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Cite as: [2003] ScotCS 250
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SD, Re Application for Judicial Review [2003] ScotCS 250 (02 October 2003)
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OUTER HOUSE, COURT OF SESSION |
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P721/02
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OPINION OF LORD PHILIP in the Petition of MR S D and MRS L D as the parents and guardians of S D (APs) Petitioners; for Judicial Review of a decision of the Scottish Ministers dated 14 June 2001 under section 64(1) of the Education (Scotland) Act 1980 as amended refusing the petitioners' appeal against the decision of Falkirk Council not to open a Record of Needs ________________ |
Petitioners: Williamson, Campbell Smith
Respondents: Creally; Scottish Executive (first respondent)
Springham; Wright Johnston & Mackenzie (second respondent)
2 October 2003
[1] The petitioners are the parents of S D, who was born on 7 December 1987. They seek judicial review of a decision of the Scottish Ministers dated 14 June 2001 made under section 64(1) of the Education (Scotland) Act 1980 refusing the petitioners' appeal against the decision of Falkirk Council not to open a Record of Needs for S. [2] The first respondents are the Scottish Ministers and the second respondents are Falkirk Council, the education authority for the area in which S lives.
[3] Sections 60 to 65G of the Education (Scotland) Act 1980 contain a statutory scheme under which education authorities are placed under a duty to identify children requiring special education and to provide it for them. In terms of section 60 of the Act, an education authority is obliged to open and keep a Record of Needs in relation to any child belonging to their area who has been established as having pronounced, specific or complex special educational needs which are such as require continuing review. A Record of Needs is a formal document recording the results of various assessments and outlining provision for the child's education.
Section 60(2) of the Act provides
"An education authority -
.......
(b) shall be under a duty, as regards children belonging to their area .... who
(i) are of school age;.....
in accordance with the provisions of section 61 of this Act, to establish which of those children .... have pronounced, specific or complex special educational needs which are such as require continuing review and to open and keep a Record of Needs of each such child ....."
Section 61 provides :
"(1) It shall not be lawful for an education authority to establish, under section 60 of this Act, that a child has pronounced, specific or complex special educational needs such as require continuing review and to record him unless he has undergone a process of observation and assessment (including educational, psychological and medical assessments), for the purpose of affording to the authority advice as to his special educational needs and whether or not they ought to record him; and before doing so, an authority shall -
(a) invite the parent of that child by notice in writing to submit the child for assessment for the said purpose;
......................
(2) A parent who submits his child for assessment in pursuance of subsection (1) above or subsection (6) below shall be entitled to be present at any medical examination held in connection with the assessment.
(3) A notice under paragraph (a) .... of subsection (1) above in respect of any child shall -
(a) state that the purpose of the assessment is to afford to the education authority advice as to his special educational needs and whether or not they ought to record the child;
(b) specify the times and places at which any examinations held in connection with the assessment will be held;
(c) inform the parent of his right to be present at any medical examination held in connection with the assessment;
(d) inform the parent of the name of the officer of the authority from whom advice and further information may be obtained;
(e) invite the parent to express in writing to the authority, within 21 days from the date of the notice or such longer period as the notice may specify, his views as regards the special educational needs of the child and the measures required to meet those needs;
..............
(6) If the parent of any child requests the education authority for the area to which the child belongs .... to make arrangements for the child to undergo such process of observation and assessment as is mentioned in subsection (1) above for the purpose mentioned there, the authority shall comply with the request unless in their opinion the request is unreasonable.
......................
Section 62 provides:
(1) In deciding whether or not to record a child ... an education authority shall take into consideration -
(a) ..... the advice given to them with respect to the child in consequence of the process of observation and assessment undergone by him in pursuance of section 61(1) or (6) of this Act;
....................
(c) any views expressed by the parent of the child ....
(e) any other reports or information relevant to his educational needs which they are able to obtain.
Section 63(1) provides:
(1) The parent of a recorded child may refer to an Appeal Committee set up under section 28D of this Act -
(a) a decision of an education authority to record the child ....;
(aa) a decision of an education authority not to record the child....
