[2023] UKUT 223 (AAC)

Although it states that the quality of provision for existing pupils at Woodside Academy would be “materially affected” by Q’s attendance there, the decision does not, in terms, explain why that “material effect” on the quality of provision would unavoidably result in the quality of education provided to those other pupils falling below the threshold standard of “efficient education”. That this is the statutory test is clear enough from the words of s39(4)(b)(i); but it was also so articulated by the Upper Tribunal in NA v LB Barnet (SEN) [2010] UKUT 180 (AAC) at [32-34] (with key passages underlined, by me):

The question in this appeal (relevant to whether the decision erred in law), is whether, despite the decision not explaining, “in terms”, its reasoning on this key issue, it is, nevertheless, adequately clear from the decision as a whole, why Q’s attendance at Woodside Academy (including the “material effect” that would have on the quality of provision for existing pupils, per the decision) would result in the education of those other pupils falling below the “efficient education” standard.

In terms of understanding the “efficient education” standard, I note that the SEND code of practice (to which, under s77, the tribunal must have regard) states at 9.79 that efficient education means providing for each child a suitable, appropriate education in terms of their age, ability, aptitude and any special educational needs they may have.

Mr Wilding argued that it is adequately clear from

I cannot accept this submission on the basis of express findings made in the decision itself: whilst the decision

I now consider Mr Wilding’s proposition taking account, in addition to express findings made in the decision, evidence of Mrs Freame which is expressly referred to in the decision as evidence (rather than incorporated into findings of fact expressly made in the decision). In general, I accept the proposition that where the decision has expressly referred to Mrs Freame’s evidence, then, given the decision’s references to the tribunal being impressed by her evidence and attaching weight to her views, it is appropriate to treat that evidence as part of the decision’s “explanation” of its conclusions. However, in my view, the evidence of Mrs Freame as expressly referred to in the decision, does not take matters further as regards Mr Wilding’s proposition (that it is adequately clear that the material effect of Q’s attendance on the quality of provision to existing Woodside Academy pupils, as found in the decision, met the test of s39(4)(b)(i)): the evidence referred to says that Woodside Academy was “full” and Q’s attendance would “affect” provision for existing pupils, but these statements suffer the same weakness as I identify at paragraph 16 above. The same can be said of evidence of Mrs Freame referred to in the decision as saying that there was “limited space” for “probable” and “possible” individual learning assistance – and this has the additional weakness, in terms of providing “adequate” reasons, of being uncertain about whether the assistance in question was required special educational provision as determined by the tribunal (more is said about this latter aspect at paragraph 21 below).

I now cast the net yet more widely and consider Mr Wilding’s proposition in the light not just of findings expressly made, or evidence expressly referred to, in the decision, but also of relevant parts of the witness statement of Mrs Freame dated 15 September 2022 (in other words, in the light of arguably relevant evidence before the tribunal).

The more relevant passages from that witness statement were as follows (with my underlining of those parts which appear to address the question of the impact on provision for existing pupils of Q’s attending Woodside Academy):

Although the underlined phrases above contain some noticeably strong language (“severely” compromise; a degree of detrimental impact that would be “too great”; to proceed would be “irresponsible”), it cannot be said that these statements address the question posed by s39(4)(b)(i) in the “sophisticated” (i.e. careful and precise) way required. For example, they speak forcefully of “compromise” to the educational provision to existing pupils, but do not explain whether or how the effect of that compromise would be to reduce the standard below that of “efficient education.” Mrs Freame does, of course, use that phrase in the extracts above, but what her statement does not provide is a detailed and/or precise explanation along the lines I set out in paragraph 16 above. That is, of course, entirely unsurprising: Mrs Freame is an educator and a witness in the proceedings; the methodical explanation along the lines set out at paragraph 16 above is for the tribunal to undertake. The difficulty here is that the decision does not, on its face, reflect such an approach having been taken; in my view, that failing cannot be made good by incorporating passages from a witness’ statement – even a witness whom the tribunal clearly found to be credible and reliable – as they do not approach, and explain, matters to the standard of adequacy required of a decision of the tribunal.

A further difficulty in relying on Mrs Freame’s evidence to “plug the gaps” in the decision’s reasons as to the effect on provision for existing pupils of Q’s attendance at Woodside Academy, is that Mrs Freame, for obvious reasons, did not know the special educational provision required by Q, as determined by the tribunal. I accept that, in broad terms, the decision’s finding that Q would require “additional support” was in line with Mrs Freame’s view of matters; but a broad-brush approach is inadequate for the “sophisticated” test of s39(4)(b)(i) i.e. the test must be approached with the precise special educational provision required by the newly-attending child in mind.