A v Special Educational Needs & Disablity Tribunal & Anor

A tribunal determining a statement of special educational needs must address the statutory questions in sequence: the child’s needs, the provision required, and the appropriate placement. A child’s religion or identity is not itself a special educational need, but must be considered where relevant to the child’s needs or to the way in which those needs can be met. Reasons need only be in summary form, but must explain the conclusions on substantial issues sufficiently to reveal whether the tribunal erred in law. Where material expert evidence is rejected, brief reasons must be given. If a tribunal relies on its own undisclosed expertise, procedural fairness requires disclosure of the basis of its view. A failure to explain how religious requirements affect provision and placement, and how relevant expert evidence was treated, is a fundamental defect.

The claimant appealed under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal concerning her daughter, S, who had cerebral palsy and significant special educational needs. The local education authority had named a maintained special school, Northway, in S’s statement. Her parents sought provision and placement at Kisharon, an independent orthodox Jewish school, relying on evidence that S’s religious and cultural environment affected her learning and educational progress.

The tribunal accepted that both schools could meet S’s special educational needs, rejected the proposed orthodox Jewish placement, and amended the statement. The central issues were whether the tribunal had addressed the statutory questions in the correct order, given adequate reasons, properly dealt with the expert evidence, and considered the impact of S’s Jewishness on her needs and the provision required.

1. The appeal was allowed. The tribunal’s decision was quashed and the appeal was remitted to a freshly constituted tribunal.
2. Under section 324 of the Education Act 1996, the decision-maker must first identify the child’s special educational needs, then determine the provision necessary to meet them, and only then decide the appropriate placement. Part 4 cannot influence Part 3. The court was not persuaded that the tribunal had in fact worked backwards from its preferred school, but the statutory sequence remained mandatory.
3. A child’s Jewish religion and identity could not itself constitute a special educational need, following G v London Borough of Barnet and Special Educational Needs Tribunal [1998] ELR 480. However, religion and identity had to be taken into account where relevant to the child’s special educational needs or to the manner in which those needs could be met, consistently with R v Secretary of State for Education, ex parte E [1996] ELR 312.
4. Regulation 36(2) of the Special Educational Needs and Disability Tribunal Regulations 2002 required reasons in summary form. That did not permit conclusions on substantial issues to be left unexplained. The parents had to be able to understand why proposed amendments were rejected and identify any error of law. The approach in S (a minor) v Special Educational Needs Tribunal and Another [1995] WLR 1627 and H v Kent County Council and the Special Educational Needs Tribunal [2000] ELR 660 was applied.
5. The tribunal failed to explain the impact of S’s Jewishness on the accepted needs, the provision required, and placement at a non-Jewish school. It also failed to explain why it rejected the central evidence of Mrs Birnbaum, an educational psychologist. That failure indicated that the issues had not been properly considered.
6. If the tribunal relied on its own expertise in rejecting the expert assessment, it had to disclose the basis of that view so that the parties could respond. Otherwise the decision would be procedurally unfair, applying the principles discussed in Mahon v Air New Zealand Ltd [1984] AC 808, R v Vaccine Damage Tribunal, ex parte Loveday (The Times, 10 November 1984) and R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699.
7. The Convention arguments added nothing to the statutory analysis. Proper application of the statutory scheme necessarily required consideration of the impact of S’s Jewishness, and a separate analysis under Articles 8, 9 and 14 was unnecessary.

• High Court (Administrative Court): the decision of the Special Educational Needs and Disability Tribunal dated 24 July 2003 was quashed. The appeal against the statement of special educational needs was remitted to a freshly constituted tribunal. The second respondent was ordered to pay the appellant’s costs.