Essex CC v DH [2016] UKUT 463 (AAC)
Essex Cc v Dh (SEN) [2016] UKUT 0463 (AAC)
In The Upper Tribunal Appeal No: Hs/3460/2015
Administrative Appeals Chamber
Before: Upper Tribunal Judge Wright
Decision
The Upper Tribunal allows the appeal of the appellant to the extent of holding that the decision of the First-tier Tribunal of 9 September 2015 under reference SE881/15/00021 involved an error on a point of law. However, as a matter of its discretion the Upper Tribunal decides not to set aside the First-tier Tribunal’s decision.
This decision is made under section 12(1) and 12 (2)(a) of the Tribunals, Courts and Enforcement Act 2007.
Appearances: Ms Rachel Kamm of counsel for the appellant
Mr Russell Holland of counsel for the respondent
Reasons For Decision
1. After the first oral before the Upper Tribunal in this case I gave
Essex County Council permission to appeal against the decision
made by the First-tier Tribunal (“the tribunal”) dated 21 September
2015. By that decision the tribunal allowed the appeal of [the father]
in respect of his daughter, Jessica, and decided, most relevantly,
that [D] special school was to be named in Part 4 of Jessica’s
statement on the basis of a 38 week residential placement. I gave
permission to appeal on the following grounds:
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“Permission to appeal is given because I consider that it is arguable with a realistic prospect of success that the tribunal erred materially in law in failing to make sufficient findings of fact and in failing to give adequate reasons for its decision so as to explain why as a matter of Jessica’s educational needs a 38 week residential placement was required.
Extensive grounds (numbering 10) seeking permission to appeal had been prepared in writing on behalf of Essex County Council. Ms Kamm, in my view quite sensibly, sought to focus all of those grounds on one key issue, namely the adequacy of the First-tier Tribunal’s reasoning and findings of fact showing to the reader of its decision why it had concluded that Jessica had an educational need (as opposed to a social care need or respite need) for 38 weeks per year ‘waking day’ curriculum/residential schooling. It is on that more broadly put ground that I give permission to appeal.
On the face of paragraphs 12 and 13 of its decision the tribunal directed itself properly as to the law and the legal test(s) it had to apply to the evidence before it and the facts it found. However it is in the reasoned out application of that law and test(s) that the tribunal’s decision may arguably be lacking and thus, arguably, be in error of law.
Even if the local authority had not challenged the educational purpose of the residential placement sought (see paragraph 20 of the tribunal’s decision), arguably it was still for the tribunal to satisfy itself that there was such a purpose and explain what that purpose was. Given the tribunal’s acceptance that Jessica was making “pleasing progress” in her ordinary day attendance at [D school], and given the arguable lack of any ‘waking day’ needs identified in Part Ii of the statement, it arguably was incumbent on the tribunal to set out findings and reasons to show why in the tribunal’s view Jessica needed further educational provision (i.e. for the rest of the day), and those findings and reasoning are arguably lacking.
As part of this, it is arguable that the tribunal did not make clear in paragraph 31 of its decision what the differences were between social care/respite needs and educational needs, and why if the provision to be made available at [D school] was the same as for respite care it here amounted to educational provision. Further, the educational need identified by [the father] in paragraph 33 of the tribunal’s decision, and seemingly adopted by the tribunal, without at least more by way of reasoning is arguably in conflict with paragraph 27 of Hampshire Cc – v- Jp [2009] UKUT 239 (AAC); [2010] Aacr 15; [2010] Elr 413.
It is also arguable, as part of the above, that the tribunal failed adequately to identify - per paragraph 31 of its decision – the parts of [D] school’s evidence which set out the case for residential accommodation needed to meet Jessica’s educational needs.”
2. The appeal then came back before me for a further hearing, when
the representation was as set out above.
