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Cite as: [2007] CSIH 52, [2007] ScotCS CSIH_52

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Nimmo Smith

Lord Kingarth

Lady Paton

[2007] CSIH 52

XA182/06

OPINION OF THE COURT

delivered by LORD NIMMO SMITH

RECLAIMING MOTION

in appeal under

Section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004

MRS J T as Legal Guardian for K T

Appellant and Respondent:

against

STIRLING COUNCIL

Respondents and Reclaimers;

_______

Act: Logan; Campbell Smith, W.S. (Appellant and Respondent)

Alt: Mrs. J. Scott; Dundas & Wilson (Respondents and Reclaimers)

21 June 2007

Introduction

[1] This is a reclaiming motion against a decision of the Lord Ordinary (Lord Glennie) in an appeal to the Court of Session under section 21 of the Education (Additional Support for Learning)(Scotland) Act 2004 ("the 2004 Act") against a decision of the Additional Support Needs Tribunal ("the Tribunal"). The issues raised in this reclaiming motion relate to the proper construction of the provisions of the 2004 Act in respect of the circumstances in which a co-ordinated support plan ("CSP") for the provision of additional support is required, and whether in the circumstances of the present case a CSP is required.

[2 ] This case relates to the additional support needs of a child, KT, who is 12 years old ("the child"). She lives at an address in Stirlingshire with her adoptive parents. Her adoptive mother ("the parent") is the respondent in this reclaiming motion. She attends a primary school run by Stirling Council ("the education authority"), who are the reclaimers.

[3 ] The education authority are responsible for the school education of the child. They received a request from the parent to establish whether the child required a CSP. On 12 May 2006 the education authority decided that the child did not require a CSP. The parent referred this decision to the Tribunal. By decision dated 22 and issued to the parties on 26 September 2006 the Tribunal confirmed the decision of the education authority not to make a CSP in respect of the child. The parent appealed to the Court of Session against the decision of the Tribunal. The appeal was remitted to the Outer House in terms of Rule of Court 41.44. By interlocutor dated 30 March 2007 the Lord Ordinary allowed the appeal and remitted the reference back to the Tribunal for reconsideration in light of the Lord Ordinary's Opinion of that date. It is against that interlocutor that this reclaiming motion is brought by the education authority under Rule of Court 41.45.

The relevant statutory provisions

[4 ] It is appropriate at this stage that we set out the provisions of the 2004 Act, so far as relevant for present purposes. The main definitions are set out in sections 1 and 2. Section 1 provides:

"(1) A child ... has additional support needs for the purposes of this Act where, for whatever reason, the child ... is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child ...

(3) In this Act, 'additional support' means -

(a) in relation to ... a child of school age ... , provision which is additional

to, or otherwise different from, the educational provision made generally for children ... of the same age in schools (other than special schools) under the management of the education authority for the area to which the child ... belongs ... ."

Section 2 provides:

"(1) For the purposes of this Act, a child ... requires a plan (referred to in this Act as a 'co-ordinated support plan') for the provision of additional support if -

(a) an education authority are responsible for the school education of the

child ... ,

(b) the child ... has additional support needs arising from -

(i) one or more complex factors or

(ii) multiple factors,

(d) those needs require significant additional support to be provided -

(i) by the education authority in the exercise of any of their other

functions as well as in the exercise of their functions relating to education, or

(ii) by one or more appropriate agencies (within the meaning of

section 23(2)) as well as by the education authority themselves.

(2) For the purposes of subsection (1) -

(a) a factor is a complex factor if it has or is likely to have a significant

adverse effect on the school education of the child ... ,

(b) multiple factors are factors which -

(i) are not by themselves complex factors, but

(ii) taken together, have or are likely to have a significant adverse

effect on the school education of the child..."

Section 23(2) provides that for the purposes of the Act, each of the following is, in relation to any education authority, an appropriate agency, namely (a) any other local authority, (b) any Health Board, and (c) any person, or a person of any description, specified for the purposes of that subsection in an order made by the Scottish Ministers.

[5 ] The general powers and duties of education authorities in relation to children for whom they are responsible and in relation to additional support needs are set out in sections 4 and 5. Section 4 provides:

"(1) Every education authority must -

(a) in relation to each child ... having additional support needs for whose

school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child ... , and

(b) make appropriate arrangements for keeping under consideration -

(i) the additional support needs of, and

(ii) the adequacy of the additional support provided for, each such

child...

