Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/3653/2012

ADMINISTRATIVE APPEALS CHAMBER

JUDGE MARK

 

 

Decision:   The appeal is allowed.  I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions given below.

 

REASONS FOR DECISION

 

1.     This appeal is brought with my leave.   This decision follows an oral hearing on 22 March 2013 at which Mr. John McKendrick of counsel appeared for the appellant council and Mr. Tom Cross of counsel appeared for the respondent, the mother of the child, F, with whose education this appeal is concerned.  I am grateful to both for their helpful submissions.

 

2.     F was born in 2001.  He suffers from a very rare form of muscular dystrophy.  He has severe myopia with no sight in one eye.  Although 11 years old at the time of the tribunal hearing, his curriculum attainments have been described as mainly equivalent to a developmental level of between 6 and 12 months.  He has no expressive language.  He has hypotonia and severely impaired gross and fine motor skills.  He attended a maintained special school until July 2012 and the main issue of disagreement between the council and his mother was as to the school to be named in part 4 of his statement, although there were also some differences as to the contents of parts 2 and 3 of the statement.

 

3.     The council wished to place F in Kingsley High School, a maintained day special school for students from 11 to 19 with complex/severe learning difficulties.  It was not suggested that this would be an unsuitable placement for F.  An Ofsted inspection had adjudged it to be a good school with outstanding features and a rich and exciting curriculum.  F’s mother, however, wished him to be included in a mainstream school and at one point proposed Whitmore High School.  On the evidence before the tribunal, however, she conceded that a placement at Whitmore would be incompatible with the efficient use of resources or the provision of efficient education for the children with whom he would be educated.

 

4.     Nevertheless, she still expressed a clear wish that he should be educated in a mainstream school.  The tribunal made findings as to F’s needs and as to the contents of the statement.  It set out its conclusions in paragraph 23 of its decision as follows:

 

“In conclusion, therefore, whilst we find (as in Bury) that, given reasonable steps, [F’s] education in a mainstream school would not be incompatible with the efficient education of other children, we consider that the proposed model [ie, proposed on behalf of his mother] for his placement at Whitmore is incompatible with any concept of inclusion, simply because he would be alone, with adults, for much of his day as a result of the requested amendments to Part 3.  We do not see any realistic possibility of his having the opportunity for significant interaction with mainstream peers in the classroom or outside it or of making the hoped for additional progress in this environment.  The statutory guidance does not address the issues relating to the inclusion of a child with profound and multiple learning difficulties and we are mindful that it does not suggest that inclusion in mainstream will be right for all children.  It may be that some children will experience true inclusion in a different setting.  The facts in Bury, to which reference has been made, are distinguishable in that the child concerned was of primary age, physically able, and verbal.  We accept that the legislation supports [the mother’s] preference for a mainstream school but we do not accept that it requires us to endorse a plan which we consider to be profoundly unsuitable for a very vulnerable child.  Although the LEA has provided little evidence as to how inclusion is facilitated in its other mainstream schools, (and in Harrow it seems probable that Whitmore is the most likely to be suitable) we are aware, from our own knowledge and experience, that there are mainstream schools where [F] would not receive his education in isolation, and where he could experience inclusion in a more meaningful way than would be possible at Whitmore.  Consequently, since no other ‘candidate’ schools have been put before us we propose to name a type of school.”

 

5.     The tribunal went on to order that Part 4 was to specify “A maintained mainstream secondary school where [F] will be educated with other pupils who have severe and complex disabilities, which has appropriate facilities, expertise and access to extensive therapy involvement and provision.”

 

6.     In the course of the decision, at paragraph 21, the tribunal addressed the problems which the council has said would occur if, in effect, a school within a school was created for F.  It found that “the impact of his presence in school on the day to day education of his peers would be minimal” as he would spend little time in the classroom.  I am unclear why indeed he would spend any time there, as the lessons being taught would have no meaning whatsoever for him and would be wholly beyond his capacity to comprehend.  Nor would there be, as the tribunal pointed out, any significant detraction from the time allocated to the other students as differentiation at the level F required would be the task of the specialist teacher.  Additions to the work of the SENCO could reasonably be covered by additional resources and reasonable adjustments could be made to allow for the significant amount of extra space he would need for his individual teaching and therapy.

