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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Southwark London Borough Council, R (on the application of) v Sendist & Ors [2005] EWHC 1123 (Admin) (24 May 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1123.html Cite as: [2005] EWHC 1123 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		24th May 2005

1. MR JUSTICE STANLEY BURNTON: This is an appeal by the London Borough of Southwark against the decision of the Special Educational Needs and Disability Tribunal ("SENDIST") dated 10th December 2004 upholding the appeal of the parents of Daniel Oyedipe against the contents of parts 3 and 4 of the statement of special educational needs made by that local authority relating to Daniel. Daniel is familiarly called Diji. I shall refer to him as Daniel.
2. The only material issue to be determined by the Tribunal so far as this appeal is concerned was the name of the school to be specified in part 4 of the statement. The local authority contended that Daniel should attend Cherry Garden School, one of the special schools for pupils with severe learning difficulties and/or Autistic Spectrum Disorder. Daniel's parents contended that he should attend The Rainbow School, an independent special school. Their contention was upheld by the Tribunal.
3. Daniel is severely educationally disabled and suffers from autism. He is almost seven years old. In general, he is not able to communicate verbally but uses a sign language called Makaton.
4. Part 2 of the statement of special educational needs, which was not the subject of the appeal to the Tribunal describes him as follows:

"Diji lives at home with his parents. He is an only child. Diji has a diagnosis of Autistic Spectrum Disorder (ASD) with associated speech, language and communication difficulties and severe learning difficulties. His hearing, vision and mobility are normal and he is generally healthy and not on any medication. Diji has a very severe impairment of his language and communication. He makes mostly self-directed monosyllabic sounds. He does respond to his name. He is using Makaton signing successfully and can work with up to 60 different signs. Diji is a very sensory child enjoying the sound, touch and movement of toys."

Part 3 of the statement, as determined by the Tribunal, stated as Daniel's learning objectives the following:

"The school will draw up an individualised educational programme (IEP) which should focus on the following main educational and developmental objectives:

• To develop his speech, language and communication skills.

• To develop his social interaction and play skills.

• To develop his early literacy and numeracy skills.

• To develop his cognitive skills.

• To develop his self-help and independence skills."

5. At the date of the Tribunal hearing, Daniel was following a home-based applied behavioural analysis programme funded by the local education authority. It involved 40 hours work per week, 50 weeks per year. It was to be followed by an integration for schools programme which is the subject of the dispute. The educational provision specified in the special educational needs as confirmed by the Tribunal referred to the ABA programme and continued:

"Daniel's phased integration into school will be planned in conjunction with his current ABA team.

The programme (against the background of a phased changeover from home to school) should provide Diji with the following:

• The curriculum appropriately differentiated to meet his literacy and numeracy needs as well as taking into account his preferred learning style.

• Access to a visual timetable in order to anticipate the day without any surprises.

• Access to a programme including Makaton signing throughout the school day, in order to develop Diji's social language and communication skills."

6. Cherry Garden School caters for children with learning difficulties, not all of whom suffer from autism. The Rainbow School caters only for autistic children. One of the issues before me concerns the reference made by the Tribunal to the status of the Rainbow School in the Department for Education and Skills. As far as that is concerned, the bundle of documents before the Tribunal included the following:
7. (a) A letter dated 9th November 2003 from the Rainbow School offering Daniel a place, subject to local authority funding and consent from the Secretary of State for a placement.
8. (b) A letter dated 26th August 2004 from the Tribunal to Daniel's parents' solicitors, stating that the Tribunal could only order the local education authority to name the Rainbow School in his statement if his parents could demonstrate that a place was available at the school; the Secretary of State had approved the school as suitable for the admission of children with special educational needs; and Daniel's placement was within the terms of approval (or if the Secretary of State had consented to the school being named in Daniel Oyedipe's particular case).

The letter continued:

"As Rainbow School for Autistic Children is not approved by the Secretary of State, once Ms Animashaun [Daniel's mother] and Mr Oyedipe [his father] have written confirmation that a place is available, Ms Animashaun and Mr Oyedipe should write immediately to the SEN Independent Team at the Department for Education and Skills, Mowden Hall, Staindrop Road, Darlington, DL3 9BG, asking for the Secretary of State's consent and enclosing [specified documents]."

