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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A, R (on the application of) v Hertfordshire County Council [2006] EWHC 3428 (Admin) (20 December 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3428.html Cite as: [2006] EWHC 3428 (Admin)

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

		Royal Courts of Justice Strand London WC2
		20th December 2006

JUDGE GILBART QC:

1. In this matter the Claimant parents appeal against the decision of the Special Educational Needs and Disability Tribunal ("SENDIST") of 20th June 2006. That Tribunal had rejected the appeal of the Claimant parents against the terms of Part 4 of the Statement of Special Educational Needs made by Hertfordshire County Council in respect of their daughter.

2. For the purposes of this judgment I shall refer throughout to the claimants as Mr and Mrs A and to their daughter as D, so that their identity is protected. The title of the judgment will appear as A v Hertfordshire County Council.

3. D is now 11 years old. She has been diagnosed with ataxic hypotonic cerebral palsy and global development delay. She has severe learning difficulties. Hypotonia affects her musculature. Her hips are dislocated and she has a mild scoliosis. She has the motor skills of a child of 7 to 10 months, the socialisation of a child between 4 and 9 months (depending on the function in question), the daily living skills of a child between 7 and 18 months (again depending on the skills in question), the communication skills of a child of between 13 months and 18 months (of which 13 months are expression and 18 months for receptive skills).

4. Happily, she has some character. She is described in a report from her current school as "delightful . . . strong willed and can be determined to have her own way". She has the ability to recognise and use symbols on a Tech Talk machine. She enjoys music and can recognise her favourite songs. She can call out and point to objects, and can make noises and point to objects which she wants adults to bring to her. She can make noises to show that she is happy. She enjoys hearing songs and has some favourites. She also has favourite books which she likes being read to her. She enjoys the company of other children, but prefers that of adults. She is taken swimming, which she enjoys, and has been taught how to float independently and propel herself with her hands. She uses a pony walker, and can propel herself independently. She takes part in music sessions and can hold an instrument. She has been taught how to pick up objects and move them, and has been making some progress. She can use a crayon or brush to make marks and prefers to do so independently. She can use a feeder cup and can feed herself with help in loading the spoon. She needs help in dressing but cooperates by pushing her arms in and out of her clothes. She is not continent and wears nappies rather than being placed on the toilet.

5. She requires care throughout the day.

6. She comes from a very caring Orthodox Jewish family. The statement which they put into SENDIST shows that she enjoys the family life which is a central part of Jewish culture, and is familiar with the observation of the Sabbath. The family describe the excitement and enjoyment she feels during the weekly Sabbath and at festivals.

7. The family is caring indeed. The responsibility of looking after D is a very heavy one, and they are understandably concerned to see her looked after and educated in life skills as far as possible. I am impressed by the dignity they have shown in these proceedings, and the obvious care for their daughter given the very substantial burdens placed upon them by her disabilities.

8. As D has approached the age of 11, the question has arisen of the appropriate educational provision to be made for her secondary education. Hertfordshire County Council prepared a statement of needs under section 324 of the Education Act 1996. That identified at Part 3 the objectives of Special Educational Provision for D, and the educational provision required. With amendments later agreed to by Hertfordshire in a document which is called "Working Document for SEN Tribunal", Part 3 read:

   "a) OBJECTIVES

   1. To develop and improve [D's] early learning skills and cognitive development.

   2. To develop and improve [D's] linguistic and communication skills.

   3. To develop and improve [D's] mobility and gross and fine motor skills.

   4. To develop and improve [D's] independence and self-help skills.

   5. To develop and improve [D's] social interaction and awareness of others.

   b) EDUCATIONAL PROVISION to meet the needs and objectives

   The following provision is set out to corresponded numerically with the Objectives listed above. The school should provide [D] with an Individual Education Plan which addresses the Objectives of this Statement and is compiled in collaboration with her parents and other professionals involved. This should be reviewed termly.

   Educational

   1. The school will provide [D] with a caring and supportive environment in which she will be given access to a broad and stimulating multi-sensory based curriculum, appropriately differentiated to enable her to develop her learning skills and conceptual understanding. Opportunities will be provided for considerable one to one and small group work and access to computer programmes with appropriate learning software. Strategies will be employed aimed at developing [D's] ability to make choices and exert more control over her environment.

   Communication

   2. With the advice of a Speech and Language Therapist programmes will be devised to develop and improve [D's] alternative and augmentative communication skills. These programmes will be specifically aimed at developing her yes/no and other communicative responses. The programmes will be delivered on a daily basis either individually or in small groups by teaching or support staff as appropriate.

   Motor and Sensory Skills

   The school will provide [D] with a highly structured educational programme designed to improve her mobility and to develop her gross and fine motor skills. These programmes will be devised by a fully qualified physiotherapist and occupational therapist and delivered by teaching and support staff [on a daily basis]. [D] will receive [10] sessions per annum of specialist physiotherapy and [10 sessions of] occupational therapy for the forthcoming academic year or until the next review. Each session will last approximately for one and a half hours and will consist of any of the following:

   • observation

   • assessment (either formal or informal)

   • direct intervention (either individual or in a group)

   • demonstration of specific activities

   • training of teaching/support staff

   • joint planning with teaching/support staff of appropriate targets for inclusion in the IEP

   • attendance at review meetings

   • liaison with parents, carers and other professionals

   • writing of report and programmes

   [D] will be given support to ensure that she is able to access the curriculum and classroom equipment safely. These programmes will be designed in close association with a physiotherapist and an occupational therapist as appropriate and [D's] equipment requirements will be provided in accordance with supporting advice from the relevant professionals. [Hydrotherapy will be provided for 2 x 20 minute sessions per week].

   Personal, Social and Emotional

   4. The school will encourage the development of self-help skills, particularly in relation to dressing skills and personal hygiene. [D] will receive sensitive encouragement, teaching and support to enable her to develop confidence, independence and motivation to overcome her difficulties.

   5. [D] will be provided with adult support, intervention and mediation to promote relationships with peers to whom she can relate both socially and academically; and work with, both cooperatively and collaboratively. She will have opportunities to engage in small group activities and be encouraged to take an active part."

9. At the end of the subparagraphs within section 3 it states:

   "Good home/school links will be maintained to ensure consistency of approach.

   This provision will be made by the school using its existing resources."

10. I need not refer to the next part of section 3. There is a reference then to monitoring and that is described as taking place in consultation with D's parents and the appropriate professionals to establish short-term educational targets and the strategies to meet them.

11. Section 4 of the Statement of Special Educational Needs reads thus:

    "APPROPRIATE SCHOOL OR OTHER ARRANGEMENTS

    [D] will attend her current primary school until July 2006. From September 2006 [D] will attend [B] School, a special school which caters for children with severe learning difficulties."

12. The parents appealed against the terms of Part 4. They contended that, first, D needed a residential school where she would live through out the year; second, her education included work to be done outside the normal school hours; third, the school was unsuitable for various reasons, including its facilities and the travel time of up to an hour in each direction from the family home; fourth, the appropriate school was the AL residential school in Berkshire.

13. The Local Education Authority resisted that appeal. It contended that, first, D's educational needs would be met by a non-residential school and she did not require 24 hour educational provision; second, the facilities at the B school was appropriate; third, the travel time was not excessive; fourth, the AL school was not suitable; finally, that it would be harmful for D to live away from home.

14. The parents obtained reports from Mr Urani, a chartered educational psychologist, Miss Judy Robertson, a speech and language therapist, Miss Sian Wilson, a paediatric occupational therapist, Miss Sara Taylor, a paediatric physiotherapist, plus other reports which were not put before me. Mr Urani gave evidence before the Tribunal, as did the head of care at the AL school.

15. The Local Education Authority, before the Tribunal, called Dr Sharp, an educational psychologist. It also called the headmaster of D's current school. The LEA produced reports from Dr Sharp, from Ms Billings, a physiotherapist who had been treating D, a Ms Emma Stevens, an occupational therapist, and also produced a combined report on physiotherapy and occupational therapy from the National Health Service Physiotherapy and Occupational Therapy Service.

16. The SENDIST decision is a substantial one but it must be read into the judgment. It appears as an appendix at the conclusion of this judgement.

17. On Ground 1, Mr Grodzinski argues that the evidence before the Tribunal showed that D required educational provision throughout the day. He says that the evidence showed without contradiction that she required a residential school so that it could be provided. He also says that the Tribunal has given no adequate reasons for rejecting the evidence of his clients' experts.