 

7.     In seeking permission to appeal, the council initially identified four grounds of appeal.  Firstly, it contended that the tribunal had acted irrationally and/or unreasonably and/or in error of law by concluding that F’s placement at a mainstream school would not be incompatible with the efficient education of other children.  Secondly, it was contended that the tribunal failed to provide any reasons as to what reasonable steps were required, or why they were required, and also failed to consider the costs of such steps and provide reasons as to why the steps were reasonable given the cost.  Third it is said that the tribunal erred in law by considering whether F’s placement at Whitmore or generally in mainstream was ‘inclusive’ or otherwise.  Fourthly, it was contended that by giving evidence to itself it acted contrary to the rules of fairness when concluding that there were other mainstream schools available when no evidence had been presented that this was the case.

 

8.     Following receipt of this application, by order dated 24 September 2012, a different tribunal judge, Judge Tudur, refused permission to appeal but decided that the decision should be reviewed in part pursuant to Rule 47(1) because there was an error of law in that “the Tribunal did not specifically make reference in its reasons for the conclusion that a dedicated specialist teacher was not required to be included in part 3 of [F’s] statement nor identify the level of input by a specialist teacher required to be included in Part 3 (if any).”  Judge Tudur further directed that the review should be conducted by the original tribunal panel following written submissions by both parties.  She found that there was no arguable error of law in relation to the second to fourth grounds of appeal, omitting to refer at all to the first ground.  This appears to have been an accidental error, as the ‘reasons’ ground was in fact the second ground, but fortunately nothing turns on it. 

 

9.     The council then applied to the Upper Tribunal for permission to appeal, the new application being dated 22 October 2012.  Only three grounds were relied on, the contention that the tribunal had acted irrationally or unreasonably no longer being pursued.  Meanwhile the review proceeded, and on 8 November 2012 an Upper Tribunal judge stayed the application for permission until 14 days after the First-tier Tribunal had sent out its decision on the review application.  The review decision is dated 21 November 2012.  Paragraphs 1 to 5 are basically an account of the parties’ submissions and evidence and the broad view taken of them by the tribunal.  It then continued in paragraph 6 by stating:

 

“Essentially, however, we concluded that ‘reasonable steps’ could be taken in order to prevent the inefficient education of other pupils at Whitmore, as a ‘candidate’ school.  We also accepted that [F] would require the kind of curriculum described by Dr. Hymans if he were placed in a mainstream setting.  (Para15).  We did hypothesise, in para 22, that the creation of a school within a school’ would not be a ‘reasonable step’ envisaged by the statutory guidance.  However this did not amount to a finding in relation to [F].  Indeed the tribunal was able to envisage a situation where a child, in a wheelchair, placed in a mainstream classroom, supported by a teaching assistant, following a wholly differentiated curriculum and encouraged not to vocalise inappropriately would not compromise the efficient education of the other pupils.  We could not accept, however, that such a setting would be in any way appropriate for [F].  What followed was the detailed conclusion (para 23) that, whilst ‘reasonable steps’ were possible, the plan being put forward for [F] was so unique as to be extremely isolating and therefore harmful to a very vulnerable child.  Hence the decision in relation to Part 4.”

 

10. The tribunal then went on to provide “Conclusions”.  These were as follows:

 

“It is submitted that there are apparent contradictions in the tribunal’s decision in that, having accepted Dr. Hyman’s proposals for a school within a school in mainstream (para 15), it did not order Part 3 of the statement to be amended to provide for a specialist teacher.  We agree and regret that our conclusions were not more explicit, and that para 15 is misleading.  However, it is not the case, as submitted on behalf of the parent, that we simply omitted to specify provision for a specialist teacher… In effect we endorsed Dr Hymans model, except that we could not be persuaded that a ‘school within a school’ (or resourced base) for a single child would be appropriate or necessary.  The resourced base we envisaged would comprise a group of children, supported by a specialist teacher with the skills and responsibilities described by Dr, Hymans.  Our amendments to Part 3 reflected this view, which we consider to be a rational extension of Dr Hymans’ position and enabling inclusion without the risk to [F’s] wellbeing which we considered to be inherent in his proposals.  In particular, we considered that the specification of one to one specialist teaching to which the LEA objects, would be unnecessary and excessive and so we did not order it.”

 

11. In my judgment, this reason clearly flows from the tribunal’s conclusion that there was no suitable school in Harrow and that F should be educated in a school outside the area where there were already other similarly disabled pupils and therefore already suitable teachers.

