Scottish Court of Session Decisions

[1] This is a Petition for judicial review in which an autistic child, through his parents, contends that the local education authority has failed to comply with its statutory duty towards him under Section 62(3) of the Education Act 1980. That sub-section obliges education authorities to make appropriate provision for all children in their area who have special educational needs.

[2] On or about 22 February 2001, the respondents decided to open a Record of the Petitioner as a child with special educational needs under Section 62 of the Act. The Record comprised four essential parts as required by Section 65D(2), namely:

These four parts of the Record were respectively reflected in Parts III, IV, V and VI of the Form prescribed under the Education (Record of Needs) (Scotland) Regulations 1982, and No. 6/1 of Process is a copy of the Record of Needs which the Respondents opened in respect of the Petitioner on 22 February 2001.

[3] Owing to the sensitive and confidential nature of the information contained in the Record, I do not propose to narrate its details here. Suffice it to say that Part IV is a statement, under four broad headings, of the Petitioner's special educational needs. Part V describes the measures prescribed by the Respondents to meet these needs, and Part VI nominates St Crispin's School in Edinburgh as the educational establishment to be attended by the Petitioner on a day placement basis.

[4] In these proceedings the Petitioner seeks to bring under review the Respondents' decisions reflected in Parts V and VI of the Record of Needs, that is, as counsel for the Petitioner expressed it by reference to English authority - R. v Secretary of State for Education and Science, ex parte E. 1992 1 F.L.R. 377 -, the Respondents' "prescription" for the Petitioner following their "diagnosis" of his special educational needs in Part IV of the Record. She stressed that she was not concerned to challenge the content of Part IV at all: "I confine myself", she said, to challenging "the measures and place of education" proposed by the Respondents, including their continued unwillingness to accede to her client's counter-proposal that they should provide the funding necessary to enable the Petitioner to be educated at home.

[5] When the case called before me on the First Hearing of the Petition, counsel for the Petitioner intimated that she had no objection to the Respondents' lodging Answers at that stage, nor any objection to their lodging a number of documentary productions. In turn, she sought leave to amend the Petition in order to focus certain preliminary points which she wished to argue, and also to lodge certain additional productions of her own. Counsel for the Respondents did not object to the Petition being amended in this way, nor to the lodging of the Petitioner's further documentary productions. I therefore allowed the Respondents' Answers to be received, allowed the Petition to be amended as proposed, and granted leave for the lodging of productions on both sides.

[6] The preliminary points for the Petitioner to which I have referred were introduced in the form of three new declaratory craves at the beginning of Article 3 of the Petition. During the hearing, however, it became clear that the third of these craves had been incorrectly reproduced, and that in any event the Petitioner did not wish to submit argument on that matter at the present time. This third crave may therefore be left out of account for present purposes.

[7] Argument on the second of the Petitioner's preliminary points was also rendered unnecessary, this time by the Respondents' acceptance, for the purposes of these proceedings only, that under Section 14(1) of the Act it was now open to them to consider the parents' request for the Petitioner to receive education at home.

[8] Against that background, the principal issue debated before me was whether the Petitioner had a statutory right of appeal in relation to those aspects of the Record of Needs which were the subject of the present Petition for judicial review. If such a right existed, as the Respondents maintained, there was no dispute that it had not been exercised, and the Respondents' position, both in their Answers and in submission, was that the Petition should therefore be dismissed.

[9] Counsel for the Petitioner responded by maintaining that her client would gladly pursue such an appeal, in which the merits of the Respondents' proposals could be directly considered, but that the statutory provisions gave him no right to do so. She invited me to allow the Petition to proceed, and also at this stage to make a declaratory finding in terms of her new first crave, namely to the effect that the Petitioner's parents had no statutory right of appeal ... in respect of the Respondents' refusal to provide education for the Petitioner at home.

[10] In the end, the scope of this apparent dispute was significantly narrowed when the Respondents conceded (i) that the Petitioner had no right of appeal in relation to Part V of the Record of Needs, and (ii) that where, as here, the Petitioner was insisting on provision being made for his education at home, he had no right of appeal against Part VI of the Record either. However, counsel for the Respondents contended that the Petitioner did have a right of appeal in relation to Part IV of the Record and, for the reasons discussed more fully below, that it was open to him to appeal against that.

[11] For reasons which are not at all easy to understand, and for which no convincing explanation was suggested by either party in the course of the hearing, the appeal provisions contained in Section 63 of the Act (unlike their English counterparts) cover only certain aspects of the statutory scheme. Under sub-section (1)(a) and (aa) it is possible to appeal to an Appeal Committee (with the further possibility, under Sections 64 and 65, of a remit to the Scottish Ministers and of an appeal to the Sheriff) against an education authority's decision to open, or not to open, a Record of Needs in respect of a particular child. Similarly, by virtue of sub-section (1)(b), it is possible to appeal against Part IV of a Record of Needs, namely the "diagnosis" aspect of the exercise. However, as regards the proposed "prescription", no equivalent right of appeal is conferred in relation to Part V of a Record of Needs, and as regards Part VI the effect of sub-sections (1)(c) and (3) is that an appeal lies only where the child's parents have made a "placing request", that is, a request for the child to be educated at a school (my underlining) different from the one nominated by the education authority. A request for education at home, rather than at a school, has only recently become a live possibility by virtue of the newly-introduced Section 14 of the Act and, as previously mentioned, the Respondents accepted that the appeal provisions in Section 63 do not extend to a dispute in that area.