The letter added that the writer stressed that if the Secretary of State's consent was forthcoming, it would enable the Tribunal to order the local education authority to specify Rainbow School for Autistic Children but could have no influence on the decision itself. If the Secretary of State refused consent, the Tribunal would have no power to order the local education authority to specify Rainbow School.

9. (c) The consent of the Secretary of State dated 29th September 2004 given under section 347(5)(b) of the Education Act 1996 to Daniel being educated at the Rainbow School.
10. (d) The statement of David Urani, a educational psychologist who had visited Rainbow School and who gave written and oral evidence to the Tribunal that the school was officially registered with the Department for Education and Skills to take 15 pupils.
11. The written evidence before the Tribunal included the following. An educational psychologist report of March 2004 commissioned by the local education authority by Mr A W Price. He had visited Daniel at home but had not visited either school. He said:

"The tutors [that is to say the tutors of Daniel at home from the ABA programme] think Daniel has about 60 Makaton signs and uses substantial number spontaneously. I saw him trying to use some Makaton signs, eg, signing to continue being swung in a duvet, but his finger skills limit his proficiency. The tutors tried to teach him PECS when he was younger but this was not very successful. Otherwise he communicates mainly by physical action, including taking adults by the arm, and tapping them on the shoulder to get their attention. He produces no intelligible speech, though he vocalises quite frequently."

PECS is the acronym for Picture Exchange Communication System. It is a means of communication using pictures. Mr Price's recommendations for Daniel's education were that he needs a school which can offer communication through Makaton signing as well as PECS (which could be tried with him later) and that school staff should have experience and expertise in helping children with autism to develop skills and understanding and in managing their behaviour, as well as in assisting the progress of children with major learning difficulties.

12. Secondly, there was a report on 29th January 2004 by Mindi Pohlenz, who supervised Daniel's education at home. She referred to Daniel's use of Makaton and said:

"Diji has made substantial progress with his communication skills. He has a range of approximately 60 Makaton signs he uses spontaneously and appropriately as well as using various combinations of signs to create phrases. Diji's communicative intent has increased exponentially to the point that he is not only creating novel phrases with his acquired Makaton signs but attempting to create his own signs when he does not know the sign associated with the item or event. The team are able to target no less than one sign per day in the natural context. For such reason that this is Diji's solitary form of communication any future educational environment must have Makaton as an integral part of the classroom."

She recommended a school which, among other qualities, had Makaton as an integral part of its communication when speaking to the class or Daniel directly, that being vital as it was Daniel's one and only form of communication. She said that the school which would meet all of the requirements to which she referred would be the Rainbow School for Autistic Children.

13. Thirdly, there was a report of the 14th September 2004 of Mr Urani, the educational psychologist to whom I have already referred, commissioned by Daniel's parents. Mr Urani visited both schools. In relation to Cherry Garden School he said at paragraph 4.9 of the report:

"Ms Neary [the headmistress of Cherry Garden School] very kindly allowed Mrs Animashaun and myself to observe the Reception class referred to as the yellow class in Cherry Garden. The group comprised five boys; four of whom I was told were on the autistic spectrum. One child we observed was working intensively on a PECS programme. Throughout our observations, which lasted approximately twenty minutes, there were no children or adults observed to be using Makaton."

He spoke to the teacher who would be the teacher of Daniel's class if he were to go to Cherry Garden. In the report he referred to her background and the staffing of her class and said:

"I asked Ms Hammond about her knowledge of Makaton. She said that every Friday afternoon she meets with some of the other teachers in the school and they have an informal 'Makaton club', where they are learning new signs. Apart from this, there has been no formal training as yet offered through the school or the LEA for teachers at Cherry Garden."

14. Turning to the Rainbow School, Mr Urani met Mrs Sorab, the Director of the school, and he said at paragraph 4.19:

"Mrs Sorab mentioned that Rainbow uses primarily a VB [verbal behaviour] approach, which focuses on children developing communication skills within a more naturalistic environment than traditional Lovaas based approaches. The school therefore does emphasise the use of signing, in particular Makaton and Sign Along. Although some children may come to the school initially only using PECS, the aim is to develop children's signing as a precursor to their verbal communication. Mrs Sorab said from her own experience children are more motivated to verbalise if they were signing, than using PECS alone".

At 4.20 he said:

"Daniel was offered a place at Rainbow following a one-day assessment. Mrs Sorab commented that she had no doubt that Daniel's needs could be appropriately met at Rainbow, as he had a similar developmental and needs profile to many of the children in the school."