 

12. The tribunal then went on to express the view that there was nevertheless a shortcoming in the statement and that it proposed to take the opportunity further to amend Part 3 further to correct this.  It also stated that from the information available to it at the time of the original hearing, Whitmore appeared to be the most suitable candidate school for [F] within the council’s area “and this was made clear in para 22”.  It expressed puzzlement in those circumstances as to why the council had submitted a number of letters from its own mainstream schools but only one from outside the borough.  The additional school, in Newham, had a resourced base for pupils with severe and complex difficulties, but was full.  It then went on to purport to order the further amendment of Part 3 of the statement.

 

13. It is common ground that the tribunal had no power to amend Part 3 of the Statement in this way.  Section 9(1) of the Tribunal Courts and Enforcement Act 2007 provides that “The First-tier Tribunal may review a decision made by it on a matter in a case” other than an excluded decision.  Section 9(4) provides that

 

“Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following –

(a)   correct accidental errors in the decision or in a record of the decision;

(b)   amend reasons given for the decision;

(c)   set the decision aside.”

 

14. Where the decision is set aside, under section 9(5) the First-tier Tribunal must either re-decide the matter or refer that matter to the Upper Tribunal.

 

15. It is common ground between the parties therefore that the tribunal had no power to amend Part 3 of the statement without first setting aside and remaking its decision.  It has not been argued before me that I should treat the original decision as having been set aside and the matter re-decided.  I accept for the purposes of this decision that that is correct.  The only procedural issue before me in this respect is whether the decision under appeal is the original decision without the explanation for it offered by the review decision of November 2012 or whether those reasons are to treated as incorporated in that decision. 

 

16. I am satisfied that insofar as it consists of reasons for the original decision the November decision is to be regarded.  It further appears to me that on this appeal it is proper to have regard to the whole of the decision insofar as it explains the reasons given for the original decision.

 

17. This is so despite an order of another First-tier Tribunal judge, Judge Burrow, dated 25 January 2013, made after I had given the council permission to appeal the original decision, which I had done by order of 14 January 2013.  He purported to review the decision of 21 November 2012, and concluded that it was ineffective as it purported to take action (amending Part 3 of the statement) for which there was no statutory power, as “the part of the decision which was amended had not been set aside as required by section 9(4)(c) of the Tribunals Courts and Enforcement Act 2007” and that as a result there was no valid review.  He therefore decided to review the decision on the same grounds as were set out in the order of Judge Tudur of 24 September 2012.  he concluded that “To the extent covered by the ground of review [directed by Judge Tudur] the decision of the 25 July 2012 is set aside pursuant to section 9(4)(c) of the 2007 Act.  Because grounds B-D are being appealed in the UT, and it is appropriate now for all matters to be dealt with by one court, in pursuance of Section 9(5)(b) of the 2007 Act the matter under review is referred to the UT where all matters can be dealt with together.”

 

18.  Quite apart from the question whether the entire review was invalidated by the excess of jurisdiction, the decision of Judge Burrow was plainly made without jurisdiction.  There is no power under section 9(4)(c) to set aside part only of a decision, and the matter which is to be referred to the Upper Tribunal is the whole of the matter which was the subject of the decision set aside, not a mere part of it.  Accordingly I directed prior to the hearing of the appeal that I would decline to accept jurisdiction in respect of the purported referral.  As I also pointed out, the review was concerned with the First-tier Tribunal’s reasons for its decision.  The Upper Tribunal could not have been expected to supply the First-tier Tribunal’s reasons for its decision.  Further, it appears to me that the First-tier Tribunal should exercise great care in referring a matter to the Upper Tribunal, where a decision on that matter would benefit from the practical educational expertise of the lay members of the First-tier Tribunal.  In general, I would not expect it to be a proper exercise of the First-tier Tribunal’s discretion to refer a matter to the Upper Tribunal for decision which requires such expertise.

 

19. A further procedural issue which was raised before me was whether I should entertain an appeal on the facts and reasons ground that had been reviewed by the First-tier Tribunal.  The permission to appeal which I gave was unlimited and I therefore see no reason in principle why I should refuse to permit that ground to be argued, and indeed counsel for the mother had no objection to my doing so as long as I took into account the additional reasons given by the tribunal when the decision was reviewed.  I am satisfied that I should take those reasons into account, and indeed it would be contrary to the overriding objective to refuse to do so and then set aside the decision for want of adequate reasons when the appeal was brought although they have since been properly provided on the review.

 

20. Finally, although the decision of Judge Tudur, and the response of the tribunal insofar as it provided the requested reasons, were unexceptional, care should be taken not to direct a tribunal to amend its reasons except in accordance with the decision of the three judge panel of the Upper Tribunal in JS v Secretary of State for Work and Pensions, [2013] UKUT 100 (AAC).

