it comes back for correction, I will refer also to 137B.

68. MS MOUNTFIELD: The last point is costs. I make an application for my costs. I should say that although the Tribunal, the first respondent, has played no part in the proceedings, they have been notified by the second respondent that judgment was to be at 3.00, and Mr Litton is here to represent the Tribunal. I make no representations as to who it is appropriate for me to have my costs against. I leave that to the respondents to make submissions. But I say either one or the other, or both, of the respondents ought to pay the appellant's costs in this matter. That is my application.

69. MR WOLFE: I do not think I can resist a costs application.

70. MR JUSTICE RICHARDS: In the ordinary case really it is the LEA who comes to defend a Tribunal's decision.

71. MR WOLFE: Yes, I do not think I can resist to pay the appellant's costs.

72. MR JUSTICE RICHARDS: I assume, Mr Litton, you are here more in an observer role. I made sure that I did not exclude you from the scope of representation in the case at the outset of my judgment when I referred to the argument before me.

73. MR LITTON: My only reason was that it was indicated to us by the London Borough of Greenwich, that should your judgment follow a certain pattern, then they might expect us to pay a proportion of the costs. In the event, it has not followed that pattern.

74. MR JUSTICE RICHARDS: I do not need to speculate what pattern that might be. Thank you very much. I will order costs against the LEA.