T & Anor v Hertfordshire County Council & Anor

A Special Educational Needs Tribunal's decision and order must be sufficiently specific and clear, read as a whole, to leave no doubt about what provision it has decided is necessary. The Tribunal retains substantial case-by-case judgment in classifying provision as educational or non-educational and in deciding the appropriate degree of specification. Consistency of approach across school, home and respite settings does not necessarily require special-education programmes throughout a child's waking day or a residential placement. Where the school can meet the child's special educational needs, liaison and consistency may be described flexibly. The appeal was dismissed because the Tribunal had made no error of law and had acted fairly.

The parents appealed under section 11 of the Tribunals and Inquiries Act 1992 from Moses J's order of 26 June 2003, which dismissed their appeal against a decision of the Special Educational Needs and Disability Tribunal dated 17 December 2002.

The Tribunal amended Parts 2 and 3 of their son's statement of special educational needs but retained St Luke's, a maintained day school, rather than the parents' preferred residential school. The central issues were whether the Tribunal's reasoning and order were sufficiently clear and whether it had failed to reflect an agreement that educational programmes were required throughout the child's waking day.

1. Appeal dismissed. Lord Justice Clarke gave the judgment of the court. Lord Justices Tuckey and Auld agreed.
2. The applicable clarity test, drawn from London Borough of Bromley v SENT [1999] ELR 260 and L v Clarke and Somerset County Council [1998] ELR 129, was whether the Tribunal's decision and order were sufficiently specific and clear to leave no room for doubt about what it had decided was necessary. The decision had to be read as a whole. Although the wording could have been improved, its conclusions and consequential amendments were sufficiently clear (paras [27]-[29], [43]-[44]).
3. The parties had not reached complete agreement on the disputed Part 3 provision, particularly the alleged requirement for a waking-day curriculum. The Tribunal was entitled, and indeed required, to apply its own judgment to the evidence, provided that each party had a fair opportunity to adduce evidence and be heard. No procedural unfairness was established (paras [37]-[42]).
4. Under the Education Act 1996, the distinction between special educational and non-educational provision includes a substantial area of overlap. As explained in Bromley and E v London Borough of Newham and SENT [2003] EWCA Civ 09; [2003] ELR 286, classification and the degree of specification are matters for case-by-case expert judgment by the local education authority and, on appeal, the Tribunal. The appellate court should intervene only for an error of law (paras [46]-[50]).
5. The Tribunal had found that St Luke's could provide the required special education during the school day. Its direction for consistency of approach across school, home, respite care and social activities required compatible handling and liaison, not the provision of special-education programmes by the authority at home. It therefore did not follow that the child needed the same setting throughout his waking day or a residential curriculum. Liaison could not be rigidly prescribed, but had to occur regularly and when needed (paras [50]-[53]).
6. The Tribunal was also entitled to conclude that the significantly greater cost of the preferred residential placement involved unreasonable public expenditure, so that the parental preference could not prevail (para [23]).
7. In a postscript, the court stated that an appeal to the Court of Appeal from a High Court appeal under section 11(1) of the 1992 Act is a second appeal subject to section 55(1) of the Access to Justice Act 1999. Applicants should identify that status and explain why the statutory permission criteria are met (paras [56]-[60]).

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld Moses J's decision and found no error of law or unfairness in the Tribunal's decision: [2004] EWCA Civ 927.
• High Court (Administrative Court): Moses J dismissed the parents' appeal on 26 June 2003 against the Tribunal's decision.
• Special Educational Needs and Disability Tribunal: The Tribunal's decision of 17 December 2002 amended Parts 2 and 3 of the statement but rejected the appeal concerning Part 4 and the proposed residential placement. An amended statement was issued on 14 February 2003.