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3. It was at that hearing that important information was disclosed
which fundamentally affects both the importance of this appeal and
how it should be disposed of. That information was that an annual
review of Jessica’s statement of special educational needs had been
conducted since the tribunal’s decision, pursuant to section 328(5)
(b) and sections 323-324 of the Education Act 1996, and the
statement amended. Just as importantly for the purposes of this
appeal to the Upper Tribunal, however, I was told (the new
statement was not put before me) that the new, post-annual review
statement was the same, in terms of providing for a 38 week
residential placement at D school, as the statement the tribunal had
ordered the local authority to put in place, though it was altered in
other, non-controversial respects. I will refer to the statement put
in place after the annual review as the “new statement. I was further
told that the new statement was not subject to any condition (even
assuming such could lawfully be imposed) that it was subject to the
decision of the Upper Tribunal on this appeal.
4. In short, in its relevant particulars the new statement provides
exactly what Jessica and her parents wished for and which the
council in pursuing this appeal was otherwise seeking to argue
against. Moreover, it is that new statement which now governs the
relationship between the parties, and it is not one, as I understand
it, about which Jessica or her parents have any complaints or which
they would wish to challenge on appeal.
5. Given the new statement had on its face replaced the statement of
special educational needs the tribunal had ordered to be put in
place, I asked the parties representatives to provide me with written
argument after the hearing on the legal effect of that new statement
on this appeal continuing. I had in mind, in particular, what the
point would be in my allowing the appeal and either remitting it to
be re-decided or re-making it myself if the statement giving rise to
the parent’s appeal had been superseded by the new statement.
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The parents positively would not wish to appeal the new statement
and the statement they had appealed no longer existed, and no right
of appeal vests in the local authority. What therefore would either I
or any new First-tier Tribunal be deciding?
6. Both parties have provided such argument. They are at one in
agreeing that the Upper Tribunal retains its jurisdiction to decide
this appeal notwithstanding the new statement that has since been
put in place in respect of Jessica on the annual review. I am
persuaded that I retain jurisdiction. Even assuming that the
statement as ordered forms part of the tribunal’s decision, it is the
decision against which permission to appeal was given1. That
follows from the words “a right of appeal to the Upper Tribunal on any
point of law arising from a decision made by the First-tier Tribunal…”
(my underlining added for emphasis), in section 11(1) of the
Tribunals, Courts and Enforcement Act 2007. The decision of the
tribunal remains in place even if it is no longer of any continuing
effect as it has been overset by the new statement.
7. The Upper Tribunal therefore being seised of the appeal, a decision
is required on this appeal. My first task, per section 12(1) of the
Tribunals, Courts and Enforcement Act 2007, is to decide whether
“the making of the decision concerned involved the making of an error on
a point of law”. I do not consider that the later annual review should
be taken into account by me at this stage in determining whether
any error law the tribunal made was material to its decision because
that would allow the decision’s materiality to be judged by events of
which the tribunal could have had no knowledge and which could
not have affected its decision at the time it was made. It seems to
me that ‘materiality’ here must mean something which could have
affected the decision at the time it was made, with subsequent
1 There is no argument that the annual review took place before I gave permission to appeal nor, in consequences, any argument made for me to reconsider the grant of permission to appeal on the basis of material non-disclosure under the set aside provisions found in rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
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changes falling to be taken into account in the exercise of the
discretion found in section 12(2)(a) of the Tribunals, Courts and
Enforcement Act 2007 as to whether to set the tribunal’s decision
aside.