18. On Ground 2 he says that the Tribunal has given no adequate reason for rejecting his clients' case on the effects of the journey to and from school.

19. Mr Grodzinski has not put any case on the Tribunal's rejection of the AL school. He does not have to do so. If he succeeds in challenging the choice of a day school then a residential school will have to be found.

20. Section 324 of the Education Act 1996 reads:

    "324 Statement of Special Educational Needs

    (1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

    (2) The statement shall be in such form and contain such information as may be prescribed.

    (3) In particular, the statement shall --

    (a) give details of the authority's assessment of the child's special educational needs, and

    (b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).

    (4) The statement shall --

    (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child

    (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and

    (c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.

    [(4A) Subsection (4)(b) does not require the name of a school or institution to be specified if the child's parent has made suitable arrangements for the special educational provision specified in the statement to be made for the child.]

    (5) Where a local education authority maintain a statement under this section then --

    (a) unless the child's parent has made suitable arrangements, the authority --

    (i) shall arrange that the special educational provision specified in the statement is made for the child, and

    (ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and

    (b) if the name of a [maintained school][or maintained nursery school] is specified in the statement, the governing body of the school shall admit the child to the school.

    [(5A) Subsection (5)(b) has effect regardless of any duty imposed on the governing body of a school by section 1(6) of the School Standards and Framework Act 1998.]

    (6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.

    (7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."

21. "Special educational needs" is defined in section 312 as follows:

    "312 Meaning of 'special educational needs' and 'special educational provision' etc.

    (1) A child has 'special educational needs' for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.

    (2) Subject to subsection (3) (and except for the purpose of [section 15A or 15B]) a child has a 'learning difficulty' for the purposes of this Act if --

    (a) he has a significantly greater difficulty in learning than the majority of children of his age,

    (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority, or

    (c) he is under [compulsory school age] and is, or would be if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when of . . . that age.

    (3) A child is not to be taken as having a learning difficulty solely because the language (or form of the language) in which is he, or will be, taught is different from a language (or form of a language) which has at any time been spoken in his home.

    (4) In this Act 'special educational provision' means --

    (a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools) . . . , and

    (b) in relation to a child under that age, educational provision of any kind.

    (5) In this Part --

    'child' includes any person who has not attained the age of 19 and is a registered pupil at a school;

    ['maintained school' means any community, foundation or voluntary school or any community or foundation special school not established in a hospital.]

22. In the case of D, the activities described pursuant to section 312(4)(a) are of the kind where care and education overlap. D needs to learn all those life skills which the educational system provided for those without Special Educational Needs assumes that they have. But of course learning how to feed and communicate is as vital to D as is the ability to divide and multiply is to a child of the same age without special needs. Thus, to take an example canvassed in argument, getting D to learn how to put her coat on, which involves getting her to do it again and again, may be very difficult to distinguish from simply helping D put her coat on. Helping D load her spoon with food may be seen as a matter of her being educated in feeding herself, or as a natural part of care for a child. Mr Grodzinski says that if any activity with D involves more than care, then it amounts to education. He says (and Mr Sheldon for the Local Education Authority agrees) that it is wrong for a Statement of Educational Needs to require that educational provision is made by the parents. Mr Grodzinski then says that therefore any programme for D which involves activities thus classified outside the school day must be educational. Suppose, as here, a child attends a school and is helped to develop bodily and functional control and her life skills. As in this case that could involve learning to feed herself or put her clothes on or other matters of knowing how to look after herself. On going home, her parents would of course, in caring for her, help her with the same activities. A child being helped on with a coat is a normal incident of care. So is the encouragement of a child to communicate or play with objects. How is the line to be drawn in cases of overlap, or is one to be drawn at all?

23. That issue was addressed by the Court of Appeal in London Borough of Bromley v Special Educational Needs Tribunal and Others [1999] EWCA Civ 1490 and it is reported at [1999] ELR 260. The main judgment is by Sedley LJ. I refer to the following passages in his judgment at pages 287 and following.

    "The central issue is the meaning and ambit of "special educational provision" in Part IV of the Education Act 1996. It arises out of the Tribunal's conclusion that S's acknowledged need for physiotherapy, occupational therapy and speech and language therapy formed part of his special educational needs, with the consequence that the provision of these therapies was part of the special educational provision which the LEA must make for him. This, as will be seen, had major consequences for S's placement and, in turn, for the cost to the LEA of providing for his special educational needs.

    Within Part IV of the Education Act 1996 (which is principally though not solely a consolidating statute) section 323 requires a local education authority to assess the educational needs of a child with special educational needs. If the assessment so requires, the LEA must then make and maintain a statement of the child's special educational needs, the form and content of which are prescribed in and under section 324:

    "324. Statement of special educational needs (1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

    (2) The statement shall be in such form and contain such information as may be prescribed.

    (3) In particular, the statement shall –

    (a) give details of the authority's assessment of the child's special educational needs, and

    (b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by sub-section (4)

    (4) The statement shall –

    (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child,

    (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and

    (c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.

    (5) Where a local education authority maintain a statement under this section, then-

    (a) unless the child's parent has made suitable arrangements, the authority –

    (i) shall arrange that the special educational provision specified in the statement is made for the child, and

    (ii) may arrange that any non-educational provision specified in the statement is made for him in such a manner as they consider appropriate, and

    (b) if the name of a maintained, grant-maintained or grant maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.

    A new subsection (5)(A), not material to this case, has been added by the School Standards and Framework Act 1998.]

    (6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.

    (7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."

    Schedule 27 contains substantive as well as procedural provisions, but none upon which any issue in the present case turns. The form of a section 324 statement is prescribed under statutory powers by the Education (Special Educational Needs) Regulations 1994. It includes the bracketed rubric to each part of the statement which can be seen in S's statement set out below. It is supplemented by guidance contained in a Code of Practice issued by the Secretary of State under section 313, which also makes it the duty of local education authorities and, on appeal, SENTs, to have regard to the Code's provisions.

    S's statement, following the formal introductory material in Part 1 (which included a list of 12 specialist reports on S's needs) took the form set out in Appendix A to this judgment. The parts prescribed by the Regulations are shown there in bold type and in their full prescribed form; S's statement, for intelligible reasons, condenses or omits some of them. The reason why nothing turns upon the LEA's condensation of some of the prescribed rubrics in the case of S's statement is that, by Regulation 13, a form "substantially corresponding" to that which is prescribed is sufficient; and it is plain that the references to the National Curriculum, for example, have no real relevance to a child as disabled as S. It follows from the content of S's statement that, despite his disabilities, he is educable.

    The concrete challenge offered by S's parents to the statement was to the proposal to keep him at Rectory Paddock School. Their reason, however - and this is what raises the present question of law - was that S's needs for therapy out of school hours and out of term-time were, at least in part, educational needs, and that these could not be addressed at a day school such as Rectory Paddock. Their contention was that the special educational provision which the LEA was obliged to make for S was residential provision throughout the year. The way in which this argument was presented and the grounds upon which it succeeded can be most conveniently seen from the full text of the SENT's decision, issued on 24th August 1998 following a hearing on the 17th July. It is set out in Appendix B to this judgment.

    The material conclusions of the SENT were, first, that physiotherapy, occupational therapy and speech therapy were all part of S's educational needs, and that Part 2 and 3 of the statement should be correspondingly amended; and secondly, that S should be placed at Coney Hill School, with an appropriate amendment to Part 4.

    Before us, as before Owen J., the principal critique advanced by the London Borough of Bromley of the Tribunal's decision is that it classifies or treats as educational provision forms of treatment which in law cannot be so classified or treated. In addition, Mr. Timothy Straker QC argues that the amendments to the statement ordered by the Tribunal lack specificity; and, lastly, that even if the Tribunal were entitled to allocate S's needs and provision as they did, it did not follow that the only alternative to Rectory Paddock School was Coney Hill School, so that the LEA should have been given an opportunity - particularly in view of the fact that the true cost of the latter was not £46,000 but £63,000 a year - to put forward alternatives.

    This appeal therefore raises two interlocking issues: the meaning, or perhaps more accurately the limits of possible meaning, of "special educational provision" and the interpretative function of the Tribunal in relation to it.

    The following sections of the Act are relevant:

    312 Meaning of "special educational needs " and "special educational provision" etc

    (1) A child has "special educational needs" for purposes of this Act if he has a learning difficulty which calls for special education provision to be made for him.

    (2) ... a child has a "learning difficulty" for the purposes of this Act if –he has a significantly greater difficulty in learning than the majority of children of his age, [or]

    (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority ...

    ........

