February 4th, 2013 by James Cornwell

A short recent decision of the Upper Tribunal (JS v Worcestershire County Council [2012] UKUT 451 (AAC)) has emphasised the importance, when assessing a child’s special educational needs (“SENs”), of considering the context in which he or she is performing.

R had difficulties in the areas of behaviour and emotional and social development. His parents argued that he needed a Statement of SEN because he had ADHD, dyslexia and expressive language and semantic difficulties. R was subject to a statutory assessment by the local authority (following an order in a previous First-tier Tribunal (“FTT”) appeal), but the local authority decided that R did not need a Statement and that his SENs could be met from provision generally available in a mainstream school. At a further FTT hearing the parents’ appeal against the refusal to issue a Statement was dismissed.

R attended an independent school. The evidence before the FTT from the school’s head teacher was that R had all the classic symptoms of ADHD and that his disruption was managed in very small classes (of typically 12 pupils), with 1:1 mentoring throughout the week and constantly high levels of supervision around the school. There was also a report before the FTT from a medical practitioner specialising in community paediatrics indicating that R had significant problems in the area of behaviour/social understanding as well as a diagnosis of ADHD and needed consistent teaching in small classes with a high ratio of staff to pupils.

Judge Mark allowed the parents’ further appeal against the FTT’s decision and remitted the appeal to a differently constituted tribunal. There were several bases for that decision.

First, the FTT had failed to grapple with the key question of what the extent of R’s needs would be in a mainstream school in circumstances where his needs and conduct had been assessed in a context where he was actually receiving high levels of support in a very small class (see at [18]). The FTT failed to address whether the more serious difficulties that R had previously exhibited in a mainstream school would re-occur in the conditions at the mainstream school to which R would go (D School) (see at [22]). The Judge accepted that on the basis of R’s current conduct he could see why no statement was thought to be required, however “a real issue before [the FTT] was whether the sort of attention he was getting at the current school was the reason that his current problems were so limited and whether the transfer to a mainstream school without the small classes and possibly without the same 1:1 mentoring and degree of supervision would give rise to greater problems” (see at [24]). The FTT had failed to address that crucial issue.

Secondly, the FTT had failed to explain why it had rejected the evidence of the community paediatrician that small classes with a high staff ratio were required (see at [23]).

Thirdly, the FTT had accepted some submissions from the local authority’s representative without evidence to back them up. These related to: (1) the level of support that would be available at D School and the fact that the school considered it could meet need; and (2) if R struggled at a mainstream school, it would not be necessary to wait 26 weeks for the statementing process to be completed (see at [19] and [21]). The Judge observed that it was “trite law” that submissions are not evidence and that “the tribunal should elicit how far the facts alleged are within [the representative’s] personal knowledge or based on some other evidence that can be produced”. In the absence of any other evidence, little weight should be attached to such matters (see at [20]).

The two key points to take away from this decision are:

(1) Where a child is not in a normal mainstream environment, a local authority (and the FTT standing in its shoes) needs expressly to consider how (if at all) the child performance would differ were he to be in a mainstream environment (with the provision typically available there).

(2) The situation (which often arises in FTT hearings) where information (often addressing a point that has arisen at, or very shortly before, the hearing) is conveyed to the tribunal by a party’s representative acting on instruction is potentially perilous. If no evidential basis can be pointed to for what is said the tribunal may have to attach little weight to it. The party advancing a point in this way will need to consider asking the tribunal to issue directions to deal with the submission of further supporting evidence, particularly if the point is (potentially) significant. Such a request will potentially cause delay and complicate proceedings and may well be refused if the point could and should have been anticipated in advance.

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