8. Looking then at the tribunal’s decision and its reasoning, despite
the arguments of Mr Holland to the contrary I am persuaded, but
not without some hesitation, that it did err materially in law in
failing to adequately explain through its reasoning and fact finding
why Jessica had an educational need for residential schooling 38
weeks of the year. This is perhaps particularly so in the context of
what is said in paragraph 27 of Hampshire County Council –v- Jp
(SEN) [2009] UKUT 239 (AAC); [2010] Aacr 15:
“it would be inappropriate to reason from the fact that the care needed by N outside normal school hours would reinforce what had been learned during the school day that N needed a “waking day curriculum” with the overtones of education that the word “curriculum” carries. Where children do not have special needs, they are not regarded as always being at school rather than on holiday merely because much play and engagement in leisure activities outside school hours may have an educational value and support what is taught at school. In The Learning Trust v MP [2007] Ewhc 1634 (Admin); [2007] Elr 658, Mr Andrew Nicol Qc, sitting as a deputy judge of the High Court, pointed out at [41] that “a need for consistency is not to be equated with a need for educational provision outside of normal school hours””.
9. In this case Jessica’s parent’s evidence was that “the educational
purpose [of the residential placement] is that it would bring improvement
in Jessica’s life skills, communication and working on her sleep and
toiletting issues”. Furthermore, in its Conclusions and Reasons at
paragraph 33 the tribunal on its face accepted that the educational
need was as stated by Jessica’s father, namely “[w]hatever
contributes to Jessica’s life equals education and the longer the days at
school the more she will learn. She will receive more education for her
life” (my underlining added for emphasis). That it seems to me
comes perilously close to committing the error paragraph 27 of Jp
advises against.
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10. I appreciate that in paragraph 25 of its reasons the tribunal
identified the five (undisputed) learning objectives in Jessica’s
statement – including general learning skills but also to improve her
attention, concentration and flexibility, her communication skills
and her social and self-help skills. This was what the tribunal said it
would expect for an autistic child. It then said “but for her to make
progress and for her to learn they need to be applied consistently across
home and school” (my underlining again). These passages, it may be
said in the tribunal’s favour, show that it was not allying itself solely
to the “whatever contributes to Jessica’s life” thesis of her father
(though it still leaves unexplained why the tribunal did ally itself to
this statement).
11. However, the difficulty generated by what I have highlighted above
from paragraph 25 of the tribunal’s reasons is how it fits with the
tribunal’s finding in the immediately preceding paragraph of its
reasons that Jessica was making pleasing progress at D school on a
school day (i.e. non-residential) basis and “everybody was impressed
with the progress she has made”. That it seems to me must mean
educational progress. I struggle therefore to understand why the
tribunal concluded that a residential placement was needed in order
for Jessica to learn, if she was already learning and making
“pleasing progress” and not, I note, limited or stilted progress or no
progress at all.
12. I also accept that in paragraph 26 of its reasons the tribunal found
that “Jessica has severe or multiple special educational needs that require
a consistent programme both during and after school hours”. Again,
however, given what I have said immediately above about the
pleasing progress Jessica was already making, this in my judgment
fails to explain adequately why there was an educational need for an
outside of the school day learning curriculum.
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13. A further significant factor colouring the inadequacy of the
reasoning is that the tribunal seemed to accept that there was no
difference in the “after ordinary school day” provision between
students at D school on a residential basis and those there on a
respite basis. Given this and thus the possibility that the provision
might not have been educational but respite care only, it seems to
me that it was all the more incumbent on the tribunal for it to make
clear findings of fact on, and give clear reasoning explaining, why
Jessica had a need for education that fell outside the ordinary
school day, and it failed to do that in my judgment.
14. Given where this case has reached however, I do not consider I need
to say anything more on this. This is not a case where despite the
academic nature of the appeal some wider or important issue of law
arises which needs ruling on, as in Hampshire County Council –v-
Jp (SEN) [2009] UKUT 239 (AAC); [2010] Aacr 15. The tribunal
here may have had a proper basis for deciding on the evidence
before it that Jessica as matter of her educational needs required a
‘waking day’ curriculum provided in a residential school setting. The
vice in its decision is simply that it failed to explain clearly enough
the basis on which it came to that decision, not that it had
misdirected itself as to the law. Beyond reasoning out its decision
more adequately and providing appropriate findings of fact relevant
to the same, this is not a case in which the law on ‘waking day’
curriculums needs clarification or where lessons need to be passed
on to any new First-tier Tribunal. I also bear in mind here that, for
the reasons given below, there is no need for this appeal to return to
be re-decided by a new First-tier Tribunal.
