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!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Learning Trust v MP & Anor Rev 2 [2007] EWHC 1634 (Admin) (09 July 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1634.html Cite as: [2007] EWHC 1634 (Admin) |
[New search] [Printable RTF version] [Help]
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
The Learning Trust |
Appellant |
|
- and – |
||
MP Special Educational Needs And Disability Tribunal |
Respondent |
____________________
Mary Hughes (instructed by John Ford, solicitors) for the 1st Respondent
Hearing dates : 12th and 13th June 2007
____________________
Crown Copyright ©
Andrew Nicol QC :
'[P] would benefit from a place in a residential school for the following reasons. [P] has educational and social needs that could be met through a consistent and continuous placement that has set routines and a high level structure. [P] benefits from being around his peers and having access to the community but he needs support to be able to do this.'
She commented on P's aggressive behaviour both in school and the wider community. She noted that he found it very difficult to cope with changes in his routine which needed to be calm and consistent from all the adults around him. She thought that P would benefit from a residential school because it would provide this consistency.
'[P] has recently had difficulty controlling his behaviour and anger. He is displaying much inappropriate behaviour at school, he has frequent aggressive outburst and appears to be angry and upset a lot of the time. [P] has had huge changes in his home environment and these appear to be the cause of his anxiety. Previously, [P] was cared for by his grandmother, but since July 2005 he has been cared for by his mother. [P] needs a clear, consistent and structured environment both at home and at school. He finds it hard to cope with changes to his routine. [P] reacts strongly to confrontation and quickly becomes very upset and volatile if spoken to harshly or shouted at. He also needs a very consistent, clear and firm approach to his behaviour. [P] needs to know what the boundaries are. If he understands the consequences of his actions and all adults around him use the same approach he can become cooperative.'
Part 2 of the Statement concluded by listing the areas in which P had special educational needs. They included 'social skills'.
'E. In view of the deficits in the provision made for [P] to date we find that he needs to be educated in a school where provision for children with his degree of autism is well-established, where change and uncertainty in his daily routine is kept to a minimum and where there are opportunities for him to learn with children of similar ability and for his communication skills to be developed across the curriculum.
F. We find that [P] also requires a clear and consistent approach throughout his waking day to ensure that he is able to access education in school and has opportunities to develop his communication, social and independence skills across all settings. We accept the evidence of Ms Burleigh in this regard and can find no evidence to support the LEA's actions in removing from the statement provision for close liaison with MP and other professionals to ensure a consistency of approach both in and out of school.'
Flawed finding that P needed a waking-day curriculum
'[Ms Burleigh] stated that [P]'s educational needs could only be met in a consistent and continuous placement offering set routines and a high level of structure throughout his daily life.'
The Tribunal was not purporting to quote the precise words which Ms Burleigh had used in her report but, Ms. Stout, on behalf of the Learning Trust, rightly in my view, observes that this précis has introduced two important changes.
'Ms Burleigh was asked whether it remained her opinion that [P] required residential schooling. She told us that she believed [P]'s educational needs could be met at [H] School but there also needed to be a 'whole package' of support to provide opportunities for learning within the community. Without such opportunity it was not fair to expect [MP] to manage [P] on her own.'
'I also thought the latter option (i.e. play facilities) would also enable [P] to stay with [MP] (as she wanted) because [MP] would then have time during the day to take up employment and would be less tired and more able to build a relationship with [P] in the time she would have with him. Even so, I thought that [MP] would still benefit from some respite care even in this scenario. It was in this context that I used the phrase 'whole package of support' that the Tribunal has quoted at paragraph 10 of the decision. I most certainly did not say that the 'whole package of support' was required to provide [P] with 'opportunities for learning with the community.' I am absolutely clear in my mind that I did not use that phrase, because I do not believe it to be true or correct.'
