|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 144
|
|
P1293/06
|
OPINION OF LORD
GLENNIE
in the cause
JOHANNE SIM
Petitioner;
for
Judicial Review of a decision of ARGYLL & BUTE
COUNCIL
Respondents:
ญญญญญญญญญญญญญญญญญ________________
|
Petitioner:
Scott; Mowat Hall Dick
Respondents:
Duncan; Balfour & Manson
13 September
2006
[1] This
petition came before me for a first hearing on 30 June 2006.
Having heard argument on part of the relief claimed in the petition, I
pronounced an interlocutor granting the prayer of the petition to the extent of
paragraphs 3(b) and (c) thereof, reducing the refusal by the respondents, the
Argyll & Bute Council, to provide Joshua with transport to and from Tarbert
Academy and declaring that the respondents were failing to comply with their
duty to provide Joshua with transport to and from Tarbert Academy in terms of
section 30(4) of the Education (Additional Support Learning) (Scotland) Act
2004 ("the 2004 Act"). I gave brief
reasons for my decision but was asked to provide a written Opinion. This Opinion sets out more fully the reasons
for my decision.
[2] The
petition was brought by Mrs Johanne Sim as the mother and the representative of
Joshua Sim. The petition was brought on
behalf of Joshua. Joshua was 12 years
old at the time of the hearing before me, and was due to commence secondary
education at Tarbert Academy
in August 2006. The complaint was that the
respondents had refused to provide transport to and from that school.
[3] Ms
Scott, on behalf of the petitioner, addressed me on the question of the title
and interest. Although that issue was
not raised by the respondents in their answers to the petition, she quite
properly referred me to the remarks of Lady Smith in Crossan v South Lanarkshire
Council 2006 SLT 441, particularly at para [36]. In that case a father acting as the legal
representative of his 13 year old son who suffered from Down's Syndrome
petitioned for judicial review of the decision of a local authority not to pay
the child's fees for aftercare and out of school care. Lady Smith considered that although the
petition was presented in this way, the real question was not whether or not
the child should receive the services but who should pay for them. Accordingly, the proceedings were, in truth,
for the sole benefit of child's parents; and the petition should have been
brought in their names rather than in the name of the child. In the course of her Opinion, Lady Smith
referred to various English authorities.
I was referred to one of them, namely the decision of Scott Baker J in R (on the application of WB and KA) v. Leeds School Committee [2003] ELR 67.
The English cases tend to characterise this problem in terms of abuse of
process - the abuse being that by bringing the proceedings in the name of the
child the parent can obtain public funding for his action as well as protect
himself from an adverse award of expenses - which the court may address in
considering how to exercise its discretion as to the grant of permission to
apply for judicial review. Although I
understand the reasoning in these cases, I am not convinced that those concerns
translate readily into the procedure for judicial review in Scotland,
there being in that procedure no stage at which the petitioner needs to seek
leave to apply. Nor am I wholly
persuaded that the reasoning in those cases translates easily into the question
of title and interest. In the event,
however, I did not have to decide this point since Mr Duncan, for the
respondents, simply wished to reserve argument on it; and Ms Scott pointed out
that the decision as to which school the child should attend was still open and
might be influenced by the result of these proceedings. I was therefore content to proceed upon a
provisional view that the petitioner had made good her case on title and
interest.
[4] There
was little dispute about the basic facts underlying these proceedings and I can
take them from paragraphs 5-7 of the petition.
This recites that on 14 November 2002 the respondents opened a
Record of Needs for Joshua in terms of section 60(2) of the Education
(Scotland) Act 1980 ("the 1980 Act").
The Record provides an assessment of Joshua's needs. He suffers from a combination of difficulties
including dyspraxia, developmental language delay and epilepsy. He is aware of and distressed by his
difficulties. A school day leaves him
very tired. Part V of the Record of
Needs specifies the measures proposed by the respondents to meet Joshua's
special education needs. One of the
measures was transport to and from home.
