WA's Representative v Highland Council
| Jurisdiction | Scotland |
| Judgment Date | 22 August 2008 |
| Neutral Citation | [2008] CSIH 51 |
| Date | 22 August 2008 |
| Docket Number | No 4 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lord Eassie, Lord Reed, Lord Carloway
Education - Additional support for learning - Co-ordinated support plan - Parent requesting education authority to carry out particular assessments - Education authority not doing so and not providing reasons for declining to do so - Whether tribunal required to instruct assessments - Whether decision that co-ordinated support plan was not required was fundamentally flawed in absence of assessments - Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), secs 8(1), 28(2)
The Education (Additional Support for Learning) (Scotland) Act 2004 provides, inter alia, that a parent can request an education authority to establish whether any child has additional support needs and requires a co-ordinated support plan ("CSP"). The parent can also request that the authority arrange for the child to undergo a process of assessment or examination. The authority must comply with the assessment request unless the request is unreasonable. If the authority decide not to comply with the request they must inform the person who made the request of that decision and give reasons for the decision. A parent may refer a decision of the authority that the child does not require a CSP to the Additional Support Needs Tribunal.
The appellant, the mother of WA, wrote to the respondents requesting a determination of whether WA had additional support needs and, if so, whether he required a co-ordinated support plan ("CSP") in terms of the Education (Additional Support for Learning) (Scotland) Act 2004. She requested that a number of professionals carry out assessments, namely: an educational psychologist; a speech and language therapist; an occupational therapist; a physiotherapist; an information communication technology ("ICT") specialist and a social worker. The respondents organised a meeting at WA's school which was attended by the deputy head teacher, the support for learning teacher, the nurse assistant, the educational psychologist, the speech and language therapist, the community paediatrician and a senior social worker, together with the appellant and her supporter. The minutes of the meeting noted, inter alia, that WA did not require a CSP or further assessments. The appellant wrote to the respondents, asking them to confirm whether they agreed with the view of the meeting regarding the need for further assessments and, if they regarded the appellant's request for assessments as being unreasonable, to provide reasons. The respondents referred to the meeting at the school having proceeded on information from all the relevant professionals except the ICT specialist, and to the school having subsequently advised that involving the ICT service would not be beneficial. Thereafter the respondents wrote to the appellant advising that WA did not require a CSP. The appellant referred that decision to the Additional Support Needs Tribunal. The tribunal heard oral evidence and considered a number of reports and letters from various professionals involved with WA. The respondents accepted that the request for assessments had not been dealt with properly, but submitted that the evidence revealed that a CSP was not required. The appellant submitted that the process was fundamentally flawed because of the respondents' admitted failures and that a CSP was required on the evidence. The tribunal found that the respondents had failed to give reasons for not carrying out the assessments sought, but that their refusal was justifiable and did not constitute a fundamental flaw of their decision to refuse a CSP. The tribunal confirmed the decision of the respondents. The appellant appealed to the Court of Session. The appellant argued that the tribunal had misdirected themselves in law by failing to ensure that they had the information necessary to ascertain WA's additional support needs in the absence of occupational therapy and ICT assessments.
Held that: (1) the 2004 Act contains a number of requirements which an education authority must comply with in assessing whether a child requires a CSP, but failure to comply with a particular provision will not inevitably result in a reference to a tribunal being successful; the tribunal may have regard to the statutory requirements, but these requirements are not reimposed on the tribunal, and the tribunal are entitled to reassess the merits of a particular issue and to reach their own conclusion on a child's needs, and will bring their specialist knowledge to bear on these merits, including on whether a decision ought to be reached on the information made available to them (para 20); (2) having regard to the apparently unanimous views expressed to the tribunal from a wide range of professionals orally and in writing, there was no basis in law for faulting the tribunal's view that they had sufficient information upon which to reach a conclusion on the reference without the need for specific occupational therapy, ICT or other assessments, and the tribunal's decision was adequately supported by the material before them (paras 19, 21-23); and appeal refused.
WA's representative appealed to the Additional Support Needs Tribunal against a decision of the Highland Council dated 8 October 2007 that WA did not require a co-ordinated support plan in terms of the Education (Additional Support for Learning) (Scotland) Act 2004. By decision dated 16 January 2008 the tribunal confirmed the decision of the education authority. The appellant appealed to the Court of Session under sec 21 of the 2004 Act.
Cases referred to:
AH (Sudan) v Secretary of State for the Home Department sub nom Secretary of State for the Home Department v AH (Sudan)UNKELRWLR [2007] UKHL 49; [2008] 1 AC 678; [2007] 3 WLR 832; [2008] Imm AR 289; [2008] INLR 100
Associated Provincial Picture House's Ltd v Wednesbury CorporationELRUNK [1948] 1 KB 223; [1947] 2 All ER 680
C v City of Edinburgh Council [2008] CSOH 60; 2008 SLT 522
G v Argyll and Bute Council [2008] CSOH 61; 2008 SLT 541
HA v Secretary of State for the Home DepartmentSC [2007] CSIH 65; 2008 SC 58
JT v Stirling CouncilSC [2007] CSIH 52; 2007 SC 783; [2007] Fam LR 88
RB v Highland Council [2007] CSOH 126; 2007 SLT 844; 2007 Fam LR 115
SM v City of Edinburgh Council [2006] CSOH 201; 2007 Fam LR 2
Textbooks etc. referred to:
Scottish Executive, Supporting Children's Learning: Code of Practice (Scottish Executive, Edinburgh, 2005), Ch 3, paras 38, 39; Ch 4, paras 27-29
The cause called before an Extra Division, comprising Lord Eassie, Lord Reed and Lord Carloway, for a hearing on the summar roll.
At advising, on 22 August 2008, the opinion of the Court was delivered by Lord Carloway-
Opinion of the Court-
[1] This is an appeal under sec 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) against a decision of an Additional Support Needs Tribunal dated 16 January 2008 confirming a decision of the respondents dated 8 October 2007 that WA (the child) does not require a co-ordinated support plan ('CSP'). Such an appeal lies only on a point of law.
[2] The Act imposes a duty upon every education authority to 'make adequate and efficient provision for such additional support as is required' for each child in their area (sec 4(1)). It sets out an elaborate scheme regulating the provision of that support; being support needed when a child 'is, or is likely to be, unable to benefit from school education' without its provision (sec 1(1)). Additional support is 'provision which is additional to, or otherwise different from, the educational provision made generally for children' (sec 1(3)). The authority must identify those children who have additional support needs and those having such needs who also require a CSP (sec 6(1)(a)). In terms of sec 2(1) a child requires a CSP if:
'(b) the child has additional support needs arising from-
(i) one or more complex factors, or
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(ii) multiple factors,
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(c) those needs are likely to continue for more than a year, and
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(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...
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