Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 09-01601, held on 9 and 10 December 2009 and decided on 17 December 2009, did not involve the making of an error on a point of law.

Reasons for Decision

1.           This appeal concerns the special educational needs of Mark. He is one of triplets. I also have before me an appeal in respect of his brother Paul (HS/0762/2010). I have taken steps to ensure that I have considered their appeals separately, so as not to confuse the evidence that relates to their similar but different circumstances. I did so by reading the papers for Mark’s case and writing my decision before looking at the papers for Paul’s case. To the extent that my reasoning is the same, I have not expressed myself in different words just for the sake of appearance.

2.           The parties are Mark’s father, who is the appellant, and the London Borough of Redbridge, which is the local education authority and the respondent. I gave Mark’s father permission to appeal. He has not been represented before the Upper Tribunal. However, his submissions show a familiarity with the law and the evidential issues. The local education authority has been represented by Ms Sarah Hannett of counsel.

A.          History and background

3.           Mark has severe autism. He was educated at first in a mainstream primary school, with one-to-one support and additional support from the authority’s Autism Outreach Support Team. However, this was not an appropriate arrangement and he was moved to H School, which is a special maintained school. This placement was confirmed by a special educational needs tribunal in 2007. In June 2009, the authority undertook an annual review of Mark’s special educational needs. His parents argued that he should be placed in TH School, but the authority considered that H School was still appropriate. On appeal, a number of issues were put to the First-tier Tribunal. Mark’s father has only criticised the tribunal’s handling of three of those issues. I take them in turn.

B.          Generalisation and the home

4.           Mark’s father complains of a number of matters in respect of the tribunal’s decision on Mark’s ability to generalise and on the need for provision to be extended into the home environment. He criticises the tribunal’s conclusions and its reasons. His grounds of appeal include detailed quotations from the evidence in support of his case.

5.           The local education authority responds that there was evidence to support the tribunal’s conclusions and that it gave adequate reasons. I accept those detailed submissions.

6.           I accept the authority’s analysis that the tribunal found that Mark had some ability to generalise, but needed to develop the ability to do so across all settings. There was evidence to support that conclusion. I think that the criticism made by Mark’s father overlooks the fact that the tribunal found only an ability to generalise to some extent, not a fully developed ability. I consider that the tribunal was entitled to make those findings. It is not for me to make my own assessment of the evidence. Still less am I allowed to substitute my view for that of the tribunal. An appeal to the Upper Tribunal lies on an error of law only. Moreover, I have to bear in mind the knowledge and experience of education that the panel possessed.

7.           I also accept the authority’s argument that the tribunal reasons are adequate in relation to generalisation. That argument sets out the relevant passages from the tribunal’s reasons, which it is unnecessary to repeat. Those passages include the tribunal’s comments on what the evidence does or does not show. I consider that the analysis was sufficient to show how an experienced tribunal made its qualified and limited decision on this issue. In short, I would express my view on the grounds of appeal in this way. The truth is often to be found not wholly in the evidence of one party or the other. It may often lie in an analysis of the evidence as a whole, taking account of the particular expertise and exposure to the child of each witness.

8.           As to the home environment, the tribunal found that liaison between Mark’s parents and H School has come to an end for some reason. It decided that this did not give rise to home provision but to a need for the liaison to be re-established for Mark’s benefit. It seems to me that that conclusion was both eminently sensible and self-evident.

9.           Mark’s father has made an additional point about the way the tribunal dealt with the evidence of the parties. He argues that the tribunal applied a different test to the evidence presented by the parents and to that of the local education authority. He cites the tribunal’s comment that he had ‘told’ the tribunal that he was Governor of H School as suggesting that he would have fabricated this evidence. I reject this argument. I can see nothing to suggest that the tribunal applied different standards to the evidence of the parties. They may have preferred the evidence for the authority on some matters, but that is not the same thing as applying a different standard. Mark’s father admits that his example is minor. Presumably, though, it is indicative of his concerns and he is not able to point to anything more substantial. The use of the word ‘told’ is nothing more than a standard way in which judges write their reasons and report the evidence of the parties.

C.          The second ground of appeal – occupational therapy

10.        Mark’s father complains that the tribunal went wrong in law by failing to accept the whole package of occupational therapy recommended by Ms Schroeder. The tribunal relied on her evidence rather than that of Ms Bautista. It explained that it considered that the latter’s recommendation would lead to sensory overload for Mark. Mark’s father accepts that the tribunal was entitled to prefer the evidence of the one therapist to the other. But he complains that the tribunal should have adopted the whole of the package of recommendations in Ms Schroeder’s report.