Section 64 provides:
(1) Where -
(a) an appeal committee are satisfied that a reference to them under section 63 of this Act is made under subsection (1)(a), [or] (aa) ....of that section;
they shall in turn refer the reference .... to the Scottish Ministers.
................
(4) On a reference to them under subsection (1) above the Scottish Ministers shall, subject to subsection (7) below -
(a) confirm or refuse to confirm the education authority's decision to record or to continue to record the child;...."
There is no provision in section 64, or any other section, which directs or empowers the Scottish Ministers to confirm or refuse to confirm a decision of an education authority not to record a child.
Factual Background
[4] When S was about 7 years of age, the petitioners first noticed that he appeared to be experiencing learning difficulties and referred him to the Dyslexia Institute, a non-profit making charity dedicated to successful learning for dyslexic people. S was seen by a psychologist there and a detailed report dated 4 September 1995 was prepared. The psychologist concluded that the discrepancy between his verbal and non-verbal abilities, and between his ability in general and his attainments, together with information processing weaknesses in memory, visual-motor skills and speed, were indicative of a moderately severe specific learning difficulty, and she recommended that it would be appropriate for a Record of Needs to be opened. In August 1996 the petitioners approached Falkirk Council and asked them to open a Record of Needs. In November 1996 the Council refused their request. [5] In 1998 the petitioners formed the view that S's condition was not improving and in a letter dated 27 August 1998 to Graham Williams, Principal Psychologist with Falkirk Council Education Services, they again requested that a Record of Needs be opened. The request was accompanied by a complaint about the educational psychologist appointed for S, who was by this time receiving learning support at school. Mr Williams responded in a letter dated 9 October 1998 in which he said:"I have discussed S's case with the psychologist, but it will not be possible to reallocate his case. I have, I hope, taken an objective view of what has been done for S so far, and I am content that the advice that has been given and the actions that have been taken are entirely satisfactory and appropriate.
Please do not hesitate to get back to me if there is any change in the situation. It is my view that a review of his progress would be usefully undertaken towards the Easter of next year."
On 16 November 1998 the petitioners met with Ann Carnachan, the Council's Head of Educational Support, who agreed to arrange that two specialist teachers attached to Education Services' Psychological Services would observe S in class and assess his needs. If they determined that further work or assessment was required by a psychologist, that would be done. In a letter dated 26 November 1998 confirming this she concluded by saying:
"As I have explained these steps will all be taken forward so that decisions regarding an appropriate placement for S in secondary education can be made in good time to allow preparation for the transition from Primary 7 to secondary".
"As I explained to you when we spoke Falkirk Council has made the decision that pupils do not require a record of needs to access extended learning support in secondary schools. This decision brings Falkirk Council into line with education authority practice across Scotland. Falkirk Council provides as a matter of course support for pupils with specific learning difficulties in every secondary school. Support will be accessed on the basis of information contained with pupils' Individualised Educational Programmes as developed through their primary career.
Following our discussion I have discussed the matter with Psychological Services and with the head teacher of W Primary School. S will require to access extended learning support in secondary school and your request that S attends W High School as opposed to G High School, which is his catchment area school, has been agreed to. This is an Authority placement of S within W High School and therefore Falkirk Council will bear the cost of transport to that school for S."
" We have enclosed a copy of our letter of appeal, which we will take to the
appropriate bodies if this matter is not resolved satisfactorily within a
decent timescale."
In that letter the petitioners said that they wished to appeal to the Secretary of State against the education authority's failure to establish, in response to their request of August 1998, whether their son had special educational needs which required to be recorded, and went on:
"Our appeal will be based on the fact that the authority did not follow the
guidelines when considering a record of needs. We were not served any
formal notice under section 61(1) of the 1980 act inviting us to submit our
child for assessment. Thus we were not supplied with the times and places
at which it would be proposed to carry out any examinations, tell us of our
rights to be present at any medical examination, state the name of the
education authority officer from whom we could seek advice from and any other information, or give us the statutory 21 days notice to submit our views in writing."
