Tribunal/Local Educational Authority must consider impact
01/12/2003
I would like to thank you again for the speedy and sensitive way in which you have dealt with this matter. I would have no hesitation in recommending your firm to anyone in the future.
Pamela, Castleford'A' v Special Educational Needs & Disability Tribunal and London Borough of Barnet Royal Courts of Justice, The Strand, London Judgment was handed down today in a case where a Tribunal decided not to take into account the impact of a child's religion upon their educational provision and placement. The Judge has allowed her mother's appeal against the Tribunal's decision by quashing the original decision.
The Judgment will have a great impact in clarifying the relationship between special educational needs and religious needs. It clearly points out that although religion itself may not be a special educational need, an LEA or Tribunal must not just pay "lip service" to religious needs but seriously consider the possible impact of a child's religion on his or her special educational needs and, in particular, the appropriate provision or placement.
In this particular case it has also highlighted the inevitable need to withdraw a child from certain lessons and activities at a school because of the requirements of her religion.
"A" is the mother of an 8-year-old girl, "S" who has special educational needs including cerebral palsy. S has had a Statement of Special Educational Needs prepared by her Local Education Authority (LEA), the London Borough of Barnet since she was 5 years old. 1
S's family are orthodox practising Jews who are committed to an orthodox Jewish lifestyle including strictly observing the Jewish Sabbath and Jewish festivals and following a strict kosher diet. When she first started school the LEA placed her, with her parents' agreement, in an orthodox Jewish mainstream school together with additional learning support assistance and therapy provision.
Unfortunately, this placement was not successful, as, even with extra support, S could not cope within a mainstream environment. Her parents, the mainstream school and the LEA themselves agreed at the beginning of 2003 that she should be transferred to a day special school from September 2003 which could provide her with more intensive and specialist support. The LEA consequently amended S's statement to name the Northway School, one of their own special day schools, as the correct placement for her from September 2003. As S's parents did not agree to that placement and wanted her to continue to attend a Jewish school, they appealed to the Special Educational Needs and Disability Tribunal ("SENDIST") in July 2003.
Her parents requested that a Jewish special school, Kisharon School be named instead and asked that the Statement should also record the fact that S's complex learning and emotional difficulties meant that she could only have all her needs met within a Jewish school. They believed that S's educational, emotional, social, religious and cultural needs were all inextricably linked to each other and, although the LEA claimed that their school would 'respect' her religious needs as best they could, the fact was that she would be required to miss out on a lot of educational provision and access to the school generally due to her religious needs. These needs included, amongst other things: having to miss Friday afternoons for the Jewish Sabbath during much of the Winter and Spring terms; having to miss school for a number of days during the year when there were Jewish Festivals (such as Rosh Hashanah, Yom Kippur, Succot, Passover and Shavuot); not being guaranteed to be able to keep to a strict Kosher diet; and having to inevitably be withdrawn from many lessons because of the requirements of her faith.
On the other hand, this would not be a problem for S at Kisharon School. S's parents added that the main criticism that had been made of her failed placement in a mainstream school was that she was 'isolated' or seen as different. This had notably had a profound effect on S's ability to access education. The LEA opposed the appeal on the ground that S's religious needs would be 'respected' at Northway School and that, despite their strong parental preference, all they had to do was to 'respect' a parent's preference. The only issue therefore for the Tribunal to consider was whether there would be an 'unreasonable use of public expenditure' in placing S at Kisharon school rather than at Northway school. Since Northway School was maintained by the LEA and they already had a vacant place there with a minibus which could transport S to and from the school, there would be a 'nil' cost to them. The Tribunal agreed with the LEA and they entirely rejected the parents' appeal for Kisharon School.
However, in doing so, they concentrated in their decision only on the question of placement rather than firstly considering at S's needs and the consequential necessary provision. They also appeared to conclude that they did not need to look at the whole practical effect on S (including her potential loss of educational time and other difficulties) because they only needed to 'respect' the parents' religion or preference for a school. As the Northway School had told them that they would do this as best they could, they felt that only issue they needed to decide on was one of costs.
Why is this decision important?
The impact of this Judgment is now to clarify the interplay between special educational needs and religious needs. It clearly points out that although religion itself may not be a special educational need, an LEA or Tribunal must seriously consider the possible impact of a child's religion on his or her special educational needs and, in particular, the appropriate provision or placement. Furthermore, the Court has reaffirmed the principle that a failure to give adequate reasons or any reasons at all for rejecting an experts evidence, especially where no contrary evidence has been provided, may lead to them reaching an unlawful decision.
