Southwark London Borough Council, R (on the application of) v Sendist & Ors

An appeal from a special educational needs tribunal lies on questions of law only. A factual finding may be disturbed where there is no evidence to support it or where no reasonable tribunal could have made it.

Approval or registration of an independent school, and the fact that other local authorities fund placements there, may provide reassurance but do not establish suitability for a particular child. The decisive question remains whether the evidence supports the child’s educational needs being met. In assessing suitability, the tribunal must consider the communication method that will actually be used, rather than merely staff training or ability to use it.

Southwark London Borough Council appealed against a decision of the Special Educational Needs and Disability Tribunal dated 10 December 2004. The Tribunal had allowed the parents’ appeal concerning the school named in Daniel Oyedipe’s statement of special educational needs and had preferred Rainbow School, an independent special school for autistic children, to Cherry Garden School.

The local authority challenged the adequacy of the evidence, the Tribunal’s reliance on the school’s approval or registration and on other local authorities funding pupils there, the finding that Rainbow would use Makaton, the admission of fresh evidence, and the Tribunal’s treatment of the proposed teacher’s Makaton training. The central issue was whether the Tribunal had made an error of law.

1. Appeal dismissed. The appeal was confined to questions of law. The court could not substitute its view of the facts for that of the Tribunal. Intervention required either an absence of evidence supporting the finding or a finding which no reasonable tribunal could have made.
2. The Tribunal had sufficient evidence to conclude that Rainbow School could meet Daniel’s needs. The evidence included visits and positive professional evidence from Mr Urani, together with evidence from Daniel’s mother and probably Ms Pohlenz. Although a tribunal would normally be expected to obtain a prospectus, written statement or oral evidence from school staff, the evidential deficiencies did not satisfy the legal threshold for intervention.
3. Registration under Part 10 of the Education Act 2002, approval under the Education Act 1996, and the funding of other statemented pupils by local authorities were relevant as sources of reassurance about the school’s ability to deliver education to its existing pupils. They were not evidence, by themselves, that the school was suitable for Daniel.
4. The Tribunal was entitled to treat Makaton as the crucial consideration. The evidence adequately supported its finding that Makaton was used generally at Rainbow and exceptionally at Cherry Garden. The material issue was actual use of Makaton between Daniel, staff and peers, not simply whether the proposed teacher had been trained or was able to use it.
5. The Tribunal should have made a clear finding about the proposed Cherry Garden teacher’s Makaton training, but that omission was not material because training would not necessarily establish that Makaton would in fact be used. The court also refused to receive the Rainbow School brochure, as there were no circumstances justifying consideration of evidence that could have been placed before the Tribunal.

A non-identification order was made. Southwark was ordered to pay the first respondent’s costs, to be assessed if not agreed.

• Special Educational Needs and Disability Tribunal: On 10 December 2004, allowed the parents’ appeal and named Rainbow School in the statement of special educational needs.
• High Court (Administrative Court): Appeal dismissed.