15. The tribunal’s decision was therefore erroneous in law. However, I
do not set aside its decision. I am not required to set its decision
aside even given the above error of law finding. All section 12(2)(a)
of the Tribunals, Courts and Enforcement Act 2007 provides is that
“[t]he Upper Tribunal may (but need not) set aside the decision of the
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First-tier Tribunal [if the Upper Tribunal finds under section 12(1) that
the making of the decision concerned involved the making of an error on a
point of law]”. The reasons I do not set aside the decision are as
follows.
16. To set aside the decision would require either the Upper Tribunal to
re-decide the appeal or remission to a differently constituted First-
tier Tribunal for it to re-decide the appeal. This follows from section
12(2)(b) of the Tribunals, Courts and Enforcement Act’s wording
that “if [the Upper Tribunal] does [set aside the decision of the First-tier
Tribunal it], must either (i) remit the case to the First-tier Tribunal with
directions for its reconsideration, or (ii) re-make the decision”. What,
however, is there to be re-decided? Any such decision would be
about Jessica’s special educational needs now (or the date of any
remittal hearing) and not as they were in September 2015 when the
tribunal decided the appeal: see Go and Ho –v- Barnsley Mbc
(SEN) [2015] UKUT 184 (AAC).
17. Even if, which I have not accepted, the tribunal had erred in law by
arriving at perverse decision and the only decision it could have
arrived at on the evidence before it was that a residential placement
was not educationally required, that would only show that the
tribunal had erred in law at the date it made its decision. Such a
conclusion, moreover, would not necessarily require a decision to be
made now or on remittal that Jessica had no educational need for a
residential placement. That would require evidence as to how
Jessica is now (or at the date of the remittal hearing), and that has
not been put before me.
18. Ms Kamm at one stage made a (faint, I think) suggestion that if I
was satisfied (which I emphasise I am not) that the only correct
conclusion to be made on the evidence in September 2015 was that
Jessica did not have an educational need for residential schooling,
then it was for Jessica’s parents to show that something had
changed in the intervening period. If they could show no change
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then I should conclude that there had been no change and so make
the same decision in 2016 as the tribunal ought to have arrived at in
September 2015. I am not sure that this would necessarily be the
correct approach in what is an inquisitorial jurisdiction. More
importantly perhaps, it very arguably was not an issue which had
been specifically flagged up in advance of the hearing before me and
so it may well have been unfair to Jessica and her parents to make
such evidential enquiries and assessments at the hearing before me;
even assuming it would otherwise be appropriate for me to do so
when not sitting with even one of the specialist members who sit on
tribunals in the First-tier Tribunal. And any such argument ignores
the effect of the new statement, to which I now turn.
19. That then leaves remittal as the only possible appropriate remedy.
But what would any new First-tier Tribunal be deciding and what of
the original appeal made by Jessica’s parents would remain to be
decided?
20. The effect of sections 323-324 and 328 of the Education Act 1996
when read alone might suggest that after the annual review neither
the statement which the parents did appeal nor the one then
ordered by the tribunal remained in place. This it might be said
follows from the opening wording of section 328(1) of the Education
Act 1996 - “Regulations may prescribe the frequency with which
assessments under section 323 are to be repeated in respect of children for
whom statements are maintained” – which take the enquiry back to
section 323, a further assessment, and from there section 324 and
the “making and maintaining” of “a statement” of special educational
needs, all of which might suggest a new statement on each section
323 assessment. It might therefore be argued that what the
Education Act 1996 requires on such an annual (or “periodic”)
review is that the relevant child’s education needs are assessed
again under section 323 and, in light of that fresh assessment, a new
statement is put in place following the annual review under section
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324. In other words, the new statement replaces or supersedes the
previous statement.