This was, and is, important for Joshua that it would be impracticable
for him to walk to and from school. The
petitioner contends that the respondents were under a statutory duty in terms
of section 62(3) of the 1980 Act to make the provision they had identified in
Joshua's Record of Needs, including provision of transport.
[5] The
petitioner goes on to state that Joshua has received primary education at Tighnabruaich
Primary School. There are 41 children at this school. In June 2006 Joshua will cease to be
illegible for primary education. He is
due to commence secondary education in August 2006. A meeting was held at Tighnabruaich
Primary School in 2005 to make
plans for Joshua's transition to secondary education. Two schools were discussed. The designated mainstream secondary school
for the area in which he lives is Dunoon
Grammar School, which has a school
roll of about 1,000 children. There is a
school bus service from Tighnabruaich to Dunoon which leaves Tighnabruaich
before 8.00 a.m. and returns after 5 p.m.
Joshua would not be able to cope with his school day of this
length. The route taken by the bus is
over a single track road notorious for causing travel sickness. Joshua suffers from travel sickness and is
likely to be ill on the journey. A
hostel is provided at Dunoon for pupils from Tighnabruaich, to allow them to
board in Dunoon, and to avoid them making the journey from Tighnabruaich and
Dunoon every day. Joshua's needs are
such that he would be unable to make use of the hostel. There is an alternative secondary school for
Joshua at Tarbert Academy. Tarbert
Academy has a school roll of 150
children. It is geographically closer to
Tighnabruaich than Dunoon Grammar
school.
There was agreement at the 2005 review that a place should be sought for
Joshua at Tarbert Academy. The petitioner accordingly applied for a
place for Joshua at Tarbert Academy. Joshua's 2006 review was attended by three
representatives from Tarbert Academy. The respondents have put into place
arrangements for Joshua to attend Tarbert
Academy as from August 2006.
[6] The
petitioner complains that the respondents have refused to provide Joshua with
transport to Tarbert Academy. He said that the ground upon which transport
has been refused is that the respondents provide transport to Dunoon
Grammar School and do not provide
transport to Tarbert Academy.
[7] Although,
as I have said, much of the background was a matter for agreement, it is right
to say that the respondents do not accept that the Record of Needs has any
application to Joshua's position after he ceases to be of primary school
age. In particular, they say that as
provision for secondary education is not made by the Record of Needs, the
provision for transport identified in that Record cannot relate to Joshua's
secondary education. Further, they point
out that the respondents proposed that Joshua be placed at Dunoon
Grammar School. It was the petitioner who made a placing
request on behalf of Joshua in terms of which it was requested that Joshua be
placed at Tarbert Academy. The placing request was successful.
[8] In
the petition, two alternative grounds are put forward for the relief
sought. The first is that, in terms of
the 2004 Act, the respondents were under a duty to provide Joshua with
transport to Tarbert Academy. The second was that, if the respondents were
not under a duty to provide transport, they had a discretion to do so in terms
of section 51(1) of the 1980 Act and had failed properly to exercise that
discretion. At the hearing before me I
heard argument only on the first of these two grounds.
[9] The
2004 Act came into force on 14 November
2005. Section 1(1) of that
Act provides that a child or young person has "additional support needs" for
the purposes of the Act were "for whatever reason" he or she is, or is likely
to be, "unable without the provision of additional support to benefit from
school education provided or to be provided" by the education authority. The term "additional support" is defined in
section 1(3), so far as is relevant here, as being
"provision which
is additional to, or otherwise different from, the education provision made generally
for children ... in schools (other than special schools) under the management of
the education authority ...".
