Scottish Court of Session Decisions

[1] The petitioner in this petition for judicial review is a schoolboy, born in December 1988. He and his mother live in D. within the local government area of the City of Glasgow Council who are the respondents in these proceedings. The petition seeks to challenge the refusal of the respondents to pay for the costs of transporting the petitioner to and from the secondary school in the area of North Lanarkshire Council which the petitioner has attended since August 2000 when he moved from primary to secondary education. The heading to the petition adopts the somewhat unorthodox formulation of describing the petitioner as being "through his mother A.G. acting as his legal representative". The respondents however take no issue respecting the petitioner's capacity to bring this petition and I say no more on the appropriateness of presenting the petition in the name of the child rather than his parent.

[2] The petitioner unfortunately suffers from hearing deficiencies and is consequently a child in respect of whom a "Record of Needs" has been opened and kept in terms of section 60 of the Education (Scotland) Act 1980, as amended, - "the Act". His schooling at primary level involved his attendance at a school in M. situated in what is now the area of North Lanarkshire Council but which at the inception of those arrangements was within the wider territorial area of the former education authority, Strathclyde Regional Council. That former authority provided transport, free of charge, for the petitioner between his home and the primary school. On the re-organisation of local government pursuant to the Local Government Etc (Scotland) Act 1994, the petitioner continued to attend that same school and consequently the present respondents continued the travel arrangements, as they were obliged to do by virtue of section 50(2AD) of the Act. That obligation however persisted only so long as the petitioner continued to attend that same primary school in M.. He completed his final year in primary school in July 2000.

[3] Prior to his completing his P7 year in the summer of 2000, consideration was naturally given by the respondents to the petitioner's progression to secondary education and the appropriate school which he might attend for that purpose.

[4] That process of considering the appropriate school appears to have begun with a meeting at the child's primary school on 2 December 1999 attended by, among others, the petitioner's mother, some teachers from the school, and an educational psychologist. A Minute of the meeting, described as a Transfer Review Meeting, is No 6/1 of process. It is apparent from that Minute that four options were discussed, two of which (residential schooling and local mainstream) were not favoured. The other two options were that the petitioner attend D.H.S., M. or S.R. Secondary School in Glasgow. The transfer review meeting is minuted as having felt that similar support would be available at either establishment and as having thought that since the majority of the petitioner's classmates would transfer to the M. school, there was an advantage in his being with existing friends. The Minute further records that this view would be relayed by the educational psychologist present at the meeting to the next stage in the review process, namely the Hearing Impairment Assessment Tribunal ("HIAT") in Glasgow.

[5] The HIAT met to consider among others the petitioner's case on 9 December 1999 and discussed the four options which had been canvassed a week earlier at the Transfer Review Meeting. The Minute (No 7/5 of process) records that it was accepted that transfer to the D.H.S. would be a "natural progression" but at that time, there was no indication of the amount of support currently available at that school or of the future support required by the petitioner. Consequently further discussion of the petitioner's case was deferred to a later meeting.

[6] That later meeting of the HIAT took place on 10 February 2000. The Minute of the meeting (7/3 of process), so far as pertaining to the petitioner, records that the same educational psychologist who had attended the Transfer Review Meeting had visited D.H.S. in North Lanarkshire. The Minute then continues in these terms:-

The Minute then goes on to record that HIAT recommends a placement at S.R.'s hearing impairment unit -

[7] Following that meeting and recommendation the respondents duly amended the petitioner's Record of Needs by nominating S.R. as the school which the petitioner should attend. His mother took issue with that part of the proposed alternation to the Record of Needs. She appealed to the Appeal Committee set up pursuant to section 28D of the Act. Her appeal was heard on 12 July 2000 and was unsuccessful. The Appeal Committee's decision is contained in a letter of 21 July 2000 (No 6/5 of process). The Committee endorsed the view that S.R. could appropriately meet all the needs of the petitioner and noted in particular that the staffing ratio was higher in the Hearing Impairment Unit at S.R. than in the equivalent unit in D.H.S.. The Act makes provision for a further right of appeal from the decision of the Appeal Committee to the Sheriff. Although advised of that right of appeal the petitioner's mother chose not to exercise it.