Failure to address the distinction between educational and social needs of P
'Special educational provision is, in principle, whatever is called for by a child's learning difficulty. A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities. ….It is when it comes to the statement under s.324 that the LEA is required to distinguish between educational provision and non-educational provision; and the prescribed form is divided up accordingly. Two possibilities arise here: either the two categories share a common frontier, so that where the one stops the other begins; or there is between the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either. It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in s.312. Moreover, to impose a hard edge or common frontier does not get rid of definitional problems: it simply makes them more acute. And this is one of the reasons why, in my judgment, the second approach is then to be attributed to Parliament. The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and, if necessary, the SENT, to exercise a case by case judgment which no prescriptive legislation could ever hope to anticipate. '
'In my view, the best judgment of what is needed in a particular case is that of the specialist tribunal whose members must take into account, but are not bound to accept, the evidence before them. It is for the tribunal to determine whether what would occur outside school hours is best to be described as education or care. It is also for it to determine whether the achievement of the defined objectives in Part 3 of the statement of educational needs reasonably requires educational provision outside school hours. It is for it also to determine whether a residential school, or a particular school, would have harmful or positive effects on the child in question. It is not bound to accept any particular witness's evidence or any particular report. In this case, it had expert evidence on both sides and it was entitled to form its own view.'
'In general LEAs are likely to consider that there is a need for residential provision where there is multi-agency agreement that:
- the child has severe or multiple special educational needs that cannot be met in local day provision
- the child has sever or multiple special educational needs that require a consistent programme both during and after school hours that cannot be provided by parents with support from other agencies…'
a. The Tribunal commented that the March 2006 core assessment had recommended that P be assessed by a clinical psychologist, that MP be referred to a parent's support group, that P attend an adventure play group and JP receive assistance with her housing but 'none of these recommendations were implemented.' This in turn contributed to the Tribunal's conclusion that the Social Services Department was providing nothing at the present. These observations did not address the evidence which was before the Tribunal that MP had refused respite support and direct payment because of her wish that P should attend a residential school (see above). Similarly, MP had not responded to offers of after-school clubs in November and December 2006. The Tribunal observed that it was only during the course of the hearing that the Learning Trust had offered to provide 1:1 supervision. It failed, however, to note that MP had not explained her unwillingness to accept the offers because of the lack of 1:1 supervision until the hearing itself. These were relevant matters which the Tribunal ought to have taken into account. Its failure to refer to them indicates that either it did not do so, or that it has failed to explain its response to them.
b. Even if Social Services had been deficient in the discharge of their duties, MP or P's remedies lay elsewhere. They could, for instance, seek judicial review of the Council, as P has in fact done. A failure (if that is what it was) by the Social Services Department would not translate into an 'educational need' of P and it was only P's educational needs with which the Tribunal could be concerned.
Errors in respect of finding that H School was unsuitable for P
a. The Tribunal required that Part 3 specify that P needed (a) small group work to develop social skills appropriate to formal and informal settings. The December statement said 'Continuing advice from a speech and language therapist about how to continue developing [P]'s language, particularly in helping him develop language for social settings. He may benefit from the introduction of a small language group (initially with just one other pupil) where social situations can be set up and used for this purpose. This could be used for both language and social skill development.'
b. The Tribunal required the Statement to refer to (b) the implementation of strategies to support P in the classroom such as visual timetables. The December proposal already said 'This may also include further developing the use of his visual timetable so that he understands more fully its purpose and how it can be used to indicate change, choice and the timing of rewards.'
c. Thirdly, the Tribunal amended the statement to say that P required a highly differentiated curriculum that takes into account his language and learning needs. But it is difficult to see a significant difference between this and the comment in the December proposal that P should have 'Access to a broad and balanced curriculum, including the National Curriculum, at a level that is appropriate to P's ability and which is differentiated to meet the objectives set out above.'
Ms Burleigh's witness statement records the evidence which she gave to the Tribunal of the work which had been done with the children in the ARB by a speech therapist. Overall, it is difficult to see how the Speech and Therapy aspect could lawfully lead the Tribunal to decide that the H School was unsuitable.
Erroneous rejection of after-school facilities
'We find that playgroups after school would result in further changes to [P]'s routine and as they are non-directive and not autism-specific, are unlikely to develop his communication and social skills.'