In this particular case it has also highlighted the inevitable need to withdraw a child from certain lessons and activities at a school because of the requirements of her religion. This Judgement states that a Tribunal and Local Education Authority must consider the impact of child's religion on Special Educational Needs including provision and placement. Mr David Lloyd-Jones QC, sitting as a Deputy High Court Judge, has said that: "A decision maker is required to have regard for a child's Jewish religion and identify if they are relevant to that child's special educational needs or the manner in which the may be met." He adds that if a Tribunal rejects independent expert evidence they have to give clear reasons for doing so and if they are using their own expertise in doing so they must tell the expert and parents and give them the chance to challenge their view. The Judge reaffirmed the essential principle a Tribunal or LEA has to decide about a child's needs before looking at provision and only then can they consider appropriate placement Furthermore, the issue of a child's religion is a distinct matter which requires separate consideration from her parent's preference for a religious school. The Judge felt that he did not need to deal with the Human Rights arguments put forward because, if the Tribunal had taken proper account of the impact of S's Jewishness in assessing her special educational needs and the provision to be made for them, there could be no question of infringement of any of her rights to family life or freedom of religion. Douglas Silas, Head of the Education Department at Alexander Harris Solicitors and the Parents' Solicitor has said today: "This is an extremely important decision and I am, of course, delighted for S and her family who have been put under such pressure in providing for her emotional and physical health as well as her education well-being. Due to the great difficulties faced by the family following the Tribunal's unlawful decision, Kisharon kindly agreed to offer S a Bursary placement until the appeal process has been resolved. I understand that S has already made incredible progress there in her first term and has settled in well. Her parents are convinced that she is now in the right placement. Both her parents and I truly hope that the fresh Tribunal panel will see this clearly and agree to keep her there and help S to obtain the appropriate education that she deserves after being denied it for so many years now." The case will now be remitted back to a freshly constituted Tribunal Panel for reconsideration hopefully during early Spring next year Notes 1. A statement is a legal document which is required to be made when a child has special educational needs which require special educational provision over and above that which can be made by a normal mainstream school within the Authority's area. Douglas Silas is the Head of the Education and Public Law Department at specialist health law firm Alexander Harris. In Chambers and Partners Legal Guide for Clients and The Legal 500 Douglas is considered as a leader in his field. He speaks regularly on issues to do with education, disability and public law. For further information please contact Douglas Silas on 0207 430 5555 or alternatively the Media Management Team at Alexander Harris on 0161 925 5555. Alexander Harris' latest news can be found on the Internet at www.alexanderharris.co.uk Further case related details: Following a hearing on 6 and 7 November 2003 in the High Court before Mr David Lloyd-Jones QC sitting as a Deputy High Court Judge, Judgment was handed down on 25 November 2003 in the High Court in this case. The Judge has allowed Mrs A's appeal against the Tribunal's decision by quashing the original decision and remitting the case back for reconsideration by a differently constituted Tribunal.
The Basis Of The Appeal
The main issues of the appeal were:
(1) Whether the Tribunal had properly considered the relationship between Mrs A's daughter, S's Jewish religion and identity and the ability of a non-Jewish special school to meet her special educational needs. (2) The Tribunal's failure to give reasons for rejecting the amendments sought to S's Statement of Special Educational Needs. (3) The fact that the Tribunal rejected her parent's independent expert Educational Psychologist's evidence without giving adequate reason. (4) Whether the Tribunal decided the question of S's school placement first without firstly considering her needs and the special provision required to meet those needs. (5) The Court also needed to decide whether the Tribunal had failed to give effect to S's rights under the European Convention of Human Rights as to her right to privacy and family life (Article 8), her right to freedom of religion (Article 9) and the right not to be discriminated against in respect of both those rights (Article 14).
The Judge's Decision
The Judge has held that it was not clear that the Tribunal had arrived at its decision by first deciding on an appropriate school and then working backwards from that answer to decide S's needs and the appropriate provision to meet those needs. However, he made it clear that "it is essential that a Special Educational Needs & Disability Tribunal decide these issues in that order" (i.e. the definition of S's needs, the type of provision to meet those needs and only then the question of any appropriate school placement).