(2) Subsection (1)(a) does not require an education authority to do anything which -

(a) they do not otherwise have power to do, or

(b) would result in unreasonable public expenditure being incurred."

Section 5 imposes a general duty on the education authority to consider the needs of children with additional support needs when exercising any of their functions in relation to school education. Section 6 makes provision for identifying additional support needs and the need for a CSP in the case of children for whom an education authority are responsible. The section provides inter alia:

"(1) Every education authority must make such arrangements as they consider appropriate for identifying -

(a) from among the children ... for whose school education they are

responsible -

(i) those who have additional support needs, and

(ii) those having additional support needs who require a co-

ordinated support plan, and

(b) the particular additional support needs of the children ... so identified.

(2) Where an education authority receive from a person specified in subsection (3) a request to establish whether any child ... for whose school education the authority are responsible -

(a) has additional support needs or

(b) requires a co-ordinated support plan, the authority must, in

accordance with the arrangements made by them under subsection (1), comply with the request unless the request is unreasonable.

(3) The persons referred to in subsection (2) are -

(a) in the case of a child, the child's parent ..."

[6 ] Section 8 enables the parent of a child to request that particular assessments or examinations be carried out as part of a process to establish whether the child has additional support needs or requires a CSP. The education authority must comply with such an assessment request unless the request is unreasonable. Section 9 provides:

"(1) Where an education authority establish in pursuance of any provision of this Act that a child ... for whose school education they are responsible requires a co-ordinated support plan, they must prepare such a plan for the child ... ."

Section 12(1) provides inter alia that in establishing in pursuance of any provision of the Act whether any child has additional support needs or requires, or would require, a CSP, the education authority must comply with the duty described in subsection (2), viz.:

"a duty to -

(a) seek and take account of relevant advice and information from such

appropriate agencies and other persons as the education authority think appropriate,

(b) ... seek and take account of the views of -

(i) in the case of a child, the child (unless the authority are

satisfied that the child lacks capacity to express a view) and the child's parent ... ,

authority by or on behalf of the child ... concerned, and

(d) take account of any relevant advice and information in the authority's

possession or control by virtue of any of their functions other than their functions relating to education."

[7 ] Section 18 provides inter alia that the parent of a child may refer to the Tribunal a decision of the education authority that the child does not require a CSP. By section 19, on such a reference, the Tribunal may confirm the decision or overturn it and require the education authority to take such action as the Tribunal considers appropriate by such time as the Tribunal may require. Section 21 provides for an appeal on a point of law to the Court of Session against the decision of a Tribunal relating to a reference made under section 18.

The Code of Practice

[8 ] Section 27 of the 2004 Act provides inter alia as follows:

"(1) The Scottish Ministers must publish, and may from time to time revise and re-publish, a code of practice providing guidance as to the exercise by education authorities and appropriate agencies of the functions conferred on them by virtue of this Act.

(2) Such a code of practice may, in particular, include provision as to- ...

(4) The Scottish Ministers must lay before the Scottish Parliament a draft of any code of practice they propose to publish under subsection (1).

(5) The Scottish Ministers must not publish the code until after the expiry of the period of 40 days beginning with the day on which the draft was laid before the Parliament.

(6) The Scottish Ministers must, in the published code of practice, take account of any comments on the draft expressed by the Parliament within that period ...
(8) Education authorities and appropriate agencies must, in exercising their functions under this Act, have regard to a code of practice published under this section."

Section 19(7) provides that, in exercising its powers under that section, a Tribunal must take account, so far as relevant, of any code of practice published by the Scottish Ministers under section 27(1).

[9 ] In accordance with the procedure provided by section 27, a code of practice, entitled Supporting Children's Learning, was published by the Scottish Ministers in 2005 ("the Code of Practice"). Chapter 4 relates to CSPs. Para. 16 states:

"The [2004] Act does not define what 'significant additional support' means. The use of the term 'significant' signals that the scale of the support, whether it is in terms of approaches to learning and teaching...or personnel or resources, or a combination of these, stands out from the continuum of possible additional support. Judgements about significance have to be made taking account of the frequency, nature and intensity of the support, and the extent to which that support is necessary for the achievement of the educational objectives which will be included in the plan. ..."

Para. 18 states that "[t]he diagram overleaf provides a decision tree to help authorities to decide whether children...require a co-ordinated support plan." The diagram indicates that the evidence that a child's needs require significant additional support to be provided is that:

"There is a continuing requirement for a high level of adaptation or elaboration of the curriculum and learning environment. The child...requires substantial, direct and continuing intervention from another agency/agencies in order to benefit from school education."