The letter also complained that the letter from Miss Castle of 4 March 1999 failed to give any decision as to whether a record was to be opened or not, but merely advised that it was not necessary to have a Record of Needs to enable extended learning support to be accessed.
[9] The letters of 24 May 1999 were responded to by Ann Carnachan in a letter to the petitioners dated 1 June 1999. In that letter she rehearsed the history of correspondence between the parties from 27 August 1998 to 4 March 1999. In addition, she explained that the suggestion made by Mr Williams in his letter of 9 October 1998 that S's progress might be usefully reviewed towards Easter 1999 had actually been put into effect, and in that connection wrote:"This process included a detailed re-assessment by Psychological Service Specialist Teachers and information supplied by Steven's Headteacher, Paediatrician and Clinical Psychologist. You were offered two opportunities to meet with Mr Stuart, Educational Psychologist, 25 November and 2 December 1998. This culminated in the letter sent to you by Miss Castle on 4 March 1999."
In response to the petitioners complaint, Ms Carnachan wrote :
"It appears to me that by 4 March 1999 the points raised in your letter to Mr Williams in August 1998 had all been addressed. Detailed assessment had been carried out, consideration had been given to available Falkirk Council secondary school placements and one had been agreed with you. You had received a written response to your complaint about an Educational Psychologist.
In particular, it appears to me that your request that a Record of Needs be opened has been addressed. It has been clarified to you that S does not need a Record of Needs to access Extended Learning Support or to be placed in the secondary school having Extending Learning Support most appropriate for him. In Falkirk Council access to resources is through the Individualised Educational Programme not a Record of Needs. Perhaps you will recollect that the Recording Advisory meeting held on 29 October 1996 felt that it was unnecessary to open a Record of Needs as S was showing progress within the normal provision of primary school. The advice we have now is that S will continue to make progress within the normal provision of secondary school.
However, from your letter of 24 May 1999 it appears that you wish new consideration to be given to opening a Record of Needs and I have requested Mrs Jenkinson, Special Educational Needs Resource Co-ordinator, to put the formal process into operation. This, as you are aware, will lead to a Recording Advisory meeting. However, I hope that you will understand that as S will be having his placement and resource needs met without a Record of Needs, it will not be possible to give this a high priority.
Finally, I would like to emphasise three points. Falkirk Council has given consideration to opening a Record of Needs for S. We have established that your son has special educational needs and your son is receiving appropriate education. Thorough assessment procedures have identified his special educational needs, an Individualised Educational Programme detailing how they are met is in place, appropriate resources have been provided, his placement in secondary school has been fully considered, and his access to appropriate Extended Learning Support has been confirmed at a secondary school agreed with yourselves".
Argument
[13] In moving for the reduction of both decisions Miss Williamson, for the petitioners, made five submissions. The first was that the Council had failed to discharge its statutory duty to carry out a psychological assessment in accordance with the procedures set out in section 61(1) of the Act. The psychological report by Mr.Williams dated 24 October 1999 was prepared without an examination of S and was based solely on the report compiled by the two specialist teachers in January 1999. The scheme of the Act envisaged that the child would be subject to psychological examination as part of any psychological assessment. Psychological examination was defined in section 135 as an examination by an educational or clinical psychologist appointed by an education authority for the purpose. Section 61(3) required notice to be given to a parent who submitted his child for assessment of "any examinations held in connection with the assessment". The statutory requirement for a psychological assessment should therefore be construed as including a requirement for a psychological examination as part of that assessment. Otherwise the definition of "psychological examination" in section 135 would be superfluous. [14] Moreover, the purpose of specialist teachers' report, which was compiled prior to the petitioners' letter of 24 May 1999, was "to acquire further information to help in the transition of S to secondary school". The provisions of sections 60 and 61 were mandatory and an education authority was not entitled to deviate from them by basing its decision on material which was not obtained in the course of the procedure set out in section 61(1).[15] Secondly, Miss Williamson submitted that if, contrary to her primary submission, the Council had carried out a psychological assessment, it did not meet the requirements of section 61(1) insofar as it was carried out without a psychological examination. A psychological examination was an integral part of any psychological assessment. The reference in the Act to psychological examination could only relate to psychological assessment. Accordingly the requirement for psychological assessment must be construed as including a requirement for psychological examination.
