IN THE UPPER TRIBUNAL                                           Appeal No.  HS/147/2012
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S. M. Lane

REASONS FOR DECISION

1	These are the reasons for the short decision I issued on 6 September 2012 by which I allowed the appellant Local Authority’s appeal against the decision of the First-tier Tribunal of 8 November 2011 (tribunal reference no. SE/205/11/00008).  I set aside the decision and remitted it to a freshly composed Tribunal under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.    

2	The appeal relates to whether the Tribunal was correct in naming the school preferred by the respondent parent, JH, in Part 4 of the Statement of Special Educational Needs for her son, AH (‘A’).  The identity of the respondent and her son are not to be revealed without permission from the Upper Tribunal.  They are to be known only by their initials.  

3	The appeal took place by way of an oral hearing at Field House on 9 July 2012.  Mrs Hellier, from the local authority’s Legal Division, was present on behalf of the local authority.  JH represented herself.  Mrs Trupia, the main case worker for the local authority was present, initially as an observer.  

4	It quickly became apparent from the way that both sides turned to Mrs Trupia to seek basic information that she could be of assistance to both sides.  I therefore invited her to take part, as needed.  JH was worried that this might be intimidating for her, but I did not consider this to be a realistic objection:  JH is a highly articulate, assertive person who has long experience of special educational needs provision because all three of her children were autistic.  She had known and dealt with Mrs Trupia for years, and had no hesitation in turning to her for confirmation or other information.  In the circumstances, I concluded that it was appropriate for Mrs T to take part, rather than to keep interrupting proceedings whenever a party turned to her to check whether there was any objection.  JH agreed that this was satisfactory.  Mrs T’s was of great assistance in clarifying basic factual information and I thank her for her helpful and balanced input.  I also thank the parties for their full and frank input at the hearing.

The appeal

5	The First-tier Tribunal allowed JH’s original appeal against the Statement of Special Educational Needs issued by the Local Authority on 23 August 2010.  The SSEN was unusual in that it adopted a staged approach, naming in Part 4 the PM School (which A had been attending for several years) for the period September 2010 – July 2011, followed by WM from September 2011.  That would have taken A through to the end of his school years, when he was 19 or so.  The period during which A was to be placed at PM was to end in July 2010, but for circumstances which need not detain us here, it was extended until July 2011.  His placement was on a residential basis.  The Tribunal decided that only PM was to be named in Part 4.  The placement was to remain residential.  

6	In granting permission to appeal, I considered it arguable that the Tribunal erred in law on several grounds: it (i) failed to make sufficient findings and give adequate reasons for its decision that A needed a waking day curriculum; (ii) failed to make a proper comparison between the schools in deciding that WM School was not suitable; (iii) failed to give sufficient reasons for saying that a cost of £37,000 was not an unreasonable use of public resources; (iv) may have misdirected itself to whether there had been a change in A’s SEN, rather than whether WM School was suitable; and (v) erred in relation to the evidence of a witness, Mr Adu. 

7	I consider that grounds (i) and (ii) are established.  Each of these is a sufficient basis on its own for setting aside the Tribunal’s decision.  I also consider that grounds (iii) and (v) are established. It will be unnecessary to deal with (iv) in the circumstances. 

8	It should be noted that JH indicated to the Upper Tribunal that she wished to reserve her position in relation to Parts 2 and 3 of the SSEN if she was not successful in defending the Tribunal’s decision.  This is not possible.  At the Fist-tier hearing, the tribunal rightly confined the scope of the appeal to Part 4 of the Statement in view of JH’s statement that she had no objection to the provision under Parts 2 and 3 which were supplied at PM, and her failure to supply any grounds of appeal under those parts.  The same reasons apply at the Upper Tribunal.  

9	The appeal to the Upper Tribunal is therefore confined to whether the tribunal was correct in specifying PM in Part 4.  

The Background

10	A has attended PM as a boarder for several years.  At the time of the First-tier Tribunal hearing, the reason for his attendance at a residential school was lost in the mists of time.  At the Upper Tribunal hearing, I heard evidence from the Local Authority that A was sent to a residential school because, during A’s earlier years of education, they had inadequate facilities and programmes for SEN children.  JH certainly concurred with their frank admission.  However, their provision has now greatly improved, making it appropriate, in their view, to bring A back to a suitable local mainstream school which could offer the necessary SEN provision. 