He observed children working in one of the classrooms and described what he had observed. Under the heading "Discussion", at paragraph 5.2 he said:

"Having visited the two provisions, there can be no doubt that the Rainbow School will be able to appropriately meet Daniel's needs. It is able to provide an autistic specific curriculum in a one to one setting. Daniel has responded positively to the ABA approach and he will continue to progress within an environment that uses ABA/VB techniques.

(5.3) A major strength of the Rainbow School is the focus on signing. Daniel has in excess of 60 Makaton signs that he uses in his everyday communication. Cherry Garden School emphasises the use of PECS with very limited use of signing. From my discussions at Cherry Garden School, it appears that Makaton is not an approach that is integrated throughout the school.

(5.4) Another major strength of the Rainbow School is the calm and distraction free environment it is able to provide. Given Daniel's very high degree of distractibility, I have very significant reservations as to how he will cope in Cherry Garden School. On the day of my visit, the class that Daniel may go into presented as a very busy environment where a number of the children were not actively engaged in formal learning, and were not being directly supervised."

He recommended at paragraph 6.1 as follows:

"Daniel requires a specialist autistic provision that is able to provide one to one intensive input using ABA techniques, as this is an approach that has proven successful in developing his skills particularly in language and communication.

(6.2) Daniel requires a school that uses signing as an integral part of the curriculum. PECS has not met with success in the past. Having to revert back to PECS to fit into a setting such as Cherry Garden would be a backward step for Daniel."

15. Fourthly, the Tribunal had a second report from Ms Pohlenz, dated 31st August 2004. She had visited both schools and said:

"The Local Education Authority has proposed Cherry Garden for Diji. This choice of education is highly unsuitable for Diji. Only one child and one staff member were observed communicating through Makaton and while the school's communication system is PECS based, no child in any of the classes was observed using their PECS books when many communicative opportunities were available. Of all of the classes observed, Diji would be the most able child with the exception of one child in the eldest classroom. Rather than learning appropriate behaviour and language from other children, Diji would be the model for the other children."

The Tribunal heard oral evidence from Mr O'Malley of the local education authority and Ms Neary, the headteacher of Cherry Garden School, from Daniel's mother, Mr Urani and Ms Pohlenz. I do not have a note of that evidence.

16. In its decision the Tribunal summarised the facts it found as to the Cherry Garden School as follows:

"• There are 46 pupils on the roll in the age range 2 to 11.

• 17 of them are pupils with a primary diagnosis of ASD. The remaining pupils have SLD.

• The pupils with ASD are taught in 3 classes, with either 6 or 7 pupils in each. The classes are led by teachers, supported by 3 learning support assistants (LSA). One class has a 4th LSA.

• Daniel would be in the reception/year 1 class of 4 to 6 year olds, where he would be the 6th pupil.

• The teacher has 5 years' experience, the last 3 of them being at the school. She has taught both SLD and ASD pupils.

• One of the LSAs had done a 3 day course in Makaton and is described as highly skilled in it by Ms Neary.

• The other two LSAs are following an in-house Makaton training course, which they have been on since last April.

• There was conflicting evidence about the training of the class teacher in the use of Makaton.

• The school uses various methods to teach the pupils with ASD, including TEACCH and PECS as a communication system.

• 3 of the 17 pupils in the school with ASD can use some Makaton. None of the pupils in the class designated for Daniel can use it.

• Ms Neary said she would encourage Daniel to use Makaton with the staff wherever possible."

17. Turning to the Rainbow School, the Tribunal stated that they had not heard from any member of staff at the school but had heard from Daniel's mother, Mrs Pohlenz and Mr Urani who had all visited the school. They set out as key details the following:

"• The school, which is registered with the DFES, can take 15 pupils.

• All the pupils have statements and are funded by LEAs.

• The school is led by a senior teacher and an ABA supervisor. They are responsible for overseeing the curriculum and the teaching approaches of the staff.

• The pupils are taught in classes of 4. Each class is led by an ABA therapist, supported by other therapists, who teach the children on a 1:1 basis.

• The children are taught by 2 part-time therapists plus a full time therapist on a rota basis.

• Some lessons are delivered on a group basis.

• Outside teachers are engaged by the school to deliver music, PE and swimming lessons.

• All the children in the school (apart from 2 who are starting to learn) are competent Makaton signers.