 

 

The law

21. Section 316(3) of the Education Act 1996, as amended by the Education Act 2001 provides that if a statement is maintained under section 324 of the 1996 Act for a child, he must be educated in a mainstream school unless that is incompatible with (a) the wishes of his parent or (b) the provision of efficient education for other children.  It is plain that this is regardless of the best interests of the child in question and regardless of whether this would involve the inefficient use of resources.  Those interests used to be taken into account under s.316 as originally enacted and their removal by Parliament in the Education Act 2001, coupled with their retention in paragraph 3 of Schedule 27 to the 1996 Act in  relation to a specific school preferred by the parents makes this clear (R on the application of MH v The Special Educational Needs and Disability Tribunal and the London Borough of Hounslow, [2004] EWCA Civ 770; Bury MBC v SU, [2011] ELR 14).  This is so even though the parents may be acting wrongfully and in breach of their duty under section 9 of the 1996 Act in failing to seek his education in a suitable school (Bury MBC v SU).  I note, however, that in paragraph 82 of the judgment of the Court of Appeal in MH it is stated “We have now reached the point where it would, as it seems to us, be imprudent to attempt to give any further guidance as to the meaning and effect of sections 316 and 316A in the absence of specific findings of fact.” 

 

22. Section 316A(4) of the 1996 Act provides that if a local authority decides to make a statement under section 324, but not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27, “they shall, in making the statement, comply with section 316(3)”.  That is the position in the present case in that the parental choice of Whitmore was rejected by the council and on appeal by the tribunal. 

 

23. Section 316A(5) provides that a local authority “may, in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b) only if they show that there are no reasonable steps that they could take to prevent the incompatibility”.  Section 316(6) provides that in relation to a particular mainstream school a local authority may rely on the exception in section 316(3)(b) only if it shows that there are no reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility.  Section 316A(8) requires the local authority to have regard to guidance from the Secretary of State, and section 316A(9) provides that the guidance should relate to steps which may, or may not, be regarded as reasonable for the purposes of subsections (5) and (6).

 

24. Section 324 of the 1996 Act provides for the content of the statement of special educational needs.  Section 324(4)(a) provides that the statement shall specify the type of school or other institution which the local authority consider would be appropriate for the child.  If, by virtue of section 316(3) the council, and thus the tribunal, is obliged to name a mainstream school, even if it is wholly inappropriate, in any normal sense of that word, for a child, it seems to me that it should also specify the type of school that it considers would be appropriate.  A tribunal can, in any event, comply with section 316A(4) by naming a specific type of mainstream school or other institution or indeed, as is normally the case, a specific mainstream school.

 

25. Parts of the statutory guidance (DFES 0774/2001) are cited at length by the Court of Appeal in MH.   In particular, paragraph 24 states that mainstream education cannot be refused on the grounds that the child’s needs cannot be provided for within the mainstream sector.  As to this, paragraph 24 continues by stating that “The general duty assumes that with the right strategies and support children with special educational needs can be included successfully at a mainstream school.  The local education authority should be able to provide a mainstream option for all but a small minority of pupils.  Local education authorities should look across all of their schools and seek to provide appropriate mainstream provision where possible.”  While paragraph 24 accepts that there will be cases where this is not possible, it does not address the question what is to happen if the child’s needs cannot be provided for in a mainstream school for a reason other than its incompatibility with the wishes of the parents or the provision of efficient education of other children.

 

26. In addition paragraph 6 of the guidance sets out key principles and states that in seeking to develop inclusive education systems schools, local authorities and others should keep those principles in mind at all times.  They include principles that with the right training, strategies and support nearly all children with special educational needs can successfully be included in mainstream education; the interests of all pupils must be safeguarded; all children should have access to an appropriate education that affords them the opportunity to achieve their personal potential; and “Mainstream education will not always be right for every child all of the time.  (The emphases in this paragraph are mine). Equally just because mainstream education may not be right at a particular stage it does not prevent the child from being included successfully at a later stage.”  I note that even if F is educated in a mainstream school, there is no possibility of him receiving anything remotely resembling mainstream education if this refers to the syllabus rather than the location.

 

27. In my judgment, the apparent incompatibility between the provision of suitable education and the requirement to name a mainstream school without express regard to the suitability of the school for the child can only be reconciled on the basis that the local education authority is under an absolute obligation to make a school suitable, if there is no suitable school already, whether inside or outside its area, where the child can be found a place, subject only to the qualification in section 316(3)(b).  It has to provide for the identified needs.  It cannot say that it will educate the child in a mainstream school without providing for them.  Nor can it rely on any independent resources issue in this respect.  This combines the need to protect the interests of the child with Parliament’s intention, in amending 1996 Act in 2001, to promote inclusion.