    (4) In this Act "special educational provision" means –

    (a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools) or grant-maintained schools in their area, .....

    319 Special educational provision otherwise than in schools

    (1) Where a local education authority are satisfied that it would be inappropriate for –

    (a) the special educational provision which a learning difficulty of a child in their area calls for, or

    (b) any part of such provision

    to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

    (2) Before making an arrangement under this section, a local education authority shall consult the child's parent.

    322. Duty of Health Authority or local authority to help local education authority

    (1) Where it appears to a local education authority that any Health Authority or local authority could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of the authority, specifying the action in question.

    (2) An authority whose help is so requested shall comply with the request unless

    (a) they consider that the help requested is not necessary for the purpose of the exercise by the local education authority of those functions, or

    (b) subsection (3) applies [viz the Health Authority consider compliance unreasonable having regard to their resources, or a local authority consider the request incompatible with or unduly prejudicial to their own functions].

    Section 324 is set out earlier in this judgment. It is important to observe in relation to it that, in addition to the requirement in subsection (4)(c) that the statement must spell out any requisite non-school educational provision under section 319, subsection (5)(a) differentiates explicitly between special educational provision and "non-educational provision". It thus anticipates that both will appear in the statement, and it prescribes a duty on the LEA to arrange for the former and a discretion in the LEA to arrange for the latter. As has been seen, the form prescribed by the Regulations adopts the dichotomy.

    Section 333 of the Act begins:

    "(1) There shall continue to be a tribunal known as the Special Educational Needs Tribunal which shall exercise the jurisdiction conferred on it by this Part."

    The material element of the Tribunal's jurisdiction is this:

    326. Appeal against contents of statement

    (1) The parent of a child for whom a local education authority maintain a statement under section 324 may –

    (a) when the statement is first made,

    (b) where the description in the statement of the authority's assessment of the child's special educational needs, or the special educational provision specified in the statement, is amended, or

    (c) where, after conducting an assessment of the educational needs of the child under section 323, the local education authority determine not to amend the statement,

    appeal to the Tribunal against the description in the statement of the authority's assessment of the child's special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact.

    ........

    (3) On an appeal under this section, the Tribunal may –

    (a) dismiss the appeal,

    (b) order the authority to amend the statement, so far as it describes the authority's assessment of the child's special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

    (c) order the authority to cease to maintain the statement.

    (4) On an appeal under this section the Tribunal shall not order the local education authority to specify the name of any school in the statement (either in substitution for an existing name or in a case where no school is named) unless –

    (a) the parent has expressed a preference for the school in pursuance of arrangements under paragraph 3 (choice of school) of Schedule 27, or

    (b) in the proceedings the parent, the local education authority, or both have proposed the school.

    (4) Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement.

    Provision is also made by and under section 328 for regular by the LEA review of the contents of statements.

    Although before both Owen J. and this court reference has been made to dictionary definitions of the word "education", the word is protean. It can range from a meaning as narrow as instruction in numeracy and literacy to the Renaissance concept adopted by Lord Hailsham LC in Inland Revenue Commissioners v. McMullen [1981] AC 1, 16. It is, however, of interest that the generous meaning of education adopted by Lord Hailsham in relation to charitable trusts was derived by him from sections 7 and 53 of the Education Act 1944. The material words of the first of these sections are now to be found in section 351(1) of the 1996 Act:

    "The curriculum for a school satisfies the requirements of this section if it is a balanced and broadly based curriculum which –

    (a) promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and

    (b) prepares pupils at the school for the opportunities, responsibilities and experiences of adult life."

    The section goes on to require the Secretary of State, LEAs, governing bodies and head teachers to work towards these aims. Without doubt, therefore, Parliament has historically adopted and continues to adopt a catholic view of the reach of state education. It does not necessarily follow, however, that the approach can be straightforwardly translated into the statutory regime for children with special educational needs. The particular question which repeatedly arises is whether the physical and emotional help required by many of the children who have such needs lies within the sphere of education or of treatment.

    The existing provision for children with special educational needs derives from the 1978 report of the Committee of Enquiry into the Education of Handicapped Children and Young People (Cmnd 7212), known as the Warnock Report after the Committee's distinguished Chairman, now Baroness Warnock. She spoke (paragraph 3.19) of the likelihood that special educational need would include "the provision of special means of access to the curriculum through special equipment, facilities or resources, modification of the physical environment or specialist teaching techniques." She noted (paragraph 6.11) the variety of institutions, many of them outside mainstream educational provision, needed to cater for different kinds of special educational need. And she devoted a chapter (Chapter 15) to the role of the Health Service and the personal social services in meeting special educational needs, singling out (paragraphs 15.31 to 3) speech therapy, physiotherapy and occupational therapy as potentially integral elements in special educational provision. The White Paper containing government's response, Special Needs in Education (Cmnd 7996, 1980), accepted (paragraph 69) that "for many children with special educational needs, a wide range of services needs to be made available by social services departments and Health Authorities; and voluntary organisations also have an important role." Although, therefore, the consequent provision made by the Education Act 1981, now to be found in Part IV of the Act of 1996, had behind it a clear recognition of the possible range of special educational needs, it is to the meaning and effect of the legislation itself that attention must principally be directed in deciding where the obligation of local educational authorities to make special educational provision ends, and whether it is here or elsewhere that their power to make ancillary provision begins.

    Until the welcome setting up of the Special Educational Needs Tribunals by the Education Act 1993, challenges to LEAs' statement, could be made only on questions of law by way of judicial review. In one such case, R. v. Lancashire County Council, ex parte M [1989] 2 FLR 279, this court upheld the conclusion of a Divisional Court that speech therapy was capable of forming part of "special educational provision" within the regime now found in Part IV of the 1996 Act. From that point it was, at least in principle, for the LEA to decide whether particular speech therapy for a particular child ought or ought not to be listed in Part 3 of the child's statement. In the new regime, the first independent arbiter of this question is the Tribunal. Unlike the High Court, it is a specialist tribunal with a lawyer chairman and lay members chosen for their knowledge and experience (see section 334(2) and the Special Educational Needs Tribunal Regulations 1995, Regulation 3). In my view this restructuring has jurisprudential implications. Where previously the parent's only resort from the local education authority was to the court, which had therefore to do its best to construe the statutory language insofar as construction was an appropriate exercise, there is now interposed a specialist tribunal whose remit is not necessarily the same. In particular, where a court has to limit itself to the interpretation of terms of legal art and the setting of outer limits to the meaning of ordinary words in their statutory context, the Tribunal is empowered to take a much closer look at the content of the LEA's statement. Indeed for many purposes it stands in the LEA's shoes, re-evaluating the available information in order if necessary to recast the statement. But in carrying out this function it also has a supervisory role - to interpret and apply the relevant law. Where that law is expressed in words which, while not terms of legal art, have a purpose dictated by - and therefore a meaning coloured by - their context, it is clearly Parliament's intention that particular respect should be paid to the Tribunal's conclusions. By virtue of the Tribunals and Inquiries Act 1992, section 11, the High Court retains an appellate jurisdiction which undoubtedly requires it to intervene where an error of law or jurisdiction or due process can be shown; but the area of expert judgment bounded by the High Court's jurisdiction is large. This is so both because the nature of the subject matter of appeals to and from the SENT makes it appropriate and because the statutory scheme requires it.

    In G. v. Wakefield City MAC [1998] 96 LGR 69, Laws J. said:

    "It will be obvious that, notwithstanding Parliament's lexicon in section 312, the concepts of "learning difficulty" and "special educational provision" are not tightly defined. The Court of Appeal has held in R. v. Lancashire County Council, ex parte Moore (1989) 86 LGR 567 that speech therapy may or does fall within the meaning of "special educational provision". What I think clear is that measures taken by a local education authority which are subject to appeal before the SENT under section 326 must be correctly related to the child's learning difficulties. Economic problems faced by the child's parents, where for example different and perhaps more spacious living accommodation would in an ideal world be suitable for the family because of the child's physical disabilities, are not ordinarily within the remit of the SENT. Nor are difficulties associated with the parent's disabilities, where the effect is that the child is, in physical terms, more difficult to look after. Problems of this kind, in my judgment, will generally fall to be dealt with not under the 1996 Act, but (so far as they may be met by public provision) under social welfare measures made in other statutes and delegated legislation. However, while that is, in my judgment, the general position, I should say that I certainly accept that there is no hard edge. As a matter of common sense and ordinary human experience conditions in the home are almost always bound to have some effect, for better or worse, on a child's learning capacity and educational chances. That is a general fact of family life; but for present purposes it must be distinguished from circumstances, which I acknowledge it is clearly possible to envisage, where some kinds of day to day domestic problems may directly relate to the child's learning difficulties. Such a direct relation must in my judgment be shown in order to involve such problems in the Tribunal's jurisdiction under section 326."

