March 2011 - "Another Important Judgment For Children with SEN"
We succeeded in another important SEN case in the Upper Tribunal last week for parents of a child with very complex needs including physical limitations, learning difficulties, health needs and social care needs.
'C' as she was referred to (the judgment is anonymous as it concerns a child) was 12 years old and has a diagnosis of Cerebral Palsy that affects all four of her limbs and additionally affects her through everything else that this condition entails. She also suffers from Epilepsy, has a significant Visual Impairment, (she is partially sighted) and has a Scoliosis of her spine. C was educated in a mainstream primary school but had been placed in a year group one year chronologically behind her age. It was accepted by everyone that she was struggling and needed to go to a special school.
C's parents appealed against her statement of SEN at 'phase transfer' (i.e. from primary to secondary school) for her to attend an independent residential special school from September 2010. However, her Local Authority argued that she should attend a local maintained generic day special school which could be supplemented by a very large package of respite/social care.
Although there were arguments that the total costs of the different schools were not that far apart as they seemed when considering the wider benefits that a residential placement would bring C and the high costs of the respite provision, the LA opposed the appeal and argued that to name the parentally preferred school would amount to 'unreasonable public expenditure'.
On appeal, the First Tier Tribunal found that all of C's needs were 'inextricably linked' and said:
“To us the evidence clearly suggests that C has complex needs in the areas of herphysical disability, her learning difficulties, her medical needs arising from her epilepsy, her communication and speech and language difficulties, and then her visual impairment. They are all clearly linked and all need specialist input. To give one primacy over the others would be incorrect.
…
We have carefully considered the case law on this subject which we have set out above. We find it surprising and unacceptable given the financial cost of the respite care being provided and the difficulties the family are experiencing when trying to cope with C’s needs and behaviour and the resulting pressure on her parents and siblings that no effort has been made by the LA to consider a multi agency funding agreement of a placement in a suitable residential school.
…
we conclude that there is no educational need for such a curriculum and we have no jurisdiction to deal with social and health reasons however compelling they may be.”
C's parents appealed against the decision to the Upper Tribunal on a number of grounds, including the fact that there was an unlawful failure by the Tribunal to consider the wider benefits in deciding whether additional public expenditure would be unreasonable. After a hearing in February 2011, His Honour Judge Pearl upheld the appeal and quashed the Tribunal's decision remitting it back for rehearing before a freshly constituted Tribunal Panel. He stated, amongst other things that:
"...
one looks at the total picture. Applying this general principle, it is my view that a LA (and the Tribunal on appeal) when conducting the balancing exercise, are obliged to take account of wider social and health benefits when deciding whether additional public expenditure is unreasonable...
Accordingly, on this Ground, I have decided that the Tribunal misdirected itself in law. It should have taken account of the wider benefits, which were indeed referred to by the Tribunal when deciding whether the extra public expenditure that would be incurred if [the parent's preferred school] were identified as the School in Part 4 would or would not be "unreasonable" on the facts of this case."
This judgment has therefore now confirmed the important need for LAs and the Special Educational Needs and Disability Tribunal to always consider the 'holistic' needs of the child (including non-educational needs such as health or social care). This means consideration also of the wider benefits of a residential school placement for a child with complex needs notwithstanding that it may appear to be more expensive.
If this judgment is of interest to you or anyone you may know the case is reported as: K v London Borough of Hillingdon (SEN) [2011] UKUT 71 and the full judgment is available on our website to read/download by clicking here.
With good wishes
Douglas
P.S. I always find it extremely helpful to learn more about what people think about these updates so please take a minute to tell me what you think by clicking on ‘March 2011 Update – Your Thoughts’. Many thanks in advance if you get the chance to do this.
'C' as she was referred to (the judgment is anonymous as it concerns a child) was 12 years old and has a diagnosis of Cerebral Palsy that affects all four of her limbs and additionally affects her through everything else that this condition entails. She also suffers from Epilepsy, has a significant Visual Impairment, (she is partially sighted) and has a Scoliosis of her spine. C was educated in a mainstream primary school but had been placed in a year group one year chronologically behind her age. It was accepted by everyone that she was struggling and needed to go to a special school.
C's parents appealed against her statement of SEN at 'phase transfer' (i.e. from primary to secondary school) for her to attend an independent residential special school from September 2010. However, her Local Authority argued that she should attend a local maintained generic day special school which could be supplemented by a very large package of respite/social care.
Although there were arguments that the total costs of the different schools were not that far apart as they seemed when considering the wider benefits that a residential placement would bring C and the high costs of the respite provision, the LA opposed the appeal and argued that to name the parentally preferred school would amount to 'unreasonable public expenditure'.
On appeal, the First Tier Tribunal found that all of C's needs were 'inextricably linked' and said:
“To us the evidence clearly suggests that C has complex needs in the areas of herphysical disability, her learning difficulties, her medical needs arising from her epilepsy, her communication and speech and language difficulties, and then her visual impairment. They are all clearly linked and all need specialist input. To give one primacy over the others would be incorrect.
…
We have carefully considered the case law on this subject which we have set out above. We find it surprising and unacceptable given the financial cost of the respite care being provided and the difficulties the family are experiencing when trying to cope with C’s needs and behaviour and the resulting pressure on her parents and siblings that no effort has been made by the LA to consider a multi agency funding agreement of a placement in a suitable residential school.
…
we conclude that there is no educational need for such a curriculum and we have no jurisdiction to deal with social and health reasons however compelling they may be.”
C's parents appealed against the decision to the Upper Tribunal on a number of grounds, including the fact that there was an unlawful failure by the Tribunal to consider the wider benefits in deciding whether additional public expenditure would be unreasonable. After a hearing in February 2011, His Honour Judge Pearl upheld the appeal and quashed the Tribunal's decision remitting it back for rehearing before a freshly constituted Tribunal Panel. He stated, amongst other things that:
"...
one looks at the total picture. Applying this general principle, it is my view that a LA (and the Tribunal on appeal) when conducting the balancing exercise, are obliged to take account of wider social and health benefits when deciding whether additional public expenditure is unreasonable...
Accordingly, on this Ground, I have decided that the Tribunal misdirected itself in law. It should have taken account of the wider benefits, which were indeed referred to by the Tribunal when deciding whether the extra public expenditure that would be incurred if [the parent's preferred school] were identified as the School in Part 4 would or would not be "unreasonable" on the facts of this case."
This judgment has therefore now confirmed the important need for LAs and the Special Educational Needs and Disability Tribunal to always consider the 'holistic' needs of the child (including non-educational needs such as health or social care). This means consideration also of the wider benefits of a residential school placement for a child with complex needs notwithstanding that it may appear to be more expensive.
If this judgment is of interest to you or anyone you may know the case is reported as: K v London Borough of Hillingdon (SEN) [2011] UKUT 71 and the full judgment is available on our website to read/download by clicking here.
With good wishes
Douglas
P.S. I always find it extremely helpful to learn more about what people think about these updates so please take a minute to tell me what you think by clicking on ‘March 2011 Update – Your Thoughts’. Many thanks in advance if you get the chance to do this.
