Hammersmith & Fulham v Pivcevic & Anor

A specialist educational tribunal must decide whether the proposed education is adequate or suitable for the child’s ability, aptitude or special educational needs. The question is not whether another placement would provide a better education. Reasons supplied on review may be considered when assessing the lawfulness of the original decision, but the court must guard against ex post facto justification. On an appeal limited to law, the court cannot re-evaluate the evidence merely because it might have reached a different factual conclusion.

The London Borough of Hammersmith and Fulham appealed against two decisions of the Special Educational Needs and Disability Tribunal concerning the educational placement of a child with autistic spectrum disorder. The Tribunal directed that he leave the maintained Queensmill School and attend the private Rainbow School because it considered an intensive Applied Behavioural Analysis programme necessary.

The Borough alleged procedural unfairness, lack of evidence, irrationality, application of the wrong legal test and inadequate reasons. The central issues were whether the Tribunal had lawfully assessed the suitability of Queensmill and whether its reasons, including those given on review, were sufficient.

1. Appeal dismissed. The Borough did not establish any ground on which the court could interfere with the Tribunal’s decisions.
2. The statutory question was whether Queensmill was appropriate for the child, having regard to his ability, aptitude and special educational needs, under Education Act 1996, section 324 and paragraph 8(2)(a) of Schedule 27. The Tribunal had to determine adequacy or suitability. It was not required to decide whether Rainbow would provide a better education.
3. The first decision’s reasoning was initially problematic. Evidence that the child made marked progress with ABA showed that ABA might be preferable, but did not necessarily establish that other education was unsuitable. A slower rate of progress did not itself mean that provision was unsuitable.
4. However, the Tribunal’s review decision explained that the child’s progress at Queensmill had not matched his abilities, whereas he had made remarkable progress under ABA and verbal-behaviour programmes. Those reasons were adequate. Although review reasons must be approached cautiously because of the risk of ex post facto justification, it was proper to consider them in deciding whether the original decision was lawful.
5. The alleged procedural impropriety was not established. The court also held that notes of evidence should not be ordered merely because they would be useful or beneficial. Where a substantial allegation of no evidence or procedural unfairness has a reasonable prospect of success, the notes should normally be produced if necessary to determine the issue.
6. The appeal was on law, not fact. Criticisms of the parents’ evidence and the Tribunal’s factual assessment could have been made before the Tribunal and did not justify appellate intervention.
7. Financial consequences did not determine the degree of care required from the Tribunal, particularly where a child’s future was at stake. Nevertheless, an authority facing substantial financial consequences should prepare and present its case with greater care, including available documentary evidence and criticisms of opposing evidence.

The judgment records appeals to the Administrative Court from decisions of the Special Educational Needs and Disability Tribunal dated 21 November 2005 and 17 March 2006. The Tribunal’s decisions directed a change of educational placement and were upheld.