21. This reading, however, would be to ignore the terms and effects of
schedule 27 to the Education Act 1996, which pursuant to section
324(7) of the Act “has effect in relation to the making and maintenance
of statements under this section”. Paragraph 2A of schedule 27 has the
heading “Amendments to a statement” and provides in paragraph (1)
that “[a] local authority shall not amend a statement except:
“(a) in compliance with an order of the Tribunal, (b) as directed by the Secretary of State under section 442(4), or (c) in accordance with the procedure laid down in this Schedule.”
The rest of paragraph (2A) then deals with the procedure to be
adopted by a local authority in carrying out either a “periodic
review” or a “re-assessment review”. The former is defined in
paragraph (1) of schedule 27 as being what I have termed in this
decision an “annual review”, that is a review under section 328(5)
(b) of the Education Act 1996. If a statement is to be amended
following a periodic/annual review then paragraph (2A)(4) of
schedule 27 requires the local authority to serve on the parents of
the child concerned “(a) a copy of the existing statement, and (b) an
amendment notice”.
22. It is important to note, however, that schedule 27 also deals with the
making of a statement under section 324. In this respect, paragraph
2 of schedule 27 sets out that “[b]efore making a statement, a local
authority shall serve on the parent of the child concerned of the proposed
statement”.
23. Later paragraphs in schedule 27 then address issues such as: the
ability of parents to make representations on the proposed
statement or the proposed amended statement; the ability of
parents to express a preference for a school in the proposed
statement or the proposed amended statement; service of the
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statement as made or amended; the procedure for ceasing to
maintain a statement; and the need to provide the parents with a
written notice explaining their right of appeal under section 326 of
the same Act against, inter alia, an amendment notice under
paragraph 2A.
24. Taking stock at this point, the statutory provisions set out above
seem to draw a distinction between the statement as (first) made
and the statement as then subsequently amended. To use the
language of section 324(7), the distinction is between “making” the
statement and “maintenance” of the statement, with the latter
applying to periodic reviews under section 328(5)(b) and
amendments to the statement which may then arise on such
reviews. If this reading of the statutory machinery is correct, a
statement is (first) made and then that statement is maintained
through a process of reviews and, if necessary, amendments to the
statement. In other words, a completely new or replacement
statement does not come into effect on each periodic (or other)
review.
25. This analysis is, it seems to me, expressly underscored by the
language of section 326 of the Education Act 1996, which, to use its
heading, deals with appeals “against contents of statement”. Section
326(1) provides:
“The parent of a child for whom a local authority maintain a statement under section 324 may appeal to the [First-tier Tribunal]- (a) when the statement is first made, (b) if an amendment is made to the statement, or (c) if, after conducting an assessment under section 323, the local
authority determine not to amend the statement.” (my underlining added in both places for emphasis)
The words I have underlined in section 326 seem to me to make
good the argument made in paragraph 24 above that there is, in
effect one statement which is then amended over time as necessary.
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26. How does the above inform whether there is anything usefully left
to remit to the First-tier Tribunal? The best case for the council it
seems to me is that if the tribunal’s decision was to be set aside its
order amending the statement would fall as well and that would
leave in place the statement as originally appealed by the Jessica’s
parents to the First-tier Tribunal. That however in my judgment
cannot be correct. I accept, for the reasons given above, that the
statement appealed by the parents has not been replaced by a new
statement after the annual review and so to that extent cannot be
said to have lapsed by operation of law following the review. I also
accept, again for the reasons given above, that the statement as
(first) made continues in one sense legally.
27. However, it seems to me that the effect of the statutory provisions
outlined above is that the statement which the parents appealed
(the one the council want to get back to in terms of having an
adjudication upon by the First-tier Tribunal) no longer exists as it
has been reviewed and amended following the periodic/annual
review. To that extent it is only the statement as amended on the
annual review which now exists as the statement, and not the
statement the parents did appeal, and there is no appeal by the
parents for the First-tier Tribunal to decide under section 326(1)(b)
of the Education Act 1996 against the amendment(s) made to the
statement after the annual/periodic review.
