IN THE UPPER TRIBUNAL Case No  HS/665/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before His Honour Judge David Pearl

sitting as a Judge of the Upper Tribunal

 

Attendances:

 

For the Appellant: Mr J Friel of Counsel

 

For the Respondent:  Ms A Bicarregui of Counsel

 

Decision:  The appeal is dismissed. 

 

 

REASONS FOR DECISION

 

Introductory matters.

 

 

1. This is an appeal from the Decision of the First-tier Tribunal issued on 23^rd November 2009 (Ms Helen Rimington, Mrs Helen Cook, Mr Hamid Zagzoule) in respect of W, a boy who at the time was ten and a half years old, and who according to the Decision “has very complex  communication needs which include speech and motor skills difficulties. His expressive and receptive language is profoundly impaired and his speech is effectively unintelligible to most people.”
2. He left Primary School in July 2009, and the County Council nominated Thomas Wolsey School, a Special School for pupils with physical disabilities. The parents requested that St Mary’s, Bexhill (a non maintained special school for pupils with moderate learning difficulties and associated difficulties) be named for W.
3. The Tribunal ordered a number of amendments to the Special Educational Provision in Part 3, and, for the avoidance of doubt, ordered that Thomas Wolsey School be named in Part 4 as the school W should attend.
4. The Appellant sought permission to appeal from the First-tier Tribunal. There are two issues of alleged procedural unfairness. The first challenge is that the First-tier Tribunal did not provide the expert speech and language therapist (Ms Farrugia) with an opportunity to comment on its view of amendments it wished to make to Part 3 of the Statement. The second procedural challenge is that there was a failure on the part of the Respondent to accurately and fairly describe to the Tribunal the actual speech therapy provision at Thomas Wolsey. The third challenge is a lack of reasons challenge. The fourth challenge is based on rationality.
5. By Order dated 31^st January 2010, the First-tier Tribunal Chair refused to review the Decision. It has been agreed by both parties that, although this document does not disclose whether she actually refused permission to appeal, the decision is to be treated as though she did actually refuse the application for permission to appeal.
6. An application to the Upper Tribunal for permission to appeal was received from the Appellant and was dealt with, on the papers, by Judge Wikely in a decision dated 31^st March 2010. He refused permission.
7. The Applicant renewed her application at an oral hearing, at which Mr Friel represented the Applicant. I granted permission to appeal and the Judgement was sent under cover of a letter dated 9^th August 2010. As the grounds submitted by Mr Friel are interlinked, I did not limit the grounds on which permission was granted.
8. I made two important Case Management Directions. First, I directed that the County Council file a Defence, if so advised, no later than 28 days from the date that the Judgement granting Permission to Appeal is served on the parties. Secondly, I directed that Skeleton Arguments be submitted no later than five days prior to the hearing.
9. The County Council did not file a Defence, and it submitted a Skeleton Argument later than the five days prior to the hearing.
10. The Applicant applied on 4^th October 2010 to debar the Respondent from taking any further part in the proceedings relying on Rule 7(2)(d) of the Tribunal Procedure (Upper Tribunal) rules 2008, which states that if a party has failed to comply with...a direction, the Upper Tribunal may take such action as it considers just, which may include (d) restricting a party’s participation in the proceedings. This application was renewed by Mr Friel at the hearing.
11. Ms Bicarregui, both in her skeleton argument and in her oral submissions, apologised for the failure of the County Council to comply with the Case Management Directions sent to it under cover of the letter dated 9^th August 2010. It would seem that although the relevant documentation was sent to the Respondent’s SEN Department, it was not forwarded by that Department to the Legal Department. Ms Bicarregui accepted that the County Council was entirely to blame for failing to comply with the Directions.
12. I have decided that it would not be in accordance with the overriding objective to deal with a case fairly and justly (Rule 2(2)) to apply Rule 7(2)(d). Ms Bicarregui is correct when she says that the Applicant is legally represented, and that her highly experienced Counsel will have had an opportunity of reading the submissions prior to the hearing.
13. Rule 7(2)(d) is a draconian provision, and it should be used only in the most blatant cases of disregard on the part of a party to the proceedings. It is only right that the Upper Tribunal should ensure (as stated in Rule 2(2)(c)), so far as practicable, that the parties are able to participate fully in proceedings.
14. Nonetheless, although I am against Mr Friel on his application, it is important to point out that Upper Tribunal Case Management Directions are of importance, and that it is incumbent on both parties to comply with them. The County Council in this case was at fault in not sending the documentation from the SEN Department to the Legal Department, and it is hoped that Local Authorities in the future are alert to the fact that other Upper Tribunal Judges, in other situations, may well exercise the discretion available to them under Rule 7(2)(d) and restrict a party’s participation in the proceedings.
15. There was a second procedural matter before me, namely an application to amend the Grounds of Appeal. Ms Bicarregui did not seriously contest the application, although she resisted the admission of evidence relating to that ground (and the other grounds).  In those circumstances leave to amend the Grounds of Appeal was granted.
16. The new Ground of Appeal reads as follows: “Further, or in the alternative, the decision of the First-tier Tribunal was unfair on the basis that information given to it by and on behalf of Suffolk County Council as to the availability of speech and language therapy at Thomas Wolsey School and the capacity of the school to deliver therapy, was factually inaccurate in essential elements, significantly in error. In fact, the school does not have the ability to deliver the therapy found by the Tribunal as being available, and it cannot deliver the therapy. It is not delivering the therapy to W, as ordered by the First-tier Tribunal.”
17. The evidence which Mr Friel wishes me to admit was a witness statement of Mrs J Farrugia dated 16^th March 2010, the Speech and Language Therapist, who gave evidence to the First-tier Tribunal at the hearing on the 19^th October 2009. Mr Friel submits that this post-  decision witness statement is admissible in accordance with Renshaw v Sheffield County Council & another [2002] EWHC (Admin) and  J v Staffordshire County Council [2006] ELR 141.
18. I have to say that I do not consider either of these authorities  as supportive of the approach Mr Friel urges me to adopt. In Renshaw, the Judge applied the principle identified in Oxfordshire County Council v GB and others [2001] EWCA 1358, and limited himself to looking at the notes of evidence that were given at the Tribunal, as well as the terms of the decision and the various documents that were before the Tribunal at the hearing. J v Staffordshire makes the same point. The Judge in that case looked at the Chair’s notes, and any contemporaneous material. He only used expost facto witness statements where the notes were unclear.
19. In the case before me, of course, we do not have the benefit of the Chair’s notes, but nevertheless I still consider that Ms Bicarregui is correct in submitting that Oxfordshire cautions against fresh evidence being provided to an appellate court or tribunal in a statutory appeal. In Oxfordshire, Sedley LJ said:

“If reference needs to be made to the evidence for the purposes of a statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material basis there was for the impugned part of the decision.”

20. Mrs Farrugia’s  witness statement does not purport to be a note of evidence, but it is rather a criticism of the Tribunal’s conclusions and an attempt to provide additional evidence. I do not consider that it is appropriate to admit Mrs Farrugia’s witness statement, based on the principle laid down by the Court of Appeal in Oxfordshire.
21. Mr Friel next submits, based in part on the observations made by Mrs Farrugia in her Report of her visit to Thomas Wolsey School on 16^th September 2010, that the level of intensive speech and language therapy provision which has been directed, is not being delivered by that School.
22. It is my view that the correct procedural challenge to this alleged failure to comply with Part 3, is not by way of a challenge to the Tribunal’s decision, but by way of judicial review of the Couinty Council’s alleged failure to implement the Statement, to be commenced in the Administrative Court. Counsel referred me to the case of R(N) v North Tyneside Borough Council [2010] EWCA Civ 135.
23. Whether such a challenge, if permission is granted, is then transferred to the Upper Tribunal, is a matter for the Administrative Court.
24. In these proceedings, however, I must confine myself to considering whether there has been an error of law in the Tribunal’s decision.

 

 

 

Ground 1: Procedural unfairness A.