Section 2(1) provides that a child
requires a plan, referred to in the Act as "co-ordinated support plan", for the
provision of additional support if (a) the education authority are responsible
for the school education of that child, (b) the child has additional support
needs arising from one or more "complex factors" or "multiple factors" (as
defined in the Act), (c) those needs are likely to continue for more than a
year and (d) those needs require significant additional support to be provided
by the education authority "in the exercise of any of their other functions as
well in the exercise of their functions relating to education" or by one or
more other appropriate agencies within the meaning of the Act. Section 4(1) of the Act imposes a duty on
every such education authority, in relation to each child having additional
support needs, to "make adequate and sufficient provision for such additional
support as is required by that child or young person" and to make appropriate
arrangements for keeping under consideration both the additional support needs
of that child and the adequacy of the additional support provided to him. Section 6 of the Act places an obligation on
the education authority to make arrangements for identifying children (a) who
have additional support needs and (b) who have additional supports needs and
require a co-ordinated support plan; and section 9 requires the education
authority to prepare a co-ordinated support plan where it is established that
one is required. Such a co-ordinated
support plan must inter alia identify
the additional support required by the child to achieve "educational
objectives", i.e. to secure that the child benefits from a school education
provided for the child. Section 10
requires the education authority to keep under consideration the adequacy of a
co-ordinated support plan and to carry out regular reviews of such plans.
[10] It is not necessary to analyse
in detail all the provisions of the 2004 Act since, as I have already
indicated, the 2004 Act only came into force in November 2005 and there has not
yet been an assessment carried out in relation to Joshua in terms of the Act. The Record of Needs to which I have referred
was carried out under the 1980 Act. In
these proceedings the petitioner places reliance not on the detailed provisions
of the 2004 Act to which I have referred but on the transitional provisions
contained in section 30.
[11] Section 30 applies to any child for whose school education the
education authority is responsible and who, immediately before the commencement
of the 2004 Act, was a "recorded child" within the meaning of the 1980 Act,
that is to say a child who was the subject of a Record of Needs. There is no dispute but that Joshua was a
recorded child. Section 30(2) provides
that such a child "is, for the purposes of this Act, to be taken to have
additional support needs." Sub-section
(3) places an obligation on the education authority to establish, within 2
years from the commencement of the 2004 Act, whether the child requires a
co-ordinated support plan. Section 40(4)
then places an obligation on the education authority, until "the appropriate
date", to ensure that the provision made by them pursuant to section 4(1)(a) of
the 2004 Act for the additional support required by the child "is no less than
the provision which was, immediately before the commencement date, made for the
child" under section 62(3) of the 1980 Act.
The "appropriate date" is the date on which the education authority
establish that the child requires a co-ordinated support plan or a date 2 years
after the time they establish that the child does not require such a plan.
[12] It is accepted on behalf of the respondents that "the
appropriate date" has not yet come; and that, therefore, they are presently
subject to the obligation in terms of section 30(4) of the 2004 Act to provide
additional support for Joshua which is "no less than" that which was previously
made for him under section 62(3) of the 1980 Act. The petitioner says that the additional
support in place as at November 2005, when the 2004 Act came into force,
included the provision of transport to and from school. The respondents, on the other hand, say that
whilst that may be so in connection with Joshua's attendance at primary school,
the Record of Needs says nothing about transport to and from secondary
school. There was, they say, no obligation
on them as the education authority to provide transport for Joshua to attend
the secondary school; and, therefore, there is nothing in terms of transport
provision upon which the transitional provisions of section 30(4) of the 2004
Act can bite. Further, they say that in
so far as they provided transport for Joshua in the past, this was not part of
their provision for his special educational needs under section 62(3) of the
1980 Act but was provided in their discretion under s.51 of that Act and so is
not caught by the transitional provisions of the 2004 Act.
[13] To examine these arguments, it is necessary to consider certain
provisions (now repealed) of the 1980 Act and the Record of Needs made pursuant
thereto.
[14] Section 60(2)(b) of the 1980 Act placed the education authority
under a duty inter alia to establish
which children of school age belonging to their area
"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 62(3) required an
educational authority to ensure that the provision made by them under that Act
for a recorded child included provision for his special educational needs. Section 60-65G contained provisions relative
to that matter, including a system of appeals.