11	PM is an independent school which takes special educational needs children either as boarders or day pupils, though the cost of boarding and day attendance at the school is the same. WM School, on the other hand, is a mainstream maintained sixth form college.  It has an outstanding report from OFSTED in relation to both non-SEN and SEN pupils.  The difference in cost between PM and WM is some £37,000.  

12	JH expressed a preference for PM.  She objected to moving A to WM because it was big, noisy, unfamiliar to A and she believed it did not have suitable arrangements for him.  A himself was set against attending WM.  It emerged from the evidence in the papers that A had a girlfriend at PM to whom he was very close, which might have added to his resistance to a change of school.  

13	The tribunal considered that the Local Authority was proposing a very significant change in the provision for A without a sufficient working plan [26] and when it had not been shown that A’s needs had changed.  The SSEN, it stated, contained elements that were normally provided in special schools.  It decided that 

‘without further evidence we are not persuaded that there has been a significant change in A’s SEN which have been addressed by him attending a residential special school.  There he has received an integrated and holistic approach.  Without such further evidence, we were not persuaded that A should now attend a mainstream school. We consider that there is a significant risk [of his regression] if not educated with the consistency of approach that he has been used to for the last years of his education.  At PM he is able to learn life skills and independence within a structured setting…’ 

‘The Tribunal was not satisfied that the Local Authority had fully considered the provision necessary to meet A’s SEN’ [28].   

14	This raises several problems:  The provision A required was the same, whether at PM or WM.  It was only the provider that would change.  It was necessary to ask whether an ‘integrated and holistic’  and consistent approach was the same as a need for a waking day curriculum, and whether substantially the same could be provided by WM albeit not a Rolls Royce service.  Although the provision in Part 3 contained elements commonly provided for in special schools, as the Tribunal pointed out, that does not in and itself mean that a mainstream school with appropriate facilities and programmes could not make that provision.  Indeed, Mr Adu’s evidence at [14] – [16] of the Decision went a long way in showing that the school was geared up for SEN provision, as did the OFSTED report for the school which rated it as outstanding in respect of non-special and special needs students.  

15	It is enough to say here that Mr Adu’s evidence and working plan covered a transitional phase, occupational therapy, speech and language therapy, the provision of extra teaching hours in the Learning Resource Centre, the substantial use of facilities in the special needs department, the availability of after school activities, and home/school liaison.  

16	Before moving on, it is also right to point out that the Local Authority did attempt to assess A, but was not successful in gaining access to him.  The Tribunal did not ask why those attempts failed.  At the Upper Tribunal hearing, the Local Authority said JH was not cooperative, which JH denied.  

17	It is worth reminding the parties and tribunals that that getting a SSEN right is a cooperative process.  Neither party should be permitted to take advantage of their own lack of cooperation where that results in a lack of proper assessment of a child.  In such cases, the Tribunal should take particular care to apply its expertise to the evidence such as it is before rejecting as inadequate outline plans or a reasonable sketch of what the Local Authority expects to be available for the child.  

Waking day curriculum 

18	A waking day curriculum may be called for where a pupil’s SEN mean that he is unable to generalise skills from the classroom to other environments, unlike other pupils without SEN.  If the pupil needs to have therapies and activities outside of school hours which enable him to develop the skills of daily living (LB Bromley v SENDIST [1999] ELR 260 CA) and to ‘translate into his home and social and indeed all areas of his life and functioning, the skill which he learns within the school and school room’, a waking day curriculum may be justified (S v Solihull MBC [2007] EWHC 1139 at [19] and [17]).  In this context ’need’ is what is reasonably required (R(A) v Hertfordshire County Council [2006] EWHC 3428 (Admin), [2007] ELR 95 at [25] per His Honour Judge Gilbert QC, sitting as a deputy judge of the High Court). 

19	The Tribunal must, therefore, decide whether it is necessary for child to have an extended extracurricular educational programme continuing after the end of the school day.  The fact that the child needs consistency of approach in his dealings with adults outside of school, as well as inside school, does not necessarily mean that this is an educational need which should be met with educational provision beyond the school day in a residential setting (The Learning Trust v SENDIST and MP [2007] EWHC 1634 (Admin), [2007] ELR 658; R (o/a T.S. v Bowen (Chair of SENDIST) [2009] EWHC 5 (Admin) at [27] [39]).  

20	The educational advantages of the waking day curriculum must be weighed against the cost of providing it (Oxfordshire County Council v GB [2001] EWCA Civ 1358, [2002] ELR 8 at [16]).  If the cost outweighs the advantages, the extra expenditure may be found unreasonable (Ealing LBC v SENDIST and K&K [2008] EWHC 193 (Admin), [2008] ELR 183 per Plender J at [14]) for the purposes of section 9 of the Education Act 1996.