 

 

 

25. I consider first whether the decision was procedurally unfair. The first challenge to the procedural fairness of the decision is that it used its own expertise in amending various parts of the Part 3 statement, without giving the opportunity for Mrs Farrugia to comment on the Tribunal’s conclusions on these matters.
26. The authority which Mr Friel relies upon, namely A v Kirklees Metropolitan Council and Dorsey [2001] EWCA Civ 582 sets out the important proposition that one must ask the question whether there is a realistic possibility that knowledge by the Tribunal (in this case of Mrs Farrugia’s concerns) would have altered the Tribunal’s conclusions. Mr Friel states that, in this case, the Tribunal totally ignored the supportive evidence and conclusions presented to it by the Reports from Moor House and St Mary’s, and that if it had questioned Mrs Farrugia as to her views on the corrections  which the Tribunal wished to make to Part 3, the Tribunal would have reached a different conclusion.
27. I am unable to agree with Mr Friel’s submission on this point. It is important to refer to how the Tribunal dealt with Mrs Farrugia’s evidence. It appears in paragraphs G - R of the Tribunal’s conclusions. In summary form, the Tribunal agree with Mrs Farrugia on all aspects of her Report, with the exception of those relating to the recommendation for the Speech and Language Therapist to be present within the classroom, the prescription of content, the waking day curriculum, and the need for staff to be experienced in respect of ACC (as well as trained).
28. I am in agreement with Ms Bicarregui’s submission that the amendments made by the Tribunal to Part 3 were amendments which it was entitled to make, on consideration of all of the evidence including that of Mrs Farrugia. In any event, my reading of the other Reports does not suggest that all of that evidence goes one way. It is the responsibility of the Tribunal, having considered all of the evidence, to form a view, which it did in this case.
29. This is an expert Tribunal, and it is its job to apply its expertise to issues before it. The approach that I adopt is the one outlined by Lawrence Collins J in M v Worcestershire County Council and Evans [2002] EWHC 1292 (Admin) when he said:

“I accept the authority’s argument that they were points on which further evidence or submissions were not required, and were appropriate for a specialist tribunal with members appointed for their expertise to consider. The Tribunal was not applying its expertise in a way which would have required it to put this recommendation to the parties.”

30. In that case, the Tribunal departed from the expert’s recommendation on occupational therapy, and it was accepted by the Court that it was so entitled to do. I have formed the view that the Tribunal in this case was fully entitled to depart in certain respects from the opinion of Mrs Farrugia (even if her evidence were supported by other Reports) and that it was not necessary to put its concerns to Mrs Farrugia.
31. In two recent cases, namely London Borough of Camden v FG (SEN) [2010] UKUT 249 (AAC) and West Sussex County Council v ND & LD (SEN) [2010] UKUT 349 (AAC), I have quoted the dictum of Baroness Hale in Secretary of State for the Home Department v AH (Sudan) and others [2008] 1 AC. She said;

“…this is an expert Tribunal charged with administering a complex area of law in challenging circumstances…They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

32. Baroness Hale’s comment is particularly relevant in the present context. This Tribunal is an expert Tribunal, and although Mr Friel submitted that its expertise did not extend to medical matters and was confined to educational matters, it is the case that the Tribunal has on its panel, in this case as in every SEN case, two members appointed by the Lord Chancellor who have expertise in special educational needs, as well as a legally qualified Chair with specialist training in the area of law with which the Tribunal is involved. The Upper Tribunal, in cases such as this, should provide the First-tier Tribunal with a ‘margin of appreciation’ given that what is being challenged is the rejection of expert evidence providing opinion evidence on the very point which that expert tribunal has to decide (see the approach of Waller LJ in H v East Sussex County Council and Others [2009] EWCA 249.)
33. The Tribunal is fully entitled to delete provisions which it considers to be too prescriptive. I am in entire agreement with the submission made by Ms Bicarregui that the specificity/ flexibility of Part 3 is pre-eminently an area within the expertise of the First-tier Tribunal. The First-tier Tribunal was well able to form a judgement on the necessary specificity, on the basis of all of the evidence presented to it. It was entitled to provide for a more flexible approach if it considered that this is the appropriate way to deal with the matter (E v London Borough of Newham and the SENT [2003] EWCA Civ 09.)

 

 

 

Ground 2: Procedural Unfairness B.