[16] Miss Williamson's third, fourth and fifth submissions were directed against the Scottish Ministers. Her third submission was that the Scottish Ministers lacked the necessary statutory power to determine the petitioners' appeal, and was therefore ultra vires. Section 63(1)(aa) enabled the parent of a recorded child (sic) to refer to an Appeal Committee a decision of an education authority not to record a child. Section 64(1)(a) required the Appeal Committee if they were satisfied that a reference was made to them under section 63(1)(aa) to refer the reference to the Scottish Ministers. Section 64(4) which required the Scottish Ministers, on a reference to them under section 64(1), to confirm or refuse to confirm the education authority's decision to record or to continue to record the child, contained no provision requiring them to confirm or refuse to confirm an education authority's decision not to record. There was therefore an omission in the appeal provisions. The omission was made when sections 63(1) and 64(1) were amended by the Disabled Persons (Services Consultation and Representation) Act 1986 ("the 1986 Act") introducing appeals against decisions of education authorities not to record a child. No consequential amendment was made to section 64(4) requiring the Scottish Ministers to confirm or refuse to confirm such a decision. The result was that the Scottish Ministers had no power to determine the petitioners' appeal. For the Court to read into the statute a power to determine an appeal of this kind would be to cross the boundary between the interpretation and the amendment of statutes. [17] Miss Williamson's fourth and fifth submissions proceeded on the assumption that the Scottish Ministers did have the power to determine the appeal. The fourth submission was that their decision was vitiated by the failure of the Council to comply with section 61(1). The defects in the Council's decision could only have been remedied if the Scottish Ministers had exercised their power under section 70 of the 1980 Act to require the local authority to discharge their duty, or to discharge that duty themselves.[18] The fifth submission was that the decision of the Scottish Ministers was irrational. According to their decision letter of 14 June 2001, the Ministers accepted the adviser's conclusions and advice. In her conclusions she expressed concern that the Council had failed to provide an appropriate psychological assessment for S. To confirm the Council's decision in the absence of an appropriate psychological assessment was irrational.
[19] Mr Creally, on behalf of the Scottish Ministers, responding to the petitioners' first and second grounds of review, submitted that the Council had complied with the provisions of sections 60 and 61. The Act did not require a Record of Needs to be opened for every child with special educational needs, but only those who fell within the provisions of section 60(2)(b). Prior to 1986, section 61(1) provided that before a record of needs could be opened, a child had to undergo "a process of assessment, including a medical examination and a psychological examination and a report by any teacher in their employment who is or has been concerned in his education". Section 14 of the 1986 Act altered the description of the process which the child had to undergo under section 61(1) to "a process of observation and assessment (including educational, psychological and medical assessments)". The specific requirement for medical and psychological examination was removed. In addition, the terms of section 61(2) and (3) were amended to take account of the fact that an examination, medical or otherwise, was no longer mandatory. The intention of Parliament was that a psychological examination should no longer be necessary.[20] The purpose of the psychological assessment was to afford to the authority advice as to S's special educational needs. An assessment could be carried out by observation. In that way the disruption to the child would be minimised. Mr Williams' psychological report was based on the findings of the two specialist teachers who observed S. They were attached to Psychological Services and were specially trained for the task. While their assessment was, on the face of it, carried out in order help in the transition of S to secondary school, the information it provided was entirely relevant to the assessment of his special educational needs. The petitioners were not offering to lead expert evidence in support of the proposition that Mr Williams' report could not be regarded as a psychological assessment. It was a matter for him to decide what information he needed and whether an examination was necessary. There was no suggestion that his report was inaccurate. Reference was made to In re C (a minor) 1997 AC 489.
