John Roberts was instructed by Education Authority ‘B’ to resist an appeal in the Special Educational Needs Tribunal for Wales (‘Tribunal’).
Child ‘A’ was a year seven pupil with a diagnosis of dyslexia and dyspraxia. Whilst she was able to access the curriculum at secondary school, she required additional assistance to do so and particularly struggled with aspects of mathematics and spatial awareness. A’s parents brought a Tribunal appeal, contending that their child’s needs could only be met with a formal Statement of Special Educational Needs (‘Statement’) and that the Tribunal should order Authority B to prepare one. Authority B contended that A did not need a Statement for her needs to be met.
What is the legal test?
A Statement is an important statutory document that protects the child and effectively ‘ring fences’ a provision and funding. Broadly, the legal question to be answered by the Tribunal is whether the required provision can and would ordinarily be met from within the resources of the school or Authority. If so, a Statement is not needed. If not, the Tribunal will order the Authority to provide the formal protection of a Statement.
Put another way, can the Tribunal be satisfied that absent a Statement, there would be sufficient protection for the child?
The evidence in this case
As is often the case, Child A relied upon a report from a private Educational Psychologist, Dr ‘C’. He suggested A had an Autism Spectrum Disorder and needed further testing. He also contended A’s needs were more complex than had been recognised by Authority B. He concluded A needed significant assistance at school, that attempting to keep up at school was causing intolerable anxiety, that she lacked the empathy to make friends and that she had demand avoidance. Dr C also indicated he had spoken to an Independent school which indicated it could meet her needs.
The Tribunal emphatically dismissed the evidence of Dr C, noting that he was a poor witness when cross examined. He failed to note or comment upon a wealth of evidence at odds with his conclusions. His report was not evidence based, with him apparently confusing what he had been told with what he had observed, at one stage arguing he had observed A struggling to form friendships when he had met her alone.
Preferring the evidence of Authority B’s Education Psychologist, the Tribunal agreed with John’s submission that Dr C’s evidence should be dismissed. Indeed, the Tribunal found Dr C was an extremely poor witness, who was wholly unreliable, lacking evidential foundation in his conclusions, and the way he behaved on being cross-examination verged on the childish.
The Tribunal concluded that A is a delightful child, who had made good progress at school. She had made many friends and was empathetic. She did not exhibit demand avoidance and whilst assistance had been offered to her at school, she had not used or needed it.
The Tribunal concluded A’s needs could and indeed were being met at her existing school and from within its own resources. There was no requirement for a Statement and her appeal was dismissed.
What should we take from this decision?
It is important to remember that the evidence of a private expert should not necessarily be preferred. Such experts can of course be useful and their evidence should not be dismissed without proper consideration. However, the nature of the involvement of such experts often puts them at a disadvantage and Authority experts should be prepared to stand their ground.
A second point is that authorities should, where appropriate, be prepared to refuse to provide a Statement where the authority feels it has adequately assessed the child’s need, which can or is already being met from within school or authority resources. A robust, albeit sympathetic approach can prevail.
Finally, Dr C referring to his contact with the independent school betrayed the likely true purpose of the appeal. Had the Tribunal ordered B to prepare a Statement, it is likely A’s parents would have contended her need could only be met by the independent provision.. There is a statutory mechanism for the Tribunal to order such placement to be funded by the Education Authority and a further appeal seeking this is therefore likely to have materialised. As the Tribunal agreed a Statement was not required, it will now be very difficult to succeed should such an appeal be brought.