 

 

34. I turn now to the second procedural challenge, which is the alleged failure by the County Council to accurately and fairly describe the language and speech therapy provision at Thomas Wolsey to the Tribunal. In paragraph 13 of the revised Skeleton Argument, Mr Friel states that the Tribunal “on the information given to it, were not fully informed as to the ability of Thomas Wolsey to meet this level of intensive speech and language therapy provision. This is even as amended by the tribunal.”
35. The leading authority on this aspect of the case is The Queen on the application of JF v London Borough of Croydon and SEND [2006] EWHC 2368 (Admin). Sullivan J said:

“This case is concerned with the particular evidence given by Mr White at the hearing before this Tribunal, where he is recorded as having told the Tribunal in terms that Brantridge was not a school for children with emotional and behavioural difficulties and that it was registered with the society. In that particular context it was obviously important that the Tribunal, in assessing the detailed evidence provided by Mr White, in deciding how much of it should be taken on trust, and in deciding how persuasive it was, should proceed from the correct starting point, namely that Brantridge was registered as a school for children with emotional and behavioural difficulties and was not registered with the Society. I find it somewhat surprising that this elementary point is still not appreciated by the first defendant: a public body, whose duty it was to assist the Tribunal. In truth, there is only one possible answer to the question: is there a realistic possibility that the information that Brantridge is registered with the Department as a school for children with emotional and behavioural difficulties and is not registered with the Society could have altered the Tribunal's conclusion that it was the appropriate school for JF. Of course it could. Whether this information will lead the Tribunal to a different conclusion will of course be for the Tribunal to decide.”

36. Mr Friel, in applying Croydon, submits that the county Council in the present case, in contending that Thomas Wolsey could meet all the needs of W, has inadvertedly misled the Tribunal. He submits that it is immaterial how the situation has arisen, but the fact is that the provision was not there and accordingly the First-tier Tribunal was misled.
37. I consider Croydon to be an entirely different case to the present. In that case there were factual inaccuracies presented to the Tribunal. Those inaccuracies were clearly material to the Tribunal’s decision. In the case before me, I agree with Ms Bicarregui that the Tribunal reached a conclusion on the facts presented to it that Thomas Wolsey (the County Council’s preferred school) was capable of making provision in relation to speech and language. There is no suggestion that the facts on which the Tribunal relied were incorrect. It is my view that the Tribunal was entitled to conclude that Thomas Wolsey was capable of providing the provision that it set out in the amended Part 3.
38. Mrs Farrugia herself would seem to acknowledge this, for example, at paragraph 3.1 of her Report on her School visit to Thomas Wolsey on 16^th September 2010, she states that “W is receiving weekly therapy by a Speech and Language Therapist but it is no longer observed by school staff. It was last year but is not this year.”

 

Ground 3: Lack of adequate reasons.

 

39. I turn now to the “Reasons challenge.” The leading authorities on the need for a tribunal to provide adequate reasons are The Queen on the Application of H v Ashworth Hospital Authority and others [2002] EWCA Civ 923 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 602. In the latter case, Lord Phillips MR said:

“19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon”.

40. Mr Friel submits that, in applying these and other authorities, the reasons in this case are open to challenge. He submits that Mrs Farrugia’s Report was both up-to-date and current, and that there was substantial additional recent expert evidence that W’s overall difficulties with language and communication had not been previously fully understood or appreciated. It is indeed correct that this evidence was accepted by the County Council in this case in its concessions with regard to Part 2 of the Statement.
41. Mr Friel submits further that given that there was no challenge by other experts to Mrs Farrugia’s evidence, which was itself supported by Moor House and St Mary’s, and that the details given by Ms Amanda Woodford, the School’s senior speech therapist, is not discussed at all by the Tribunal, the reasons do not meet the requirements as laid down by the authorities and, in consequence, the decision is unlawful.
42. After careful consideration of Mr Friel’s submissions, I have concluded that a “reasons challenge” is not made out. I have asked myself the question asked by Mann J in R v Mental Health Review Tribunal ex parte Clatworthy [1985] 3 All ER 699: “Standing back and looking at these reasons and asking, would the applicant, from those reasons, know why the case advanced in detail on his behalf had not been accepted?”
43. When one looks at the Decision, especially paragraphs G, J, U and V, it is perfectly clear why the Tribunal has made the amendments it did make to Part 3 and why it did not accept Mrs Farrugia’s recommendations on certain matters.