It is necessary only to note section 65A which required the education
authority to keep under consideration the cases of all recorded children
belonging to their area. The process of
assessment and the process of review were detailed and, no doubt, time
consuming.
[15] The expression "special educational needs" was defined in
section 1(5)(d) of the 1980 Act as meaning "needs caused by a learning
difficulty which [the child] has which calls for provision for special
educational needs to be made for him".
That paragraph went on to provide that a child
"has a learning
difficulty for the purposes of this paragraph if (i) he has significantly greater difficulty in
learning than a majority of children ... of his age; or (ii) he suffers from a disability which
either prevents or hinders him from making use of educational facilities
of a kind generally provided for children ...[in the local authority schools]".
(emphasis added)
[16] The Record of Needs opened for Joshua in terms of section 60(2)
of the 1980 Act was in a form prescribed by regulations made by the Secretary
of State under section 65D of that Act.
Parts I and II of the Record were largely formal. Part III gave an assessment of the
child. The "Assessment Profile"
identified Joshua's difficulties to which I have already referred. It identified, in addition to a number of
learning difficulties, the fact that Joshua had poor muscle tone which made him
tire easily and affected his balance and co-ordination. It pointed out that he could get very tired
at the end of a school day and needed space and time to relax. Part IV set out a "Statement of Special
Educational Needs" dealing, as Mr Duncan pointed out, with Joshua's needs
at school rather than on the way to school.
Part V was headed "Measures Proposed by the Authority to Meet Special
Educational Needs". Under the heading
"Education Authority Services", it provided that Joshua would continue to
attend his local mainstream primary school.
In relation thereto it stipulated that "the education service will
provide transportation to and from home as appropriate". There was mention also of "Other Services" to
be provided, including speech and language therapy and occupational therapy. The respondents provided transportation for
Joshua between his home and his primary school.
The Record of Needs was made in November 2002, when Joshua was 8. It has not, so far as I am aware, been
subject to any review.
[17] For the respondents, Mr Duncan addressed me first on the
argument that the provision of transport to and from home was not, properly
understood, to be regarded as part of the "special educational needs"
identified for Joshua in the Record of Needs.
He submitted that the definition of "special educational needs" in
section 1 of the 1980 Act placed the emphasis on "educational". In other words, the requirement to make
provision for "special educational needs" was a requirement which would
encompass such matters as learning support and an individualised educational
programme, both of which are specifically mentioned in Part V of the Record of
Needs. Transport, he submitted, fell to
be provided, if at all, as a matter of discretion under section 51 of the 1980
Act. The transitional provisions in
section 30 of the 2004 Act did not extend to place an obligation of the
education authority to continue providing transport, since transport was not
provided under section 62(3) of the 1980 Act.
[18] I do not think that argument is correct. The obligation on the education authority
under section 62(3) of the 1980 Act was to ensure that the provision made by
them for a recorded child includes provision for his special educational
needs. The way in which those special
educational needs are identified is by drawing up and keeping a Record of Needs
for that child. In terms of section 65D
of the 1980 Act, that Record of Needs requires to set out both the special
educational needs of the child arising from his difficulties, and a statement
of the measures proposed by the education authority to be taken to meet those
needs. Reading those sections together,
as one must, it seems to me that the obligation on the education authority
under section 62(3) must be to make such provision for the child's special
educational needs as have been identified in the Record of Needs as being
necessary. Were it otherwise, it would
be open to the education authority simply to ignore its own assessment to what
was required.
[19] Further, it seems to me that the wording of section 1(5)(d)(ii)
of the 1980 Act, to which I have referred earlier, is wide enough to include,
within the definition of "special educational needs", any need resulting from a
disability which "either prevents or hinders [the child] from making use of
[the] educational facilities". The
expression "making use of" is very wide.