• Makaton is the standard means of communication used by the therapists with the children."

18. The Tribunal summarised the local education authority's case as follows in paragraph 12:

"For the LEA Mr O'Malley said that there were 2 grounds of opposition to the appeal as regards school placement. The first was a concern that Rainbow School could not efficiently deliver the national curriculum to Daniel. There was only 1 teacher on the staff, who did not appear to do any direct teaching. The ABA therapists had no teaching qualifications and they appeared to acquire all her teaching and Makaton skills on an informal basis.

(13) Mr O'Malley's other objection was on the basis of cost."

It is unnecessary for me to give the details of those costs since no point is taken in relation to costs. It is sufficient to note that the costs which would be incurred by the local education authority if Daniel were to go to the Rainbow School are very considerable indeed.

19. At paragraph 15 of the decision, the Tribunal summarised the evidence they had received as to the use of Makaton at the schools. They said:

"Regarding Cherry Garden, Daniel's mother and Mr Urani have visited the school together on one occasion and Daniel's mother separately on another. Mrs Pohlenz has also visited the school. She commented that the only time she saw a child use Makaton was when asking to go to the toilet. Neither Ms Animashaun, nor Mr Urani, saw Makaton being used when they visited. By contrast, they both saw Makaton in routine use at Rainbow School. In response to Mr O'Malley's first ground of opposition, it was submitted that Rainbow School must meet with the approval of many local authorities, by virtue of the fact that all the 12 pupils there are statemented and paid for by other LEAs."

The Tribunal's conclusions and reasons, so far as relevant, were as follows:

"(B) Part 4. We were satisfied that Daniel would fit into either school by reason of the level of his degree of disability. We were also satisfied that the ratios of adults to children in the classes would be appropriate for Daniel at either school. We were also satisfied that the teaching approaches, although different, are appropriate for Daniel in either or the schools, with one exception.

(C) That exception relates to the means of communication which would be used between Daniel and the teaching professional/therapist on the one hand and Daniel and the other pupils on the other. At Cherry Garden, we noted that one LSA is a competent Makaton signer. The other two LSAs in the class Daniel would join are learning Makaton. No other pupil in the class is a Makaton signer and the curriculum is not delivered by this means.

(D) By contrast, the ABA therapists in the class Daniel would join at the Rainbow School are all Makaton signers, as are all the children (except for two who are learning the system) both in the class and in the rest of the school.

(E) After very considerable discussion, we decided that this contrasting approach in methods of communication between the two schools is the crucial one in Daniel's case. His one relevant strength at the moment is his Makaton signing, followed at some distance by emerging socialising and turn-taking skills. We therefore decided that these skills can best be nurtured and built upon in a Makaton signing school, which Rainbow is. We noted the concerns of Mr O'Malley, properly and reasonably expressed by him to us, but we have concluded on these that the school can deliver the curriculum efficiently to its current pupils, which is demonstrated by the DFES's approval of the school and the fact that all the pupils there are statemented and funded by LEAs."

Thus, the use of Makaton as a means of communication between Daniel and his teachers and Daniel and his peers was crucial to the decision of the Tribunal.

20. I now turn to the grounds of appeal. The appellant no longer relies on grounds 3 and 5. Ground 1 is that:

"The decision of the SENDIST . . . set out in paragraph E of its conclusions, to the effect that the Rainbow School (the respondent's choice of school) could meet the special educational needs ("SEN") of the respondent's son ("Diji") was based on no proper, or alternatively insufficient, evidence."

The Tribunal had no documentary evidence from Rainbow School, nor did any member of staff give evidence. The local education authority contends that in these circumstances there was no or insufficient evidence before the Tribunal to find the school could meet Daniel's special educational needs.

21. The appeal to this court is confined to questions of law. The court cannot interfere with a finding of fact of a Tribunal on the basis that it would arrive at a different conclusion on the evidence before it. The appellant must show that either there was no evidence before the Tribunal to support the relevant finding of fact or that no reasonable Tribunal could have made the finding on the evidence before it. That is a Wednesbury test. I have to say that I should expect a Tribunal normally to require, at the very least, to have the prospectus of the schools named in a statement of special educational needs; if not, then a written statement from a member of staff or the proprietor, or oral evidence from a member of staff or proprietor. The inexpert evidence of a parent will rarely be sufficient.
22. The local education authority's concerns about the education provided at the Rainbow School were real, as the facts found demonstrated that there was only one qualified teacher on the staff who did not appear to be valid at teaching. But the Tribunal had, in addition to the evidence of Daniel's mother who visited the school, the evidence of two professionals who had visited it; Mr Urani and Ms Pohlenz. Mr Urani's written report was positive about the school, and there is nothing in the decision or papers to indicate that Ms Pohlenz, who was negative about Cherry Garden, was other than positive about Rainbow. Moreover, given Daniel's low level of educational attainment, concern as to the national curriculum was less than immediate. In these circumstances I can neither conclude that there was no evidence before the Tribunal nor that no reasonable Tribunal could have made the finding of fact made by this Tribunal.
23. Ground 2 is as follows:

