IN THE UPPER TRIBUNAL			Case No  HS/556/2011
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD 

Attendances:	

For the Appellant:	Ms T Hetherington, Counsel, instructed by Messrs 	Levenes

For the Respondent:	Mr D Lawson, Counsel, instructed by County Solicitor

Decision:  The appeal is dismissed.  The decision of the First-tier Tribunal dated 6 January 2011 is upheld.

REASONS FOR DECISION

1. This appeal raises questions about the transition from the special educational needs system to the system for supporting people who are or should be the subject of a learning difficulty assessment under s139A of the Learning and Skills Act 2000 (“the 2000 Act”).

2. A was born on 3 September 1992.  When aged seven she was diagnosed with generalized seizure disorder with absences and learning difficulties.  She has continued in a persistent refusal to take medication on a regular basis to control her epilepsy.  Her mother, Mrs B, had for many years contended that A’s difficulties were also due to autism.  In 2009 the local authority accepted a diagnosis of autistic spectrum disorder.

3. In May 2008 Mrs B had removed A from school, which she had been reluctant to attend and where her attendance record had been very poor.  A was then home educated until November 2008. From November 2008 the local authority provided education otherwise than at school for 21 hours a week, via an organisation called Writetrak.  Writetrak sessions took place at tutors’ homes.  This provision ceased in July 2010 as the local authority took the view that A would be more appropriately educated at C College, her local further education college.  

4. The matter had first come before the First-tier Tribunal in September 2009.  The tribunal gave some provisional conclusions, which resulted in the parties engaging in a search, which proved to be lengthy, for a suitable placement in the light of those conclusions.  Both parties made applications to amend their case statements.  A’s mother wanted the tribunal to make further amendments to Parts 2 and 3 of A’s statement and to name in Part 4 the D School (not its true initial), an independent special school in another area which A had attended for a 5 day trial, which offered a residential placement. The local authority sought an order pursuant to section 326(3)(c) of the Education Act 1996 (“the 1996 Act”) that A’s statement of special educational needs should cease, on the basis that the appropriate placement was C College and thus that it was no longer necessary to maintain the statement.  Permission to amend the case statements was given and subsequently both parties filed amended case statements together with further written evidence and submissions.

5. Mrs B’s solicitors filed an additional submission dated 12 October 2010, “made to set out Mrs [B’s] response to the new case being advanced by the LEA...that [A’s] statement should now cease and that she should attend a mainstream further education college placement, at [C] College.”  Part of this submission addressed section 139A:

	“9.We would also argue that the questions of necessity and (as posed 	in para 8:123 of the guidance) of whether a particular placement can 	meet [A's] needs should be read in the light of the requirement in 	section 139A of the Learning and Skills Act 2000 for a report to be 	prepared on pupils with statements who are, or may be, in their last 	year of schooling.  A lawful and detailed report under that section is in 	practice a prerequisite to a lawful decision being made as to provision 	for someone who is (or may be) leaving school.  We say “or may be” 	because there is nothing to prevent a report under s139A from 	recommending that a young person remain in school if that is 	necessary in order for their needs to be met.”

It is convenient here to set out paragraph 8:123 of the Code of Practice on Special Educational Needs, referred to above:

	“Where parents want their child to remain at school post 16, but the 	LEA considers that the young person’s special educational needs 	would be better met in a further education institution, the LEA cannot 	know whether the child still requires a statement until it has contacted 	the FE institution in question and confirmed that it is both able to meet 	the young person’s needs and has offered a place. The LEA should 	satisfy itself on both counts before taking formal steps to cease to 	maintain the young person’s statement….. It is not sufficient for LEAs 	to have a general expectation that an FE institution should be able to 	meet a young person’s needs.”

6. The submission then referred to a document described as a section 139A report which had been prepared by Connexions for the local authority which formed part of the authority’s amended case.  It criticised it for (among other things) the lack of consultation with A, her mother or the solicitors and the failure to recommend specific and detailed provision.  It continued:

	“14. The report does not recommend a placement, or even discuss any 	placement.  Insofar as it recommends provision, it is not clear that this 	would be compatible with a placement at the College.  Given the 	numerous flaws in the assessment and report, we would argue that the 	Tribunal should give no weight at all to this document.  We attach a 	copy of a letter sent to the LEA in this regard inviting them to withdraw 	the assessment, to which we have had no reply.”

