Appeal To The Court Of Session Under Education (additional Support For Learning)(scotland) Act 2004 In The Case Of S.c. V. City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lord Wheatley |
| Neutral Citation | [2008] CSOH 60 |
| Court | Court of Session |
| Docket Number | XA151/07 |
| Published date | 15 April 2008 |
| Date | 15 April 2008 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION | |
| XA151/07 | [2008] CSOH 60 OPINION OF LORD WHEATLEY in APPEAL TO THE COURT OF SESSION under Education (Additional Support for Learning) (Scotland) Act 2004 in the case of S.C. Appellant; against CITY OF EDINBURGH COUNCIL Respondents: in respect of A decision of the Additional Support Needs Tribunal for Scotland dated 28 August 2007 _______ |
Act: Stacey, Q.C., O'Carroll; Wright Johnston & Mackenzie LLP
Alt: J.J. Mitchell, Q.C., Stirling; G Lindsay, Edinburgh City Council
15 April 2008
[1] The appellant resides in Edinburgh and is the mother of H.C. ("the child"), who is presently 14 years of age, and who is autistic and has severe learning difficulties. He lives with the appellant and her two younger children. A co-ordinated support plan was prepared for the child on 4 April 2007 by virtue of section 9 of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act"), and in terms of that plan he attends St Crispin's School, which is a local authority special school run by the respondents. The appellant had made a placing request to the respondents in terms of Schedule 2 of the 2004 Act on behalf of her son, seeking to have him accommodated at Daldorch House School, a residential special school in Ayrshire. The respondents refused this request and the appellant then made a reference to the Additional Support Needs Tribunal, who confirmed the respondents' decision and further refused the placing request by a decision dated 28 August 2007. It is against that decision that the present appeal is taken, in terms of section 21 of the 2004 Act. Section 21 allows an appeal on a point of law. If successful, the outcome of the present appeal is that this court may remit the reference back to the Tribunal or to a differently constituted tribunal, giving such directions about the consideration of the case as the court considers appropriate, and making such ancillary orders as are considered necessary or appropriate.
[2] The relevant sections of 2004 Act for the purpose of this appeal are as follows:
"1(1) The child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.
(2) In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of a child or young person to their fullest potential.
(3) In this Act, 'additional support' means -
(a) in relation to a prescribed pre-school child, a child of school age or a young person receiving school education, provision which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the same age in schools (other than special schools) under the management of the education authority for the area to which the child or young person belongs.
...
4(1) Every education authority must -
(a) in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person, and
(b) make appropriate arrangements for keeping under consideration -
(i) the additional support needs of, and
(ii) the adequacy of the additional support provided for,
each such child and young person.
(2) Subsection (1)(a) does not require an education authority to do anything which -
(a) they do not otherwise have power to do, or
(b) would result in unreasonable public expenditure being incurred.
5(1) Every education authority must in exercising any of their functions in connection with the provision of school education, take account of the additional support needs of children and young persons having such needs.
(2) Every education authority must, subject to subsection (3), provide such additional support as is appropriate for each child -
(a) under school age (other than a prescribed pre-school child),
(b) belonging to the authority's area, and
(c) who has additional support needs arising from a disability (within the meaning of the Disability Discrimination Act 1995 (c.50)) which the child has.
...".
School education is defined in terms of section 29 of the Act (the definition section) by reference to sections 1(5)(a) and 135(1) of the Education (Scotland) Act 1980 as meaning:
"... progressive education appropriate to the requirements of pupils in attendance at schools, regard being had to the age, ability and aptitude of such pupils, ...".
[3] In addition, section 17 of the 2004 Act sets up the Additional Support Needs Tribunal for Scotland, and section 18 deals with references, such as the present application, in relation to a co-ordinated support plan. The relevant parts of the section in the present case are section 18(3)(e) and (4)(a). Section 19 provides the powers of the Tribunal in relation to references under section 18. Section 19(5) provides:
"Where the reference relates to a decision referred to in subsection (3)(e) of that section, the Tribunal may -
(a) confirm the decision if satisfied that -
(i) one or more of the grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exists or exist, and
(ii) in all the circumstances it is appropriate to do so.
(b) overturn the decision and require the education authority to -
(i) place the child or young person in the school specified in the placing request to which the decision related, and
(ii) make such amendments to the co-ordinated support plan ... as ... appropriate ...".
[4] By virtue of section 22, schedule 2 of the 2004 Act makes provision about placing requests. Paragraph 2(1) of schedule 2 provides:
"Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, place the child accordingly."
[5] Paragraph 3 provides:
"(1) The duty imposed by subparagraph (1) or, as the case may be, subparagraph (2) of paragraph 2 does not apply -
(a) if placing the child in the specified school would -
(i) make it necessary for the authority to take an additional teacher into employment,
(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,
(iii) be seriously detrimental to the continuity of the child's education,
(iv) be likely to be seriously detrimental to order and discipline in the school,
(v) be likely to be seriously detrimental to the educational wellbeing of pupils attending the school,
(vi) assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child's primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment with the school, or
(vii) though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of people numbers,
(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,
...
(d) if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,
...
(f) if all the following conditions apply, namely -
(i) the specified school is not a public school,
(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,
(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in a specified school, and
(iv) the authority have offered to place the child in the school referred to in paragraph (ii),
...".
[6] In refusing the placement request, the Tribunal relied on paragraph 3(1)(f) referred to above. The local authority, in deciding initially to refuse the request, also relied on paragraph 3(1)(d), but the Tribunal did not refer to this part of the subsection in their decision.
[7] In general terms, these various statutory provisions have to be considered against the background of section 27 of the Act, which provides for a Code of Practice and Directions which must inform the way in which the statutory provisions are observed. In addition regard must be had to section 2 of the Standards in Scotland Schools Act 2000 and section 20 of the Education (Scotland) Act 1980.
[8] In these circumstances, the appellant tabled eight grounds of appeal. Senior counsel for the appellant began her submissions with the eighth and last ground of appeal, which is to the effect that the Tribunal failed to observe the requirements of natural justice, in that one of the three members of the Tribunal had worked for the respondents' statutory predecessors (Lothian Regional Council) from 1970 until 1996, when she became an employee of the respondents until her retirement in 2001. As such, she had management responsibilities for all of the 26 special schools in the respondents' area, including St Crispin's. She had in the past become aware of one of the witnesses for the respondents, A.B., in the course of her career as a co-employee, and (contrary to what is said in the grounds...
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