    This exegesis, helpful as it is, poses a further question in the present case: are the therapies which S needs directly related to his learning difficulties? This, once again, must be principally a matter of judgment first for the LEA and then for the SENT. If it is contested as a question of law, it is to the statute that the court must turn for the answer.

    The Tribunal in the present case posed the question for themselves in exactly the terms described by Laws J., and they answered it in the affirmative. Mr. Straker submits that the character of the therapies which S needs is such that to treat them as part of his special educational provision is to collapse the distinction which the Act itself recognises between educational and non-educational provision. If regard is had, as the law requires, to that distinction, the therapeutic provision required by S can only be allocated, Mr. Straker submits, to the non-educational category. Mr. Straker accepts, however, that the medical and the educational are not mutually exclusive in this context, and he offers the following formula for non-educational provision:

    "The family or social support given to the child, together with his lifetime health and welfare support, enabling him to lead as normal a life as possible."

    Mr. Richard Gordon QC for the parents does not demur to this formula; but he resists any proposition that there is between the educational and the non-educational a "hard edge", in Laws J's phrase, or a common frontier, as it was put in argument. There is, he suggests, an area of potential overlap in which either description or both can properly be applied. Equally, Mr. Gordon submits, the Act does not warrant a division between educational and non-educational provision depending upon when or where it is made: that is to say in or out of school term or school hours, or in or outside school premises. Any of these may be useful guides, but none can, conformably with the Act, be treated as legally definitive.

    If one returns to sections 312 and 324, some indications of Parliament's intention begin to emerge. Special educational provision is, in principle, whatever is called for by a child's learning difficulty. A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities. What is special about special educational provision is that it is additional to or different from ordinary educational provision (see section 312(4)). So far the meaning is open ended. It is when it comes to the statement under section 324 that the LEA is required to distinguish between special educational provision and non-educational provision; and the prescribed form is divided up accordingly. Two possibilities arise here: either the two categories share a common frontier, so that where the one stops the other begins; or there is between the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either. It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could easily have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in section 312. Moreover, to interpose a hard edge or a common frontier does not get rid of definitional problems: it simply makes them more acute. And this is one of the reasons why, in my judgment, the second approach is the one to be attributed to Parliament. The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary the SENT, to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate. The potential breadth of what can legitimately be regarded as educational is illustrated by section 322, permitting as it does the enlistment by the LEA of other statutory providers to "help in the exercise of any of their functions under this Part". It is true that the LEA's functions (which include both powers and duties: see section 579(1)) will include the elective making of arrangements for non-educational provision as well as the mandatory making of arrangements for educational provision pursuant to section 324(5)(a); but it is the fact that health, social services and other authorities can be enlisted to help in the making of special educational provision which gives some indication of possible breadth of the duty.

    For these reasons I prefer Mr. Gordon's approach to the meaning of "special educational provision" in Part IV of the Act. Whether a form of help needed by the child falls within this description is a question primarily for the LEA and secondarily for the SENT's expert judgment. If, but only if, the SENT has gone wrong in law will the High Court overset its judgment.

    Mr. Gordon has not gone so far as to assert - for he had no need to - that the Tribunal's decision was the only one open to it. So to contend would have placed him in exactly the same difficulties as Mr. Straker has encountered in making the opposite submission. It follows, no doubt, that there will be in cases like this a potentially large area of judgment in which LEAs and SENTs can legitimately come to opposite conclusions on the same or similar facts. Such a situation is less than ideal, but it is an intelligible choice on Parliament's part where the alternative is a rigid categorisation productive of far more doubt, dispute and litigation than what I would hold to be the method of Parliament's choice.

    The Tribunal's reasoned decision can be seen, in this light, to have proceeded without legal or logical error from findings to conclusions. The Tribunal's conclusion that physiotherapy, occupational therapy and speech therapy were all measures which related directly to S's learning difficulties, and therefore amounted to a special educational provision, was a conclusion properly open to it, provided that it is not read as meaning that these therapies were exclusively educational. What mattered was that in the Tribunal's judgment the therapeutic input listed in Part 3 could not be delivered by the combination of Rectory Paddock and Pitt Cottage consistently with S's other needs, but could be so delivered by Coney Hill. In brief, S's education called for day-long and year-round attention to many of his physical needs. .

24. I draw the following from that judgement and from that final passage in particular. First, there is an area of overlap between education and care. Provided that activities which could only be described as special educational provision are treated as education (and therefore must be provided under section 324(5)(a)) or can only be described as care (in which case they fall under section 324(5)(b)) it is for the judgment of the decision maker whether they amount to education or care or both. Secondly, the court will not interfere with the expert judgment of the Tribunal if it has reached a properly reasoned decision. That judgment includes whether the activity in question is intelligibly to be regarded as educational or non-educational.

25. It was common ground between Mr Grodzinski and Mr Sheldon that the phrase "special educational needs" did not encompass every form of activity or therapy which could achieve some benefit. As it was put in argument, a child is not entitled to "Rolls Royce" provision. But I have found limited assistance from counsel's arguments on how one applies that sensible precept. That is not their fault. The difficulty is caused by the use of, if I may say so, the very slippery word "need" in the Act. What is "needed" depends on the question one asks. Is what is to be sought for D that she achieves the maximum degree of progress that is attainable or a lesser but still substantial one? If the former, then the "need" will require the provision to meet the maximum. If the latter – i.e. the lesser but still substantial degree of progress - then the "need" may require less provision. Suppose that the evidence were that a child with special educational needs had development objectives which required speech and language therapy. The evidence showed that 16 hours per month would achieve little, whereas 25 hours would achieve a great deal. What if 27 hours per month would achieve a better result? Would there be a failure then within the meaning of section 324 if the Local Education Authority provided for 25 as opposed to 27 hours? In my judgment, the way in which this issue must be addressed is to interpret the section on the basis that when it refers to "needs" it is referring to "what is reasonably required". That means that a decision can and must be made on whether what is being proposed for inclusion in a Statement of Educational Needs is reasonably required or goes beyond that. That is pre-eminently a matter for the expert judgment of the Tribunal.

26. Mr Grodzinski seeks to argue that anything which helps D learn what to do is to be regarded as education, and because the evidence from those reports said that she should be looked after on a 24 hour basis, therefore such provision is (a) educational, and (b) must be provided. I consider that that goes too far. It would mean that every time D is assisted to any degree which in fact helps her learn by repetition, that amounts to educational provision, and that the Local Education Authority is required to provide it throughout her waking day. I regard that as unrealistic as a firm rule from which no departure can ever be permitted. Whether a particular case calls for it is a matter for judgment on the facts of that case, and not a matter for a prescriptive rule. It is pre-eminently a matter of fact and degree, and whether it applied in D's case was a matter for expert judgment.

27. In my view, the best judgment of what is needed in a particular case is that of the specialist Tribunal whose members must take into account, but are not bound to accept, the evidence before them. It is for the Tribunal to determine whether what would occur outside school hours is best to be described as education or care. It is also for it to determine whether the achievement of the defined objectives in Part 3 of the Statement of Educational Needs reasonably requires educational provision outside school hours. It is for it also to determine whether a residential school, or a particular school, would have harmful or positive effects on the child in question. It is not bound to accept any particular witness's evidence or any particular report. In this case it had expert evidence on both sides and it was entitled to form its own view. It had concerns about D living away from home, and it also rejected the case put before it that D needed to have educational provision outside school hours. In my judgment, that was a decision which it was entitled to come to having read the reports and heard evidence from the two educational psychologists and others.

28. As to the second ground of Mr Grodzinski, the reasons of the Tribunal, in my judgment, are short but adequate. They plainly addressed the concerns of the parents but they did not accept the views of Ms Wilson. This expert Tribunal was entitled to reach that conclusion. I therefore conclude that this challenge must fail.
    APPENDIX DECISION OF SENDIST TRIBUNAL

    "Appeal

    [Mr and Mrs A] appeal under s.326 of the Education Act 1996 against the contents of the Statement of Special Educational Needs made by Hertfordshire County Court (LEA) for their daughter, [D].

    Attendance

    Mr G Read represented the LEA. His witnesses were Dr R Sharp, a LEA Educational Psychologist and Mr Addison, the Deputy Head Teacher of [B] School.