7. The local authority as part of its case at the resumed hearing argued that A’s statement could not in any event continue after her 19th birthday i.e. 3 September 2011.  This was, additionally, relevant even before then in that it was said that the limited period of time left before that date made it inappropriate to remove A from her local community (and was thus a reason for opposing the naming of D School.)

8. Whether the local authority’s position is correct on the upper age limit point is the subject of conflicting authority in the cases of AW v Essex CC [2010] UKUT 74 and R(B) v LB Islington [2010] EWHC 2539.  An appeal in the former case is due to be heard by the Court of Appeal in October 2011.

9. The FtT:

	(a) followed the Islington case and concluded that A’s statement could 	not run beyond the age of 19

(b) held that there was in any event insufficient evidence to enable them to conclude that the D School could meet all of A’s special educational needs 

	(c) held that C College could meet A’s needs and had a place for her 

(d) held that strategies were available to deal with A’s antipathy to C College, so that it was not on that ground unsuitable for her and

	(e) agreed that it was not necessary for the local authority to maintain a 	statement for A, so it should cease. 

10. A’s mother sought permission to appeal on the grounds that:

	(a) the FtT had erred in applying the Islington case rather than the 	Essex case and

(b) the FtT had erred in concluding that statutory provision was available for A at C College (with the consequence that it was no longer necessary to maintain a statement for her) by failing to take into account the absence of an assessment under s139A Learning and Skills Act 2000 (a “learning difficulty assessment” or “LDA”)

11. I gave permission to appeal on both grounds, but stayed the first, as this would be addressed by the Court of Appeal’s decision in the Essex case.

12.  The issues for the tribunal were:

	(a) whether the D school would be “appropriate for [A] and should be 	specified in the statement” (cf. 1996 Act, s 324) and 

	(b) whether, acting pursuant to section 326(3)(c), to order the local 	authority to cease to maintain the statement.

13. There has been a relatively recent re-organisation of responsibility for post-16 education and training.  Under the 2000 Act as originally enacted, assessments with similarities to LDAs were carried out by an appointee of the Secretary of State - in practice, the “Connexions” service.  The Education and Skills Act 2008 (“the 2008 Act”) transferred responsibility for LDAs to local authorities (albeit many still have them carried out by Connexions).   What LDAs were required to cover remained the same as before, but the range of people subject to them was increased.  Further, the statutory context against which they existed changed, in that different bodies took over functions formerly carried out by the Learning and Skills Council in relation to securing and financing post 16 education and training.

14. In consequence of amendments made by the 2008 Act, sections 139A – 139C of the 2000 Act provide:

“139A Assessments relating to learning difficulties: England

	(1) Subsection (2) applies if a local authority in England— 
	(a) maintains a statement of special educational needs for a person, 	and
	(b) believes that the person will leave school, at the end of his last year 	of compulsory schooling, to receive post-16 education or training or 	higher education.

	(2) The authority must arrange for an assessment of the person to be 	conducted at some time during his last year of compulsory schooling.

	(3) Subsection (4) applies if a local authority in England— 
	(a) maintains a statement of special educational needs for a person 	who is over compulsory school age, and
	(b) believes that the person will leave school, during or at the end of 	the current school year, to receive post-16 education or training or 	higher education.

	(4) The authority must arrange for an assessment of the person to be 	conducted at some time during the current school year.

	(5) A local authority in England may at any time arrange for an 	assessment to be conducted of a person— 
	(a) who is within subsection (6), and
	(b) for whom the authority is responsible.

	(6) A person within this subsection is one who—
	(a) is in his last year of compulsory schooling, or is over compulsory 	school age but has not attained the age of 25,
	(b) appears to the authority to have a learning difficulty within the 	meaning of section 13, and
	(c) is receiving, or in the opinion of the authority is likely to receive, 	post-16 education or training or higher education.

	(7) In exercising its functions under this section an authority must have 	regard to any guidance issued by the Secretary of State.

