Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 139 (AAC)

Fecha: 24-Abr-2024

Ground C – “A finding that there was no dictation or copying and that D’s written work was her own was not open to the First-tier Tribunal on the evidence”

59.

Mr Broach submits that the Tribunal reached a perverse or irrational conclusion at [35] that (emphasis added) “there was no dictation or copying … and that [D’s] written work was her own, produced over several days in accordance with the colourful semantics approach (as recommended by the Speech and Language Therapist) that the school followed and with a good degree of scaffolding and support”. He submits that the Tribunal’s reasons for rejecting what Ms Robinson’s report stated about the TA having told her that D’s work was “often” dictated by her or copied from a sentence maker are inadequate. He submitted that paragraphs 3.28 and 5.15 of Ms Robinson’s report show that Ms Robinson herself witnessed D copying. He submitted that Ms Pedrosa’s evidence could not be described as “speculative” given that she had been working with D as her specialist teacher for 6 hours per week. He submits that the school’s own case in its response was that D’s work involved “shared composition” and were “not examples of [D] writing independently” and that the examples of D’s work in the bundle that were referred to in the appellant’s further particulars evidently had to include copying and dictation given the long words and complex sentences used and D’s ‘extremely low’ verbal skills.

60.

Mr Wilson in response reminded me that the threshold for a finding of perversity is a high one and he submitted it is not met in this case. He submitted that this is simply a case in which the Tribunal, legitimately, preferred the oral evidence of the headteacher, supported by the document he had produced about the Goldilocks work that D had undertaken in the w/c 12 September 2022. He submitted that the Tribunal had given adequate reasons for that conclusion.

61.

I have considered both side’s submissions carefully, and remind myself that perversity is a high threshold which means that the conclusion must be irrational or wholly unsupported by the evidence. An appeal to the Upper Tribunal is not an opportunity to re-argue the case on its merits. These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11]. I also reminder myself that, in scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57].

62.

However, even bearing in mind the latitude that must be granted to First-tier Tribunals on such factual findings, it seems to me that the Tribunal in this case has erred in law in its conclusion at [35] for the following reasons:-

In finding that there was “no dictation or copying” (emphasis added) it has in my judgment perversely overstated the position. That may have been true of the work on Goldilocks that the headteacher dealt with in his document at p 215 of the bundle, but it was irrational to find that was the case in relation to all of D’s work, including in particular the examples that were given in the appellants’ further particulars which evidently included complex words and sentences (much more complicated than anything in the Goldilocks’ example), where at least some dictation or copying had to have taken place. Alternatively, and at any rate, in the absence of any reasons in [35] dealing with why the Tribunal rejected the appellant’s case that this work was beyond D’s capabilities, the Tribunal’s reasons on this point are inadequate.

The Tribunal’s reasons in [35] appear to me to have mixed up Ms Pedrosa with Ms Robinson. The Tribunal states that Ms Pedrosa’s evidence on this was “speculative” but then go on to say that “she did not see any dictation or copying and relied on what she was told by a Teaching Assistant and her own judgment as to the type of work that [D] would be able to do”. This seems to be a reference to paragraph 3.25 of Ms Robinson’s report as Ms Pedrosa does not purport to recount what the Teaching Assistant told her. There was no need for Ms Pedrosa to do so as she was personally working with D for 6 hours every week. As such, what the Tribunal says about its reasons for rejecting Ms Pedrosa’s evidence (such as it was on this issue) are not founded in the evidence, irrational and inadequate.

Even if the Tribunal has simply mixed up Ms Pedrosa’s and Ms Robinson’s names at this point, its reasons are inadequate and not founded in the evidence, because, although the TA’s evidence is given ‘hearsay’ in Ms Robinson’s report and Ms Robinson herself did not attend to give oral evidence (and so could legitimately be given less weight by the Tribunal in principle): (a) the Tribunal has overlooked paragraphs 3.28 and 5.15 of Ms Robinson’s report which indicate that she also personally witnessed copying; and, (b) the Tribunal has failed to take into account, when weighing the oral evidence of the headmaster against the ‘hearsay’ evidence of the TA, that a TA works with D 32.5 hours per week, while the headmaster will not have that extended personal contact.

I also agree with Mr Broach’s submission that the conclusion that there was “no” dictation or copying is inconsistent with the school’s own case that there was “shared composition” and “heavy scaffolding”, each of which techniques inevitably requires the provision of some words or starter phrases which must be “dictated or copied”.

Finally, I observe that the Tribunal in this same paragraph appears to have accepted the evidence that D “did not appear to understand much of the text that she had written” without dealing with the obvious point that D’s lack of understanding supported the appellant’s case that at least some of the work had been dictated or copied.

63.

It follows that Ground C succeeds. It does not, however, follow, as Mr Broach appeared at times to suggest, that the appellants’ whole claim should have succeeded. Although I have found the Tribunal’s reasons on this point to be irrational and/or inadequate, I should make clear that it would have been open to the Tribunal to make a more nuanced finding about the nature of the support that the school was providing to D that acknowledged the elements of copying and dictation while nonetheless accepting the school’s case in (large) part. It seems to me that the Tribunal has fallen into error on this factual finding because it, wrongly, considered that it did not need to make careful factual findings about the provision that was being made for D. That appears from what it says at [35], i.e. “To the extent that we are required to make findings about the way in which the school supported [D] with her literacy …” and, having made the finding of fact that I have found was an error of law, continuing “we do not find that much turns on this”.