[8] In the meantime the petitioner's mother had put forward a "placing request" to North Lanarkshire Council requesting that the petitioner be given a place in D.H.S.. That request was granted on 18 April 2000 (No 6/4 of process). Very shortly after the issue of the Appeal Committee's decision, namely on 24 July 2000 and within the time allowed for appeal to the Sheriff, an official of the respondents wrote to the petitioner's mother, under reference to the Appeal Committee's decision, a letter (No 6/2 of process) stating:-

[9] The petitioner's mother elected in due course to send the petitioner to D.H.. It appears that the question of the cost of his transport from D. to M. was the subject of a further discussion between the respondents and the petitioner's mother (and also some other parents) and those discussions ultimately resulted in a letter of 26 October 2000, from Mr Corsar, the Director of Education Services, (No 6/3 of Process) the material parts of which are in these terms:

[10] At the start of the first hearing of the petition Miss Williamson, who appeared for the petitioner, sought production of the "Policy Statement" in which the policy referred to in that letter was set out. No prior request for such a document had been made and after a short delay there was sent by fax from Glasgow and lodged as production no 7/7, a copy of the document entitled "General Information for Parents" which includes under the heading "Pupil Travel" this statement of policy:

[11] The principal provisions respecting an education authority's powers and obligations to provide transport facilities for pupils are to be found in section 51 of the Act. No doubt in part as a result of the process of amendment over the years, the text of the section is of some length and its syntax is somewhat tortuous. Its first sub-section begins in these terms:-

And thereafter the sub-section lists various facilities which may be provided such as the provision of transport without charge or the payment of reasonable travel expenses.

[12] It was not disputed that the petitioner's situation fell within the scope of sub-section (2A) with the consequence that the respondents had no obligation to provide transport facilities for him but had a discretion whether to fund or provide transport for him. Distilling the essence of sub-section (2A) it applies, briefly, where on the one hand an education authority have proposed to place a pupil in a school which is within walking distance of his home or, if not within that distance, have offered to provide travel facilities to that school but, on the other hand, in consequence of a successful placing request of the pupil in question is in fact attending another school.

[13] In the course of her submissions counsel for the petitioner also invoked section 50 of the Act as being applicable in the present case. The language employed in that section is perhaps no less tortuous than that employed in section 51, to which I have just referred. Sub-section 1 of section 50 provides:-

1. any pupil is, owing to the remoteness of his home or the conditions under which he is living or other exceptional circumstances, unable to receive the full benefit of school education unless special arrangements are made for him, or
2. school education suitable to the age, ability and aptitude of any pupil can best be provided for him at any particular school,

1. paragraph (a) of this sub-section, an appropriate school; and
2. paragraph (b) thereof, the particular school."

The "arrangements" referred to in that sub-section are described in sub-section (2) the only sub-head of that sub-section of pertinence to the present case being sub-head (a):-

It was said by counsel for the petitioner that he came within the opening terms of the first sub-section but was a scholar to whom sub-section (3) applied. Sub-section (3) rather mirrors the terms of section 51(2A), the import of which I have endeavoured to summarise already.

[14] I would also record that, largely by way of background, I was referred by counsel for the petitioner to a number of other provisions of the Act including section 28 which sets out the general proposition that in the exercise of their powers and duties education authorities shall have regard to the general principle that, so far as 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; the provisions of section 28A relating to placing requests and the substituted section 28A contained in Schedule 2A applicable to "recorded" children; and the provisions of section 60-65 relating to such children.

[15] Counsel for the petitioner stated at the outset that although the petition advanced certain contentions under the Human Rights Act 1998 insofar as it gave effect to the European Convention on Human Rights and Fundamental Freedoms she did not insist on them and accordingly, in her submission, four issues were raised by the petition.

