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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President
Lord Hardie
Lord Macphail
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[2007] CSIH 72
XA55/07
OPINION OF THE COURT
delivered by LORD MACPHAIL
in
RECLAIMING MOTION
in appeal under
the Education (Additional
Support for Learning)(Scotland) Act 2004,
section 21
by
W D
Appellant and Reclaimer;
against
GLASGOW CITY COUNCIL
Respondents:
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Act: Bovey, Q.C., Williamson; Pagan Osborne (for Govan Law Centre)
Alt: D.E.L. Johnston, Q.C., M.V. Ross; Solicitor for City of Edinburgh Council
11 October 2007
Introduction
[1] This is a
reclaiming motion against a decision of the Lord Ordinary on an appeal which
was heard in the Outer House by virtue of rule 41.44 of the Rules of the Court
of Session 1994, as amended. The appeal
is brought under section 21 of the Education (Additional Support for Learning)
(Scotland) Act 2004 ("the 2004 Act") against a
decision of an Additional Support Needs Tribunal for Scotland ("the Tribunal").
[2] The appellant
and reclaimer is the mother of M, who was born on 4 April
1991. M suffers from cerebral palsy and is
registered blind. He and his parents
live in the local authority area of West Dunbartonshire.
He attends D A, a mainstream school in that area. The appellant considers that he should attend
an appropriate special school. She
therefore made a request ("a placing request") to Glasgow City Council to place
M in A S, a special school under their management in Glasgow.
Glasgow City Council refused her request on the ground that placing M in
A S would breach the requirement in section 15(1) of the Standards in
Scotland's Schools etc Act 2000 that, unless specified circumstances arise in
relation to the child, education should be provided in a school other than a
special school.
[3] The appellant
then referred that decision to a Tribunal.
Both West Dunbartonshire Council and Glasgow City Council were called as
respondents. The Tribunal held a
preliminary hearing on competency and decided that they had no jurisdiction to
entertain a reference relative to the decision by Glasgow City Council. The appellant appealed to this Court against
the Tribunal's decision. The appeal was
remitted to the Outer House in terms of Rule of Court 41.44. Both Councils lodged answers, but West
Dunbartonshire Council decided not to oppose the appeal and withdrew their
answers. On 6 July 2007 the Lord Ordinary, having heard
counsel for the appellant and for Glasgow City Council, refused the appeal. The Lord Ordinary held that upon a true
construction of the material provisions of the 2004 Act the Tribunal had no
jurisdiction to hear a reference in relation to a decision of an education
authority regarding a placement request where that authority was not the
authority responsible for the education of the child in respect of whom the
request had been made, nor was the authority for the area in which the child
resided nor an authority who had assumed responsibility for the child's
education. The appellant now brings this
reclaiming motion against the Lord Ordinary's interlocutor of 6
July 2007
under Rule of Court 41.45. Her argument,
shortly stated, is that the provisions of the 2004 Act entitle a parent to make
a placing request to an authority other than the authority for the area in
which the child resides and to appeal to the Tribunal against that authority's
refusal of the request.
[4] Nothing turns
on the fact that in the course of these proceedings, which commenced with the
appellant's reference to the Tribunal on
31 October 2006, M attained the age of 16 on 4 April 2007 and thus is no longer
"a child" but "a young person" in terms of the definitions in section 135(1) of
the Education (Scotland) Act 1980 as amended ("the 1980 Act") which are applied
by section 29(2) of the 2004 Act. A
reference to a Tribunal may be made by the parent of a child, and the person
who made the reference is entitled to appeal to this Court against the decision
of the Tribunal (2004 Act, sections 18(2)(a), 21(1), (2)(a)). For ease of reference it will be convenient to
refer to M as "a child" notwithstanding his present age, and to refer to a
person for whom education is provided in terms of the statutory provisions as
"a child" and not as "a child or young person".