139B Assessments under section 139A: interpretation

	(1) This section applies for the purposes of section 139A.

	(2) A statement of special educational needs is a statement maintained 	under section 324 of the Education Act 1996.
	(3) An assessment of a person is an assessment, resulting in a written 	report, of—
	(a) the person's educational and training needs, and
	(b) the provision required to meet them.

	(4) [not material]

	(5) A person's last year of compulsory schooling is the last school year 	at his school during the whole or part of which he is of compulsory 	school age; and in the application of section 139A(6) to a person who 	is receiving education at an institution other than a school, that 	institution is to be treated for the purpose of determining his last year of 	compulsory schooling as though it were a school.

	(6)- (8) [not material].

139C Assessments under section 139A: persons educated at home

	(1) Section 139A applies in relation to a person who is receiving 	education at home, subject to the following modifications.

	(2) In section 139A(1)(b) and (3)(b), references to a person's leaving 	school to receive post-16 education or training or higher education are 	to be construed as references to a person's ceasing to receive 	education at home in order to receive, otherwise than in a school, post-	16 education or training or higher education.

	(3) References to a person's last year of compulsory schooling are to 	be construed as references to the 12 month period ending when the 	person ceases to be of compulsory school age.

	(4) References to the current school year are to be construed as 	references to the period of 12 months beginning on the most recent 1st 	September.”

15. The existence of an LDA is relevant to a local authority’s functions.  Thus Section 15B(1) of the 1996 Act provides a power: 

	“15B.— Functions in respect of education for persons over 19.

	(1) A local authority may secure the provision for their area of full-	time or part-time education suitable to the requirements of persons who 	have attained the age of 19, including provision for persons from other 	areas. 

	(2) [not relevant]
	
	(3) In exercising their functions under this section a local authority shall 	in particular have regard to the needs of persons with learning 	difficulties (within the meaning of section 15ZA(6) and (7)).

	(4) and (5) [not material]” 

16. In the case of persons aged 19 or over subject to an LDA, however, section 15ZA of the 1996 Act provides a duty expressed in the following terms: 

	“15ZA Duty in respect of education and training for persons over 	compulsory school age: England

	(1) A local authority in England must secure that enough suitable 	education and training is provided to meet the reasonable needs of— 
	(a) persons in their area who are over compulsory school age but 	under 19, and
	(b) persons in their area who are aged 19 or over but under 25 and are 	subject to learning difficulty assessment.

	(2) A local authority may comply with subsection (1) by securing the 	provision of education or training outside as well as within their area. 

	(3) In deciding for the purposes of subsection (1) whether education or 	training is suitable to meet persons' reasonable needs, a local 	authority must (in particular) have regard to— 
	(a) the persons' ages, abilities and aptitudes;
	(b) any learning difficulties the persons may have;
	(c) the quality of the education or training;
	(d) the locations and times at which the education or training is 	provided.

	(4)-(9) [not material] 

17. For the purposes of the 1996 Act, by section 13(4)(b):

	“ a person is subject to learning difficulty assessment if-
	(a) a learning difficulty assessment has been conduced in respect of 	the person, or
	(b) arrangements for a learning difficulty assessment to be conducted 	in respect of the person have been made or are required to be made.” 

18. The existence of an LDA also makes a difference to statutory provisions regarding funding.  The Apprenticeships, Skills, Children and Learning Act 2009 (“ASCLA”) created (s60) a body corporate known as the Young People’s Learning Agency for England (“YPLA”) with functions set out in Part 3, Chapter 2 of that Act.  Section 61(1) of ASCLA provides that:

	“61 Provision of financial resources

(1) The YPLA must secure the provision of financial resources to—
(a) persons providing or proposing to provide suitable education or training to persons—
(i) who are over compulsory school age but under 19, or
(ii) who are aged 19 or over but under 25 and are subject to learning difficulty assessment;
(b) persons providing or proposing to provide suitable education to children subject to youth detention;
(c) local education authorities, for the purposes of their functions in relation to education or training within paragraph (a) or (b).”