[16] The first issue was whether the policy not to provide transport for children attending schools on a placing request was so rigidly formulated that, if applied, the respondents would be disabled from exercising the discretion entrusted to them by sections 50 and 51 of the Act. In regard to this matter I was referred to the summary of the principles affecting the formulation and application of policy in administrative decision-taking set out by the Lord Ordinary (Weir) in Elder v Ross & Cromarty District Council Licensing Board 1990 SLT 307, 311 and Clyde and Edward on Judicial Review, para 27 - 18. Counsel acknowledged that the policy as expressed in the documentation provided in response to the request which she made at the start of the hearing did not preclude the possibility of funding transport for pupils attending, by virtue of a successful placing request, a school other than that selected by the education authority, since the policy envisaged such funding in exceptional circumstances. However, as I understood her, she questioned whether the express statement of that exception to the general policy was sufficient. Further, it was a policy which, she said, had been formulated by reference to section 51 and was not a policy under section 50 which dealt with pupils in exceptional circumstances.

[17] The second issue was whether the decision in the present case not to fund transport for the petitioner to and from M. had in fact been taken in consequence of the application of the policy without any regard to the individual circumstances of his case. Counsel referred to an affidavit from the petitioner's mother, lodged for the purposes of these proceedings, setting out the practical difficulties which his mother faced in arranging for the petitioner to travel between his home and the school in M.. Counsel submitted that what she described as a "decision" contained in the letter of 24 July 2000 was a simple application of policy without regard to particular circumstances. The letter of 26 October 2000 was, she said, effectively a reiteration of the decision contained in the former letter. Counsel stated that the petitioner's circumstances were exceptional but the October letter did not say that those circumstances were not considered sufficiently exceptional to justify departure from the primary policy of not funding transport for children attending schools by virtue of a successful placing request.

[18] The third issue was formulated by counsel for the petitioner as inviting consideration whether the fact that the petitioner could be appropriately educated at S.R. be irrelevant to the question of funding his transport arrangements to the school in M. She submitted that it was an irrelevant consideration. Founding on an observation in the Minute of the Transfer Review Meeting, she said that the travelling time between D. and R.R. on the one hand and D and M. on the other hand was the same. Again founding on the terms of the Minute of that meeting, she maintained that not only was the M. School a suitable school but it had been the preferred school.

[19] Fourthly, it was submitted that the decision to refuse to provide transport for the petitioner from D. to M. was irrational in the "Wednesbury" sense. The respondents were willing to offer transport to S.R.'s. All other matters being equal it was irrational to provide transport S.R. but not to D.H.. Further, there was the initial recommendation at the Transfer Review Meeting that the petitioner attend D.H.. Accompanied transport to school was necessary in terms of the Record of Needs. It had been noted, at that meeting, that the travelling time between them was not significantly different. The respondents had agreed to meet the inter-authority charges for the petitioner's attendance at M. Neither decision letter said that S.R. was more suitable than D.H.S..

[20] In his response counsel for the respondents observed firstly that the petitioner had not appealed to the sheriff concerning the amendment of the Record of Needs to the effect that S.R.was the nominated school and thus did not challenge the respondents' view that S.R.was the appropriate school for the petitioner to attend. Secondly, contrary to the assertion of counsel for the petitioner that no advantage had been seen in S.R.'s, it was clear that the HIAT had eventually concluded that attendance at S.R. offered a higher staff/pupil ratio and longer term advantages for the petitioner. Further, since the respondents had nominated S.R. they were of course obliged to provide transport to that school. It was accordingly erroneous to say they had willingly offered that transport but had declined to make an equivalent offer for D.H.S.. Counsel for the respondents further stated that he was informed that had the child gone to S.R. he would have been accommodated in other school transport facilities already going to that school. But to provide by individual taxi conveyance to and from the M. school would cost the public purse some £13,000 per annum. The possibilities of other forms of collective transport had been examined by the respondents with the results described in the letter of 26 October 2000.

[21] Counsel for the respondents disputed the application of section 50 of the Act to the present case. The petitioner did not satisfy the terms of the qualifying provisions of sub-section (1). So far as section 51 was concerned, it was not suggested that there was any obligation to provide transport. The present case fell under sub-section (2A) which provided a mere power, at the local authority's discretion, to fund such transport.

[22] Counsel for the respondents referred to the speeches delivered in the House of Lords in the case of In Re Findlay [1985] 1 AC 318, 335H, ff. He submitted that it was perfectly proper and appropriate for the respondents to have a policy in relation to the discretionary funding of travel costs in respect of pupils attending schools on a placing request. There were a large number of placing requests - for schools both within and without the respondents' area - and it was necessary that they should have a policy in relation to that issue. The stated policy of not funding transport for children attending schools in consequence of a successful placing request allowed for departure in exceptional cases, which was a fairly normal approach in many policy decisions. The important thing was that the authority remained open to entertaining reasons wherefor the policy should not be applied in the individual case.