[21] In relation to the petitioners' third ground of review, Mr Creally accepted that there had been a failure to make consequential amendments to section 64(4) of the 1980 Act when sections 61 to 63 were amended in 1986, but submitted that the omitted provisions were procedural in nature. Section 64(4) as it now stood should construed purposively to give effect to Parliament's clear intention that appeals against refusals to record should be determined by the Scottish Ministers. This could be done by construing the word "reference" in section 64(4) broadly, as implying that the Ministers had power to allow or refuse appeals. It made no sense if the Ministers could receive a reference but could do nothing with it. It would also be necessary to ignore the word "recorded" in section 63(1) which should clearly have been deleted. Reference was made to the Shorter Oxford Dictionary and A Dictionary of Law, edited by Elizabeth A. Martin, 5th Edition, in both of which the definition of "reference" conveyed the concept of submitting an issue to a person for a decision.[22] Alternatively, certain words should be read into paragraph (a) of subsection (4) of section 64. After the words "decision to record" in paragraph (a) the words "or not to record" should be read in, and after the word "child" at the end of the paragraph the words "or not to continue to record" should be read in. Again the word "recorded" in section 63(1) required to be deleted. Reference was made to Inco Europe Limited v First Choice Distribution [2000] 1 W.L.R.586 per Lord Nicholls of Birkenhead at page 592C-593A and Aberdeen City Council v Wokoma 2002 S.L.T.878 per Lord Drummond Young at para.[16] and [17].
[23] In response to the petitioners' argument that the Scottish Ministers' decision was irrational, Mr Creally submitted that in determining the appeal the Scottish Ministers were not merely reviewing the respondents' findings but were reconsidering the whole question de novo. The adviser appointed was independent of the parties. She had made a thorough and detailed investigation of her own and had considered afresh the whole question of opening a Record of Needs for S. In addition to all the information which had been before the Council, she had before her the letter from Helen Stirling, Consultant Clinical Psychologist, dated 29 September 1999, and a further psychologist's report from the Dyslexia Institute dated 27 November 2000. That report did not recommend the opening of a Record of Needs. Any gap which might have existed in the information before the Council had been filled. In making her recommendations on the appeal, she had applied her mind correctly to the appropriate test. There was therefore no unfairness or irrationality in the appeal process. Reference was made to the case of R v Head Teacher of St George's Catholic School and Others, Court of Appeal, 13 December 2002. [24] On behalf of Falkirk Council, Miss Springham pointed out that, while in terms of section 61(1) it was not lawful for an education authority to open a Record of Needs without going through the process of observation and assessment set out in sections 61 and 62, the Act did not provide that it was unlawful for the authority to decline to open a Record of Needs without the process having been gone through. [25] She submitted that, when the petitioners sent their letter of complaint of 24 May 1999, the Council were still dealing with their request of August 1998 to open a Record of Needs. When it became clear from the letter that the petitioners wanted a formal response to their request, the Council put in process the procedure for a formal determination. Formal intimation that the assessment procedure was to take place was made on 16 August 1999. This led to the Recording Advisory meeting of 26 October 1999. Mr Williams' psychological report was one of several reports made available. It was prepared from a consideration of the file on S kept by Psychological Services and the specialist teachers' reports. In accordance with normal practice, it made no specific recommendation since the decision on the opening of a Record of Needs was one for the Director of Education. In practice the Director of Education acted on the recommendation of the Special Educational Needs Co-ordinator, Miss Jenkinson. The general consensus of view among the staff attending the meeting was that S did not require a Record of Needs. Following the meeting Miss Jenkinson proceeded to make a recommendation, and the decision not to record was intimated by the letter dated 17 November 1999. [26] In response to the petitioners' first submission Miss Springham argued that Mr Williams' report of 24 October 1999 constituted a psychological assessment of S's needs. It followed the petitioners' requests of August 1998 and May 1999. It did not matter whether or not the material on which he drew was prepared for the specific purpose of determining whether a Record of Needs should be opened. Section 62(1)(e) enabled the Council to take into consideration any information relevant to the child's educational needs which they were able to obtain. The petitioners did not offer to prove that no competent psychologist could have prepared such a report. As at May 1999 there had been no intimation