    Mr J Rabinowicz, a solicitor, represented [Mr and Mrs A]. Their witnesses were Mr Urani, an Educational Psychologist instructed by them, and Mr Horton, the Head of Care at the [AL] School.

    Preliminary matters

    In the course of the hearing [Mr and Mrs A] provided us with the following further documentation:

    (i) Two reports from Ms McLaughlin, a State Registered Music Therapist, dated 2nd February 2005 and 30th June 2005;

    (ii) A note dated 13th June 2006 by Ms Cosham, a Speech and Language Therapist employed by [AL] School.

    Mr Read did not object to the Tribunal having sight of either of these documents, which were admitted under Regulation 33(3) of the Special Educational Needs Tribunal Regulations 2001. Mr Rabinowicz informed us that he had sent the music therapy reports to the Tribunal with the other documentation but it had been omitted from the bundle. A query had been raised in the course of the hearing as to the expertise of [AL] School with respect to use of communication aids and Ms Cosham faxed through the note to deal with this issue.

    Facts

    (1) [D] is 10 years old and has attended [MW] Special School since April 1999, initially on a part-time basis and full-time since the autumn term of 1999. [MW] is a maintained school for children with physical and neurological impairment. Previously the attended [M] Jewish Day School for half day a week. [D] is due to transfer to secondary school in September 2006.

    (2) [D] has been diagnosed with global developmental delay with marked hypotonia.

    (3) [D] has no independent functional mobility. She is totally dependent on an adult carer for all her transfers, mobility and personal care. She is fed orally but has a gastronomy to supplement her nutrition. [D] is non-verbal but communicates by smiles, moaning and expressing her dislike or discomfort by crying or noises of protest. She is generally working within P-Level 5.

    (4) The LEA proposal is that in September 2006 [D] transfers to [B] School, a maintained day special school for pupils with severe learning difficulties aged from 2 to 19 years. In preparation for secondary transfer a Statement of Special Educational Needs was issued on 13th February 2006. [Mr and Mrs A] have appealed against Parts 2, 3 and 4 of that statement. In essence, they wish certain therapies to be specified in the statement and seek a 52 week residential placement at [AL] School, a school approved by the Secretary of State as one suitable for the admission of pupils aged between 12-16 years with either behavioural and emotional difficulties, physical difficulties or severe learning difficulties. The LEA accept that the statement should specify the level of occupational therapy, physiotherapy and hydrotherapy and have produced an amended statement (the working document) to the Tribunal, which is attached to this decision, and which identifies the level of provision that they propose in these areas. [Mr and Mrs A] do not accept the levels of occupational and physiotherapy proposed by the LEA and also wish speech and language therapy to be specified as well as music therapy. In addition, they seek that the statement specifies that [D] receive support from a full-time Learning Support Assistant (LSA). It was agreed in the course of the hearing that the statement should specify that [D's] school should be wheelchair accessible and that the statement should specify that [D] be provided with a Tech-Talk communication aid.

    (5) At [MW], [D] is in a class of six children with one teacher and three teaching assistants. At [MW] [D] has received a combined total of 20 sessions of physiotherapy and occupational therapy input each academic year. [D] is re-assessed periodically by a speech and language therapist and is part of a weekly communication group with other children who also utilise a Tech-Talk communication aid. [D] generally has hydrotherapy once a week for 20 minutes and had music therapy sessions from January to July 2005. She receives full-time teaching assistant support.

    (6) The Tribunal had the benefit of a number of physiotherapy and occupational therapy reports. These included reports dated 11th January 2005 and 10th January 2006 from Ms Billings, an NHS physiotherapist who had been treating [D], and a report dated 16th February 2006 from Ms Taylor, a physiotherapist instructed by [Mr and Mrs A]. With respect to occupational therapy, the Tribunal had before it a report dated 29th November 2004 from Ms Stephens, an NHS occupational therapist, who had been treating [D], and a report dated 13th February 2006 from Ms Wilson, an occupational therapist instructed by [Mr and Mrs A]. In addition, the Tribunal had before it a joint report dated 12th January 2006 from the NHS Occupational Therapy and Physiotherapy Service.

    These reports document the work that has been done with [D] together with recommendations for future work. In particular, Ms Taylor states that to develop [D's] fine and gross motor skills, which is one of the objectives in her statement, it is important that therapy is provided over a full 24 hour day. Similarly, Ms Wilson states that a residential placement would benefit [D's] development most fully. Both Ms Taylor and Ms Wilson also make specific recommendations as to the level of occupational therapy and physiotherapy required, which exceed the level proposed by the NHS therapists.

    The reports by the NHS therapists do not make recommendations for a residential placement but the joint report of 12th January 2006 recommends that [D] receive over the year 20 sessions of physiotherapy and occupational therapy. However, Ms Billings, in her report of 10th January 2006, does state that the quality of [D's] physical management directly affects how she is able to access the curriculum effectively, that she has complex needs and needs a consistent approach to her postural management, which needs to be over a 24 hour period, and that she needs a consistent and comprehensive approach to her physical management in order to maintain her physical function and facilitate her care and access to the curriculum.

    (7) The speech and language therapy reports before the Tribunal consisted of two reports dated 9th December 2004 and 13th December 2005 from Ms Helden, an NHS speech and language therapist, and a report dated 27th March 2006 from Ms Robertson, a speech and language therapist instructed by [Mr and Mrs A]. Ms Helden does not make a recommendation for direct speech and language therapy whilst Ms Robertson makes a number of recommendations including an individual 40 minutes session of direct speech and language therapy once a week and regular individual 30 minute sessions with a teaching or speech and language therapy assistant two or three times a week to practise her communication skills, following a programme written by the speech and language therapist.

    (8) The LEA does not accept that an LSA is needed full-time and Dr Sharp, in particular, stressed the need for [D] to develop a degree of independence. Mr Addison told us that staff were deployed in such a way that reflected the range of difficulties that the children faced and Dr Sharp assured us that [D] would have one to one support when needed. [Mr and Mrs A] pointed to the fact that [D] currently has full-time teaching assistant support. The report of Ms Billings states that [D] is totally dependent on an adult carer for all access to the curriculum and curriculum materials, as well as her physical management. Ms Stephens confirms in her report that [D] requires one to one adult support for mobility, physical management (use of equipment), classroom support (learning/practical), movement games and self-help skills (feeding, dressing and toileting).

    (9) The report from [MW] provided for the annual review on 31st January 2006 documents [D's] progress against the objectives in her Statement of Special Educational Needs. [Mr and Mrs A] confirmed in their statement written for the purposes of the annual review in January 2006 that her needs had been met at [MW] School and Dr Sharp in his report of 14th January 2005 notes that [Mr and Mrs A] are happy with [D's] progress at [MW].

    (10) [B] has 64 pupils on roll. The LEA has a contract with the Primary Care Trust, which provides a range of therapy services to [B]. The school receives the equivalent of three days per week input from a speech and language therapist plus half a day from a speech and language therapy assistant with 43 pupils receiving speech and language therapy. The speech and language therapists go into classes and work with the staff and children in that context. Programmes are developed at school for the children to follow, which are planned by the teachers in consultation with the speech and language therapist. The LEA resisted quantification of the level of speech and language therapy input since they did not accept that there was a need for direct speech and language therapy and that allocating a specific amount of time to speech and language therapy would not reflect the reality of the way in which speech and language therapy services would work at a special school such as [B].

    [B] has input from the occupational therapy service equivalent to one and a half days of occupational therapy a week with 19 children being supported by occupational therapy services.

    [B] has input from the physiotherapy service equivalent to one and a half days per week from a physiotherapist and one and a half days a week from the physiotherapy technician support service. 23 children at the school receive support from the physiotherapy services.

    [B] has a hydrotherapy pool and the children generally receive one session per week of 20 minutes.

    At [B], [D] would be in a Year 7 class consisting of nine children, with one teacher and three learning support assistants.

    Mr Addison told us that although the school has no experience of Tech-Talk, it does have extensive experience of augmentative communication and devices that are similar to Tech-Talk.

    The Tribunal was provided with an Ofsted report on [B], dated January 2004, which concluded that the school was very effective.

