Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 201 (AAC)

Fecha: 11-Jul-2024

The permission to appeal and the parties’ submissions

The permission to appeal and the parties’ submissions

On 22 April 2024, the Upper Tribunal issued my decision granting the Appellants permission to appeal.

The permission decision noted that the Appellants’ reasons for appealing, as set out in their application form to the Upper Tribunal for permission to appeal (the “UT4”), were:

S’s views and opposition to attending School X;

the tribunal failed to consider S’s views (especially his opposition to School X);

that S did not wish to attend School X – it was causing him to be anxious; he was refusing to leave the house and do the things he used to enjoy; that S gets very angry, upset and tense when School X is mentioned; that he threatens to harm himself if forced to go there;

the summary of S’s views provided to the tribunal (for example at pages 210 and 212) were completed before the Respondent stated their named school as School X; “therefore this evidence was not included in the documentary evidence before the panel”;

S was not asked about how he felt about School X at the hearing; nor were the Appellants asked about how S felt about going there; the panel therefore had no evidence as to S’s views about attending there;

S’s views regarding School X should have been considered as it is unclear what is proposed to overcome his opposition.

In addition to the UT4, the Appellants also sent the Upper Tribunal a letter from a registrar in developmental paediatrics at an NHS hospital (clinic date 7 February 2024) stating that S was extremely anxious and stressed regarding mainstream school environments; that he had severe trauma from his last mainstream placement; reporting that S said that if he was forced to go to School X, he would harm himself; that S would not go out and constantly stayed in his room where he felt safe; that the Appellants have to closely monitor S’s diet as he refused to eat; that S has cerebral visual impairment which makes him extremely anxious regarding the surrounding environment and the amount of support he needs; and that S has pathological demand avoidance which makes him refrain from doing usual daily activities even the necessary ones. The letter strongly recommended that S’s mental health difficulties, his autism, and his pathological demand avoidance are all kept in mind when discussing his educational options;

The permission decision said as follows, as to why permission had been granted:

11.

The letter from the registrar (clinic date 7 February 2024) is, on the face of it, relevant and significant evidence of S’s views, wishes and feelings about going to Rice Lane; per section 19 of the Act, a local authority must have regard to those matters; and, per the case law, so does the tribunal (S v Worcestershire County Council (SEN) [2017] UKUT 0092 (AAC) at [70]).

12.

But is the letter admissible in these Upper Tribunal proceedings, given that it was not before the tribunal?

13.

I am fairly readily satisfied, given what I say in [11] above, and given the apparent authority of the letter’s author, that there is a realistic argument that the second and third of the conditions in the classic enunciation of the relevant principles regarding “fresh evidence” on appeal (Ladd v Marshall [1954] EWCA Civ 1), are satisfied; that articulation is as follows:

“It is very rare that application is made to this Court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

14.

But what of the first Ladd v Marshall condition? I can see the argument that the Appellants could have produced evidence prior to the tribunal hearing, either from themselves or possibly from S, or from a third party expert, anticipating the kind of views, wishes and feelings, on S’s part, which appear to be evidenced in the registrar’s letter. However, it also seems to me realistically arguable that, due to S’s age and health conditions, it was not reasonably possible to anticipate the reactions which, according to the registrar’s letter, S has had to being told that he is to attend [School X].

15.

I thus consider it realistically arguable that the registrar’s letter is admissible in these Upper Tribunal proceedings.

16.

Moving on to the question of whether it is realistically arguable that the tribunal erred in law – and assuming, for the limited purpose of considering that question, that the registrar’s letter is admissible – it does seem to me realistically arguable that the tribunal erred in not sufficiently taking into account S’s views, wishes and feelings, in reaching the view that [School X] was “appropriate” for S (per section 39(5) of the Act). Whilst the tribunal clearly did take these into account, to some extent – see [38] – it (arguably) did not take into account the apparent severity of S’s negative reaction to attending [School X], as evidenced in the registrar’s letter, or, in the alternative, failed adequately to explain why such a reaction was not relevant to its conclusion that [School X] was appropriate for S.

10.