Accordingly, to the "frequency, nature and intensity" of the support should be added its duration.

The facts found by the Tribunal

[10 ] Since this appeal under section 21 of the 2004 Act is confined to any point of law arising from the decision of the Tribunal as the primary fact-finder, we propose to set out the Tribunal's findings in fact, adapting the Lord Ordinary's helpful summary. In the interests of anonymity he de-personalised some of the description of K and her condition, and we shall follow the same course.

[11 ] The child, as we have said, attends her local primary school, a local authority school run by the education authority, and commenced Primary 7 in August 2006. She has major difficulties with her vision and is registered blind though not educationally blind. She has learning difficulties. She has a differentiated curriculum and requires support in her education. She has an IEP (Individualised Education Plan) to support her learning. She has dyscalculia, which results in difficulties working with and recognising numbers. She may require additional support in connection with phonetics and backward span. She is socially isolated, has few friends and finds it difficult to form and maintain friendships.

[12 ] Findings in fact 5 and 6 are in these terms:

"5. [The child] has been assessed as requiring speech and language therapy to address underlying difficulties with receptive and expressive language. [She] has good functional communication which may have masked her difficulties. She uses visual clues (along with other contextual clues) to understand information given to her verbally. This is limited by her low vision. She has difficulties with auditory memory. The nature and frequency of the speech and language therapy required will be informed by her response to initial therapy which is scheduled to take place once each week for a period of 8 to 10 weeks from October 2006. The degree of Speech and Language Therapy required by [her] is high.

6. [The child] requires mobility training and environmental adjustments that reflect her low vision. She also requires specialist aids to allow her to access educational materials."

Other findings refer to the requirement for assistance from a specialist teacher in visual impairment and a support for learning teacher. Since these requirements are met by the education authority in the exercise of their functions relating to education, we need not go into further detail. The findings in fact end by noting that the child's needs are likely to increase in the transition process between primary and secondary school, which will require increased additional support from education services to include mobility training and independent living skills.

The dispute before the Tribunal

[13 ] There was no dispute that in the child's case the conditions set out in paras. (a), (b) and (c) of section 2(1) of the 2004 Act were satisfied, i.e. that the education authority are responsible for her school education, that she has additional support needs arising from multiple factors, and that those additional support needs are likely to continue for more than a year. The issue before the Tribunal was whether the child required significant additional support (i) from the education authority and (ii) from one or more other appropriate agencies. As to the first of these matters, the Tribunal found, contrary to arguments put forward on behalf of the education authority, that the child did require significant additional support to be provided by the education authority in the exercise of their functions relating to education. The education authority did not challenge that finding. The remaining issue in dispute was whether the child required significant additional support from other appropriate agencies.

The decision of the Tribunal on the disputed issue

[14 ] The Tribunal decided this issue against the parent. They decided that the child did not require significant additional support from another appropriate agency. Their reasons appear from the following passages under the heading "Reasons for Decision":

"[The child's] needs require significant additional support to be provided by the authority. Contrary to the position of the authority, it is clear that [the child's] needs in respect of her visual impairment, her mobility, her dyscalculia, her social isolation and her learning difficulties require significant additional support. Although not a matter for the Tribunal, the support she has been receiving throughout primary school could not be described as anything other than significant. [Her] needs in respect of education have not diminished.

The remaining issue for deliberation was whether [the child's] needs in respect of Speech and Language Therapy require significant additional support to be provided by a Speech and Language Therapist.

The Tribunal had the benefit of hearing from Sally Gray, the Speech and Language Therapist [of the Speech and Language Therapy Department at Stirling Royal Infirmary] who prepared a report dated 6 July 2006. It is unfortunate that Mrs Gray's views on [the child's] needs are preliminary in nature. The true extent of her needs will only become apparent in response to an initial period of therapy. Her needs, as presently known, require a high level of therapy involving one to one therapy for a short period and advice to teachers and school staff which will be implemented on a long term basis. However, such a level of therapy cannot be said to be significant.