[12] For the Respondents, counsel's argument involved the proposition that because an appeal would have been competent in relation to Part IV of the Record of Needs, and because the outcome of such an appeal might very well have brought about consequential alterations to the content of Parts V and VI, the existence of that appeal must be regarded as sufficient for the Petitioner's purposes and his failure to avail himself of the opportunity was fatal to the present application for judicial review. In her submission, the parties' disagreement related, not to the statutory appeal provisions themselves, but to the proper approach to be taken to the various parts of the Record. The Petitioner, she said, was in error in treating these different parts piecemeal, and in isolation from one another, whereas the correct approach was to treat the Record as an integrated whole in which the various parts were inter-dependent.

[13] Counsel for the Petitioner invited me to reject that argument, pointing out that it could have no application where, as here, the Petitioner was content to accept Part IV of the Record and only sought to challenge the various measures proposed in Parts V and VI. In that connection, she drew my attention to paragraphs 124 and 128 of the Guidance Circular promulgated by the Scottish Office in 1996 (No. 6/8B of Process), which indicated that the various parts of a Record should be seen as a series of logical steps, and that Part IV should inter alia be so set out as to assist in defining the measures proposed in Part V. The importance of these measures in their own right was, she said, further emphasised by the fact that under paragraphs 132 and 133 some degree of specification of the "prescription" in Part V was required. At this point in her argument, counsel sought to persuade me of the relevance of English authority in this context - L. v Clarke & Somerset County Council 1998 E.L.R. 129 -, but on examination it became clear that the equivalent statutory provisions south of the border were materially different and that little or no assistance could therefore be gained from that quarter.

[14] In my judgement, the contentions for the Petitioner are to be preferred here. There is no doubt that an appeal against Part V or VI of the Record alone could not competently have been pursued because of the restricted terms of Section 63 of the Act. I note that this restriction is adverted to in paragraph 171 of the Scottish Office Guidance Circular of 1996, and must simply accept that the Scottish position in this respect is materially different from that which prevails south of the border. Given the insistence of counsel for the Petitioner that her client had no quarrel with the content of Part IV of the Record, it seems to me that it would have been an abuse of the procedures for the Petitioner to pursue an apparent Part IV appeal with the ulterior motive of challenging Part V or VI instead, or with the ulterior motive of securing a review of the Respondents' continued failure to fund special educational provision for the Petitioner at home. I therefore reject as unsound the Respondents' challenge to the competency of the present Petition, and in that context make the declaratory finding sought by the Petitioner in his new first crave.

[15] In addition to the principal argument discussed above, reference was made in the course of the hearing to the provisions of Section 65A of the Act, under which every education authority is under a duty to review all cases of recorded children from time to time. Such a review may be initiated by the authority itself, or alternatively upon application by the child's parent. I was informed that the Respondents had in fact commenced a review of the Petitioner's case in August of this year, and that this review was still ongoing and uncompleted. All aspects of the Record of Needs were under consideration, including Parts IV, V and VI, and also the parents' counter-proposal involving the Petitioner being educated at home at the Respondents' expense. For the purposes of this review, the views of the parents would necessarily be taken into account, and this would inter alia require consideration of the three further reports obtained on the Petitioner's behalf within the past week and lodged in Process at the beginning of the hearing.

[16] Having been given an opportunity to take instructions, neither party moved me to discharge or continue the hearing in light of the ongoing review. However, the fact that such a review is in progress is plainly a matter which I must take into account in determining what further procedure, if any, would be appropriate at the present time. In particular, I have to consider whether it would be appropriate to appoint a Second Hearing at this stage, as I was moved to do by counsel for the Petitioner, to determine the broader merits of the parties' contentions, or whether such a Hearing would in fact be premature and academic while the decisions complained of are under active review. In all the circumstances I have reached the conclusion that it would be inappropriate to allow further Court time to be taken up with arguments which may, for aught yet seen, be entirely superseded by the ongoing review, and I suspect that the parties themselves will also wish to avoid further expense in this matter while the Respondents' final position has yet to be identified.

[17] I am therefore not prepared to order a Second Hearing at the present time, but since the problem is one of prematurity and not of incompetency I shall simply make no order for further procedure in hoc statu pending completion of the Respondents' review of the Petitioner's case under Section 65A of the Act. Once that stage has been reached, it will be open to either party to enrol for such further procedure as may then seem appropriate.