    (11) In their Statement of Case, [Mr and Mrs A] raised a number of issues in relation to the physical environment of [B] School. At the hearing the key issue which was put before the Tribunal in relation to this was the accessibility of the school for [D]. Mr Read confirmed that the school had satisfied a Disability Access Audit and Mr Addison was asked to deal with the criticisms made by Mr Urani at paragraphs 2.30-2.32 of his report dated 1st May 2006. Mr Urani had visited [MW] as well as [B] and [AL] School. Mr Addison confirmed that [D's] class would be in the main body of the school rather than in the pre-fabricated building that Mr Urani had been shown on his visit, although he could not confirm that [D] would not be in that classroom in the future. Mr Addison also confirmed that the lift had been replaced and that there was no part of the building which a child could not access in a wheelchair, although the LEA accepted that given that the building was not purpose built, it may be slightly cramped in some places. The Tribunal was informed that 22 out of the 65 pupils do use wheelchairs.

    [Mr and Mrs A] were also concerned about the journey to [B] School. The journey to [MW] currently takes half an hour and they anticipated that the journey to [B] would take at least one hour. They were concerned that this would mean that [D] would return home exhausted after school and that the long journey would limit her concentration at school.

    [Mr and Mrs A] wished [D] to be educated in an environment where her cultural needs are addressed and for this reason wished her to be educated in a Jewish school. The LEA submitted that [B] was a multi cultural school where [D's] Jewish culture would be respected.

    (12) The primary objection of [Mr and Mrs A] to [B] was that they believed that [D] required a highly structured 24 hour approach to her learning and for this reason they sought the placement at [AL] School. In support of this they pointed to the reports of Ms Wilson, Ms Taylor and Ms Robertson and also to the report of Mr Urani. In particular, Mr Urani stated that the educational need of [D] was to develop, to whatever degree she can, some form of independent living and life skills. [Mr and Mrs A] are in receipt of a package of support that is organised by them with funding from Social Services. [D] is entitled to 19 hours per week of support during school term time and during holidays this can increase up to 30 hours per week. [Mr and Mrs A] pointed to the difficulties of finding carers who were often unreliable or ill and the fact that they were expected to train them themselves. They were also concerned that [Mrs A] was suffering physically as a result of the care that she needed to give [D].

    (13) [AL] School has a total of 21 children, one of whom is a day pupil. 13 children are in the post 16 provision. The other 8 children range in age between 7 and 16. There are two classes for these children. The likely plan is that [D] would join a class which would consist of her and three children aged 13, 14 and 15. The 13 year old is a young man in a wheelchair who also uses a walking frame, while the other two children are severely autistic. [D] would be the only child following a Year 7 curriculum and the children in the class would span Key Stages 3 and 4 of the national curriculum. The class would have one teacher and each child would have one to one LSA support.

    [AL] School has a hydrotherapy pool and a physiotherapist attends the school on two days a week with 22 children being supported by the physiotherapist. An occupational therapist attends one day a week with an option to extend to two days a week, with 22 children being supported by the occupational therapist. A speech and language therapist attends for two days per week. We were informed that the school is not familiar with Tech-Talk but had used communication aids in the past.

    Mr Horton explained that the care staff worked very closely with the school, the care staff going into the school and the educational staff going into the homes. Programmes of work were carried over within the care home and there were ongoing discussions and liaison between the care staff and the therapists.

    Mr Horton was referred by the LEA to an Ofsted report on [AL] School dated December 2003. It described [AL] School as an improving school. The previous Ofsted inspection in 1995 had found that the school had serious weaknesses in its curriculum and assessment system and in the value for money which it provided. Mr Horton was referred to a number of passages in the Ofsted report. In particular, that schemes of work were generally satisfactory but the activities which were specified were sometimes not appropriate to pupils of this age; that the provision for ICT was at a very early stage of development; that staff had not yet all received full training on the use of structured teaching systems for dealing with pupils with more complex difficulties and that there were no specialist rooms for music, design and technology or science. Mr Horton was able to confirm that specialist rooms were now in existence and that there was an ICT suite but was not able to help with the other points that were raised.

    (14) [Mr and Mrs A] also submitted that [D's] cultural needs would be addressed at [AL] School since it is an independent Jewish, residential school. They stated that as an Orthodox Jewish family they observed all the festivals and a weekly Sabbath and [D] was familiar with these and showed excitement and enjoyment. They felt that she had some understanding of her cultural background. Mr Urani told us that in view of [D's] level of cognitive development he did not know to what degree [D] had any understanding of being Jewish and that he believed that the responses described by [Mr and Mrs A] might well be responses to music and songs which she enjoys.

    (15) The costs of the respective placements are laid out in the case statement of the LEA and were not challenged by [Mr and Mrs A]. The annual costs of a placement at [AL] are between £180,000 and £220,000 with the cost of transport being £1,440. The annual costs of a placement at [B] School are £221.74 with transport costs of £4,000.

    (16) The LEA opposed the placement at [AL] since they did not accept that [D] had an educational need for a residential placement and that [B] School would meet her needs. A placement at [AL] would therefore cause the LEA unreasonable public expenditure. The LEA submitted that [D] had made progress in the provision to date and that their proposal was a continuation of the model to date, although they accept that [MW] School is a purpose built school for children with physical impairment, unlike [B]. They question why there is any reason to change this and place [D] in residential provision. They accept that it is important that there is a consistent approach between the school and the home environment but do not accept that this means that she requires special educational provision outside school hours to meet her special educational needs. Their view is that [D] clearly has care needs and this is the reason that Social Services have provided the package that has been identified above. They also make the point that there are many children in [B] with difficulties similar to [D's] who benefit from consistent physical management schemes outside school hours, and question on what basis it is suggested that [D], as opposed to any of the other pupils, has a special educational need for a 24 hours curriculum.

    The LEA were also concerned as to whether the proposed element was in [D's] best interests in any event. Amongst the issues raised were whether she would have an appropriate peer group and the implications of her being placed in a small class with two severely autistic children. They also queried whether residential provision for 52 weeks, was in her best interests, given her level of maturity. Dr Sharp pointed to the potential emotional implications for [D] of a placement at [AL], given the levels of [D's] functioning identified by Mr Urani in his report, for example, under the heading of 'daily living skills', Mr Urani had reported an age equivalent of one year six months for personal skills. Mr Urani accepted that [D] had a bond with her parents and would no doubt experience a degree of anxiety but in view of her severe disability he could not answer authoritatively the question as to the impact on her of such a separation from her parents. [Mr and Mrs A] felt that although [D] would be very upset she would welcome the activities and the stimulation, together with the presence of other children, and that she would get used to the placement.

    Tribunal's conclusions with reasons

    We carefully considered the written evidence submitted to the Tribunal and the evidence given to us at the hearing, including the video produced by [Mr and Mrs A] of [D]. We also took account of the Code of Practice.

    A. We were asked by [Mr and Mrs A] to make a number of amendments to Part 2 of [D's] statement, in particular, to provide for a residential curriculum, an appropriate home school environment where her cultural and religious needs are met, a highly structured and intensive approach and an environment with wheelchair accessibility. We did not accept that any of these amendments were appropriate amendments to Part 2 but rather were amendments to Part 3. The LEA had no objection to the inclusion of wheelchair accessibility in Part 3 and we propose to provide for it in Part 3. The LEA were concerned about the inclusion of the words 'a highly structured and intensive approach' since the meaning of this was unclear. We agree that the meaning of 'an intensive approach' is unclear and we are not sure how much this would add to a statement. However, we do accept that [D] needs a highly structured environment and will include that in Part 3 of the statement. [Mr and Mrs A] also wished Part 3 of the statement to specify that [D] should be in a school with a small class structure but do not propose to add the word 'very' since we do not accept that this adds any value to the statement.

    B. The LEA proposal for specified occupational therapy and physiotherapy is laid out in the working document attached to this decision. It is based on the recommendations of the Children's Occupational Therapy and Physiotherapy Service and is in line with the occupational therapy and physiotherapy that [D] has received to date. [Mr and Mrs A] seek a higher level of therapy as identified in the reports of Ms Taylor and Ms Wilson. We prefer the recommendations of the NHS Occupational Therapy and Physiotherapy Service. They are based on a detailed knowledge and experience of [D] over a number of years and entail a continuation of the level of therapy that [D] has received to date. Under such a regime she has made good progress as is clear from the report of [MW] prepared for the annual review in 2006. However, we do propose to make it clear in the statement that the therapy suggested is a minimum and we also propose to make it clear that 20 sessions can be either physiotherapy, occupational therapy or a combination of both as we were informed was the recommendation. We also see that the report of 12th January 2006 recommends a global total of 20 sessions and does not break the sessions down in the way that it has been done in the working document.