 

28. Further, the incompatibility exception can be established by showing and only by showing that there are no reasonable steps that the local education authority could take in relation to their mainstream schools to prevent the incompatibility (section 316A(5) of the 1996 Act).  The local authority may not wish to take advantage of that provision if a place can be found for the child in an adjoining area, but its powers in respect of schools outside its area are very limited.

 

The present case

29. In considering whether, in the present case, the provision of education for F in a mainstream school would be incompatible with the provision of efficient education of other children in each of its own schools, it is necessary to consider not only the effect on the other children presently in each of its schools and reasonable steps that may be taken in that regard, but also the position of the notional additional children who would have to be introduced there to enable F’s special needs to be met, since one of the provisions that has to be made for him is to ensure that he is educated with other similarly disabled children.  As the tribunal found, the plan to educate him at Whitmore in isolation was profoundly unsuitable for him, so that the council would not be performing its duty there unless other children with severe and complex disabilities were there with him.

 

30. Where in my judgment the tribunal erred in law was in its approach to the question what mainstream schools could be considered.  At least in the absence of the clear availability of a suitable place at a mainstream school outside the area of the council, the tribunal, in considering the effect on other children, could only consider mainstream schools within the council’s area.  It would have to consider the effect not only on the children already at those schools but also on the other children with severe and complex disabilities, who would, if legally possible, have to be brought in from other schools to enable F to be educated with them.  If their inclusion with F at, for them, a new mainstream school would be incompatible with the provision of efficient education for them, then that would be a basis on which the council could establish exception (b) to the rule in section 316.

 

31. The tribunal attempted to resolve this difficulty by relying on its own knowledge that “there are mainstream schools where [F] would not receive his education in isolation, and where he could experience inclusion in a more meaningful way than would be possible at Whitmore.”  In my judgment it erred in law in this respect in that it should not, at least on the evidence before it, and possibly at all, have had regard to schools outside the council’s area.  It is also unclear whether any of those unnamed schools could make a place available for F at that time and it would not appear from its decision at least that any of them was within reasonable travelling distance of F’s home in Harrow.  I note that the only school identified to date by the council or the mother is in Newham, which would probably be too far for [F] to be taken to and from daily, and which is in any event full.

 

32. A further issue which is raised on this appeal is whether the tribunal erred in law in relying on its own knowledge without inviting submissions from the parties on the facts in question.  I note that in Richardson v Solihull MBC; White v London Borough of Ealing, [1998] ELR 319, a tribunal, faced with a parental choice of an American school for autistic children concluded from their own experience that a school could be found in this country which was appropriate for their special educational needs.  It was contended on appeal that before arriving at this conclusion the tribunal ought to have stated its inclination and to have identified the schools in question.  At pp.331H to 332D, Beldam LJ stated as follows:

 

“I am conscious that it is sometimes difficult to distinguish between an expert tribunal using the expertise for which its members have been chosen in deciding issues before it and using that expertise in a way which raises other issues the parties may not have had the opportunity to consider.  I have no doubt that the specialist member of a tribunal who had in mind a specific school which neither party had considered would regard it as fair and indeed in the child’s interest to raise with the parties the possibility of the provision of such a school to meet the child’s educational needs.  In the present case I think it would have been preferable, once the tribunal had decided that neither school proposed by the parties was appropriate, for the chairman to have indicated this to the parties and told them that the expert members considered suitable arrangements could be made in this country, inviting submissions from the parties as to the course they wished the tribunal to adopt in those circumstances.  Nevertheless I am persuaded by Mr. Friel’s argument that it would not be appropriate to remit this matter to the tribunal or to a fresh tribunal, nor would it be in the interests of the two boys.  In the course of argument we were told that there are indeed appropriate schools and one at least has places for these two boys.  I see little point in remitting the case to a fresh tribunal when for all we know Mrs. White may be prepared to accept placement at such school.  If she does, remission would be unnecessary.  If she does not but still prefers placement at the Higashi School, the matter will no doubt come before a fresh tribunal in any event.”

.