Mrs Gray gave evidence of the differing types and degrees of speech and language therapy provided to children with additional support needs. These ranged from monitoring of children with one sound phonetic difficulty without any direct therapy at one end of the spectrum to daily therapy for children with severe communication disorders at the other end of the spectrum. Mrs Gray described four levels of therapy: low, medium, high and substantial. A substantial level of therapy involved almost daily direct therapy input including signing and signing tuition, assistance with specialist aids from picture boards to talking books to head pointers to talking computers and specialist assistance to teachers, classmates and school staff. She described a high level of therapy as including short term direct therapy, development of strategies for teachers and school staff to assist the child and monitoring. She described how she thought that [the child's] difficulties may be quite subtle and would require to be teased out in therapy but she described a short period of therapy followed by strategies being given to the class teacher to ensure that verbal information, in particular, given to [the child] is given in such a way that she can fully understand the instructions. This would involve short sentences, repetition and confirmation. Although high, the level of therapy described is not outwith the standard level.

In those circumstances, the Tribunal could not be satisfied that [the child's] additional support needs required significant additional support from a Speech and Language Therapist."

In essence, the Tribunal concluded, in terms of section 2(1)(d) of the 2004 Act, that the child required significant additional support to be provided by the education authority in the exercise of their functions relating to education. The child's needs also required additional support to be provided by another appropriate agency, i.e. support from a Speech and Language Therapist. However, the additional support required from a Speech and Language Therapist was not "significant", or at least the Tribunal could not be satisfied that it was. Being unable to find that the additional support provided by the Speech and Language Therapist was "significant", the Tribunal concluded that, whilst section 2(1)(a), (b) and (c) were applicable in the present case, section 2(1)(d) was not; and, therefore, that the statutory requirements for a CSP were not met.

The decision of the Lord Ordinary

[15 ] At the outset of his Opinion, the Lord Ordinary rejected a submission advanced by counsel for the parent that the case fell within section 2(1)(d)(i) of the 2004 Act. Since that submission was not renewed before us, we need say no more about it.

[16 ] He then went on to hold that the Tribunal had erred in law in its assessment of what level of additional support was or was not "significant". He reached this conclusion for a number of reasons. The word "significant" was capable of having a range of meanings and nuances, from large or considerable at one end of the range to noteworthy or worthy of consideration at the other. The context was all-important. On any view, the Tribunal's decision that the level of speech and language therapy required by the child was "high" but not "significant", struck one as surprising. It prompted one to ask what test of significance the Tribunal was applying. The structure of the "Reasons for Decision" suggested that the Tribunal was influenced by the hierarchy described by Mrs Gray. It seemed clear that the Tribunal regarded the fact that the required therapy was not outwith the standard level as of importance in informing the decision that it could not be described as significant. The Tribunal might also have been influenced by the fact that the one to one therapy would only last for a short period. The legislative intent seemed clear. The word "significant" was used in section 2(1)(d) of the 2004 Act to contrast with "insignificant" or "not requiring attention". There was obviously no need for co-ordination of additional support where the support provided by one of the providers was insignificant. The remaining significant support, being provided by only one provider, required no external co-ordination. But equally, where the additional support from two or more providers was not insignificant, co-ordination was required. The Lord Ordinary said that he could not see any indication in the 2004 Act that the Scottish Parliament intended a higher threshold than this to be surmounted before a CSP was required. What mattered was whether the additional support provided to the child by each of two providers (or by at least two of several providers) was sufficiently important to require co-ordination. The focus was on the support to the child. It was quite immaterial whether that support was outwith the norm of the support provided by the particular provider. A consideration of section 2(2) of the 2004 Act pointed to the same conclusion. The same word "significant" was used in section 2(2) in defining "complex" and "multiple" factors. These were factors which, by themselves (complex) or taken together (multiple), had or were likely to have "a significant adverse effect" on the school education of the child. The focus of attention was on the effect on the child. The expression "significant additional support" in section 2(1)(d) was used to identify support needed by the child as a result of those complex or multiple factors. In other words, it was needed to address the significant adverse effect on the child's education. This suggested that the significance of the required additional support under section 2(1)(d) should be judged by reference to its anticipated impact on the child rather than by reference to how it ranked amongst the general level of support provided by any particular provider. It followed that the Tribunal applied an incorrect test of what required to be established before additional support could be said to be "significant". That was an error of law.

[17 ] The Lord Ordinary noted that the high level of therapy might be provided for a short period. In the ordinary case this was not likely to be critical to the determination of whether or not it was significant. In such a case the co-ordinated support plan might be brief; and it might be possible, after a later review, to dispense with it altogether if there was no longer a need for therapy. Of para.16 of the Code of Practice, quoted above, the Lord Ordinary said that if it was intended to invite a comparison between the support needed by the particular child and the support normally given by the provider, that was an error. It was also wrong if it was intended to invite some other comparison. The test of whether particular additional support was "significant" was directed to assessing whether, when other significant additional support was provided, there was a requirement for co-ordination. This had to be judged simply by asking whether the additional support in itself was significant; it had nothing to do with any comparison with other possible additional support.