of a refusal in terms of section 62(2). Accordingly there could be no appeal against a refusal as there never had been one. [27] In response to the petitioners' complaint that the Council had failed to comply with section 61(1)(a) by failing to invite the petitioners in writing to submit S for assessment, Miss Springham submitted that such a notice was unnecessary where the observation and assessment was triggered by the parent under section 61(6). Alternatively, the authority had complied with section 61(1)(a) by sending the letter dated 16 August 1999. The complaint was that that letter did not invite the petitioners to submit the child for assessment by a psychologist. There was no requirement in section 61(3) for an invitation to submit a child for examination by a psychologist. [28] Finally on behalf of the Council Miss Springham advanced a plea of mora. The decision not to open a Record of Needs was made on 7 November 1999. The petition was lodged on 21 June 2002, more than 21/2 years later. No explanation for the delay had been given on behalf of the petitioners who had been in receipt of legal advice since April 2001. There was no reason why the point relating to the defects in the legislative provisions relating to appeals could not have been identified earlier. Moreover, S's circumstances had now altered. The material on which the decision appealed against was based was now long out of date. If the petitioners were to succeed, the Council would require to recommence the assessment procedure. [29] In response to the Council's plea of mora, Miss Williamson highlighted the fact that the decision of the Scottish Ministers had not been issued until 14 June 2001. Thereafter the petitioners sought legal advice. Legal aid was applied for in November 2001 and refused on 8 February 2002. The refusal was appealed against and legal aid was granted on 18 April 2002. Counsel was instructed on 22 May 2002 and an order for service made on 19 June 2002. There had been no material change in circumstances affecting the Council. In a letter to the petitioners from Mr Jenkinson dated 13 May 2002 it was said on behalf of the Council that S's difficulties had not substantially changed since the previous assessment and observation.Discussion
[30] Before considering in detail the arguments advanced, I propose to examine how the actions of the parties during the history of the case fitted in with statutory framework. In 1986 the petitioners asked for a Record of Needs to be opened for S. That request was refused and the petitioners took the matter no further at that time. In 1998, in the letter of 27 August, the petitioners made a fresh request for a Record of Needs. Implicit in that request, in my view, was a request that the Council should make arrangements for S to undergo the process of observation and assessment mentioned in section 61(1). In terms of section 61(6) the Council were obliged to comply with such a request unless in their opinion it was unreasonable. An opinion to that effect was never expressed on behalf of the Council either in correspondence or in argument, and they were therefore obliged to proceed with the process of observation and assessment of S. [31] Section 61(1) requires the education authority, before doing so, by written notice to invite the parent of the child who is to undergo the process to submit him for assessment. There was a dispute as to whether such an invitation was necessary when the instigation for the process came from the parent. In my view the petitioners were right in their contention that an invitation was necessary. Section 60(2)(b) does not distinguish between procedure initiated by the authority and procedure initiated by the parent. I therefore interpret section 61(1) as requiring an invitation to be extended to the parent whoever instigates the process, although, where the instigation for the procedure comes from the parent, and the assessment is subsequently carried out with his knowledge and consent, the absence of a written invitation would not, of itself, in my view, be fatal to the validity of the process. At all events, no written invitation was issued to the petitioners following their August 1998 request. Instead Mr Williams wrote on 9 October 1998 saying that the actions that had been taken were satisfactory and appropriate, but that a review of S's progress could be undertaken in early 1999. In November 1998 Anne Carnachan, the Head of Educational Support, agreed to arrange for the observation and assessment of S, "so that decisions regarding an appropriate placement for S in secondary education can be made in good time to allow preparations for the transition from Primary 7 to secondary". The two specialist teachers carried out the observation and assessment and reported in January 1999 concluding that S would need a higher level of support at secondary school in implement of his highly structured Individualised Educational Programme. [32] On 4 March 1999 Miss Castle wrote saying that S, in common with all Falkirk Council pupils, did not require a Record of Needs to access extended learning support in secondary school. The petitioners argued that this letter indicated that the Council's position was that a Record of Needs would not be