Whilst the Judge has acknowledged that both S's parents and the Local Education Authority (LEA) had agreed that a child's Jewish religion and identity cannot itself constitute a special educational need, he has stressed that the Tribunal and LEA, when deciding what a child's special educational needs and the required provision should be, have regard to the child's Jewish religion and identity where they are relevant to that child's special educational needs or the manner in which they may be met. The Judge has found that many of the arguments put forward by Mrs A related to S's Jewishness and its impact on her special educational needs. Therefore the Tribunal were wrong to reject S's parents' expert evidence supporting this provided by an independent Educational Psychologist without giving reasons or, if using their own expert view, first expressing that view to the parents to allow them to deal with it. The Judge has affirmed the principle that even where a Tribunal is allowed to give a summary form of conclusion it must make it clear exactly what evidence has been rejected and then give reasons for doing so, in order that Mrs A could understand the thinking behind their decision. This is especially when any decision about S's special educational needs would have a vital bearing on the subsequent issues of the appropriate provision and placement for her. He has stated that "the failure to provide a summary of the reasons for reaching [their] conclusion is a fundamental defect in the decision." He has also rejected the LEA's argument that an independent educational psychologist cannot provide evidence about an appropriate placement. The judge has stressed that the Tribunal in law should have demanded careful consideration of the impact of S's Jewishness on the means of meeting her special educational needs and on her placement. He points out that of particular significance is "the inevitable need to withdraw S from certain lessons and activities at a non-Jewish school because of the requirements of her Jewish faith." Notably, the Judge also states that: "I am unable to detect in the decision any discussion on the impact of S's Jewishness on the means of meeting her special educational needs or any statement of reasons why despite the requirements of S's religion her special educational needs would be met in a school which was not an orthodox Jewish school. While the summary of the evidence of [the independent educational psychologist] and [the Headteacher from Kisharon school] show that the members of the Tribunal were aware of the issue, the decision does not explain how they have dealt with it, if they have done, in arriving at their conclusion." The LEA had argued that the Tribunal must have been aware of the issue by just considering S's parents' preference that she be educated at an orthodox Jewish school. However, the Judge has stated that: "I consider that the issue of the impact of S's Jewishness on the provision required for her special educational needs is a distinct matter from the preferences of her parents and required separate consideration." He adds that the Tribunal has also failed "to address the question of the effect of S's exclusion from lessons or activities at a non-Jewish school by reason of the requirements of S's orthodox Jewish faith. I conclude therefore that the decision fails to explain the Tribunal's reasoning in relation to the central issue in the appeal." When again discussing the rejection of the S's parents' expert Educational Psychologist's evidence without reason the Judge has stated that: "In short, S's parents were entitled to be told the way in which the Tribunal dealt with the issue which was of essential importance in the appeal. The decision does not tell them." In summarising his Judgment, the Judge has stated as follows: "This failure on the part of the Tribunal in its decision to explain the basis on which it reached its conclusion as to S's special educational needs and the provision to be made for them, to explain the basis on which it rejected the evidence of [the expert educational psychologist for the parents] and to address the issue of the impact of S's Jewishness on her special educational needs and the provision to be made for them, leads me to the conclusion that these matters were not properly considered by the Tribunal. In reaching this conclusion I have had regard to all the circumstances of the case I bear in mind the great emphasis which the Tribunal plays both at the hearing and in its decision on what it considers to be 'the essential issue': whether S's special educational needs could be met by the LEA proposal or at an independent special school. While, for the reasons I have given, I am not persuaded that the Tribunal addressed the questions in the wrong order so as to permit a decision as to the appropriate school to influence it's conclusions on S's special educational needs and the provision they required, the emphasis placed by the Tribunal suggest that the question of needs and provision have not received the attention they require. In particular I consider that the Tribunal failed to give proper consideration to the impact of S's Jewishness on the provision for her special educational needs accepted by the Tribunal. Although the Tribunal has rejected the proposed amendments to Part 2 [the description of her special educational needs] based specifically on [the expert Educational Psychologist's] evidence, there remained a number of accepted special educational needs which required the Tribunal to consider how the requirements of S's religion could be reconciled with the provision for her identified needs which could be made in a non-Jewish school. The Tribunal's failure to include in its decision any reference to this question, which is of central importance to the case of Mr & Mrs A presented in the materials before the Tribunal, leads me to conclude that it did not go through the correct thought processes in relation to this issue." Finally, he adds that: " to the extent that [the Tribunal's] reasoning depended on its conclusion that S's special educational needs to not require provision of an orthodox Jewish school, it is defective for the reasons set out above." In relation to the Human Rights arguments that had been advanced the Judge has said that they added nothing to the Appellant's case. He concludes that had the Tribunal approached the question of S's special educational needs and the provision to be made from them in accordance with the existing statutory scheme and Judicial decisions, they would have take no take proper account of the impact of S's Jewishness in assessing her special educational needs and the provision to be made for them. In this way there could be no question of the infringement of any of S's rights under Articles 8 or 9 ECHR or of discrimination under Article 14 in her enjoyment of those rights.
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