Submissions of counsel before us

Submissions for the Education Authority

[18] Among the main propositions advanced by counsel for the education authority were the following. The test whether particular additional support was "significant" was related to the question whether there was a requirement for co-ordination. In reaching a decision on the facts the Tribunal was bound (or at least entitled) to have regard to the period of time over which any additional support required to be provided. "Significant" for the purpose of section 2(1)(d) related to inter alia the level of support provided, as opposed to the impact of the support on the child. The Code of Practice was an appropriate guide to the Tribunal in the interpretation and application of the relevant legislation. In the circumstances the Lord Ordinary should not have concluded that the Tribunal failed to rationally exercise judgment within the permissible field, and erred in allowing the appeal.

[19 ] On the evidence before the Tribunal an appropriate agency would have a high level of involvement for eight to 10 weeks, and school staff would then be responsible for addressing the child's speech and language needs, on the basis of advice received from the appropriate agency. While this initial period was of considerable importance, it was of short duration. The process of preparing a CSP took time: see the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 (SSI 2005/518), reg. 4. It could not have been intended that a CSP was required in cases where the need for it might be past, or, as in the present case, nearly past, by the time it had been prepared. Such a result would be inconvenient and impracticable. The level of support should properly be understood as including its duration. The interpretation advanced by counsel was supported by reference to the Code of Practice, to which the Tribunal were bound to have regard in terms of section 19(7) of the 2004 Act. Counsel also made reference to discussion of the Bill as it passed through the Scottish Parliament.

[20 ] The Court should only intervene if the body responsible for making the decision had failed to act rationally and exercised judgment outwith the permissible field, or could be seen to have applied a meaning to the legislation that it was not capable of bearing: R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23; R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] 1 AC 484; City of Edinburgh Council v Scottish Ministers 2001 SC 957; Davies v Renfrewshire Council 2005 SC 315. "Significant" carried a range of meanings, and in the present context the Code of Practice was the best guide. The Tribunal acted rationally, and exercised judgment within the permissible field in deciding that the child's additional support needs did not require significant additional support from a Speech and Language Therapist; and the Lord Ordinary should not have intervened.

Submissions for the Parent

[21 ] Counsel for the parent sought to support the reasoning of the Lord Ordinary. The key question was the meaning of "significant" in the context of the statutory framework. The focus was on the effect that the additional support would have on the child's educational achievement. The purpose of the CSP was to co-ordinate the support in an efficient and effective manner for the benefit of the child. An input which would have a material effect on the child's educational provision or attainment was "significant". That was the reason why co-ordination was required. The Lord Ordinary was correct in holding that the focus was on the needs of the child. Reference was made to the discussion of "suitable" in R (Quintavalle) v Human Fertilisation and Embryology Authority (Secretary of State for Health intervening) [2005] 2 AC 561. Counsel accepted that in considering the meaning of "significant", time was an element; but in the real world needs were likely to persist. It was recognised that in the Code of Practice the duration of the needs had a part to play. The 2004 Act contained provisions for the review of a CSP. In the present case, the involvement of the Speech and Language Therapist might diminish over time; but what the Tribunal had to consider was whether the present situation required "significant" input. The test was whether the absence of or unco-ordinated input of speech and language therapy was likely to have a material effect on the child's educational provision or attainment. The Lord Ordinary had correctly concluded that the Tribunal appeared to have been unduly influenced by the classification used by Mrs Gray. This led them to substitute an alternative and higher requirement in place of the statutory test for a CSP imposed by the 2004 Act.

Discussion

Construction of section 2(1)(d) of the 2004 Act

[22] In considering the question of the proper construction of section 2(1)(d) of the 2004 Act, we have decided to follow the normal approach to the interpretation of statutory provisions. This requires ordinary words of the English language to be given their ordinary and natural meaning, as it appears from the words themselves, the context of the specific provision in which they appear, and the context of the statute as a whole. The rule excluding reference to Parliamentary material as an aid to statutory construction is only relaxed so as to permit such reference where (a) legislation is ambiguous or obscure or leads to uncertainty, (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect and (c) the statements relied upon are clear: Pepper v Hart [1993] AC 593. The present legislation does not appear to us to be ambiguous or obscure, and does not lead to absurdity.