28. To hold otherwise, and keep the pre-annual review statement as
made by the council before it was appealed still alive, would in my
judgment be to run contrary to the right of appeal and review
conferred by sections 326 and 328 respectively of the Education Act
1996. This can be tested in this way. Assume that the statement the
parents appealed was the statement as first made. The right of
appeal therefore vested in the parents under section 326(1)(a) of the
Education Act 1996. But it only vested for as long as the statement
under appeal met the requirements of section 326(1)(a). It would
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continue to do so even after an annual/periodic view if no
amendment was made to the statement, as it would still be the
statement as first made, and it would be that statement which as a
matter of law governed the relationship between parents, council
and school. If, however, the statement as first made is then (as here)
amended following the annual/periodic review, the appeal against
the statement as first made no longer has anything to bite on as
there is no longer a statement as “first made” in terms of a legal
document governing the relationship between the parties. Any
appeal would then arise as a matter of law against the statement as
amended not under section 326(1)(a) but under section 326(1)(b) of
the Education Act 1996.
29. No doubt in most cases such jurisdictional matters would not be of
any real importance or significance. Effective case management by
the First-tier Tribunal could ‘convert’ a section 326(1)(a) appeal into
a section 326(1)(b) appeal after an annual review if the parents
remained dissatisfied with statement as amended. But as a matter
of proper legal analysis it seems to me that a legally distinct appeal
right arises (and needs to be exercised) once the statement has been
amended. The effect of the argument now made by the council
would be to require the parents to continue with an appeal right
which no longer arises and which, in any event, they no longer wish
to exercise and, perhaps more importantly, to treat them as having
appealed against the amendments made to the statement following
the annual review under section 326(1)(a) when no such appeal
right has been exercised and where the parents positively have no
interest exercising that right. In sum, it would have the effect of
allowing the council to appeal against its own decision when the
statute does not confer any right of appeal on the council. That in
my judgment is not the effect of section 326 of the Education Act
1996, but even if it may be argued to have such an effect it is not one
that my discretion arising under section 12(2)(a) of the Tribunals,
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Courts and Enforcement Act 2007 should allow to occur on the facts
of this case.
30. I accept that the above result will disappoint Essex County Council.
It no doubt made the recent child favourable annual review decision
out of the best of motives. However, for the reasons given above it
has led the council into a legal cul-de-sac. This, however, as a
matter of legal analysis is not surprising. The council in exercising
its legal powers and duties had to do so lawfully. Its case has been,
and I understand remains, that Jessica had, and has, no educational
need for a ‘waking day’ curriculum or residential school placement.
If that is what the council considered was the correct position on the
evidence then that is what it should have decided. Indeed, if it did
not consider that Jessica needed a residential placement then it may
be that it acted unlawfully in making the annual review decision it
did. No doubt a properly reasoned out decision of the First-tier
Tribunal, one way or the other, may have influenced any subsequent
review decision made by the council, as it would not be in its
interests to have each review decision unnecessarily appealed.
31. It may be that Essex County Council will now, as it indicated it
would, make a further review decision to unpick that which, from its
perspective, it knowingly wrongly decided on the annual review.
When and how such a review might lawfully arise is not a matter for
me. Plainly any such decision, if made, will need to be based on
Jessica’s up to date educational needs. If any new decision finds on
the evidence that Jessica does not need a residential placement at D
school then her parents will have a right of appeal against that
decision, and any such appeal will require careful fact finding and
adequate reasoning addressing her educational need for residential
schooling. To that extent, if such an appeal needed this decision
might provide some assistance.
Signed (on the original) Stewart Wright
Judge of the Upper Tribunal
Dated 17th October 2016
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