opened in any circumstances. I consider that a fair reading of the letter along with Anne Carnachan's letter of 1 June 1999 does not justify that conclusion. Both letters sought to reassure the petitioners that suitable learning support would be provided without a Record of Needs, but did not go, in my view, so far as to indicate that a Record of Needs would not be appropriate in any circumstances. The letter of 1 June 1999 revealed that the Council had, by that date, carried out a process of observation and assessment which, on the view I take later in this opinion, might well have complied with the provisions of section 61, but before that no clear indication of what the Council were doing in the context of the statute was given to the petitioners. It was therefore understandable that they should conclude from the correspondence that whatever was happening, it was not a formal assessment under section 61. Rather than explaining that they had addressed their formal obligations under the Act, the Council sought to convince the petitioners that what was being done for S was, as Mr Williams put it, satisfactory and appropriate. No decision on the opening of a Record of Needs was intimated to the petitioners although section 62(2) requires such intimation to be made. It was only in the letter of 1 June 1999 that they were told that the request for a Record of Needs to be opened had already been addressed. Against that background I consider that as at 24 May 1999, the Council had failed in their duty to fulfil the requirements of sections 61 and 62. [33] The position however changed after the petitioners' letter of complaint of 24 May 1999. The letter of 1 June 1999 makes it clear that the Council then decided to give renewed consideration to the petitioners' request in accordance with the terms of the Act. The letter of 16 August 1999 from Ms Jenkinson explained the procedure which the Council proposed to adopt. In particular, the petitioners were told that the medical officer would be in touch with them to arrange a medical examination of S and were sent documents, "Parents Guide to Special Educational Needs" and the Council's Special Education Procedures. In my view that letter can reasonably be construed as an invitation to the petitioners to submit S for assessment in terms of section 61(1)(a). The steps which I set out in paragraph [10] and [11] above were then taken and the Council proceeded to make and intimate a decision on the petitioners' request. For completeness, I should mention that the letter of appeal which accompanied the letter of complaint was not intended to, and so did not, take effect at that time, the petitioners' expressed intention being to take it "to the appropriate bodies" if the matter was not resolved satisfactorily "within a decent timescale". [34] I now turn to deal with the petitioners' arguments in the order in which they were advanced, starting with the argument that a psychological assessment in terms of section 61(1) could not be made without a psychological examination. The 1986 Act amended the 1980 Act by removing the specific requirement for a psychological examination and substituting a process of observation and assessment which was to include a psychological assessment. "Psychological assessment" is not defined in the Act nor did the petitioners offer any definition of their own, or any evidence of what a psychological assessment should entail. They relied on the fact that the interpretation section, section 135, contains a definition of psychological examination, although the phrase does not appear elsewhere in the substantive provisions of the Act. In section 135 the words and phrases defined appear in quotation marks. That indicates that the purpose of the section is to define expressions which appear elsewhere in the text of the Act. The fact that the definition of "psychological examination" remains in section 135 is, in my view, the result of an oversight in the drafting of the 1986 Act. In these circumstances, I am not prepared to infer from its inclusion that a psychological assessment in terms of section 61(1), as it now stands, necessarily involves a psychological examination. I consider that the removal of the requirement for psychological examination was a significant alteration to the provisions of the Act indicating that Parliament intended that a psychological examination should no longer be a necessity.Parliament entrusted the assessment of a child's special educational needs to the education authority and it is for the authority to decide what form a psychological assessment should take. In this case S was observed by two specialist teachers from the Psychological Services section of the Council's Education Services. They were, I was informed, specially trained in the assessment they carried out. Their findings were passed on to Mr Williams, a qualified psychologist. I am unable, as a matter of law, to hold that Mr Williams' psychological report, based on extended observation by specialist teachers and on the file kept on S by Educational Services was not a psychological assessment in terms of the Act. It follows that I disagree with the views expressed on this subject by the educational adviser in her report to the Scottish Ministers.
