In Reclaiming Motion In Appeal Under The Education Additional Support For Learning Scotland Act 2007 By W.d. V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Macphail,Lord Hardie |
| Judgment Date | 11 October 2007 |
| Neutral Citation | [2007] CSIH 72 |
| Court | Court of Session |
| Date | 11 October 2007 |
| Published date | 11 October 2007 |
| Docket Number | XA55/07 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Hardie Lord Macphail | [2007] CSIH 72 XA55/07 OPINION OF THE COURT delivered by LORD MACPHAIL in RECLAIMING MOTION in appeal under the Education (Additional Support for Learning)(Scotland) Act 2004, section 21 by W D Appellant and Reclaimer; against GLASGOW CITY COUNCIL Respondents: _______ |
Act: Bovey, Q.C., Williamson; Pagan Osborne (for Govan Law Centre)
Alt: D.E.L. Johnston, Q.C., M.V. Ross; Solicitor for City of Edinburgh Council
11 October 2007
Introduction
[1] This is a reclaiming motion against a decision of the Lord Ordinary on an appeal which was heard in the Outer House by virtue of rule 41.44 of the Rules of the Court of Session 1994, as amended. The appeal is brought under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act") against a decision of an Additional Support Needs Tribunal for Scotland ("the Tribunal").
[2] The appellant and reclaimer is the mother of M, who was born on 4 April 1991. M suffers from cerebral palsy and is registered blind. He and his parents live in the local authority area of West Dunbartonshire. He attends D A, a mainstream school in that area. The appellant considers that he should attend an appropriate special school. She therefore made a request ("a placing request") to Glasgow City Council to place M in A S, a special school under their management in Glasgow. Glasgow City Council refused her request on the ground that placing M in A S would breach the requirement in section 15(1) of the Standards in Scotland's Schools etc Act 2000 that, unless specified circumstances arise in relation to the child, education should be provided in a school other than a special school.
[3] The appellant then referred that decision to a Tribunal. Both West Dunbartonshire Council and Glasgow City Council were called as respondents. The Tribunal held a preliminary hearing on competency and decided that they had no jurisdiction to entertain a reference relative to the decision by Glasgow City Council. The appellant appealed to this Court against the Tribunal's decision. The appeal was remitted to the Outer House in terms of Rule of Court 41.44. Both Councils lodged answers, but West Dunbartonshire Council decided not to oppose the appeal and withdrew their answers. On 6 July 2007 the Lord Ordinary, having heard counsel for the appellant and for Glasgow City Council, refused the appeal. The Lord Ordinary held that upon a true construction of the material provisions of the 2004 Act the Tribunal had no jurisdiction to hear a reference in relation to a decision of an education authority regarding a placement request where that authority was not the authority responsible for the education of the child in respect of whom the request had been made, nor was the authority for the area in which the child resided nor an authority who had assumed responsibility for the child's education. The appellant now brings this reclaiming motion against the Lord Ordinary's interlocutor of 6 July 2007 under Rule of Court 41.45. Her argument, shortly stated, is that the provisions of the 2004 Act entitle a parent to make a placing request to an authority other than the authority for the area in which the child resides and to appeal to the Tribunal against that authority's refusal of the request.
[4] Nothing turns on the fact that in the course of these proceedings, which commenced with the appellant's reference to the Tribunal on 31 October 2006, M attained the age of 16 on 4 April 2007 and thus is no longer "a child" but "a young person" in terms of the definitions in section 135(1) of the Education (Scotland) Act 1980 as amended ("the 1980 Act") which are applied by section 29(2) of the 2004 Act. A reference to a Tribunal may be made by the parent of a child, and the person who made the reference is entitled to appeal to this Court against the decision of the Tribunal (2004 Act, sections 18(2)(a), 21(1), (2)(a)). For ease of reference it will be convenient to refer to M as "a child" notwithstanding his present age, and to refer to a person for whom education is provided in terms of the statutory provisions as "a child" and not as "a child or young person".
The statutory provisions
[5] The 2004 Act replaces a system established by the 1980 Act for the assessment and recording of children who had what were described in that Act as "special educational needs". The 2004 Act, in the language of its long title, "make[s] provision for additional support in connection with the school education of children and young persons having additional support needs." A proportion of those children who have additional support needs require a plan for the provision of additional support, known as a co-ordinated support plan ("CSP"). According to senior counsel for the respondents, the proportion of such children is between 5 and 10 per cent. The following are the provisions of the Act which are of importance in this case. "Additional support needs" are defined in section 1, and "co-ordinated support plans" in section 2. Section 9 provides that a CSP is to be prepared by the education authority responsible for the child's school education, and that the CSP must nominate the school to be attended by the child. In sections 15 and 16 the Act makes provision for mediation services and dispute resolution procedures where differences arise between an education authority and the parent of a child belonging to the area of the authority, but these do not affect the entitlement of the parent to refer any matter to a Tribunal. The matters which may be referred to a Tribunal are specified in section 18, and include a decision of the education authority refusing a placing request made in respect of a child where certain circumstances apply. Section 22 refers to Schedule 2 to the Act which makes provision about placing requests in relation to children having additional support needs. Section 23 empowers an education authority to request the help of an appropriate agency, including any other local authority, in the exercise of any of the authority's functions under the Act. Section 29 is the interpretation section.
[6] It will be useful to set out, so far as material, the terms of sections 1, 2, 9, 18, 19, 23 and 29, and of section 22 and Schedule 2.
[7] Section 1 defines "additional support needs". It provides:
"(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."
"(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."
[8] Section 2(1) introduces the concept of the co-ordinated support plan (CSP) in these terms:
"(1) For the purposes of this Act, a child or young person requires a plan
(referred to in this Act as a 'co-ordinated support 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."
[9] Section 9 enacts the duty to prepare CSPs and specifies their contents:
"(1) Where an education authority establish in pursuance of any provision
of this Act that a child or young person for whose school education they are responsible requires a co-ordinated support plan, they must prepare such a plan for the child or young person.
(2) A co-ordinated support plan prepared under subsection (1) must
contain-
(a) a statement of the education authority's conclusions as to-
(i) the factor or factors from which the additional support
needs of the child or young person arise,
(ii) the educational objectives sought to be achieved taking
account of that factor or those factors,
(iii) the additional support required by the child or young
person to achieve those objectives, and
(iv) the persons by whom the support should be provided,
(b) a nomination of a school to be attended by the child or young
person
(c) the name and other appropriate contact details of-
(i) the officer of the authority responsible for the discharge
of the authority's duty under subsection (5)(d) of section 11, or
(ii) if the authority arrange under subsection (6) of that
section for that duty to be discharged by another person, that other person, and
(d) the name and other appropriate contact details of an officer of
the authority from whom-
(i) in the case of a plan prepared for a child, the child's
parent,
(ii) in the case of a plan prepared for a young person, the
young person or, where the authority are satisfied that the young person lacks capacity to seek advice or information, the young person's parent,
can obtain advice and further information.
(3) The reference in subsection (2)(a) to educational objectives are to
objectives set to secure that the child or young person benefits from school education (within the meaning of section...
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