London Borough of Islington v Lao & Anor

Whether a statement of special educational needs is necessary must be determined by applying the statutory test and the guidance in the special educational needs Code of Practice. The decision-maker must assess the child’s learning difficulties, present needs, progress and required provision, and ask whether that provision can reasonably be supplied from resources normally available to mainstream schools in the area. Uncertainty about the particular secondary school does not justify ordering a statement by default. A tribunal must give the parties a fair opportunity to present evidence, call and question witnesses, and make submissions. Its reasons must address the applicable legal test. A tribunal concerned about incomplete information should adjourn or obtain further evidence rather than determine the appeal summarily.

The London Borough of Islington appealed against a decision of the Special Educational Needs and Disability Tribunal made on an appeal by the mother of a child, LAO. The Tribunal had reversed the authority’s refusal to make a statement of special educational needs and ordered it to do so.

The Tribunal had focused on the absence of a confirmed secondary-school placement, transition arrangements and detailed information about provision at the future school. The central issues were whether it had applied the correct statutory test, whether the authority had received a fair hearing, whether relevant evidence and factors had been considered, and whether adequate reasons had been given.

1. Appeal allowed. The Tribunal’s decision ordering the authority to make a statement was quashed. The child’s appeal was remitted to a differently constituted Tribunal.
2. Under Education Act 1996, s 324, the decision-maker must conclude that making a statement is necessary in light of an assessment of the child’s educational needs. The inquiry is at the high end of a graduated range of educational responses.
3. The Tribunal must also apply paragraph 8:2 of the special educational needs Code of Practice. It must consider the child’s learning difficulties, present needs, progress and required provision, and then determine whether that provision can reasonably be supplied from resources normally available to mainstream schools in the area. It is not essential first to identify the particular school the child will attend, although the likely provision in local mainstream schools must be considered.
4. The Tribunal had instead treated the absence of a confirmed secondary-school placement as a reason to order a statement by default. That approach had no legal basis. If further information was needed, the Tribunal should have adjourned or made appropriate enquiries.
5. The authority was denied a fair hearing. It was not permitted to call its witnesses, give evidence or make submissions on the evidence and issues. Paragraph 34 of the Special Educational Needs Tribunal Regulations 2001 conferred those entitlements, and paragraph 32 did not qualify them. The Tribunal also failed to determine the issues and order of hearing in a way that permitted proper participation.
6. The Tribunal’s reasons did not address the statutory test. Its concern to provide protection and secure a school placement was not a legitimate substitute for deciding whether a statement was necessary. The reasoning also failed to engage with material evidence concerning the child’s current needs, progress and likely provision.
7. The appeal was therefore allowed on all four grounds. The statement-making process fell away, and the child’s appeal was to be reconsidered promptly after fresh evidence and reports had been obtained.

• High Court (Administrative Court): The appeal from the Tribunal’s written decision of 27 May 2008 was allowed. The order requiring a statement was quashed and the underlying appeal was remitted to a differently constituted Tribunal.