11.        The local education authority responds that the whole package of recommendations was not put to the tribunal. The tribunal was presented with a working document, which identified the issues in dispute. The matters now mentioned by Mark’s father were not included in that document.

12.        My conclusion is that the tribunal did not make an error of law in this respect. In dealing with a child’s special educational needs, the First-tier Tribunal has to take an inquisitorial approach. However, the extent to which it must do so depends on the circumstances. Both parties were represented by counsel and the tribunal was entitled to rely on their agreed statement of the issues that were in dispute before the tribunal. The panel members had, of course, the right to raise other issues if they wished. In this case, they did not do so.

13.        The Court of Appeal has decided that a tribunal with an inquisitorial role is entitled to rely on a statement by counsel of the issues that arise for decision: Jeleniewicz v Secretary of State for Work and Pensions reported as R(IS) 3/09. On the basis of that authority, the First-tier Tribunal was entitled to limit its consideration to the matters identified in the working document.

14.        There may, of course, be cases in which an issue so obviously arises that the tribunal would be under a duty to consider it even if it was not put to the tribunal by the parties. However, this is not one of those cases.

D.          The application to the First-tier Tribunal for permission to appeal

15.        Before leaving this case, I want to repeat what I said when granting permission to appeal. The appellant applied, as he was required to do, to the First-tier Tribunal for permission to appeal against its decision. That application was refused by the judge who presided at the appeal. The appellant complained: ‘We do not accept that it was appropriate for the appeal to be considered by the same tribunal judge who heard the first tier tribunal.’ This was not a ground of appeal, as it did not relate to the decision on Mark’s special educational needs. Moreover, it is misconceived and, as it is a complaint that is often made, I will explain why.

16.        Paragraph 15 of Schedule 4 to the Tribunals, Courts and Enforcement Act 2007 confers power on the Lord Chancellor to make provision with respect to membership of a tribunal:

‘(1) The Lord Chancellor must by order make provision, in relation to every matter that may fall to be decided by the First-tier Tribunal or the Upper Tribunal, for determining the number of members of the tribunal who are to decide the matter.’

17.        The Lord Chancellor exercised that power in the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI No 2835). Article 2(1) confers the power to decide on membership on the Senior President:

‘(1) The number of members of the tribunal who are to decide any matter that falls to be decided by the First-tier Tribunal must be determined by the Senior President of Tribunals in accordance with paragraph (2).’

18.        The Senior President has exercised this power in a series of practice statements. They are available on the website of the Tribunals Service. The relevant statement provides:

‘8. Where the Tribunal has given a decision that disposes of proceedings (“the substantive decision”), any matter decided under, or in accordance with, Rule 5(3)(l) or Part 5 of the 2008 Rules or section 9 of the Tribunals, Courts and Enforcement Act 2007 must be decided by one judge, unless the Chamber President considers it appropriate that it is decided by the same member or members of the Tribunal as gave the substantive decision.’

19.        An application for permission to appeal is governed by Part 5 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699).

20.        Accordingly, it was permissible for a single judge to deal with the application. It was a matter for judicial discretion whether the former presiding judge should be that judge. In this case, it was and that was, I understand, the practice in special educational needs cases at that time. I consider that that was permissible. The judge who decides an application for permission does not have the final say, as a further application can be made to the Upper Tribunal if permission is refused. It is also efficient for the former presiding judge, who has first-hand knowledge of the evidence and the arguments, to deal with applications for permission. This is not to say that there are no dangers in this approach. The judge may fail to take an objective view of the tribunal’s decision or may seek to add, impermissibly, to the tribunal’s reasons in order to bolster its decision in the light of the grounds of appeal. This is avoided if a different judge deals with the application, but that judge will not have first-hand knowledge of the case. There is no perfect solution. It is a matter for judicial discretion how applications for permission are allocated to judges.

E.          Disposal

21.        I consider that it was fair and just to decide this case without an oral hearing. The local education authority asked for the appeal to be considered at a hearing. However, Mark’s father did not ask for one and the competing arguments were set out clearly in writing. Holding a hearing would merely have caused expense and would have delayed the final resolution.

 

Signed on original on 4 August 2010

Edward Jacobs Upper Tribunal Judge