Thus for persons aged 19 or over, the existence or otherwise of an LDA affects the statutory position, potentially favourably if one compares for instance the lesser obligations imposed in relation those without LDAs under sections 86 and 87 of ASCLA.  Further, sections 62 and 101 of ASCLA empower the YPLA to impose funding conditions which require providers to make the provision specified in an LDA.

19. What needs to go into assessments in this field was considered in R(Alloway) v LB Bromley [2008] EWHC 2449 (Admin).  That case concerned assessments under section 140 of the 2000 Act, which has now been repealed in England.  The section in some cases imposed a duty and in others conferred a power on the Secretary of State to carry out assessments relating to learning difficulties. Comparison of the wording of section 140 and of section 139A shows that the statutory scope of such an assessment (though not the categories of people in respect of whom they were to be carried out or the body who was to do so) remained materially the same under both regimes, as Wyn Williams J noted in R(P) v Royal Borough of Windsor and Maidenhead and another [2010] EWHC 1408; [2010] ELR 853 (Admin) at [53].  In Alloway, Mr David Elvin QC, sitting as a deputy High Court judge, held:

	“57 I now turn to consider the requirements of section 140 with regards 	to the validity of a report. Mr Friel for the claimant, both orally and in his 	skeleton, referred me to a number of statutory schemes in the care and 	education context, including the Education Act 1996 and the Children 	Act 1989 where various types of assessment of need and provision 	must be carried out. In particular he referred me to the requirements of 	statements for those with special educational needs under the 1996 	Act. However, I do not find the requirements of other statutory schemes 	particularly helpful in interpreting the legal requirements of section 140 	since they arise from their own specific statutory context. It is clear, as 	Mr Oldham for the Council submitted, and Mr Friel accepted in 	argument, that the requirements for statements under the 1996 Act are 	far more detailed and require a higher degree of specificity than is the 	case with the short and relatively simple provisions of section 140.
 
	58 Section 140(4) , in my judgment, requires the following: (1) an 	assessment of (a) the subject's educational and training needs and (b) 	of the provision required to meet them; (2) a written report of that 	assessment. 

	59 In my judgment, the assessment of the provision to meet those 	needs should not be merely a set of recommendations as to what 	would in theory, or ideally, be required, but should identify what can 	actually (and realistically) be provided. To assess and report on merely 	theoretical provision would not, in my judgment, be provision which 	was “required to meet” the needs identified for the purposes of section 	140(4)(b). 

	60 This approach is consistent with that adopted by Sullivan J in the 	context of SEN in the case S v Swansea City Council [2000] ELR 315 	where, following an earlier unreported decision of Harrison J in Ex 	parte W (1994), he underlined the fact that, where the question of 	“provision” was being addressed in this context, this clearly meant 	provision in the real world: 

	“Whilst the content of part 3 of the statement must not be dictated by a 	prior decision as to placement in part 4 (that would be to put the cart 	before the horse), it would be unrealistic to suggest that the tribunal 	was not entitled to be ‘influenced’ in its findings as to the amendments 	to be made to part 3 by its decision as to the P school. The prescription 	in part 3 of a statement has to be delivered in the real world by a 	particular school or schools: see the judgment of Harrison J in R v 	Secretary of State for Education ex parte W (1994) 27 May 	(unreported) .

	Provided it is appropriate to meet the needs specified in part 2 and the 	objectives specified in part 3, the prescription in the remainder of part 3 	may be ‘informed’ by what is actually available at a particular school. It 	is, however, a corollary of this approach, that if a particular school is to 	be relied upon to meet a particular need, the tribunal must have 	accurately defined the need in part 2 and must have been able to 	satisfy itself that the school will be able to provide the special 	educational provision specified in the statement: see again Harrison J 	at pp 13–14 of R v Secretary of State for Education ex parte W.” (pp 	322G-323B)

	61 While the statutory context here is different from that considered by 	Sullivan J in S, in my judgment the same reasoning is compelling here. 	The statutory requirement is for provision to meet actual needs and this 	can only be met by assessing what is available in the real world. If the 	provision is not actually available, then it is difficult to see how it can 	meet the needs and assist the LSC in the discharge of its own 	functions subsequent to the report. It is accepted by Mr Oldham on 	behalf of the Council that at the very least, the Council must be 	reasonably satisfied that the stipulated provision can actually be met. 	Further, the Council must reach that judgment at the time of making its 	assessment and in reporting.

