East Renfrewshire District Council V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Penrose |
| Judgment Date | 12 December 2008 |
| Neutral Citation | [2008] CSOH 175 |
| Court | Court of Session |
| Published date | 12 December 2008 |
| Docket Number | No 17 |
| Date | 12 December 2008 |
| OUTER HOUSE, COURT OF SESSION | |
| [2008] CSOH 175 OPINION OF LORD PENROSE in the cause EAST RENFREWSHIRE DISTRICT COUNCIL Pursuers; against GLASGOW CITY COUNCIL Defenders: _______ |
Pursuer: Sanderson; Brodies
Defenders: Lindsay, City of Edinburgh Council Legal Division
12 December 2008
[1] The parties are the education authorities for their respective areas. As such each has the duty to secure that there is made for its area adequate and efficient provision of school education: Education (Scotland) Act 1980, the "1980 Act", section 1(1). That duty may be discharged by the provision of school education within the authority's area, or, in appropriate circumstances, in the areas of other education authorities. Accordingly, section 23 of the 1980 Act, as amended, empowers education authorities to provide education and other services for a pupil or pupils belonging to the area of another education authority. So far as is material for present purposes, children of families resident in one authority's area may be provided with school education in another authority's area under and in terms of arrangements agreed between the authorities, or as a result of the exercise by the parents of a child of the right of choice, within certain constraints, of the school in which that child receives school education.
[2] The dispute between the parties relates to the cost of the provision, in the course of school education at establishments managed by the pursuers within their area, of additional support services for children of families ordinarily resident in the defenders' area, who therefore 'belong' to the defenders' area. In each case the child was placed in school as a result of a parents' application to the pursuers. The debate proceeded on the basis that all of the children in question in the present case were already in schools managed by the pursuers in May 2004 when local government reorganisation took effect. Neither then nor subsequently have there been arrangements between the parties relating to the school education of the children in question. With the possible exception of children D.D. and L.McG, all of the children were placed following applications made under and in terms of section 28 of the 1980 Act. As from 14 November 2005, section 28 was superseded in relation to children with additional support needs by schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act). The new provisions, defining the authorities' obligations, were discussed in WD v Glasgow City Council 2007 SC 11. Neither party suggested that the issue depends to any extent on which statute providing for parental choice is applicable. In each case, a high priority is given to parental choice in the selection of the school at which the child receives school education. The authority addressed may place the child without the consent of the authority to whose area that child belongs.
[3] It was agreed that, in terms of the 2004 Act, the pursuers had at all material times the obligation to provide for the additional support needs of the children identified in the pleadings. Section 4(1) of the 2004 Act provides, subject to qualifications that are immaterial for present purposes:
"Every education authority must -
(a) in relation to each child and young person having additional support
needs for whose education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person..."
Section 29(3) of the 2004 Act provides:
"In this Act, references to a child ... for whose school education an education authority are responsible are to any child ... being, or about to be, provided with school education -
(a) in a school under the management of the education authority, or
(b) in pursuance of arrangements made or entered into by the authority."
It follows that by whichever mechanism an authority becomes responsible for the school education of children and young persons, it has obligations under the 2004 Act to those children to provide for their additional support needs.
[4] Each party lodged notes of argument relating to the live issues in the case, to which they adhered in the course of submissions. The gist of the defenders' argument was that they were not obliged to provide for additional support of the children in question because they were not responsible for their school education, and were therefore not liable for the relative costs. They had not been involved in the placement of the children, and there was no arrangement between them and the pursuers that provided for payment. The pursuers argued that the defenders were liable because the children belonged to their area, and that liability for the cost of additional support fell to be determined on that basis. Each argument depended on close analysis of the material statutory provisions.
[5] At various stages in the defenders' submissions it was argued that the approach for which they contended was supported by common sense, or by the obvious policy underlying the legislation. I have not found this a useful approach. It is generally understood that many elements of grant distribution to local authorities are based on the "client group method", using statistically relevant indicators many of which are population based. Expenditure on basic school education in the primary and secondary sectors is funded using the relevant school rolls for primary and secondary pupils. However, expenditure on pupils with additional support needs is included in the category of special education. The Scottish Executive's publication "Expenditure on School Education in Scotland 2006-07", paragraph 8, states:
"It is not possible to calculate expenditure per pupil in special education. Expenditure in this category includes additional support for pupils in mainstream schools as well as funding of special schools, and in some cases covers funding for pupils in neighbouring authorities' special schools or additional funding of their support in their mainstream schools ... "
While this paragraph refers specifically to the statistical data for the period of the report, it reflects a distinction of some importance between the funding of general school education and the funding of special education, including additional needs funding. While the former is funded on a per capita basis by reference to school rolls, the latter is funded on a population basis.
[6] As a result of these funding arrangements, the pursuers do not receive funding from Scottish Ministers for the provision of the additional support needs of pupils belonging to the Glasgow area. The defenders do receive grant, on a population basis, which includes funding of additional needs of children belonging to their area. There would be a superficial policy attraction, favourable to the pursuers, in a solution that transfers grant money to the authority incurring the relevant expenditure. On the other hand, for reasons related to the detailed terms of the 1980 Act following amendment, the defenders may not be relieved of the obligation to provide for children with additional needs who belong to their area, except where there is in place an arrangement with the providing...
To continue reading
Request your trial
-
K (ap) For Judicial Review Of A Decision By North Ayrshire Council To Refuse To Provide Transport For Her M To And From School
...fallen into an error similar to that in the defenders' unsuccessful argument in East Renfrewshire District Council v Glasgow City Council 2009 SC 197. It was a matter for the respondents to consider whether they had a right of relief against Renfrewshire Council for the cost of transporting......