    C. The proposal of the LEA in relation to hydrotherapy is in line with the recommendation that has been made by Ms Taylor and we propose to amend the statement as suggested by both parties.

    D. The LEA has resisted quantification of speech and language therapy on the basis that they do not accept that [D] would benefit from direct speech and language therapy in view of her level of cognitive functioning and that the model that would benefit her would be one where speech and language therapists come into the classrooms, observe the children and develop programmes. In the hearing they stated that [D] would get her fair share of the allocation of speech and language therapy under such a regime but, 'if pushed', they would suggest that she receive an allocation of one hour per week.

    We do have the benefit of a report from the NHS speech and language therapy services which have treated [D] over the years. They do not recommend direct speech and language therapy and from the reports of Ms Helden it is clear that [D] has been making good progress. We prefer to rely on the report of Ms Helden rather than that of Ms Robertson in view of her greater knowledge of [D] and the progress that she has made under the existing model. We also note that Mr Urani has, during the course of the hearing, questioned Ms Robertson's recommendation that [D] receive once a week individual 40 minutes of speech and language therapy. In his view such a long session would not be appropriate for [D] and suggested that it would be more appropriate for her to have two sessions of 20 minutes each. This criticism adds to our concern as to how much weight to give to Ms Robertson's report. We would also like to add that we share the concern of the LEA as to [D's] ability to benefit from direct speech and language therapy.

    These reasons lead us to refuse the application of [Mr and Mrs A] to specify direct speech and language therapy in the statement. However, we do think that it is important to specify that [D] receives a minimum allocation of one hour of speech and language therapist time each week. Clearly [D's] communication skills are very poor and she will need input from a speech and language therapist for assessment, review and development of programmes. We do not propose to specify it any further than this, particularly in view of the fact that [D] will be in a special school, which can call on the expertise of the speech and language therapy services allocated to the school. We also propose to specify that [D] will be provided with a Tech-Talk device [D] should have. We do not think it is necessary or appropriate for us to specify this in the statement.

    E. [Mr and Mrs A] have asked us to specify music therapy in the statement. The report that we have been shown by Ms McLaughlin, dated 30th June 2005, states that '[D] has perhaps achieved the most that she is able to at this current time in music therapy' and suggests that she should have a break from music therapy for the time being and possibly continue with sessions at a later date. We have no up-to-date report from a music therapist suggesting that therapy is now needed. We also note from Mr Urani's report that [MW] state that [D] found music therapy very difficult to deal with as it was too free-flowing and unstructured for her to cope. On the basis of this evidence, we do not propose providing for music therapy in the statement.

    F. With respect to the request to specify a full-time LSA, we note the evidence of Mr Addison and Dr Sharp. However, in our view given the clear need for support identified in the reports of Ms Billings and Ms Stephens, in combination with the fact that [D] currently has full-time teaching assistant support at [MW], [D] has a need for full-time LSA support.

    G. We considered the concerns of [Mr and Mrs A] that [B] School was not an appropriate physical or cultural environment for [D] and their concerns as to the length of the transport time to and from the school. It is clear that the physical environment is not as good as [MW] as, unlike [MW], it is not purpose built but we accept the evidence of Mr Addison as to its accessibility. We note from the case statement that [Mr and Mrs A] raise issues as to its cleanliness. These were not put to Mr Addison at the hearing but we do have the benefit of an Ofsted report, which raises no issues as to the health or safety of the pupils. We are satisfied that the physical environment is appropriate having considered all the evidence.

    With respect to the length of the journey to and from school, it is of course regrettable that the journey time is longer than to [MW] but we do not accept that the length is such that it would prevent [B] being an appropriate placement. We note that neither Ms Taylor or Ms Wilson comment on any adverse effects to [D] of such a journey although Ms Wilson does comment that travel to school on a daily basis would be tiring for [D].

    As to the cultural appropriateness of [B], we heard evidence from the LEA that it is a multi-cultural school and note that the Ofsted report states that cultural awareness is very well fostered. We have considered [Mr and Mrs A's] wish that [D] be educated in an environment where her cultural needs are addressed. In order to do this we do not accept that she needs to be educated in a Jewish school. We also share Mr Urani's uncertainty as to the extent of [D's] understanding of being Jewish, given the level of her cognitive functioning. We do not accept that the evidence before us that being educated in a Jewish school will facilitate [D's] access to the curriculum or that it can form the basis of a special educational need or the basis for special educational provision.

    H. The key issue is whether [D] requires a residential placement in order to meet her special educational needs and that consequently [B] is not a suitable placement. In considering this issue we have borne in mind the case of Bromley London Borough Council v Special Educational Needs Tribunal and Others [1999] ELR 260, which makes it clear that there is no hard edge between what is an educational need and a care need and that educational need may extend beyond the school day.

    Ms Robertson suggests that [D] needs a 24 hour curriculum to develop and use her communication systems in everyday situations. We do not accept this. This is not a recommendation made by Ms Helden who clearly knows [D] well. Moreover, Ms Robertson gives no reason for such a recommendation and, as indicated above we do have reservations about her report.

    Ms Wilson states that a residential placement would benefit [D's] development most fully and Mr Urani records the Headteacher of [MW] stating that in principle all children in his school needed what he referred to as an extended curriculum beyond a typical school day. It may well be the case that a residential placement would optimise [D's] physical development most fully. However, what the Tribunal has to consider is whether that is needed in order to meet her special educational needs.

    We have considered very carefully the physiotherapy and occupational therapy advices, including the recommendations of Ms Taylor. The report that we give the greatest weight to is that of Ms Billings in view of her length experience of [D]. Her recommendation is that [D] needs a consistent and comprehensive approach to her physical management in order to maintain her physical function and facilitate her care and access to the curriculum. We accept this recommendation and have considered whether this calls for [D] to receive residential provision in order to meet her special educational needs. After much reflection we have decided that it does not. It is clear that [D] has a very high level of care needs and it is important that there is consistency of programmes and approach over a 24 hour period but this does not mean that [D] requires special educational provision outside school hours in order to meet her special educational needs.

    We also note that the report dated 12th January 2006 prepared by the physiotherapy and occupational therapy services based on their knowledge of [D] clearly state under the heading of 'educational needs', '[D] continues to need the following support and provision within the school: physical management, opportunities to use her walker, classroom support and self-help skills'. They do not identify that there is a need for special educational provision outside school.

    Moreover, we do note, particularly from the report of [MW], that [D] has made progress with the provision that she has received to date and the model that is proposed by the LEA is very similar to the provision to date. We see no reason why such progress should not be built on. We also do share the reservations of the LEA as to the impact on [D] of a residential placement, given her level of maturity. We are concerned as to the impact on her of such a separation from her parents.

    In conclusion, we accept the case of the LEA that [D] clearly has extensive care needs but that these should be met by the Social Services package of care and not through residential provision as they are care needs rather than educational needs. We therefore do not accept that [D] requires a 24 hour curriculum to meet her special educational needs.

    I. We were impressed by the Ofsted report on [B] and the evidence given by the LEA as to [B]. We accept that [B] can meet [D's] needs and, having considered s.9 of the Education Act 1996, find that a placement at [AL] School would involve unreasonable public expenditure to the LEA given the discrepancy in the costs. No issue was raised in relation to the costs by [Mr and Mrs A] in view of the large discrepancy between the costs of a placement at [B] and the costs of a placement at [AL] School. In particular they did not seek to persuade us that in coming to our decision on this issue it was necessary to take into account the expenditure by Social Services or that such costs would materially narrow the gap between the costs of the two placements.

    J. We wish to put on record that, in any event, we would have concerns about a placement at [AL] School. We are concerned that [D] would not be in an appropriate peer group in view of the fact that there would only be eight children aged between 11 and 16 at the school and we would be very concerned about the proposal that she was educated with children aged 13, 14 and 15 which would involve a curriculum spread over two Key Stages.

    Order

    That Hertfordshire County Council amend the Statement of [D] dated 13th February 2006 as follows:

    Part 3

    (a) Under the heading of 'Educational', insertion of the words 'highly structured' after the words 'with a caring and'; the words 'with a small class structure' after the words 'supportive environment' and the two following paragraphs: 'The school will be wheelchair accessible' and '[D] will be provided with a full-time Learning Support Assistant'.

    (b) Under the heading of 'Communication', at the end of paragraph 2 insertion of the following: '[D] will receive a minimum allocation of speech and language therapy time amounting to one hour per week' and '[D] will be provided with a Tech-Talk for her own personal use'.

