[2024] UKUT 406 (AAC)

The School submit that, in arguing that the children’s diagnoses were effectively conceded, the Appellant engages with the School’s case as she wishes it to have been rather than the case as actually argued. The School’s skeleton argument for the proposed First-tier Tribunal hearing clearly stated that it did not concede that either child had a mental or physical impairment and proceeded, over two pages, to explain why both diagnoses should be regarded with ‘extreme caution’. It is obvious that the diagnoses were not conceded, and it is unfortunate that an entirely appropriate decision not to require either doctor’s attendance is now presented as a formal concession that both children had an impairment. In any event, it is clear that both diagnoses were controversial so that it cannot have been unfair of the Tribunal to have rejected them and, moreover, even if the parties came to an agreement on a particular issue, it remained open to the Tribunal to arrive at a different conclusion (Woodhouse School v Webster [2009] EWCA Civ 91).

The authority relied on by the Appellant for the proposition that a cogent, reasoned rebuttal of expert evidence is required (Flannery) may be readily distinguished. That case concerned an expert appointed for the purposes of litigation and subject to a duty to the court. In this case, Tribunal permission was not given for expert evidence, and it was not ‘expert evidence’ in the true sense.

The Tribunal’s reasons clearly satisfied the standard in South Bucks District Council and another v Porter [2004] UKHL 33:

“36.

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.”

The principal important controversial issue in this case was whether each child had a disability. That was not simply a matter of impairment/diagnosis and the School disputed each aspect of the statutory definition. Adequacy of reasons is not necessarily determined by reference to the statement of reasons alone (Bassano v Battista [2007] EWCA Civ 370). In this case, that includes the School’s criticisms of Drs Vassialadou and Nwagbogu, set out in its written Tribunal submissions, and which focussed on their assessments having been carried out without information from the School.

The evidence of Drs Vassialdou and Nwagbogu had no special, privileged status and was not inevitably of greater weight than other equally important evidence such as that of teachers who had interacted with the children for some three years. The reasons given by the Tribunal for rejecting both doctors’ diagnostic evidence were rational and adequate. In both cases, the Tribunal relied on the absence of information about the children from the School. That the clinicians were subject to professional obligations is no answer to the School’s criticisms.

In any event, the Tribunal also found, as fact, that the necessary adverse impact was absent. Those findings are not the subject of appeal so that, even if Ground 2 is made out, the Tribunal’s error must be considered immaterial.