T & Anor, R (on the application of) v Beverley Lang & Anor

An expert statutory tribunal may use its specialist knowledge when determining issues properly raised and debated before it. Natural justice does not require the tribunal to disclose every inference drawn from that expertise. It does require an opportunity to address any genuinely new issue or evidence introduced by the tribunal itself.

In assessing special educational provision, the tribunal may balance the advantages of intensive additional support against the educational and social benefits of full-time mainstream attendance. A conclusion that provision should continue for a limited period, but cease when the balance changes, is not irrational merely because the child’s circumstances were previously different.

The parents of a young child with autistic spectrum disorder appealed under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal. The Tribunal had required the local authority to fund an Applied Behavioural Analysis programme until September 2005, but concluded that it should then cease so that the child could attend school full-time.

The parents argued that the Tribunal’s conclusion was irrational and inadequately reasoned. They also alleged procedural unfairness because the Tribunal had relied on its specialist knowledge concerning the disadvantages of part-time attendance after compulsory school age.

1. Appeal dismissed. The Tribunal had not found the school generally unsuitable. It had found that the child required supplementary Applied Behavioural Analysis support for a further short period.
2. The Tribunal was entitled to assess when the balance would change. By September 2005, the child would have received substantially longer support, the school would have gained further experience, and additional supervision had been ordered to assist the transition from school plus Applied Behavioural Analysis to school alone.
3. The Tribunal was also entitled to weigh the benefits of continued intensive support against the educational and social advantages of full-time attendance with the child’s peers. Its conclusion that full-time attendance would then predominate was rational and adequately reasoned.
4. As to natural justice, the principles identified in Richardson v Solihull Metropolitan Borough Council [1998] ELR 319 were accepted. An expert tribunal may use the expertise for which its members were appointed, but must give parties an opportunity to address a genuinely new issue or evidence supplied by the tribunal itself.
5. Here, the balance between full-time and part-time attendance had been expressly raised and debated. The Tribunal’s use of its expertise in evaluating that issue did not amount to giving evidence to itself without an opportunity for challenge.
6. The appellants were ordered to pay the respondents’ costs, not to be enforced without further order. The appellants’ costs were subject to detailed assessment pursuant to the Legal Aid Act. The child was to be referred to as Z and the case reported using anonymity.

• Special Educational Needs and Disability Tribunal: On 30 March 2005, ordered provision for the Applied Behavioural Analysis programme until 1 September 2005 and required related amendments to the statement of special educational needs.
• High Court (Administrative Court): The appeal on a point of law was dismissed.