	62 The requirement to report has also to be considered. Section 140(4) 	stated that the report is the result of the assessment and, in my 	judgment, this means that the report must reasonably reflect in 	sufficiently clear and intelligible form the conclusions of the 	assessment. The report, like the giving of reasons, must be adequate 	and intelligible and state the principal important conclusions of the 	assessment so that they are tolerably clear, not only to the informed 	reader but in particular to the LSC which must have regard to them in 	discharging its own duties: see section 13 of the 2000 Act. The report 	must adequately cover the principal aspects of the assessment 	because of the LSC's duty to have regard to it, and it will fail in its 	function as a report in the assessment process intended to inform the 	LSC's own duties if it does not sufficienrly deal with those aspects. 

	63 That said, the content and level of detail in the report must depend 	on the circumstances of the individual case. Some cases will demand a 	greater degree of detail than others and it is primarily a matter for the 	Council in carrying out the assessment and writing the report as to how 	it makes that assessment and expresses it in the report. That process 	is subject to the supervision of the court to ensure that it both complies 	with the legal requirements of section 140 and also that it has acted 	reasonably in discharging its functions. As with decisions of this nature, 	the court will be slow to interfere on Wednesbury grounds with matters 	of judgment entrusted by statute to the Council. However, subject to 	what I have just stated, I would expect the report to cover the key 	matters arising with regard to the needs under section 140(4)(a) and 	the provision identified to meet those needs. If it fails in these respects 	it would not, in my judgment, amount to a reasonable discharge of the 	duty to provide a written report of the assessment. 

	64 When approaching such a report and considering whether it meets 	the requirements of section 140 , it is necessary to bear in mind that it 	is not a commercial contract or statute which is under scrutiny. This is a 	common approach in public law cases covering a wide variety of areas 	where judgments are entrusted to expert bodies. As Sullivan J held in 	S at page 329, by analogy with the planning case of Seddon Properties 	Limited v Secretary of State for the Environment and Macclesfield 	Borough Council (1978) 42 P&CR 36 , the report “should be read as a 	whole and in a common sense way”. Clearly, if that is an approach to 	be expected following a planning appeal, it would be unreasonable to 	require any higher standard of a local authority producing a report 	under section 140(4) . Nonetheless, even if that approach is taken, if it 	is clear that if the exercise has not been carried out lawfully or that 	there has been a material error in the process, then the court will 	intervene. “

20. As was noted above, section 139A(7) provides that in exercising its functions under section 139A an authority must have regard to any guidance issued by the Secretary of State.  It was submitted on behalf of Mrs B that such guidance should be followed unless the local authority has good reason to depart from it. The case law authority cited was R v LB Islington, ex parte Rixon [1997] ELR 66 at 71.  However, that case concerned the provisions of the Local Authority Social Services Act 1970, which required a local authority to “act under the general guidance of the Secretary of State”, a different formulation.  Although I was then referred to the decision of the House of Lords in R(Munjaz) v Mersey NHS Trust [2006] 2 AC 148 as supporting a wider application of Rixon, that case was considering specifically the Code of Practice under section 118 of the Mental Health Act 1983 and is difficult to read as establishing any more general principle.  I prefer therefore to base my present decision on Alloway insofar as the content of a section 140 assessment and – by similar reasoning - an LDA is required by law.  Nonetheless, the statutory guidance is at its lowest a mandatorily relevant consideration for local authorities and it is right that I consider its contents in the present decision. Further questions of a local authority’s obligations in relation to this statutory guidance will have to await another decision.

