In Appeal To The Court Of Session Under Section 21 Of The Education (additional Support For Learning)(scotland) Act 2004 By Sm As Legal Guardian To J
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2006] CSOH 201 |
| Date | 21 December 2006 |
| Docket Number | XA155/06 |
| Published date | 21 December 2006 |
| Court | Court of Session |
| Year | 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 201 | |
| XA155/06 | OPINION OF LORD GLENNIE in Appeal to the Court of Session under Section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 by SM as legal guardian to J Appellant; against A Decision by the Additional Support Needs Tribunal on 12 August 2006 to uphold the refusal of a placing request for J. at R.B., Edinburgh by Edinburgh City Council ________________ |
Appellant: Logan; Campbell Smith, W.S.
Respondents: Scott; G Lindsay, City of Edinburgh Council
21 December 2006
Introduction[1] This is an appeal to the Court of Session under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act") against a decision of the Additional Support Needs Tribunal ("the ASNT") made on 12 August 2006 upholding the refusal by the Edinburgh City Council of a request ("a placing request") by the appellant that his daughter, J, who was then nearly five years old, be placed at the RB School in Edinburgh. The appeal was remitted to the Outer House under Rule of Court 41.44 to enable the appeal to be heard expeditiously, since J is presently at home and not in school pending the resolution of this dispute. Before me, both the appellant and the Edinburgh City Council were represented by counsel. I was told that this is the first appeal under this legislation.
The legislative context - "additional support needs"[2] The 2004 Act puts in place a system for dealing with the education of children and young persons with additional support needs. I am here concerned with a child, and I shall, therefore, confine my references to the provisions of the Act dealing with children rather than young persons. In relation to a child, "additional support needs" are defined in section 1 of the Act in the following way:
"(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 ....
(2) In subsection (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 ... to their fullest potential.
(3) In this Act, 'additional support' means-
(a) in relation to a prescribed [child] ... receiving school education, provision which is additional to, or otherwise different from, the educational provision made generally for children ... in schools (other than special schools) under the management of the education authority for the area to which the child ... belongs ..."
[3] Section 2 requires a "co-ordinated support plan" to be drawn up for a child for whose education the education authority is responsible, if he or she has additional support needs arising from factors which (taken singly or in conjunction with other factors) are likely to have an adverse effect on his or her school education; and if those additional support needs require significant additional support to be provided (i) by the education authority or (ii) by one or more appropriate agencies, as well as by the education authority. Those "appropriate agencies" are identified in section 23 as (a) any other local authority, (b) any Health Board and (c) any person specified for these purposes in an order made by the Scottish Ministers. The co-ordinated support plan replaces the "Record of Needs" in the previous legislation.
[4] The duties on the education authority in relation to children having additional support needs are set out in section 4 of the Act. This provides as follows:
"(1) Every education authority must-
(a) in relation to each child ... having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child ...
(2) Subsection (1)(a) does not require an education authority to do anything which-
(a) they do not otherwise have power to do, or
(b) would result in unreasonable public expenditure being incurred."
In the present case it is agreed that J has additional support needs (and that a co-ordinated support plan requires to be drawn up for her, though this has not yet been completed) and that the education authority is required to make adequate and efficient provision for such additional support as J requires; but it is not required to do anything that would result in unreasonable public expenditure being incurred.
The placing request[5] The education authority determined that J's needs could adequately be met at O School, a school managed by it. The appellant made a placing request for J to be placed at the RB School instead. That placing request was refused. The appellant referred that decision to the ASNT under section 18 of the Act. The ASNT upheld the decision of the education authority.
The legislative context - placing requests[6] Schedule 2 to the Act makes provision about placing requests in relation to children having additional support needs. The following paragraphs of Schedule 2 are relevant to this case:
"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) ...
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'. ...
3(1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply-
(a) if placing the child in the specified school would-
(i) make it necessary for the authority to take an additional teacher into employment,
(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,
(iii) ...
...
(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 a 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), or
..."
It is agreed that the RB School is a "special school the managers of which are willing to admit the child" within the meaning of those words in paragraph 2(2)(a) of the Schedule. The Schedule, therefore, places on the education authority a duty to comply with a placing request, and where necessary to meet the fees and other necessary costs of J's attendance at the RB School, save in the cases where that duty is excluded.
[7] The only paragraph of Schedule 2 relevant in the circumstances of this case is 3(1)(f). Sub-para.(i) thereof is satisfied, since the RB School is not a public school. Sub-para.(ii) is also satisfied. The appellant does not say that O School is inadequate for her needs, just that the RB School is better suited. Sub-para.(iv) too is satisfied, since the education authority has offered to place J in O School. The issues on this appeal arise under sub-para.(iii).
Refusal of the placing request
[8] By letter dated 7 June 2006, the education authority refused the appellant's placing request by reference to sub-para.3(1)(f)(iii) in these terms:
"it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision of the additional support needs of J in the [RB School] and in [O School] to place J in the RB School."
In its decision letter of 14 August 2006 confirming that decision, the ASNT made a number of findings in fact. In finding (1) it set out J's age and the conditions from which she suffers:
"... She has the following conditions: neonatal encephalopathy, infantile spasms, myoclonic seizures, progressive microcephaly, quadriplegic cerebral palsy and scoliosis. She also has severe cortical visual difficulties and is registered blind."
Finding (3) is to this effect:
"She has severe and complex physical difficulties, including severe visual impairment. Her learning difficulties have not been fully or formally assessed. She is thought likely to have learning difficulties."
In Finding (4), the ASNT identified J's requirements in terms of schooling:
"She requires to attend a school where the staff have expertise in the education and management of children with severe and complex difficulties. She requires access to a stimulating environment specifically for children with multiple physical needs. She needs to have access to a coherent broad and balanced relevant curriculum delivered at a pace and level matched to her profile of strengths and difficulties. She needs a programme to develop language and communication skills. She needs a programme to develop her visual skills. She needs the opportunity to develop...
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