The Respondent made the following points in response to the appeal:

the tribunal did have sufficient regard to S’s “views, wishes and feelings” prior to determining that School X was appropriate for him under s39(5)(a)

the law states that S’s views are not determinative

given S’s age, it was reasonable for S’s views to have been gathered by experts, and by the Appellants (his parents) (prior to the hearing); as there are no comments by S about School X in the tribunal bundle, it was appropriate for the tribunal to proceed on the basis that S’s views would be the same as those expressed by his parents (and it was clear the tribunal was aware of the parents’ views); West Sussex County Council v ND [2010] UKUT 349 (AAC) at [33] was cited:

“But as a general proposition, it must follow that a local authority would be making an error of law if it totally disregarded the express wishes of a child. Likewise, it would be making an error of law if it followed the views of the child regardless of any countervailing indications that pointed to a different conclusion. It must always be a question of the weight that is to be attached to the views of the child. The older the child and the more mature the child, the greater the weight that should be attached to those views.”

St Helens BC v TE and another [2018] UKUT 278 (AAC) was also cited, in which it was held lawful for the tribunal to conclude that a school was not suitable solely by reference to its conclusion that the child (a 7-year-old with autism) “has formed an entrenched and currently intractable opposition to attending [R] school or any mainstream provision” given that it recognised that “his attitude to the proposed placement is part of the significant and complex needs that must be met by the provider” and given educational psychologist evidence which linked his attitude to his special educational needs. On the facts this was not unlawfully giving the child or young person a veto

the Respondent submitted that S was not yet sufficiently mature to fully understand that his transition to School X would be managed carefully and sensitively, at a pace he would not find overwhelming. Also, he was not mature enough to understand that he would be attending School X’s SEN unit (which was quite different to attending a mainstream class at the school)

the Respondent adduced a letter from a “specialist practitioner” at an NHS hospital child and adolescent mental health service (“CAMHS”) to the Appellants dated 3 May 2024; the Respondent cited the following paragraph from the letter:

“At present [S] is isolated purely because he is out of school and not having the contact he needs to grow and develop. He does get anxious but this is in the context of school and his wishes to go to the school he wants.

Given the present situation and that you have experience of living with ASD within the family and that no other mental health needs were raised, we agreed no role was needed for CAMHS at this time. I advised you of our 24-hour crisis number which you can access should things change in any way for [S].”

(The previous two paragraphs stated as follows:

“At present [S] is not in school and is distressed and upset about the fact he can’t go to his choice of school which is [School Y]. In fact, [S’s parents] told me he had experienced this school for some enrichment sessions and likes going and was a happier child. He has I believe been assigned [School X] which is a school that caters for ASD children but does not have the specialist expertise around visual impairment that [S] suffers with through his CVI.

In session [S’s parents] told me that he found his initial schooling at [a mainstream infant school] very distressing and was overwhelmed by the experience. He was a different child when he went to [School Y] and both [S] and [S’s parents] would like him to attend there for his education, appropriate support, and social development.”)

the Upper Tribunal was asked to note that, in the light of medical evidence submitted by the Appellants, the Respondent had recently decided to carry out a “further statutory review” of S’s EHC plan under s44 – the outcome of which could be appealed against under s51. The Respondent asked for that process to take its course.

11.

The Appellants made the following points in their “reply”:

the tribunal did not have material before it on S’s views on School X

the Respondent was under a duty to provide S’s views to the tribunal and did not; and the tribunal was under a duty to consider S’s views (on School X)

given S’s very clear response subsequent to the decision, those views would have been material to the decision, and could have been determinative

the tribunal erred by failing to obtain S’s views on School X pursuant to its inquisitorial jurisdiction; it failed to consider a relevant factor; alternatively, S’s views as expressed after the decision were a relevant change of circumstances which should have led to a review (rule 48 of the tribunal’s procedure rules)

as to the admissibility of the registrar’s February 2024 letter:

It was submitted that the burden (of adducing relevant evidence) does not fall solely on the parties (especially unrepresented parents), give the inquisitorial jurisdiction

ii.

it was known before the hearing that S did not want to attend School X; but the extent of his objections (including threats to self harm) only arose after

iii.

the letter itself (as evidence of S’s views when the letter was written) could not have been obtained prior to the hearing; but it is evidence of what he may have said, or indicated, had his views been obtained prior to, or at, the hearing

nothing was said in the Respondent’s response to the appeal to the tribunal, about S’s views about the issues raised in the proceedings

a document in the tribunal bundle about S’s views, prepared by his parents, said that S loved School Y but hated the mainstream infant school he had attended. It said that every day he went to the latter school he “hates his life”; it said that S was “extremely upset in the morning and repeatedly says he hates [the latter school]

this was not about the “weight” afforded by the tribunal to S’s views; rather, it fell into error by not having regard at all to S’s views about School X.