JT v Stirling Council
| Jurisdiction | Scotland |
| Judgment Date | 21 June 2007 |
| Neutral Citation | [2007] CSIH 52 |
| Date | 21 June 2007 |
| Docket Number | No 54 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lord Nimmo Smith, Lord Kingarth, Lady Paton
Education - Additional support for learning - Co-ordinated support plan - Whether "significant" additional support required - Whether "significant" related to extent of provision of support or effect on child - Whether duration of requirement relevant - Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), sec 2(1)(d)
Words and phrases - "Significant" - Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), sec 2(1)(d)
Section 2(1) of the Education (Additional Support for Learning)(Scotland) Act 2004 provides, inter alia, "For the purposes of this Act, a child 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 , (b) the child 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."
The education authority responsible for the school education of a child received a request from the parent to establish whether the child required a co-ordinated support plan ("CSP"). The education authority decided that the child did not require a CSP, and the parent referred the decision to the Additional Support Needs Tribunal. There was no dispute that in the child's case the conditions set out in paras (a), (b) and (c) of sec 2(1) of the 2004 Act were satisfied. In terms of sec 2(1)(d) the tribunal concluded that the child required significant additional support to be provided by the education authority in the exercise of their functions relating to education and that the child's needs also required additional support to be provided by another appropriate agency, namely from a speech and language therapist, but that the tribunal could not be satisfied that the additional support required from a speech and language therapist was "significant". The tribunal found in fact that the child's needs, as presently known, required a high level of therapy involving one to one therapy for a short period and advice to teachers and school staff which would be implemented on a long term basis, but that such a level of therapy could not be said to be significant. The tribunal concluded that sec 2(1)(d) was not applicable and, therefore, that the statutory requirements for a CSP were not met. The parent appealed to the Court of Session. The Lord Ordinary (Glennie) allowed the appeal, holding, inter alia, that the significance of the required additional support under sec 2(1)(d) should be judged by reference to its anticipated impact on the child. The education authority reclaimed, and argued that the test whether particular additional support was "significant" was related to the question whether there was a requirement for co-ordination, the tribunal was entitled to have regard to the period over which any additional support required to be provided, and "significant" for the purpose of sec 2(1)(d) related, inter alia, to the level of support provided as opposed to the impact of the support on the child.
Held that: (1) in sec 2(1)(d) the word "significant" should be construed as importing more than "not insignificant", and the main emphasis was on the extent of the provision of the additional support, rather than on its effect on the child (paras 22-25); (2) if the duration of the support, on the information available to the tribunal, was such that little or no useful purpose would be served by a CSP, once prepared, the tribunal would be not only entitled but bound to conclude that a CSP was not required (para 25); (3) the tribunal were entitled to find in fact as they did, and there was no inherent inconsistency between the use of the words "high" but "not significant" once proper account was taken of the short period for which the high level of therapy was required (para 26); and reclaiming motion allowed and appeal to the Court of Session refused.
JT appealed to the Additional Support Needs Tribunal against a decision of Stirling Council dated 12 May 2006 that her child did not require a co-ordinated support plan in terms of the Education (Additional Support for Learning) (Scotland) Act 2004. The tribunal (LJ Brabender, Advocate, H Henderson and R Hendry) heard the appeal on 29 August and 11 September 2006. By decision dated 22 September 2006 and issued to the parties on 26 September 2006 the tribunal confirmed the decision of the education authority. The parent appealed to the Court of Session under sec 21 of the 2004 Act. On 6 December 2006 the appeal was remitted to the Outer House in terms of RC 41.44. On 7 March 2007 the appeal was heard before the Lord Ordinary (Glennie). At advising, on 30 March 2007, the Lord Ordinary allowed the appeal and remitted the reference back to the tribunal for reconsideration in light of his opinion. The education authority reclaimed. On 24 April 2007, of consent, the court found the cause suitable for early disposal on the summar roll and appointed grounds of appeal and written submissions to be lodged within two and seven days from that date respectively.
Cases referred to:
Davies v Renfrewshire CouncilENR [2005] CSIH 17; 2005 1 SC 315; 2005 SLT 445
Edinburgh City Council v Scottish MinistersSCUNK 2001 SC 957; 2002 SLT 85; 2001 SCLR 891
Pepper v HartELRWLRUNK [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42
R v Hillingdon London Borough Council, ex p PuhlhoferELRWLRUNK [1986] 1 AC 484; [1986] 2 WLR 259; [1986] 1 All ER 467
R v Monopolies and Mergers Commission, ex p South Yorkshire Transport LtdWLRUNKUNK [1993] 1 WLR 23; [1993] 1 All ER 289; [1993] BCC 111
R (on the application of Quintavalle) v Human Fertilisation and Embryology AuthorityUNKELRWLRUNK [2005] UKHL 28; [2005] 2 AC 561; [2005] 2 WLR 1061; [2005] 2 All ER 555
Textbooks etc. referred to:
Oxford English Dictionary
Scottish Executive, Supporting Children's Learning: Code of Practice (Edinburgh, 2005), paras 16, 18
The cause called before an Extra Division, comprising Lord Nimmo Smith, Lord Kingarth and Lady Paton, for a hearing on the summar roll on 31 May 2007.
At advising, on 21 June 2007, the opinion of the Court was delivered by Lord Nimmo Smith-
Opinion of the Court-
[1] This is a reclaiming motion against a decision of the Lord Ordinary (Lord Glennie) in an appeal to the Court of Session under sec 21 of the Education (Additional Support for Learning)(Scotland) Act 2004 (asp 4) ('the 2004 Act') against a decision of the Additional Support Needs Tribunal ('the tribunal'). The issues raised in this reclaiming motion relate to the proper construction of the provisions of the 2004 Act in respect of the circumstances in which a co-ordinated support plan ('CSP') for the provision of additional support is required, and whether in the circumstances of the present case a CSP is required.
[2] This case relates to the additional support needs of a child, KT, who is 12 years old ('the child'). She lives at an address in Stirlingshire with her adoptive parents. Her adoptive mother ('the parent') is the respondent in this reclaiming motion. She attends a primary school run by Stirling Council ('the education authority'), who are the reclaimers.
[3] The education authority are responsible for the school education of the child. They received a request from the parent to establish whether the child required a CSP. On 12 May 2006 the education authority decided that the child did not require a CSP. The parent referred this decision to the tribunal. By decision dated 22 and issued to the parties on 26 September 2006 the tribunal confirmed the decision of the education authority not to make a CSP in respect of the child. The parent appealed to the Court of Session against the decision of the tribunal. The appeal was remitted to the Outer House in terms of RC 41.44. By interlocutor dated 30 March 2007 the Lord Ordinary allowed the appeal and remitted the reference back to the tribunal for reconsideration in light of the Lord Ordinary's opinion of that date. It is against that interlocutor that this reclaiming motion is brought by the education authority under RC 41.45.
[4] It is appropriate at this stage that we set out the provisions of the 2004 Act, so far as relevant for present purposes. The main definitions are set out in secs 1 and 2. Section 1 provides:
'(1) A child has additional support needs for the purposes of this Act where, for whatever reason, the child 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
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(3) In this Act, "additional support" means-
(a) in relation to a child of school age , provision which is additional to, or otherwise different from, the educational provision made generally for children of the same age in schools (other than special...
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