[23] The only difficulty of construction arises from the use of the word "significant" in the provision that "those needs require significant additional support to be provided ... " (our emphasis). The difficulty arises not because the word is ambiguous, that is to say that it has more than one possible interpretation or meaning, and it is not possible without reference to extrinsic material to determine which is intended, but because it is a word which has shades of meaning, depending on the context. Reference to the Oxford English Dictionary shows that at one end of the scale it can mean no more than "not insignificant" (the sense preferred by the Lord Ordinary), and at the other "important" or "notable". It can at least be said with some confidence that, by including this word, the Scottish Parliament intended to add an emphasis to the provision which it would lack if the word were omitted. In our view, this emphasis is best recognised by construing "significant" as importing more than "not insignificant". The next point of which we take note is that "significant" is an adjective which qualifies one or more other words. In its immediate context, the words which it qualifies are "additional support". Moreover, the additional support is "to be provided". So the emphasis appears to us to be on the provision, rather than on the needs which require it. A similar approach to the construction of "significant" in section 2(2) leads to similar results, but results which do not assist in the construction of section 2(1)(d): the context is not the same

[24 ] Much of the discussion before us was directed to the question whether the significance was intended to be found in the extent of the provision by the education authority, or in its effect on the child. In our view, the former was intended. This is supported both by analysis of the provision under construction, and by reference to the wider context. We have already referred to the apparent emphasis of the language on provision. In addition it seems plain, as was recognised by the Lord Ordinary, that in its context in section 2 the word "significant" is to be judged by reference to the need for co-ordination. Of course it may readily be supposed that all additional support is significant for a child whose needs require its provision (and for his or her parent or parents). Indeed this could be said to have been made clear already by section 1(1). This significance may often be, however, to some extent a matter of subjective impression, not necessarily supported by reference to more objective quantitative and qualitative criteria. Additional support from an appropriate agency, for however brief a time, may readily be regarded as highly significant for the child. Obviously, a child may be expected to benefit from the efficient provision of additional support. But, as counsel for the parent recognised, there is a public interest in the efficient provision of services at public expense. It appears to us to be clear that the main emphasis is for these reasons on the extent of the provision of the additional support. This approach is more likely to secure efficiency, and to do so consistently from case to case and from education authority to education authority.

[25 ] This approach is also consistent with the provisions relating to the Code of Practice, which, having regard to the procedure to be followed before its publication, may be taken to represent the views of both the Scottish Ministers and the Parliament as to the meaning of the 2004 Act and the exercise by education authorities and appropriate agencies of their functions under it. Since section 19(7) required the Tribunal to take account, so far as relevant, of the Code of Practice, the Tribunal was bound to use it as an aid to construction. The passages in the Code of Practice quoted and discussed above therefore referred principally to "the scale of the support" and obliged the Tribunal to take into account the frequency, nature, intensity and duration of the support, and the extent to which that support was necessary for the achievement of the educational objectives which would be included in a CSP. If the duration of the support, on the information available to the Tribunal, was such that little or no useful purpose would be served by a CSP, once prepared, the Tribunal would be not only entitled but bound to conclude that a CSP was not required. There is no point in devoting resources to the preparation of a plan for the co-ordination of services which are unlikely to require co-ordination by the time that the plan is ready.

[26 ] On the information available to the Tribunal, particularly Mrs Gray's evidence, the Tribunal were entitled, in our opinion, to make the finding in fact that the child's needs, "as presently known, require a high level of therapy involving one to one therapy for a short period and advice to teachers and school staff which will be implemented on a long term basis", but that "such a level of therapy cannot be said to be significant". There is no inherent inconsistency between the use of the words "high" but "not significant", once proper account is taken, as it must be, of the "short period" for which the high level of therapy is required. On a fair reading of the Tribunal's decision, we do not consider that it has allowed itself to be misled by Mrs Gray's evidence that "[a]lthough high, the level of therapy described is not outwith the standard level". The Tribunal have recorded the evidence, but the finding in fact is as quoted above, and is clearly made on the basis of the anticipated duration of the therapy, and not on the basis that it would not be "outwith the standard level".

Decision

[27 ] For these reasons we are satisfied that the Tribunal did not misdirect itself on the construction of the statute or on the application of the statute, as properly construed, to the information before it. Nor did it misdirect itself as to the proper import of the evidence or as to the proper test to be applied in light of it. We cannot therefore agree with the Lord Ordinary's conclusions. We shall accordingly recall his interlocutor of 30 March 2007 and refuse the appeal to the Court of Session. The effect of this will be to leave standing the decision of the Tribunal.