33. Subsequently, a further hearing was held at which it was argued that these findings meant that the tribunal had been guilty of procedural unfairness and that Mrs. White had been denied natural justice.  At p.342G to 343B, Beldam LJ rejected this contention.  He stated that, while being satisfied for the reasons given by the judge from whom this appeal had been brought (whose judgment is not quoted on this point) that the tribunal had been entitled to hold that an appropriate school could be found in this country and that the specialist members of the tribunal could rely on their expertise,

 

“I felt it right to refer to the sometimes difficult task of deciding how far the use of that expertise amounted to reliance on evidence which the parties may not have considered and it seemed in the circumstances of the present case it would have been preferable, as I have said, for the chairman to have raised the question with both parties.  In my view the failure to give this opportunity did not affect the decision of the tribunal on the suitability of the two schools proposed.  It might have affected the procedure the tribunal then adopted.”

 

34. Peter Gibson LJ agreed at p.343H, saying that he did not find that procedural unfairness was established.  He was not satisfied that the White parents had suffered a substantial wrong or miscarriage of justice.

 

35. I do not consider that this establishes any general rule that a tribunal may in effect rely on evidence within its own knowledge that is not available to the parties.  It may, of course, rely on its own expertise but that is different from factual evidence.  In the case before the Court of Appeal, it was found that the failure to raise the question with the parties did not affect the decision of the tribunal.  It would inevitably have come to the same conclusion.  The general rule remains the same as it has always been, that a tribunal ought not to rely on its own knowledge without giving the parties an opportunity to comment.  If it does so, and there is something that might usefully have been said in response, then there will have been a breach of natural justice, or now a failure to comply with the requirements of article 6 of the European Convention on Human Rights, and the decision will be set aside.

 

36. That appears clearly from the judgment of Lawrence Collins J in Lucie M v Worcestershire CC, [2003] ELR 31, where he stated at paragraph 11:

 

“Fifthly, the lay members of a Tribunal specifically appointed for their educational expertise may use that expertise in deciding issues before the Tribunal, but they may not use it to raise and decide other issues which the parties may not have had an opportunity to consider (for example the choice of a specific school which neither party had considered): Richardson v. Solihull Metropolitan BC [1998] ELR 319 at 322. That is because although it is a specialist tribunal with members appointed for their expertise, it is important that the Tribunal obeys the rules of natural justice and that members should not give evidence to themselves which the parties have had no opportunity to challenge: ibid at 338.”

 

37. This appears to me simply to restate the rule of natural justice identified by Lord Diplock in Mahon v Air New Zealand, [1984] AC 808, at 821, (and cited by Mann J in R v Mental Health Review Tribunal ex p. Clatworthy, [1985] 3 All ER 699 at 704) that  any person represented at a hearing “who will be adversely affected by the decision should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicated that it would inevitably have had that effect.” (Lord Diplock’s emphasis)

 

38. In the present case, the tribunal, in relying on its own factual knowledge, overlooked that there could be issues as to the appropriateness of the schools that they had in mind and, if any were suitable, as to the availability of a place at one of them for F.  It is plain that representations could also have been addressed to the tribunal as to whether the council could be compelled to prove that the exception to the basic rule in section 316(3)(b) extended to other schools outside its area, and as to potential impossibility of its being able to find a place for F there.  Accordingly, the tribunal did err in law in failing to draw the attention of the parties to the matters within the knowledge of its members on which it relied and that did deprive the council of an opportunity of dealing with the relevance of those facts.  For that reason also, the decision of the tribunal must be set aside.

 

39. At least on the basis of the evidence before me, a possible consequence of the failure to inform the parties of the facts on which the tribunal wished to rely is that the council was required to do something that was impossible in practice, namely to compel a school outside its area, but which could be accessed sensibly by F, and which had other pupils with severe and complex disabilities, to accept him as a pupil.  It is important that a tribunal should not put a local education authority in the position of being in effect ordered to do the impossible.

 

40. In this respect it is also important that the tribunal should form some view of the reasonable adjustments that may need to be made to prevent incompatibility so as to accommodate a pupil at a school.  Such adjustments will need to be carried out in a way that is not incompatible with the provision of efficient education for other children.  In some cases this may take time, perhaps months, and may have to wait until there are school holidays, but during this time provision must be made for the education of the child.  In those circumstances, it is open to the tribunal to name as an interim measure a school that is not mainstream until the authority has had a reasonable opportunity of making those adjustments.  This may involve an investigation of the work needed at different schools in the area, and a determination of the time that should be allowed for them.

 

41. I am not able to substitute my own decision for that of the tribunal and I must therefore remit the matter to be reheard by a new tribunal.

 

(signed on the original) Michael Mark

Judge of the Upper Tribunal

 

27 March 2013