21	The Tribunal must also have regard to relevant parts of the Special Educational Needs Code of Practice under section 313(3) of the Education Act 1996.  Paragraph 8:74 gives guidance on residential provision.  A residential placement is, generally speaking, indicated where there are multi-educational agreements relating to a child with severe or multiple special educational needs that cannot be met in local day provision, or where the child has severe or multiple special educational needs that require a consistent programme both during and after hours that cannot be provided by parents with support from other agencies.  

22	The Code is not law, and Tribunals may depart from it.  However, the terms of paragraph 8:74 suggest that a residential placement should not be made without serious consideration of the severity of the child’s needs and the need for input from different sources at one location.  There is nothing in the Decision to show that the Tribunal applied its mind to this paragraph. It pays mere lip service to the Code in paragraph 24 by saying, ‘we took account of the Code’.  

Did the Tribunal make sufficient findings and give sufficient reasons for a waking day curriculum?  

23	Whilst the question of whether a child needs a waking day curriculum is ultimately one of fact for the Tribunal, if it does so decide, it must justify its decision, finding facts to support its decision and explaining why those facts lead to that result.  In doing so, it must compare the evidence relating to the competing schools fairly to see the waking day curriculum is reasonably required, or if the child’s needs can be met other than by a waking day curriculum.  

24	The Tribunal did not do this.  The attributes of PM that the Tribunal endorsed as justifying a waking day curriculum at a residential school were its ‘holistic, consistent and very structured approach’ with ‘communication skills’ carried over into the evening [22].  However, the details given to establish this were minimal:  the Tribunal recorded that A ‘has cooked in the evenings and helped with cleaning’, went to the gym and to swimming.  

25	This is inadequate.  Without findings on the number and nature of the therapies provided, the extent of A’s participation in the therapies and activities identified, the input into ‘communication skills’ carried over after school hours, there does not appear to be anything of significance to distinguish the provision at PM from that which would be available at, or with, WM having regard to its SEN facilities, SEN Department, outreach programme, occupational therapy, SALT, after school activities and home/school liaison to enable continuity to be continued at home (if that was not provided by JH anyway) and WM’s outstanding rating by OFSTED.  

Dealing with the Local Authority’s and Mr Adu’s evidence

26	The way the Tribunal dealt with the Local Authority’s evidence, including that of Mr Adu, was inadequate.  A SENDIST Tribunal has specialist knowledge which should have enabled it to assess from the outline plans presented whether the school would reasonably be able to deliver the provision in Part 3.  There was plenty of evidence before it, as I have mentioned in the paragraph above. 

Unreasonable public expenditure

27	The decision that the expenditure was not unreasonable falls with the Tribunal’s failure to analyse the waking day curriculum properly.  The decision as it stands leaves the Local Authority in the dark about the value of the waking day curriculum, for which it would be obliged to spend an extra £37,000 per year, to A.  

28	Having regard to the above, it is unnecessary for me to deal formally with ground (iv). 

29	Finally, it is worth mentioning that section 316 of the Education Act 1996 requires children with SEN to be educated in mainstream schools unless that is incompatible with either the wishes of his parent or the provision of efficient education for other children.  In this case, only the parent’s wishes were in question.  The Tribunal rejected mainstream education as an option for A.  A significant part of the Tribunal’s decision that A could not cope with a mainstream school.  

30	The Tribunal did not make a finding on this, but simply recited JH’s and PM’s views that this was so.  Assuming it was meant to be a finding of fact, the Tribunal was under an obligation to explain why it did not accept the Local Authority’s evidence about this.  This included the reasons given by the Special Needs Assessment and Provision Team (SNAPT) which rejected these views in its letter of 14 March 2011.  Nor did the Tribunal deal with the evidence that A was increasingly able to journey to, and cope with, nearby mainstream school which offered courses not available at PM, and that the educational plan for A for the next year (if PM were named at Part 4) would increase substantially the number of courses he attended away from PM.  The Tribunal therefore dealt with this part of the appeal inadequately.  

31	I have already given directions for the appeal to be remitted and reheard.  The Tribunal will be able to take account of circumstances as they exist down to the date of the hearing, which may well be considerably different from those existing at the time of the First-tier Tribunal’s decision.

[Signed]
S M Lane
Upper Tribunal Judge
[Date]									19 September 2012