[23] The letter of 24 July (No 6/2 of process) was not a decision on an application for transport but was simply a letter informing the petitioner's mother of the policy. However, the respondents had not refused to listen to the petitioner's mother or to look at the petitioner's individual circumstances. As was evident from the letter of 26 October 2000 (6/3 of Process), they had discussed the matter with the petitioner - and other parents - and had looked at possible arrangements such as a minibus for all the children from Glasgow attending the two schools in M. but that they had concluded that, apart from the question of cost, the time involved in collecting and delivering children from different parts of the city was unreasonably long.

[24] It was not an irrelevant factor that the petitioner could be appropriately educated at S.R.'s. If the alternative school were better that would be a factor favouring funding. But that was not so, since in view of the education authority, and the Appeal Committee, S.R. was an appropriate school offering distinct advantages for the petitioner.

[25] There was accordingly nothing irrational in the decision which the respondents had reached in October. The respondents had examined the individual circumstances of the case. They had listened to what the petitioner's mother had to say. But they had nonetheless come to the decision that the circumstances were not such as warranted making an exception for the petitioner, or his mother.

[26] It is perhaps convenient first to advert to the issue between respective counsel whether section 50 of the Act has any true application to the present case. As already indicated, counsel for the respondents submitted that the petitioner did not come within the category of a scholar covered by sub-section (1) of the section whereas counsel for the petitioner submitted that the boy fell within the ambit of sub-head (b) in that sub-section. My inclination, but not confirmed view, is to think that the petitioner may well come within that sub-head. However, the matter is in my opinion without any practical significance since the effect of section 50 is either to require or to enable an education authority to provide the arrangements set out in sub-section (2) for pupils in the exceptional circumstances within the ambit of sub-section (1) of the section. The only arrangement pertinent to the current dispute is arrangement (a) which simply refers to the travel facilities which may be provided under and in terms of section 51. Further, and perhaps more importantly, it was not of course suggested that in the circumstances of this case section 50 of the Act imposed any obligation upon the respondents. Nor is it suggested that section 50 of the Act impose any limitation on the discretion whether or not to provide funding which is not to be found in the terms of section 51 of the Act. In short, on either view one is concerned simply with the exercise of the power or discretion given to an education authority to provide travel facilities, and if so, in which circumstances.

[27] It was not suggested by counsel for the petitioner that in deciding whether, and if so, how, to exercise that discretionary power an educational authority was not entitled to formulate a policy to guide its decisions. It is clear that an education authority such as the respondents may be faced with many applications for the provision of transport, or the payment of travelling costs, where placing requests have been granted. It was recognised by the Lord Ordinary in his summary of the authorities in Elder that -

The contention for the petitioner was rather that the actual terms of the respondents' policy unlawfully fettered their discretion.

[28] That contention was reflected in the motion to amend the petition by including a craving of a declaratory order, and a plea-in-law, to that effect. (The motion to amend was not opposed by counsel for the respondents and I allowed it, having however reservations as to the propriety of the Court pronouncing an interlocutor or decree in such terms). That motion was made in advance of counsel for the petitioner having seen the terms of the document No 7/7 of process, which recognises that the policy is qualified by a general reference to exceptional circumstances, among which a certain defined category of pupils is included. In the event, in her subsequent submissions, counsel for the petitioner appeared to appreciate that contrary to the evident assumption upon which her amendment had been framed, the policy as so stated was not one which totally excluded the exercise of discretion and matters were left with the rhetorical question whether it be sufficient for an administrative authoirty to formulate a policy qualified by a recognition that it may be departed from in exceptional circumstances. Posed thus as a generality, it appears to me that, as a generality, the answer to the theoretical question will be positive since formulation of policy involves formulation of a general rule or rules but the retention of discretion in individual cases involves the recognition of the possibility of making exceptions. For his part, counsel for the respondents referred to the speech of Lord Scarman in the case of In Re Findlay at 335H at which his Lordship states this:-

In these circumstances and given the terms of the respondents' director's letter of 26 October 2000 I am not persuaded that the first contention advanced by Miss Williamson is sound or that the policy adopted by the respondents involves in itself a fettering of discretion which is unlawful. I would add that in so far as counsel for the petitioner adverted to the terms of s.28 it is apparent from the terms of s. 51 that in so far as the legislature accorded parents the right to select a school by means of a placing request, it did not accord equivalent rights respecting travel facilities, which are left to the discretion of an education authority.

