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Parental choice of mainstream education

May 6th, 2013 by Rachel Kamm

In Harrow Council v AM [2013] UKUT 0157 (AAC), the Upper Tribunal considered a local authority’s obligations where a parent chose mainstream education for a child with complex special educational needs. The decision also discusses two important procedural issues, namely when a First-tier Tribunal can rely on its own knowledge without seeking views from the parties and its powers on review.

The child in question, “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” (§2).

The Council had named a maintained special school in Part 4 of his Special Educational Needs Statement. His mother wanted F to be educated in a mainstream school and she initially proposed Whitmore High School. The First-tier Tribunal concluded that:

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.” It went on to name “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.” (quoted at §§4-5 of the Upper Tribunal’s decision).

On subsequently reviewing its decision, the First-tier Tribunal explained that:

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. [...]We agree and regret that our conclusions were not more explicit, and that para 15 is misleading. [...] The resourced base we envisaged would comprise a group of children, supported by a specialist teacher [...]. Our amendments to Part 3 reflected this view [...].  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.” (quoted at §§9-10 of the Upper Tribunal’s decision).

The Upper Tribunal took into account these further reasons given by the First-tier Tribunal, on review, when it considered the local authority’s appeal (§19).

The decision includes a useful summary of the law in relation to section 316 of the Education Act 1996 and a parent’s right to request mainstream education for their child (§§21-28). Note in particular that:

  • if a statement is maintained under section 324 of the 1996 Act for a child, the child 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;
  • this applies regardless of the best interests of the child or the efficient use of resources;
  • if a local authority decides to make a statement, but not to name the particular maintained mainstream school for which a parent has expressed a preference, it must comply with section 316(3) i.e. provide for mainstream education, unless that would be incompatible with the provision of efficient education for other children;
  • if mainstream education would be compatible with the provision of efficient education for other children but there is no suitable school  (whether inside or outside its area) where the child can be found a place, the local authority is under an absolute obligation to make a school suitable;
  • however, if a local authority claims that mainstream education would be incompatible with the provision of efficient education for other children, it must show that there are no reasonable steps that it could take in mainstream schools in its area to prevent that incompatibility (having regard to the statutory guidance on this issue). The local authority is not required to show that there are no reasonable steps that could be taken in relation to mainstream schools out of its area;
  • a tribunal can name a specific type of mainstream school or other institution or indeed, as is normally the case, a specific mainstream school.

In this case, the Upper Tribunal concluded that the First-tier Tribunal had erred in law in its approach to the question of which 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.” (§§29-30)

As the Upper Tribunal put it, “The tribunal attempted to resolve this difficulty by relying on its own knowledge thatthere 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.” [...] “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” (§31).

Further, the First-tier Tribunal erred in law in not giving the parties the opportunity to comment on its view that other mainstream schools could educate F in an inclusive manner (§§32-38). The Upper Tribunal reviewed the case law on this issue and confirmed that parties should have an opportunity to comment if their submissions might affect the outcome.

The Upper Tribunal noted the need for a First-tier Tribunal to form a view on the steps that would need to be taken to remove any incompatibility with the provision of efficient education for other children. It commented that it might take a school a significant period to put these reasonable adjustments into effect. It concluded that it was open to a First-tier Tribunal to name, as an interim measure, a school that was not mainstream until the local authority had had a reasonable opportunity of making the adjustments (§40).

The outcome of this case was that the First-tier Tribunal’s decision was set aside and the matter remitted to a new First-tier Tribunal.

Finally, the Upper Tribunal confirmed that a First-tier Tribunal which is reviewing its own decision has no power to set aside part of a decision or to amend a statement. Its only options are to correct accidental errors in the decision or in a record of the decision; amend reasons given for the decision; or set the decision aside, and then either re-decide the matter or refer it to the Upper Tribunal. The Upper Tribunal commented that, generally, it would not be a proper exercise of the First-tier Tribunal’s discretion for it to refer a matter to the Upper Tribunal which required practical educational expertise. (See §§12-18.)

Tom Cross of 11KBW represented F’s mother.

Rachel Kamm, 11KBW

Judicially Reviewing the Tribunals

June 22nd, 2011 by Christopher Knight

The Supreme Court today handed down its long-awaited (at least by some) judgment in R (Cart) v The Upper Tribunal [2011] UKSC 28. The case concerns the circumstances in which the ordinary courts will entertain an application to judicially review a decision of the First-Tier or Upper Tribunals. Although the case did not directly involve a challenge to the Health, Education and Social Care Chamber of the Tribunals, or the jurisdiction over educational issues more generally, the judgment is of wider general application.

The Upper Tribunal is a “superior court of record” by virtue of section 3(5) of the Tribunals, Courts and Enforcement Act 2007. Under section 13, there is a right of appeal to the Court of Appeal from the Upper Tribunal, subject to permission being granted by either body, unless the decision falls within the category of excluded decisions. The most generally relevant excluded decision is a refusal of permission to appeal from the First-Tier Tribunal to the Upper Tribunal by the Upper Tribunal. Where permission is refused that is, in the eyes of the 2007 Act structure, the end of the line. Unless one can judicially review the decision to refuse permission.

The Divisional Court roundly rejected the argument that the designation of the Upper Tribunal as a superior court of record rendered it immune from judicial review ([2009] EWHC 3052 (Admin); [2010] 2 WLR 1012) and the absolutist position was not resurrected on appeal. The Court of Appeal agreed with the Divisional Court that judicial review should be available only in circumscribed cases ([2010] EWCA Civ 859; [2011] 2 WLR 36). The Supreme Court unanimously dismissed the appeal, but for different reasons.

The leading judgment of the Supreme Court was given by Lady Hale, with whom the rest of their Lordships more or less completely agreed, albeit in their own words. Rejecting the application of an unrestricted judical review jurisdiction over all decisions in the Tribunal structure, and the application of an exceptional circumstances test limited to an excess of jurisdiction and denial of fundamental justice, the Court settled on a more easily described approach. Where an application is made for judicial review of a Tribunal decision the High Court should apply the second appeals criteria, namely that (a) the proposed case would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the case.

It was considered by Lady Hale and the other members of the Court that this test was a proportionate and rational restriction on the availability of judicial review which nonetheless recognised the importance of correcting errors in the Tribunal’s case load. The exceptionality test would have been too narrow, and applying judicial review without limitation would have lead to the courts being swamped with applications in respect of a system designed to make the process easier, quicker and cheaper (especially in the light of its application to immigration and asylum cases).

Interestingly, there were a number of comments from Lady Hale, Lord Phillips, Lord Clarke and Lord Dyson to the effect that the situation would be made clearer by an amendment to the CPR remove the potential four stages of judicial review permission applications in these quasi-second appeal cases. Whether the Rules Committee is paying attention remains to be seen.

The upshot of the decision in Cart is that if the Upper Tribunal refuses permission to appeal to it, that decision can be judicially reviewed, but only on the restrictive second appeals criteria. The tenor of the judgments as a whole do not provide much appetite for leave to be readily granted, and in both cases under appeal the Supreme Court roundly rejected their compliance with the second appeal test.

For those reading north of the border, the Supreme Court applied the same approach to the Tribunal structure in Scotland in Eba v Advocate General for Scotland [2011] UKSC 29.