K (ap) For Judicial Review Of A Decision By North Ayrshire Council To Refuse To Provide Transport For Her M To And From School
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2011] CSOH 203 |
| Published date | 09 December 2011 |
| Docket Number | P248/11 |
| Court | Court of Session |
| Date | 09 December 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 203 | |
| P248/11 | OPINION OF LORD TYRE in the cause K (A.P.) Petitioner; for Judicial Review of a decision by North Ayrshire Council to refuse to provide transport for her child M to and from school ________________ |
Petitioner: MacFarlane; Wright, Johnston & Mackenzie LLP
Respondents: Brabender; Lindsays, Solicitors
9 December 2011
Introduction
[1] The petitioner is the mother and legal representative of M, who was born on 29 May 1997. M has autism and accordingly has additional support needs as defined by section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act"). The petitioner resides with M and another child within the area in respect of which the respondents, North Ayrshire Council, are the education authority. Prior to December 2009 they resided in the area in respect of which Renfrewshire Council are the education authority. At the time of the family's move to North Ayrshire, M was attending the R School, a special school managed by Renfrewshire Council in terms of the 2004 Act. After the move, M continued to attend the R School. The petitioner considers that he is happy and settled there. The family's current home is some 20 miles from the R School. In August 2010 the petitioner wrote to the respondents requesting that they provide transport for M to and from the R School. The respondents' refusal of that request is the subject of this application for judicial review.
Legislation
[2] The legislative starting point is the respondents' duty as education authority, under section 1 of the Education (Scotland) Act 1980 ("the 1980 Act"), to secure that there is made for their area adequate and efficient provision of school education. There is a corresponding right, contained in section 1 of the Standards in Scotland's Schools Act 2000, of every child of school age to be provided with school education by, or by virtue of arrangements made, or entered into, by, an education authority.
[3] Section 28 of the 1980 Act requires education authorities, when exercising and performing their powers and duties under the Act, to have regard to the "general principle" that
"...so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents".
A duty is then imposed by section 30 of the 1980 Act upon the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means. These last four words acknowledge that it is not necessarily the case that a child will receive education in a public school provided by an education authority. A child may, for example, receive education in an independent school not under the management of any education authority or, indeed, may receive home education.
[4] A definition of the word "school" is provided in section 135 of the 1980 Act. Where used without qualification, the word means "an institution for the provision of primary or secondary education or both primary and secondary education being a public school, a grant‑aided school or an independent school, and includes a nursery and a special school".
[5] As regards children educated in a public school, the education authority have a duty under section 28B(1) of the 1980 Act to publish their arrangements for the placing of children in schools under their management and to formulate guidelines to be followed by them as respects placing pupils in schools. Such guidelines may specify a "catchment area" for a school, i.e. the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the authority's guidelines (section 28A(3D)). A parent may, however, make a written request to an education authority to place his or her child in a school specified in the request under the management of that education authority. This is known as a placing request. Schedule 2 to the 2004 Act contains detailed provisions regarding placing requests in respect of children with additional support needs. For present purposes it suffices to note that a placing request is made by a parent to an education authority (Sch.2, para.2(1)) and must be in writing or other permanent form (2004 Act, section 28(1)).
[6] The legislation also makes provision for circumstances in which a pupil receiving school education who "belongs to" (i.e. whose parent is ordinarily resident in) the area of one education authority may receive education in a public school provided by another education authority. Section 23(1) of the 1980 Act empowers an education authority to provide school education or additional support for a pupil belonging to the area of some other education authority. Section 23(1A) then empowers an education authority
"...to make arrangements with another education authority (in this subsection referred to as a 'provider authority') for the provision of school education or further education or additional support within the meaning of the 2004 Act for any pupils belonging to the area of the authority in a school or educational establishment under the management of the provider authority".
In order fully to understand the submissions in this case it is necessary also to refer at this stage to
- section 23(1B), which provides that arrangements made under the 1980 Act or the 2004 Act for the placing of children in schools may include provision to give effect to any arrangements made under section 23(1A); and
- section 23(1C), which permits arrangements for the placing of children in schools which subsisted at the time of establishment of new local government areas in 1994 to continue until changed, in circumstances where they lead to pupils belonging in the area of one education authority attending a school in the area of another such authority.
It is also necessary to note recent developments of the law in relation to the making of placing requests for children with additional support needs. In WD v Glasgow City Council 2008 SC 117, it was held that paragraph 2(1) of Schedule 2 to the 2004 Act, which I have already mentioned, did not authorise a parent to make an "out‑of‑area" placing request, i.e. a placing request to an education authority other than that for the area to which the child belonged. That decision has now effectively been reversed by the insertion, with effect from 14 November 2010, of a new sub‑paragraph (5) into paragraph 2 by the Education (Additional Support for Learning) (Scotland) Act 2009, extending the meaning of "education authority" in paragraph 2(1). For present purposes, however, the point is that according to the law prior to 14 November 2010, as interpreted by the court in WD, a parent of a child with additional support needs who belonged in the area of one education authority could not competently have made a placing request to another education authority.
[7] Having set out the foregoing statutory provisions by way of context, it is possible to turn now to the statutory duty of an education authority as regards the provision of transport for pupils to and from school. Section 51(1) of the 1980 Act (as amended) provides as follows:
"An education authority, in a case to which subsection (2A) below applies, may and, in any other case, subject to subsection (2B) below shall make such arrangements as they consider necessary for the provision of any of the following facilities in respect of pupils attending schools or other educational establishments-
(a) for their conveyance without charge for the whole or part of the journey between their homes and the schools or other educational establishments which they are attending;
(b) for making bicycles or other suitable means of transport available to the pupils, or to their parents for the use of the pupils, upon such terms and conditions as may be arranged, or for paying money allowances in lieu thereof;
(c) for paying the whole or any part, as the authority think fit, of their reasonable travelling expenses,
and any such arrangement may in respect of any pupil make provision for more than one of the facilities specified in the foregoing paragraphs of this subsection."
It will be noted that the subsection imposes an obligation on an education authority to make arrangements for the provision of transport facilities for pupils except in the circumstances set out in subsection (2A), where the authority are afforded a discretion. Those circumstances are that, in consequence of a placing request, the pupil has been placed in a particular school which is not within walking distance (three miles, for present purposes) from his home.
[8] Subsection (2B) provides that the duty imposed by subsection (1) does not apply where the pupil belongs to (i.e. where the pupil's parent is ordinarily resident in) another education authority area.
[9] Subsection (2AD)...
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