“G. We conclude that W requires an intensive level of Speech and Language Therapy because of the level of his difficulties as described in Part 2. We have therefore adopted the recommendations of Mrs Farrugia save for the recommendation for the Speech and Language Therapist within the classroom and the prescription of the content. We have also deleted  sections relating to the waking day. We consider that the Speech and Language Therapist should be available for consultation with staff teaching W because of the nature of difficulties. However, Thomas Wolsey is a specialist school and we consider that there was considerable Speech and Language Therapist expertise on the staff which should be able to be available to consult with staff throughout the week rather than being in attendance in the classroom throughout his lessons. We did not consider that he needed a Speech and Language Therapist in the class for all his classes but needed some direct observation by the therapist in the class and this is covered by the provision that ‘part of the therapy provision should be delivered either directly in class or in small group,’ which will allow direct supervision and observation by the Speech and Language Therapist. We consider the Speech and Language Therapist must see him in class on a regular basis.

J. We have deleted the paragraphs in connection with the prescription as to the therapy as we found would restrict the professional discretion of the therapist. We also note that this is a special school with experience in addressing the needs of pupils with speech and language difficulties.

U…We do not accept that he needs a waking day curriculum. We accept that More House (sic) and Ms Page and Mrs Farrugia recommended a waking day curriculum but More House (sic) stated that ‘due to his presenting occupational therapy and life skills needs a residential educational placement that can offer consistent regular and integrated occupational therapy and physiotherapy intervention is also required.’ We find that Thomas Wolsey can fulfil this requirement without the need for a waking day curriculum. We have not followed Mrs Farrugia’s recommendation in this partly because he has difficulties other than speech and language and that Mrs Farrugia had not assessed W in an educational context. We found W’s needs albeit complex and interrelated can be met through local day provision.

V. Ms Page recommended a waking day curriculum for his daily living skills, his communicative isolation and the absence of a suitable peer group in his community. We consider that Thomas Wolsey with its expertise can address his difficulties with regard to life skills, communication and can offer an appropriate peer group. Mrs Farrugia assessed him only at her clinic and not in the home environment or at school and we consider she is a therapist who for a child with such complex difficulties is not in a position to recommend his school placement although we acknowledge that she is able to recommend the particular therapy itself.”

44. The Applicant may disagree with the reasoning of the Tribunal, but it is not possible for her to argue that there is no reasoning at all, or no adequate reasoning. I agree with Judge Wikely who when refusing permission to appeal on the papers states that the Tribunal has met the threshold required of Tribunals to provide adequate reasons for its decision to qualify (or not to follow) Mrs Farrugia’s recommendations. The Tribunal in this case meets the test laid down by the Court of Appeal in H v East Sussex County Council and others [2009] EWCA Civ 249.

 

Ground 4: Rationaility.

 

 

 

45. The final ground for challenge is that of rationality. Mr Friel states that the quotation in the Decision at paragraph U from the Moor House Report (quoted above) is so selective as to be irrational.  He submits also that the amendments made by the Tribunal to Part 3, for example rejecting ‘waking day’ provision and the provision for cued articulation, means that the needs of W as set out in part 2 could not be met, and that in consequence the Tribunal acted in an irrational manner contrary to its own Tribunal Order.
46. Paragraph O of the Decision is particularly identified for criticism.

“O. We carefully noted the observations made by Mrs Farrugia. We were given verbal evidence from Mrs C that W had received speech and language therapy in Australia and this was focussed on his articulation. He was, now at the age of 10 years old, not an independent communicator and his dyspraxic and dysarthric difficulties and further complex difficulties remain. His language difficulty cannot be seen in isolation or separated from other difficulties. We accept that these will be addressed by his provision but nonetheless are central difficulties affecting his speech.”

47. To mount a rationality challenge, of course, it is necessary to pass a high threshold. It is my view that Mr Friel gets nowhere near this threshold. It really is impossible to argue that this Decision is irrational in the sense that no Tribunal, properly instructed on the law, could have arrived at this decision. It is apparent that W’s needs are not exclusively due to communication problems, and in consequence paragraphs U and O, and the amendments made to Part 3 (in particular, that there is no waking day provision and no prescription of the need for cued articulation), can in no way be said to be “irrational.”

 

 

His Honour Judge David Pearl

Sitting as a Judge of the Upper Tribunal

12^th October 2010