[35] The specialist teachers' report was prepared in order "to acquire further information to help in the transition of S to secondary school". The petitioners' argued that the Council were not entitled to base any assessment on the report since it was not obtained in the course of the section 61(1) procedure. Section 62(1)(e) requires an authority to take into consideration any other reports or information relevant to the child's educational needs which they are able to obtain. It was not suggested on behalf of the petitioners that the contents of the report were not relevant to S's educational needs. In these circumstances I conclude that the use of the report involved no error in law on the part of the Council. [36] I turn now to the petitioners' submission that the Scottish Ministers lacked the statutory power to determine the petitioners' appeal. I understood it to be accepted by all parties that the provisions of section 64, and in particular section 64(4), disclosed a drafting error in the amendments introduced by the 1986 Act. That error consisted of the omission from section 64(4)(a) of a reference to decisions not to record and not to continue to record, an appeal against which was introduced in the new section 63(1)(aa). It is, in my view, clear from the use of the words "refer" and "reference" in section 64(1) and (4) respectively that Parliament intended that the Secretary of State should deal with appeals from decisions not to record and not to continue to record in the same way as decisions to record and to continue to record. I also consider that the error is so obvious that, had it been noticed, the necessary references would have been inserted in section 64(4)(a). It is also clear that the retention of the word "recorded" in section 63(1) is inconsistent with the introduction in paragraph (aa) of that subsection of an appeal against decisions not to record and not to continue to record. In these circumstances, I consider that the principles set out by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R.586 apply to the present case. At page 592C-593A his Lordship said:"It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation 3rd ed. (1995), pp.93-105. He comments, at page 103:
'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role'.
This power is confined to plain cases of drafting mistakes. The Courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the Courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the Court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill being noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: ....
Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far reaching. In Western Bank Limited v Schindler [1977] CH.1,18 Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature".
In my opinion all the tests identified by Lord Nicholls have been satisfied in this case and I have little difficulty in holding that it was the intention of Parliament that the Scottish Ministers should have the power to deal with appeals of this kind, and that section 64(4) should have contained a reference to confirming or refusing to confirm an education authority's decisions not to record and not to continue to record.
[37] Since I take the view that there was no failure on the part of the Council to comply with section 61(1), the petitioners' fourth submission that the Scottish Ministers' decision was vitiated by the failure of the Council to carry out a psychological assessment falls to be rejected. The fifth submission that the Scottish Ministers' decision was irrational since it disregarded the concern expressed by the educational adviser that the Council had failed to provide an appropriate psychological assessment must also fail. I have already indicated that I do not consider that the educational adviser's concern was soundly based in law. In any event, the Scottish Ministers were entitled to accept or reject such parts of the adviser's report as they saw fit. [38] Finally, I turn to deal with the argument of mora advanced on behalf of the Council. I was referred to my own decision in Mackay-Ludgate v The Lord Advocate 2002 S.C.L.R.109. In that case the speech of Lord Diplock in O'Reilly v Mackman [1983] 2 A.C.237 at pages 280-281 was cited, in which his Lordship said:-"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision".
A plea of mora may be sustained in an application for judicial review, but unreasonable delay is not of itself sufficient to found a successful plea. In Assets Co Ltd v Bain's Trustees (1904) 6 F692 at page 705 the Lord President (Kinross) said:
"But in order to lead to such a plea receiving effect, there must in my judgment have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party".
So far as delay is concerned, having regard to the timetable of events set out by Miss Williamson, the only significant delay which might be laid at the door of the petitioners was of 5 months between the date of the Scottish Minister's decision and the making of an application for legal aid. That delay however pales into insignificance in comparison to the period taken by the Scottish Ministers to deal with the appeal. It was only after the Ministers' decision had been issued that the petitioners sought legal advice. Their advisers then had to assimilate a considerable amount of factual detail before considering and advising on a statute the provisions of which give rise to novel questions of law, quite apart from the difficulties created by the defects in drafting. In these circumstances I am not prepared to hold that the petitioners were guilty of unreasonable delay. The plea of mora must accordingly fail. In that situation it is not necessary for me to consider the question of prejudice to the respondents. Questions of prejudice in cases of review depend very much on the individual facts of the case and, in particular, on the nature of the decision involved. Suffice it to say that I would have found it difficult to form a view on the question of prejudice to the respondents on the basis of the scanty material presented to me on the matter.
Decision
[39] For the reasons I have given I consider that the petitioners' attack on the legality of the decisions of the Council and the Scottish Ministers is not made out and the petition therefore falls to be dismissed.