    (c) Under the heading of 'Motor and sensory skills', insertion of the following after the words 'and to develop her gross and fine motor skills': 'These programmes will be devised by a fully qualified Physiotherapist and Occupational Therapist and delivered by teaching and support staff on a daily basis. [D] will receive, as a minimum, a combined total of 20 sessions per annum of specialist physiotherapy and occupational therapy for the forthcoming academic year, or until the next review. These 20 sessions may comprise of joint or individual input from a physiotherapist and an occupational therapist, at their discretion. Each session will last approximately for one and a half hours and will consist of any of the following: observation, assessment (either formal or informal), direct intervention (either individual or in a group), demonstration of specific activities, training of teaching/support staff, joint planning with teaching/support staff of appropriate targets for inclusion in the IEP, attendance at review meetings, liaison with parents, carers and other professionals, writing of report and programmes.

    (d) Insertion of the following under the heading of 'Motor and sensory skills': 'Hydrotherapy will be provided for two 20 minutes sessions per week'."

    SUBMISSIONS AFTER JUDGEMENT AND COSTS RULING

    JUDGE GILBART QC: Yes, Miss Clement?

    MISS CLEMENT: My Lord, I have a very short schedule of costs. I do seek costs in this case.

    JUDGE GILBART QC: Have they been provided to Mr Grodzinski and his instructing solicitor?

    MISS CLEMENT: They have but it was only prepared this morning. It may be it is better dealt with in writing.

    JUDGE GILBART QC: Why? The rules are quite clear. They must be provided in advance. This case was heard on Monday. I intimated yesterday morning and told the parties that judgment would be this morning. You have had time. Have you seen it, Mr Grodzinski? Very often in these cases it does not take long to work out.

    MR GRODZINSKI: I was given a minute or so before 10 o'clock.

    JUDGE GILBART QC: Would you like a few minutes?

    MR GRODZINSKI: It provides two things. One for solicitors and one for counsel, but no breakdown. My submission was going to be, my Lord, obviously my learned friend may need to say more, that there should in this case be no order for costs.

    JUDGE GILBART QC: So far as the schedule is concerned, what I am going to do is adjourn for a short time. I am here all day. You are going to provide a breakdown which Mr Grodzinski will give to his solicitor. But you want to make an application that there is no order?

    MR GRODZINSKI QC: My Lord, yes. Can I to so in the following way. Can I hand up just two authorities to my Lord. (Handed).

    JUDGE GILBART QC: Of course.

    MR GRODZINSKI: I will take you through them in a moment.

    JUDGE GILBART QC: Yes, Mr Grodzinski.

    MR GRODZINSKI: My Lord, these proceedings are, by way of background, privately funded. Because unlike judicial review proceedings which are brought in the name of a child and which can therefore almost automatically benefit from Legal Aid, and the protection that involves, these proceedings are brought in the name of the parents. The parents are in the invidious position of being too well off to qualify for Legal Aid.

    JUDGE GILBART QC: You do not need to be well off not to be ineligible for Legal Aid in the current time.

    MR GRODZINSKI: Precisely so. The proceedings were brought in what the parents perceived to be the best interests of their daughter. They have acted responsibly and reasonably throughout.

    JUDGE GILBART QC: I am looking at the first paragraph of the headnote in Re O, is that what you are drawing my attention to? It is that argument, is it not?

    MR GRODZINSKI: Indeed. Can I take my Lord to one paragraph of the judgment in that case. It is on page 5 of the print-out.

    JUDGE GILBART QC: Yes. There is a bit in the middle.

    MR GRODZINSKI: Just under C, "The majority of civil proceedings".

    JUDGE GILBART QC: Yes, I see. I take it you also refer to the passage that is cited there from the judgment of Wilson J, as he then was.

    MR GRODZINSKI: My Lord, I do. Can I take my Lord to a more recent review of all the relevant authorities.

    JUDGE GILBART QC: Was that a family law case?

    MR GRODZINSKI: My Lord, both of these cases are family law cases. There is one distinction between family cases and judicial review cases which is that in family cases the usual principle of costs following the event is disapplied expressly by family proceedings rules. This application does not expressly appear in judicial review proceedings. But nonetheless, the underlying principles in my submission apply with equal force. Can I take my Lord to the recent decision of C and SC. Again, it is a children proceedings case. There was a review, a comprehensive review by Rex Tedd QC sitting as a High Court judge. If I can take my Lord to page 8.

    JUDGE GILBART QC: This is Mr Rex Tedd QC?

    MR GRODZINSKI: My Lord, yes. Having gone through a large number of the relevant authorities, he cites a number of cases in paragraph 25 in particular the judgment of Hale J, as she then was, in the R and R case --

    JUDGE GILBART QC: I will hear what is said against you.

    MR GRODZINSKI: My Lord, I am grateful. One last thing before I sit down, my instructing solicitor did not state a case. I submit it makes no difference as we are not seeking costs against Hertfordshire.

    JUDGE GILBART QC: I just want to think through that.

    MISS CLEMENT: My Lord, I was handed in the cases this morning. I have not actually read them. As my learned friend has pointed out, these are family cases. It is a very different context, and in particular the reference he took you to in Hale J's decision, as is set out there the reasons why it was disapplied is the family context. In this case I act as a public sector defendant. If it is not able to cover its costs then the funds for all special educational needs children in the area are diminished. Normally costs follow the event and in my submission there is nothing in this case to divert from that rule.

    JUDGE GILBART QC: Thank you. Mr Grodzinski, do you want to say anything about the point Miss Clement makes that it is a public sector defendant? There are limits on public sector resources.

    MR GRODZINSKI: My Lord, inevitably in these cases they are public sector defendants. There is not a lot the parents can do to avoid that consequence. As to what my learned friend said about the principle about sums being diminished, if my Lord looks at the bottom two paragraphs on page 8 those principles apply very much in this sort of case. The court's concern is to discover what is in the best interests of the child.

    JUDGE GILBART QC: I suppose, Mr Grodzinski there is this difference too. If you are dealing with children cases of the sort which arises in these two, the decision maker is the court and it is for the court to determine what the appropriate outcome is. I see in the Re O case it was an appeal to the Court of Appeal against orders made under the Children Act by a lower court and in the C and SC case it was actually an application made to that judge. Now, there is a difference, is there not, between a case where the decision maker is determining, having grappled with the question of what the outcome should be, and then determines there should be no order and, on the other hand, what I am doing is considering whether or not the decision maker made a legal error?

    MR GRODZINSKI: My Lord, I accept that distinction but nonetheless, what your Lordship is doing -- albeit on different grounds but just as much as the Tribunal would do it -- is determining proceedings which have been brought to resolve what would be in the best interests of the child. Although there is a distinction, it is not one which obviates the distinction in that case.

    JUDGE GILBART QC: Very well. I am going to make no order in this case and I am going to say why.

    In the normal event, costs would follow, but I have had my attention drawn to two authorities. The first is Re O [1997] 1 FLR 265, a decision of the Court of Appeal and also C and SC, a decision of first instance of Mr Rex Tedd QC sitting as a Deputy High Court judge. Both of those relate to decisions made by judges who were dealing with cases under the Children Act. However, it is plain from them that it can be a proper exception to the normal rule that costs follow the event when one is dealing with what is in the best interests of the child. There is a distinction to be drawn because special rules apply there under the Children Act and also I am not the decision maker, I am sitting in judicial review of the decision of the Tribunal. But the thrust of Mr Grodzinski's point is, where one is dealing with these cases and exploring the best interests of the child, it would be wrong to penalise the parent for pursuing what it thought were the best interests of the child unless it was an entirely unreasonable approach.

    I also have in mind the result of my decision on the continuing and very significant burden of caring for D. Therefore, I want to do as little as possible which is going to make that task more difficult. On that basis, I make no order as to costs. I am satisfied that my ability to exercise that discretion is wide enough.

    MR GRODZINSKI: I am very grateful.

    JUDGE GILBART QC: I am sure you are. Any other application?

    MR GRODZINSKI: No.

    JUDGE GILBART QC: Now, that being said there is no need for you to get details of costs. Next time you are in front of me I will not be so forgiving. The rules are absolutely clear about this, as is the Practice Direction. Summary assessment is made by the judge and that means the two parties exchange costs figures the day before.

    MISS CLEMENT: My Lord, I can only apologise.

    JUDGE GILBART QC: Thank you.

    MR GRODZINSKI: Can I make one observation regarding the transcript. It is often the practice that the SEN Tribunal's decision is put into an appendix.

    JUDGE GILBART QC: When I see what it looks like, you may well be right. Thank you.