In The Appeal To The Court Of Session Under Section 21 Of The Education (additional Support For Learning)(scotland) Act 2004 By The City Of Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Abernethy,Lord Hardie,Lord Clarke |
| Judgment Date | 09 June 2009 |
| Neutral Citation | [2009] CSIH 46 |
| Published date | 09 June 2009 |
| Date | 09 June 2009 |
| Court | Court of Session |
| Docket Number | XA207/08 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Clarke Lord Hardie Lord Abernethy | [2009] CSIH 46 XA207/08 OPINION OF THE COURT delivered by LORD HARDIE in the Appeal to the Court of Session under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 by THE CITY OF EDINBURGH COUNCIL Appellants; against A decision of the Additional Support Needs Tribunal for Scotland dated 3 November 2008 and communicated to the appellants on 4 November 2008 |
Act: Stirling; Legal Services Division, City of Edinburgh Council
Alt: Logan; Campbell Smith W.S.
9 June 2009
Background
[1] During the school year 2007/2008 AW was a pupil at a mainstream primary school. His guardian was Mrs K. In November 2007 the appellants, as education authority, were considering whether a Co-ordinated Support Plan (hereinafter referred to as a "CSP") was required for AW. Before taking an informed decision on this matter the appellants required to obtain reports from various agencies, to review AW's progress, to consider future alternatives in AW's educational provision and to collate all of the information and submit it to an official responsible for additional support for learning. By letter dated 29 January 2008 and received by the appellants on 18 February 2008 Mrs K wrote to the appellants making a placing request for AW to attend a special educational needs school commencing in primary 7 after the summer 2008. She also enquired about progress in relation to the CSP. AW's assessment continued thereafter and there was correspondence with Mrs K regarding progress. On 13 May 2008 at a meeting a representative of the appellants advised Mrs K that the placing request would be refused and an offer of a place at one of two other schools would be made. Prior to that decision being confirmed in writing, additional places became available at the school requested by Mrs K and by letter dated 26 May 2008 the appellants granted Mrs K's placing request. On 27 June 2008 AW left the mainstream school at the end of the summer session. By letter dated 7 July 2008 the appellants informed Mrs K that they had decided that AW did not require a CSP. On 16 July 2008 Mrs K appealed against that decision to the Additional Support Needs Tribunals for Scotland (hereinafter referred to as "the Tribunal"). After the summer holidays AW was a pupil at the requested school for special educational needs, although he was absent for the first two weeks of term because of an accident. On 9 October 2008 the Tribunal heard evidence and on 3 November 2008 it issued the decision which is the subject of this appeal.
Statutory provisions
[2] The relevant legislation is the Education (Additional Support for Learning) (Scotland) Act 2004 (hereinafter referred to as "the Act"). Section 1 of the Act relates to additional support needs and provides as follows:
"1(1) A 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 the child or young person to their fullest potential.
(3) In this Act, 'additional support' means -
(a) in relation to ... 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.
...".
Section 2 of the Act makes provisions for CSPs as follows:
"2(1) For the purposes of this Act, a child or young person requires a plan ... for the provision of additional support if -
(a) an education authority are responsible for the school education of the child or young person,
(b) the child or young person has additional support needs arising from -
(i) one or more complex factors, or
(ii) multiple factors,
(c) those needs are likely to continue for more than a year, and
(d) those needs require significant additional support to be provided -
(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or
(ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.
...".
Section 23(2) defines an appropriate agency as each of the following:
"(a) any other local authority,
(b) any Health Board, and
(c) any person, or a person of any description, specified for the purposes of this subsection in an order made by the Scottish Ministers."
[3] The general powers and duties of education authorities in relation to children for whom they are responsible and their additional support needs are set out in sections 4 and 5 of the Act. Section 4 provides:
"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."
Section 5 imposes inter alia a general duty on the education authority to consider the needs of children with additional support needs when exercising any of their functions in relation to school education.
[4] Section 9 of the Act imposes upon an education authority a duty to prepare CSPs in appropriate circumstances. Section 18 of the Act provides inter alia that the parent of a child may refer to the Tribunal a decision of the education authority that the child does not require a CSP. In terms of section 19 the Tribunal may confirm the decision of the education authority or overturn it and require the education authority to take such action as the Tribunal considers appropriate. Paragraph 14 of Schedule 1 to the Act provides inter alia:
"14(1) A decision of a Tribunal -
...
(b) must be recorded in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision."
Section 21(1) entitles an aggrieved party to appeal to the Court of Session on a point of law against the decision of the Tribunal. Section 21(3) empowers the Court of Session where it allows an appeal to remit the reference back to the Tribunal or to a differently constituted Tribunal to be considered again and to give the Tribunal such directions as the court considers appropriate.
Code of Practice
[5] Section 27 of the Act provides inter alia:
"27(1) The Scottish Ministers must publish, and may from time to time revise and re-publish, a code of practice providing guidance as to the exercise by education authorities and appropriate agencies of the functions conferred on them by virtue of this Act.
(2) Such a code of practice may, in particular, include provision as to -
...
(c) the nature of the additional support referred to in section 2(1)(d),
...
(8) Education authorities and appropriate agencies must, in exercising their functions under this Act, have regard to a code of practice published under this section."
Section 19(7) requires the Tribunal when exercising its powers under section 19 to take account of any code of practice published by the Scottish Ministers under section 27(1), so far as it is relevant. In August 2005 the Scottish Ministers published a code of practice entitled "Supporting Children's Learning" by virtue of section 27 of the Act. Chapter 4 of the code relates to CSPs. Paragraph 15 states that one purpose of a CSP is "to ensure that support is co-ordinated effectively when at least one service is provided from outwith what the education authority provides as part of its educational functions."
Paragraph 16 is in the following terms:
"16 The Act does not define what 'significant additional support' means. The use of the term 'significant' signals that the scale of the support, whether it is in terms of approaches to learning and teaching (e.g. adaptation or elaboration of the curriculum) or personnel or resources, or a combination of these, stands out from the continuum of possible additional support. Judgments about significance have to be made taking account of the frequency, nature and intensity of the support, and the extent to which that support is necessary for the achievement of the educational objectives which will be included in the plan. Full-time placement in a special school or unit would count as significant additional support, as would provision of personnel full-time to support a child or young person in a mainstream school, and provision of specialist aids to communication."
Paragraph 17 provides examples of what may be significant support but recognises that it is not possible to generalise and consideration has to be given to circumstances in individual cases.
Paragraph 18 states:
"The diagram overleaf provides a decision tree to help authorities to decide whether children and young people require a co-ordinated support plan. It should be read in conjunction with the Education (Co-ordinated Support Plan) Regulations. This chart should be read as relevant to all appropriate agencies."
The decision tree poses the question whether a child's needs...
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