[29] It is accordingly more important to turn to the circumstances of the present case. Miss Williamson submitted that the letter of 24 July (No 6/2 of process) was a "decision" simply applying the policy and ignored the factors set out now in the petitioner's mother's affidavit. I have reservations as to whether it is proper to characterize that letter as being a decision to refuse to fund the petitioner's travelling expenses rather than a mere intimation of the consequences of an application of the respondents' normal policy. But in any event that letter was superseded by the discussions and examination of possible arrangements which eventually resulted in the decision communicated by the director, Mr Corsar's, letter of 26 October 2000.

[30] In my opinion, counsel for the respondents is correct in saying that the terms of that letter demonstrate the willingness of the respondents to listen to the petitioner's mother and to consider this case on an individual basis. It is evident that the petitioner's mother's request for the provision of travel facilities was given close and individual examination. The fact that, having done so, the respondents adhered to their policy and did not find sufficient exceptional circumstances does not mean that they did not exercise their discretion lawfully.

[31] Miss Williamson's third contention was that by taking into consideration the fact that the petitioner could be appropriately educated in S.R.'s, the respondents had taken into account an irrelevant factor. I had - and have - some difficulty in understanding that contention in isolation but in the event it rather merged into the fourth contention of irrationality in the Wednesbury sense. The crux of this submission for the petitioner was the assumption that "all matters being equal" as between D.H. and S.R. the offer to fund transport to the one, as opposed to the other was irrational.

[32] In large measure counsel for the petitioner relied upon what was recorded in the Minute of the Transfer Review Meeting in December 1999 which favoured D.H. on the ground of some degree of continuity in the petitioner's classmates and which also noted the view of those present that there was no significant difference in travelling time. However, it appears to me that such an approach ignores the fact that matters moved on from that initial review. S.R. was in due course seen as a having educational advantages in the longer term and as providing better teacher/pupil ratios for pupils such as the petitioner. That view was endorsed by the Appeal Committee, which the petitioner did not challenge. The observation in the initial Transfer Review Meeting concerning travel time is not repeated in the subsequent documentation and it is not immediately obvious that there can be no difference in travelling time - and expense - between D. and R.R., Glasgow and D. and a school in M. A further part of counsel for the petitioner's submissions was the contention that since the respondents had offered to provide transport to S.R. it was irrational for them to deny transport to D.H.S.. However, as counsel for the respondents pointed out, having properly nominated S.R's, the respondents were obliged here to provide appropriate transport. It was accordingly incorrect to say that the respondents were voluntarily offering transport to S.R. but capriciously denying it to D.H.S..

[33] It is no doubt possible to debate further the various "pros" and "cons" of the petitioner's attending D.H.S. as opposed to S.R.'s. However, the test of irrationality in this context must be that the decision reached by the respondents was one which no reasonable education authority could ever have reached. I am satisfied that the decision was one which the respondents were entitled to reach. Indeed since S.R's, in R.R., was seen as providing, if not superior facilities for the petitioner (the view of HIAT and the Appeal Committee), at least equivalent facilities to those of D.H., it might be said that the petitioner's mother was in no different position from any other parent making a placing request. Put in other words, the education authority had nominated a school within their area which was wholly if not better suited to the petitioner's needs, along with the provision of free transport to that school. The insistence of the petitioner's mother on his attending a school further away, outwith the area of the education authority, was essentially no different from the choice of any parent putting forward a placing request. On a proper analysis there were accordingly no exceptional circumstances attending the petitioner's mother's decision to send him to D.H.S. which would require any departure from the respondents' stated policy.

[34] For the foregoing reasons I consider that this petition must be refused.