"In making [its] decision, the SENDIST took into account the following irrelevant factors: (1) that the school has been approved by the Secretary of State for Education and Skills, and/or (2) 'the fact that all the pupils there are statemented and funded by LEAs'."

Also it is convenient to address a proposed ground 2A set out in the skeleton:

"Further or alternatively, if in making its decision, the SENDIST took into account any specialist knowledge which any of its members had about the process which leads to, and the implications of, the grant of the Secretary of State's consent under section 347(5)(b) of the Education Act 1996, then the SENDIST acted unfairly in failing to inform the Appellant of that knowledge and its intention to rely on it."

The first question that arises under this ground is what the Tribunal meant when it referred, in paragraph E of its decision, to the Department of Education and Skills' approval of the Rainbow School. There are two statutory regimes pursuant to which it may be lawful for a child with special educational needs to be educated at a school such as the Rainbow School. The first is under the Education Act 1996. Section 347(1) provides that:

"The Secretary of State may approve an independent school as suitable for the admission of children for whom statements are maintained under section 324."

24. The second is under the Education Act 2002 which provides for the registration of independent schools in Part 10 of the Act. A child with special education needs may be educated at an independent school, provided it is registered and provided, in a case such as the present, the Secretary of State consents to his being educated at that school.
25. Registration is not a mere formality. The Schedule to the Education (Independent School Standards)(England) Regulations 2003 sets out standards for independent schools and in paragraph 1(2)(b) and (c) requires in order for a school to be registered that the subject matter of the curriculum should be "appropriate for the ages and attitudes of pupils, including those pupils with a statement", and in (c) that pupils are to "acquire skills in speaking and listening, literacy and numeracy skills".
26. Section 160 of the Act provides for application for registration, and section 161 for the determination of application for registration. Section 160(4) imposes a duty on the chief inspector to inspect a school which applies for registration under the Act, and to report to the registration authority (that is to say the Department of Education and Skills) on the extent to which the independent school standards are met, and are likely to continue to be met, in relation to that school.
27. Section 161 requires the registration authority to take into account the reports of the chief inspector following an inspection under section 160, and any other evidence relating to the independent school standards and determine whether those standards are met and likely to continue to be met in relation to the school. Subsection (3) at section 161 provides that:

"If the registration authority determines under this section that the independent school standards are met, and are likely to continue to be met, in relation to a school, the authority shall enter the school in the register."

28. The ordinary meaning of the reference in paragraph E of the decision to the DFES's approval of the Rainbow School would be approval pursuant to the 1996 Act. However, I do not think that that is a fair reading of paragraph E in the present case. When I bear in mind the documents to which I have already referred as to the status of the school, which were before the Tribunal, the reference to the school being registered with the Department in paragraph 9 of the decision, and bearing in mind that this is an expert Tribunal, I conclude that it used the word "approved" in a loose non-technical sense in paragraph E to encompass the process of registration under the 2002 Act which, as has been seen, involves inspection by the chief inspector, or on his behalf, and, implicitly, satisfaction with his report.
29. Neither registration under the 2002 Act nor approval under the 1996 Act is, for a Tribunal, evidence that a school is suitable for a particular child. Nor is the fact that other local education authorities have agreed to the education of other children with statements of special needs and funded their placements. A Tribunal may draw reassurance or comfort from those facts but no more. However, the facts referred to in the last sentence of paragraph E, in my judgment, are not irrelevant in concluding that Rainbow School can deliver the curriculum to its current pupils. One can infer that if the school could not do so it would not have been registered, and other LEAs would either not have sent their children there or withdrawn them. But those facts, while relevant, are insufficient to support a positive finding that this school was suitable for Daniel.
30. The complaint under this ground is of irrelevance, not insufficiency of evidence. Moreover, what the Tribunal referred in that sentence was not the suitability of the school for Daniel but its ability to deliver the curriculum to its current pupils. Admittedly, its current pupils all have special needs similar to Daniel's but the difference in the wording may have been intended. Again, one must recall that at his current stage of development, Daniel's concerns and those of his parents are not yet that he will be taught to achieve on the national curriculum. First must come the ability to communicate and to develop social skills. In my judgment, therefore, the appellant has not established that this ground justifies interfering with the decision of the Tribunal.
31. So far as ground 2A is concerned, there is nothing in the evidence or the decision of the Tribunal to show that it had or used any specialist knowledge as to the system of registration of schools under the 2002 Act. It follows that there is nothing in the proposed ground.
32. Ground 3 is no longer pursued by the appellant. Ground 4 is as follows:

