Wandsworth v K & Anor

Educational provision that is appropriate to meet a child’s special educational needs should be specified in Part 3 of the statement, including provision such as an applied behavioural analysis programme. Any qualification affecting its appropriateness should also be stated there. Part 4 may identify the placement appropriate for the time being and the type of school suitable if a vacancy later becomes available. A tribunal may leave uncertain future placement issues for later determination where the child’s needs and the available provision may change.

The London Borough of Wandsworth appealed under Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal concerning the statement of special educational needs for A, the son of Mrs K. The Tribunal directed that an applied behavioural analysis programme should be included in Part 3 of the statement, while leaving future mainstream placement matters unresolved. The central issues were whether that provision was properly included in Part 3 and whether the child should be joined as an interested party to the statutory appeal.

1. Joinder. The application to join A as an interested party was refused. Under section 11(1) of the Tribunals and Inquiries Act 1992, the statutory appeal lay to a party to the tribunal proceedings. The parents, rather than the child, were parties to those proceedings. Although CPR 52.1(3)(e)(ii) permits the appeal court to add a person who was not a party below, joinder was unnecessary because Mrs K could raise every issue arising on the appeal. The child’s joinder would serve principally to provide publicly funded representation for the mother’s response.
2. Part 3 provision. Applied behavioural analysis constituted facilities and staffing arrangements within Schedule 2 to the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001. It was appropriate at the date of the Tribunal’s decision and had been recommended by professionals. It was therefore properly included in Part 3. The principle in Surrey County Council v P & P 1997 ELR 516 and Richardson v Solihull MBC 1998 ELR 319, concerning provision exceeding what was appropriate in the light of relevant authority resources, did not justify excluding the programme where the alternative placement was unavailable.
3. Future placement. Where provision is presently appropriate, Part 3 should state it, together with any qualification affecting its appropriateness. Part 4 may refer to the programme as the current measure and identify the type of school appropriate if a suitable vacancy becomes available. A tribunal may defer uncertain future provision until the relevant facts are known.
4. The appeal was dismissed.

This was a statutory appeal to the High Court (Administrative Court) from a decision of the Special Educational Needs and Disability Tribunal. The Tribunal had directed that the applied behavioural analysis provision be included in Part 3 of A’s statement.