21. The relevant guidance is to be found in “Supporting young people with learning difficulties to participate and progress – incorporating guidance on Learning Difficulty Assessments”*(DfE, March 2010).  As the title suggests, it is a composite document and only Part 3 and Annex 1 are statutory guidance.  It is clear that “ An assessment relating to learning difficulties is an assessment of a person that results in a written report of (a) his/her educational and training needs and aspirations, and (b) the learning provision and support required to meet those needs” (para 3.5).  It is to be “viewed as a long term document” (para 3.6.)  It must reflect the ruling in Alloway.  It is “vital…to ensure that the assessment report...is thorough, clear and specific about [the young person’s] identified needs and the provision required to meet their needs” (para 3.7).  “The assessor(s) will need to have up to date information about education and training provision, relevant support services and of future plans for provision in the local area and, to some extent, nationally” (para 3.8) Paras 3.9 -3.13 make clear that an assessor should be the person(s) best placed to identify and make judgements about the young person’s needs.  Assessors are expected to be qualified to NVQ level 4 and to have received certain training.  They are not, however, required to be from any specific professional discipline.  Paras 3.14-3.16 draw attention to the existence of available frameworks to promote a consistent approach to LDAs and to meet the requirements of the YPLA.  “This could be achieved through the use of the Learning for Living and Work Framework” (“LLWF”). “The framework facilitates the collection of pertinent information from a range of agencies, meets the requirements of s139A and allows the allocation of the correct level of funding from the relevant agencies to be secured.”(para 3.16)  The LLWF appears therefore to be being put forward as one option, useful in practical terms for the reasons stated.  It is on any view a detailed and specific document.  It includes sections on the young person’s views, the views of the parent/carer, background information about the learner, school reports, details of medical support and intervention, particulars of issues around accommodation, lifestyle, independence and personal care, relevant contacts, other assessments, and next steps; it is intended to include a section about resource allocation; and it has a section which is “ a record of the future provider’s assessment and curriculum offer and support from partner agencies” which goes into considerable detail, including, “where appropriate” a record of proposed support (e.g. therapies) specified in hours per week. and concluding with a summary of the placement decision.

22. The statutory guidance continues by emphasising the need for a seamless transition from pre-16 assessments (para 3.17) and the need to take account of the young person’s views and wishes (paras 3.23 -3.27).  It indicates (para 3.35) that:

	“The Learning Difficulty Assessment should be the culmination of an 	on-going process of assessment and reviews.  The Learning Difficulty 	Assessment is designed to update, add to and build on previous 	interventions taking account of changing needs and circumstances – it 	should not duplicate them or be viewed as a separate, one-off event.  	The principle the assessor(s) should try to follow is to reduce the 	burden of assessment and to gather and utilise existing information 	and assessment data wherever possible.”

It lists, in terms which would contain few surprises to those accustomed to dealing with appeals under the SEN system, the types of people who might be expected to contribute to an assessment (para 3.39).  It emphasises that assessments are to be conducted independently of providers (para 3.31).  It indicates the need for a clear complaints/appeals process, pointing out that “local authorities would be open to challenge through judicial review and/or complaint to the Local Government Ombudsman” (para 3.45).

23. I should add that so far as I am aware, there is no statutory indication that sections 139A to 139C of the Learning and Skills Act 2000, or their predecessor in England, section 140, fall to be applied as part of the SEN in Part IV of the 1996 Act.  The 2000 Act dealt with a host of matters in which local authorities originally had no part.  It is not one of the “Education Acts” for the purposes of section 578 of the 1996 Act.  In Alloway Mr Elvin QC regarded the section 140 regime as different from those in the 1996 Act and the Children Act 1989, which had their own statutory context.  The 2008 Act, section 80 of which inserted sections 139A -139C to the 2000 Act, provides in section 168  that subject to immaterial provisos the 1996 Act and certain listed provisions of the 2008 Act are to be construed as if those provisions were contained in the 1996 Act: the list does not include section 80.  ASCLA does make amendments to the 1996 Act, including introducing section 15ZA, but contains no provision expressly linking LDAs to the SEN process.  Either of these Acts could have made amendment to the 1996 Act to achieve such a position, but neither did so.

24.The Code of Practice under the SEN regime was issued in 2001.  It makes a number of references to the former section 140, none of which suggest that assessments under that system were required or fell to be adjudicated upon as part of a tribunal’s decision-taking in SEN cases.  Merely because the Code extols, as it does, the virtues of “seamless” provision between pre and post-16 education does not mean that it is for the First-tier Tribunal to enforce the regime for which the 2000 Act provides.  Further, the Code has not been amended since, although it evidently could have been if desired.  In particular, paragraph 8:123, set out at [5] above, setting out what is required of a local authority ceasing a statement, has been allowed to remain, without reference to LDAs.  Equally, the statutory guidance on LDAs does not list among the legal remedies available to challenge a local authority an appeal to the First-tier Tribunal against a decision to cease a statement.