"The SENDIST's decision in paragraph D of its conclusions, that the staff of Rainbow School would in fact use Makaton, was based on no proper, or alternatively insufficient, evidence as to the methods of communication which the relevant members of such staff would use if Diji were educated at that school.

In my judgment, there was adequate evidence in the shape of the evidence of Mr Urani and probably of Mrs Pohlenz, and of Daniel's mother, as to the use of Makaton at the Rainbow School. As the crucial determinative factor, the Tribunal gave this matter special attention. This ground is not made out.

33. I mention that the local education authority sought to introduce before the court evidence, namely the Rainbow School brochure, which was not before the Tribunal. The circumstances in which this court would consider evidence that could have been but was not before the Tribunal are narrow. This documentary evidence could have been put before the Tribunal by the local education authority. There are no circumstances in the present case, in my judgment, which should justify the court receiving evidence which was not before the Tribunal. Mr Hyams sensibly did not press the application which is the basis of ground 5. In any event, I do not think it would affect the outcome of this appeal.
34. Ground 5 is not pursued and I therefore turned to ground 6:

"The SENDIST failed to make a critical finding of fact in relation to the use of Makaton which would in fact be made if Diji were educated at Cherry Garden School (the Appellant's choice of school), namely, whether or not Diji's class teacher at Cherry Garden School would use Makaton."

This is not a straightforward point. The ability of the reception class teacher at Cherry Garden School to use Makaton was in issue and the Tribunal could, and should, have made a finding one way or the other. Ms Neary, the headmistress of Cherry Garden, said that a teacher is trained. The parent's witnesses, in particular Mr Urani, said that she indicated that she was not. The onus of proof was, as Mr Hyams accepts, on the local education authority to show that the teacher was appropriately trained if a positive finding were to be made. If the Tribunal, on the balance of probabilities, was unsatisfied as to her training it could and should have so stated. But the Tribunal could not, in my judgment, shirk this task because, for example, they were concerned not to express themselves as disbelieving a professional witness.

35. However, what was important was not whether his teacher could use Makaton but whether it would be used in fact between Daniel and his teacher and between Daniel and the other children in his class. While a lack of training would disable the teacher from using Makaton, training and ability would not necessarily lead to the conclusion that it would be so used. So far as that is concerned, the evidence was clear. See, for example, Mrs Pohlenz's second report at page 88 of the bundle, to which I have already referred. While, therefore, the question of the training of Daniel's proposed teacher at Cherry Garden School was an issue before the Tribunal, in my judgment it was not a material issue so far as the decision as to the suitability of either school was concerned. That turned on the use of Makaton rather than training for Makaton and on that there was adequate, if not overwhelming, evidence that its use at the Rainbow School was general and its use at Cherry Garden School was exceptional.
36. In those circumstances, while I have considerable sympathy with the local authority on both of the points it raised before the Tribunal, I come to the conclusion that this appeal must be dismissed.
37. MR WOLFE: My Lord, I am grateful. Can I first of all ask that my Lord make a non-identification order in relation to Diji?
38. MR JUSTICE STANLEY BURNTON: Yes.
39. MR WOLFE: Secondly, can I ask for an order that the appellant pay the first respondent's costs, to be assessed if not agreed.
40. MR JUSTICE STANLEY BURNTON: Do you have a schedule?
41. MR WOLFE: We do not.
42. MR HYAMS: My Lord, we do not resist any of those applications.
43. MR JUSTICE STANLEY BURNTON: So be it. Order for costs and assess it. Thank you both very much.