It will extend, as Mr Duncan rightly accepted, to questions of
access, for example wheelchair access.
If that is right I do not see why it should also extend to questions of
transport to and from school.
[20] In the course of argument I was referred by both counsel to
Circular No. 4/96 dated 25 March
1996 issued by the Scottish Office Education Department, entitled
"Children and Young Persons with Special Educational Needs - Assessment and
Recording". It elaborates inter alia on what must be set out in
the Record of Needs. In paragraph 133,
in relation to Part V of the Record of Needs, it states that the strategic
framework for provision set out in Part V may specify various matters. It goes on to say: "Where relevant, arrangement for physical
assess to the school ... and if necessary, for transport to the school, should
also be specified." This assumes that it
is appropriate that necessary transport arrangements can, indeed should, be comprised
within the provision for special educational needs set out in the Record of
Needs. Although the circular is not,
strictly, relevant material for the purpose of construing the 1980 Act, it
provides some comfort to me in respect of the conclusion which I have
reached.
[21] I have considered the argument that transport is provided as a
matter of discretion under section 51 of the 1980 Act. That section is in very general terms. It seems to me that it is dealing with
transport arrangements on a much broader basis and is not concerned with
transport that may be required as part of a programme providing for the special
educational needs of a particular child.
The fact that the discretion exists under section 51 does not mean that
the provision of transport cannot be made as part of the arrangements made to
meet the special educational needs of the child under section 62(3).
[22] In my opinion that the provision of transport to and from
school whilst Joshua was at primary school was part of the provision made by
the respondents for Joshua's special educational needs in terms of section
62(3) of the 1980 Act.
[23] The other argument for the respondents, which Mr. Duncan
developed in his submissions, was that, whatever may have been the position
whilst Joshua was still at primary school, that changed when he moved on to
secondary school. The Record of Needs
specified the primary school which he was to attend and stipulated for the
provision of transport to and from home only in connection with that primary
school. He submitted that it could not
be said that under the 1980 Act there was any requirement in terms of the
Record of Needs for the education authority to provide Joshua with transport to
and from his new secondary school. He
pointed out that the reference to provision of transport in Part V of the
Record of Needs was qualified by the words "as appropriate".
[24] I have to recognise that on a narrow construction of the Record
of Needs there is some force in that argument.
However, the consequence of that argument being correct appears to me to
be unacceptable. In terms of the 1980
Act the education authority were required to keep the cases of all recorded
children under review. It cannot,
surely, be said that the Record of Needs becomes "spent" once the child reaches
an age where he must change schools.
That child has been assessed as having special educational needs and the
education authority is under an obligation to assess those needs and make
provision for them. In the absence of
review, it seems to me that the obligation of the education authority is to
continue to make such provision as best they can in the changed
circumstances. The assessment made in
the Record of Needs was that transportation to and from school was necessary. If that was correct as regards the short journey
to the local primary school, then the position must be a fortiori as regards the longer journey to the chosen secondary
school. The qualification "as
appropriate" cannot lessen the obligation - if anything, it increases it, to
take account of the longer journey. This
is not the time to question the choice of secondary school. A decision has been made and, so far as I
understand it, the respondents do not complain about it. But it must follow that, once a secondary
school has been identified, the recognised obligation to provide transport
between home and school must apply to the new school as it did to the old. If the position was to be changed, this
should have been done by a review under section 65A of the 1980 Act and can be
done now in the context of the preparation of a co-ordinated support plan under
the 2004 Act. I do not know what will be
the result of that process when it is carried out. Until then, however, it seems to be clear
that the transitional provisions in section 30(4) require the education
authority to continue to provide additional support to Joshua to an extent and
of a quality no less than he received under the 1980 Act. That includes transport to and from school.
[25] For those reasons, which I expressed rather more shortly at the
end of the hearing, I made the order to which I have referred in paragraph [1]
above.