25. I conclude that there is no law, or even policy intention, which in terms requires the provision of an LDA as part of the process of adjudication on SEN claims.

26. However, that is not the point which Ms Hetherington seeks to advance.  Rather, she says, a tribunal which was mindful of the legislative framework and associated guidance behind LDAs, and thus of the place of LDAs within the education framework, could not address the issues with which it was concerned without there being a valid LDA in place.

27. The relevant issues before the tribunal were set out in paragraph 12 above.  As regards a direction to cease the statement under s326(3)(c), argument before me proceeded (albeit with Mr Lawson formally reserving the local authority’s position) on the basis that the test was that of necessity (i.e. as for a local authority proposing to cease to maintain a statement under sch 27, paras 9 and 11 of the 1996 Act), and I likewise proceed on the basis that the relevant test is that of necessity to maintain the statement. There was no discussion before me of what “necessity” means in this context, but if the tribunal was right (having regard to para 8:123 of the Code) in its conclusion that school D was not appropriate and that C college was and could provide a place for A, that on any view meant that it was no longer necessary to maintain the statement, given that those were the only options on the table.

28.  I also proceed on the assumption (though without deciding) that, one way or another, A is a person in respect of whom the local authority was required to prepare an LDA.  It does seem, unlikely at any rate in policy terms, that the reference in section 139C to a “person who is receiving education at home” is not intended to encompass those who receive “education otherwise than at school” but not, in a literal sense, at home.  Although the 2000 Act is, as already noted, a different statutory regime from that in the 1996 Act, it nonetheless uses in section 139C(2) the terminology, familiar from the 1996 Act of provision ”otherwise than in school”.  While this contrast in language might imply that “at home” meant what it said, another explanation is that the distinction has been made, not altogether happily, in order to emphasise the transition which triggers the duty to make an LDA.  In any event, I note that if A merely fell within the power, rather than the duty, to make an LDA, relevant provisions within the statutory guidance (Annex 1, para 2.4(b)(iv)) would suggest that an LDA was appropriate and the local authority in this case did – though it is said, imperfectly –make one or at least set in train the process of making one.

29. The case for naming school D foundered because the tribunal concluded there was insufficient evidence to enable it to conclude that the school could meet A’s special educational needs.  It took the view that the school’s representative had been “unable to provide us with any written or oral evidence as to the school’s view of [A’s] strengths, weakness, attainments and needs, despite [A] having been at the school for 5 days/nights.”  It is not suggested that this was a view of the evidence before it which the tribunal was not entitled to take.

30. In terms of whether C College was appropriate provision, if one assumes (in favour of A’s case, but without deciding) that a college placement would have to fulfil the same requirements as a school placement would, in terms of the specificity of provision and the likelihood that it would be delivered, one can see that a lawfully completed LDA might well be capable of providing evidence on such issues.  This would be particularly so to such extent, if any, as it was relevant to consider a person’s situation after his or her 19th birthday because of the terms of section 15ZA(1) of the 1996 Act and section 61 of ASCLA, but the point is not limited thereby.  On the other hand, the evidential value of an LDA might be distinctly limited – for instance, because it largely contained material from sources whose evidence which was already before the tribunal otherwise than from the LDA, or because it had not been well completed, a matter which the First-tier Tribunal, whose jurisdiction is limited by statute, has no ability to remedy.  In my judgment, if an LDA has relevance to a tribunal’s decision-making, it is not because it is a further document which the tribunal is required to obtain in itself, but because of what a particular LDA might contribute to the tribunal’s consideration of the issues.  Given what I have set out about the legislation and policy behind LDAs, it may well be that there are cases where tribunals will be helped by some of the information contained within a properly completed LDA.  Tribunals certainly need to be mindful of the potential for LDAs to assist in this way.

