Appeal To The Court Of Session Under Section 21 Of The Education (additional Support For Learning)(scotland) Act 2004 By Dg As Legal Guardian Of Jf V. A Decision By The Additional Support Needs Tribunal On 3rd October 2007 To Uphold The Rfusal Of The Placing Request For Jf At Ah School Derbyshire By
| Jurisdiction | Scotland |
| Judge | Lord Matthews |
| Neutral Citation | [2008] CSOH 61 |
| Court | Court of Session |
| Published date | 15 April 2008 |
| Date | 15 April 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 61 | |
| OPINION OF LORD MATTHEWS Appeal to the Court of Session Under section 21 of the Education (Additional Support for Learning)(Scotland) Act 2004 by DG as legal guardian of JF Appellant; Against a decision by the Additional Support Needs Tribunal on 3 October 2007 to uphold the refusal of the placing request for JF at AH school Derbyshire by Argyll and Bute Council Respondents ________________ |
Appellant: Logan; Campbell Smith WS
Respondents: Duncan; Balfour and Manson LLP
15 April 2008
INTRODUCTION
[1] This is an appeal against a decision of an Additional Support Needs Tribunal dated 3 October 2007 in terms of which they confirmed a decision of Argyll and Bute Council to refuse a request by the appellant for the placing of her son JF at AH school in Derbyshire.
[2] The relevant placing request had been made by the appellant on 2 March 2007 and was refused on 2 May 2007.
[3] She then made a reference to the Additional Support Needs Tribunal for Scotland dated 22 May 200 but the Tribunal by decision dated 3 October 2007 upheld the refusal.
[4] It is against that refusal that the appellant now appeals in terms of section 21 of the Education (Additional Support for Learning)(Scotland) Act 2004. Answers were lodged on behalf of Argyll and Bute Council, the relevant education authority.
[5] Mr Logan appeared for the appellant and Mr Duncan for the respondents.
[6] The grounds of appeal are four in number.
[7] The first is that the decision of the tribunal failed to address the relevant questions in law. There was no assessment as to the child's needs, which was an essential fact. Secondly, and in particular, the Tribunal did not address whether his needs included a residential or "24/7" programme as recommended by Hughes & Co, educational psychologists, and Mrs J the headmistress of AH school. Thirdly the Tribunal provided no reasons for their decision and no explanation for their apparent preference of one party's evidence to another. The reports and evidence did not address the need or lack of need for a "24/7" programme and there was accordingly no evidence before the Tribunal which allowed them to conclude that the child's needs did not require the special facilities provided by AH school. The fourth ground was not the subject of detailed argument and I need not mention it further.
[8] The Answers refer to the statutory framework and insist, broadly speaking, that the Tribunal addressed the appropriate questions and that there was sufficient evidence for them to reach their conclusions. It is averred that the rules (the Additional Support Needs Tribunals for Scotland (Practice and Procedure)Rules 2006) do not require the Tribunal to provide a reasoned decision and that in setting out findings in fact and a discussion of their reasoning they went further than was required. (As will be seen this argument was not insisted in). In any event such reasons as were given were adequate. In so far as the appeal was based on questions of fact that was outwith the jurisdiction of the Court.
[9] The factual and statutory background to the case is set out in the submissions of the parties to which I now turn.
[10] Suffice it to say at the moment, that the child has a number of difficulties and it was agreed on all hands that his current school, H school, was not appropriate for him. The local authority contend that his needs can be met by K school whereas the appellant contends that he should go to AH school in Derbyshire.
The legislative background
[11] The principal Act with which this appeal is concerned is the Education (Additional Support for Learning)(Scotland) Act 2004. Section 1 defines additional support needs and it reads 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 sub-section (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 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,
(b)in relation to a child under school age other than a prescribed pre-school child such educational provision as is appropriate in the circumstances."
[12] Section 2 of the Act provides for co-ordinated support plans for the provision of additional support where the child's additional support needs arise from one or more complex factors or multiple factors in certain circumstances. I need not rehearse the terms of that section, it being sufficient to indicate that JF has a co-ordinated support plan in place.
[13] There are further provisions in the Act in relation to co-ordinated support plans but I need not touch upon them.
[14] Section 17 sets up the Additional Support Needs Tribunals for Scotland and section 18 provides for references to a tribunal of inter alia decisions relating to any child or young person for whose school education an education authority are responsible. In terms of Section (18)(3)(e), these decisions include, where sub-section (4) applies, a decision of the education authority refusing a placing request made in respect of the child or young person. Subsection (4) applied in the present case.
[15] Section 19 sets out the powers of Tribunals in relation to references and section 21 deals with an appeal to the Court of Session against a tribunal decision.
[16] That section is in the following terms:-
"21 (1) Either of the persons specified in subsection (2) may appeal on a point of law to the Court of Session against a decision of a Tribunal relating to a reference made under section 18.
(2) The persons referred to in subsection (1) are -
(a) the person who made the reference to the Tribunal,
(b) the education authority concerned.
(3) Where the Court of Session allows an appeal under subsection (1) it may -
(a) remit the reference back to the Tribunal or to a differently constituted Tribunal to be considered again and give the Tribunal such directions about the consideration of the case as the court considers appropriate,
(b) make such ancillary orders as it considers necessary or appropriate."
[17] Section 22 makes provision about placing requests in relation to children and young persons having additional support needs.
[18] Paragraph 2 of schedule 2, so far as relevant, is to the following effect:-
"2(1) 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, to place the child accordingly.
(2) Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being -
(a) a special school the managers of which are willing to admit the child,
(b) a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs, or
(c) a school at which education is provided in pursuance of arrangements entered into under section 35 of the 2000 Act,
it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school.
(3) A request made under sub-paragraph (1) or (2) is referred to in this Act as a "placing request" and the school specified in it is referred to in this schedule as the "specified school".
[19] Paragraph 3 of schedule 2 sets out circumstances in which the duty on the local authority under paragraph 2 does not apply. For present purposes the relevant circumstances are set out in paragraphs 3 (1)(d) and 3 (1)(f). These read as follows:-
"3(1)(d) if, where the specified school is a school mentioned in paragraphs 2(2)(a) or (b) the child does not have additional support needs requiring the education or special facilities normally provided at that school,...
3 (1)(f) if all of 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 the 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 the specified school, and
(iv) the authority have offered to place the child in the school referred to in paragraph (ii)..."
[20] The issue with which the appeal was concerned effectively turned on paragraphs 3 (1)(d) and 3 (1)(f)(ii).
[21] The upshot of the provisions is that the local authority is bound to make provision for the child to be educated at the specified school unless the circumstances in the sub-paragraphs obtain.
Submissions for the appellant
[22] As well as drawing my attention to the statutory...
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