31. As the FtT has not been given jurisdiction over LDAs, any challenge through the legal system has to be by way of judicial review, which would fall to the High Court (unless the subject of a discretionary transfer to the Upper Tribunal.)  Mrs B’s solicitors made criticisms of the assessment carried out on the local authority’s behalf but had taken no steps to seek to enforce the provision of a valid LDA through judicial review proceedings.  Rather, their approach was that what was in the LDA should not be taken into account by the tribunal.  So far as I can see, the tribunal complied with that submission: certainly, there is no reference to the LDA in the statement of reasons for the tribunal’s decision.  In other words, the LDA was treated in the manner which Mrs B’s solicitors had asked for.  

32. True it is that in their submissions they mention that the assessment did not recommend specific and detailed provision, including a placement. However, in the context of a decision whether to make an order under section 326(3)(c) those were the sort of issues which the tribunal itself, and no-one else, was statutorily required to determine and it was not as if the compiler of an LDA did so from any specific professional perspective which might have added expertise not otherwise available to the tribunal (see [21] above.)
The solicitors did not ask the tribunal to delay reaching a decision on a college placement in order to allow a fuller LDA, compliant with the law and, so far as necessary, relevant guidance, to be obtained

33. I do not think it is an answer to say, as has been submitted, that because Mrs B was seeking that a school be named in Part 4, the LDA was a non-issue.  As their submission of 12 October 2010 acknowledged, a LDA might in fact have recommended continuing at school and, to the extent that an LDA was relevant at all, could have been relevant to their primary case.  In any case, if it were the solicitors’ position that whether to name school D could be considered without a section 139A report but if that failed, then no decision should be taken about an alternative placement without the benefit of such a report, that is a position which could and should have been stated in the submissions, but was not.

34. That in my view is a sufficient answer to whether in this case an LDA would have added to what was before the tribunal in such a way that not to call for one (or a full and correct one) put the tribunal in error of law.  

35.  I would add, however, that even leaving aside the terms of the submission, I would not be disposed to conclude that the provision was, in the absence of an LDA, insufficiently specific.  There was a substantial measure of agreement as to Parts 2 and 3 of the statement by the time of the second hearing and, to the extent that there were issues remaining, no complaint has been made in the Upper Tribunal that the tribunal ought to have resolved them but did not.  In determining provision, there are real difficulties where a young person whose age entitles their views to respect objects to proposed provision.  But in this case, the First-tier Tribunal received evidence about availability of a number of courses which, as an expert body, it evidently regarded as potentially suitable, including those taught in small groups, from which A would be free to choose; it heard about how A could be supported and it dealt expressly (having heard from A herself) with strategies to overcome A’s resistance to taking up the provision offered.  It obtained confirmation that a place was available.  In my view that was sufficient to meet the terms of section 326(3)(c) and para 8:123 of the Code of Practice.  It went beyond “a general expectation that an FE institution should be able to meet a young person’s needs ”which the Code of Practice indicates is insufficient.  While other questions might arise under the LDA regime, they would be a matter for the bodies with responsibility for enforcing it.
 
36. Permission to appeal was not sought or given for a reasons challenge as such but for the sake of completeness I do not consider that it was necessary for the tribunal expressly to state that, as requested by Mrs B’s solicitors, it had placed no weight on the incomplete and allegedly deficient LDA. There is no suggestion in its statement of reasons that it did place such weight and that is sufficient given that there is a cogent explanation of the reasons on which it did reach its decision which in my view reached the standard required by law, as set out in cases such as H v East Sussex CC [2009] EWCA Civ 249; [2009] ELR 161.  As to the suggestion that “a lawful and detailed report under [section 139A] is in practice a prerequisite to a lawful decision being made as to provision for someone who is (or may be) leaving school” that is sufficiently answered in this case,  in that the parties were well aware that Mrs B’s solicitors had invited the tribunal to place no weight on the LDA and, without an LDA, the tribunal’s reasons indicated that it was nonetheless able to reach, for the reasons it set out, a decision on the matter before it.  In my view therefore, the appeal must be dismissed.

CG Ward
Judge of the Upper Tribunal
7 October 2011