The statutory
provisions
[5] The 2004 Act
replaces a system established by the 1980 Act for the assessment and recording
of children who had what were described in that Act as "special educational
needs". The 2004 Act, in the language of
its long title, "make[s] provision for additional support in connection with
the school education of children and young persons having additional support
needs." A proportion of those children
who have additional support needs require a plan for the provision of
additional support, known as a co-ordinated support plan ("CSP"). According to senior counsel for the
respondents, the proportion of such children is between 5 and 10 per cent. The following are the provisions of the Act
which are of importance in this case. "Additional
support needs" are defined in section 1, and "co-ordinated support plans" in
section 2. Section 9 provides that a CSP
is to be prepared by the education authority responsible for the child's school
education, and that the CSP must nominate the school to be attended by the
child. In sections 15 and 16 the Act
makes provision for mediation services and dispute resolution procedures where
differences arise between an education authority and the parent of a child
belonging to the area of the authority, but these do not affect the entitlement
of the parent to refer any matter to a Tribunal. The matters which may be referred to a
Tribunal are specified in section 18, and include a decision of the education
authority refusing a placing request made in respect of a child where certain
circumstances apply. Section 22 refers
to Schedule 2 to the Act which makes provision about placing requests in
relation to children having additional support needs. Section 23 empowers an education authority to
request the help of an appropriate agency, including any other local authority,
in the exercise of any of the authority's functions under the Act. Section 29 is the interpretation section.
[6] It will be
useful to set out, so far as material, the terms of sections 1, 2, 9, 18, 19,
23 and 29, and of section 22 and Schedule 2.
[7] Section 1
defines "additional support needs". It
provides:
"(1) A
child or young person has additional support needs for the purposes
of this Act where, for whatever
reason, the child or young person 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 or young person."
"(3) In
this Act, 'additional support' means-
(a) in
relation to a prescribed pre-school child, a child of school
age or a young person receiving
school education, provision which is additional to, or otherwise different
from, the educational provision made generally for children or, as the case may
be, young persons of the same age in schools (other than special schools) under
the management of the education authority for the area to which the child or
young person belongs."
[8] Section 2(1)
introduces the concept of the co-ordinated support plan (CSP) in these terms:
"(1) For
the purposes of this Act, a child or young person 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 or young person,
(b) the
child or young person has additional support needs arising
from-
(i) one
or more complex factors, or
(ii) multiple
factors,
(c) those
needs are likely to continue for more than a year, and
(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."
[9] Section 9 enacts the duty to prepare CSPs and specifies their
contents:
"(1) Where
an education authority establish in pursuance of any provision
of this Act that a child or young
person for whose school education they are responsible requires a co-ordinated
support plan, they must prepare such a plan for the child or young person.
(2) A
co-ordinated support plan prepared under subsection (1) must
contain-
(a) a
statement of the education authority's conclusions as to-
(i) the
factor or factors from which the additional support
needs of the child or young person
arise,
(ii) the
educational objectives sought to be achieved taking
account of that factor or those
factors,
(iii) the
additional support required by the child or young
person to achieve those objectives,
and
(iv) the
persons by whom the support should be provided,
(b) a
nomination of a school to be attended by the child or young
person
(c) the
name and other appropriate contact details of-
(i) the
officer of the authority responsible for the discharge
of the authority's duty under
subsection (5)(d) of section 11, or
(ii) if
the authority arrange under subsection (6) of that
section for that duty to be
discharged by another person, that other person, and
(d) the
name and other appropriate contact details of an officer of
the authority from whom-
(i) in
the case of a plan prepared for a child, the child's
parent,
(ii) in
the case of a plan prepared for a young person, the
young person or, where the authority
are satisfied that the young person lacks capacity to seek advice or
information, the young person's parent,
can obtain advice and further
information.
(3) The
reference in subsection (2)(a) to educational objectives are to
objectives set to secure that the
child or young person benefits from school education (within the meaning of
section 1(1)) provided or to be provided for the child or young person."
[10] Section 18
specifies the references which may be made to a Tribunal. It provides in part:
"(1) Any
of the persons specified in subsection (2) may refer to a Tribunal
any decision, failure or information
specified in subsection (3) relating to any child or young person for whose
school education an education authority are responsible.
(2) The
persons referred to in subsection (1) are-
(a) where
the decision, failure or information relates to a child, the
parent of the child,
(b) where
the decision, failure or information relates to a young
person-
(i) the
young person, or
(ii) where
the young person lacks capacity to make the reference, the young person's
parent.
(3) The
decisions, failures and information referred to in subsection (1)
are-
(a) a
decision of the education authority that the child or young
person-
(i) requires
a co-ordinated support plan, or
(ii) following
a review carried out under section 10, still
requires such a plan,
(b) a
decision of the education authority that the child or young
person-
(i) does
not require such a plan, or
(ii) following
a review carried out under section 10, no
longer requires such a plan,
(c) where
it has been established that the child or young person
does require a co-ordinated support
plan, failure by the education authority to prepare a plan by the time required
by regulations made in pursuance of subsection (8)(f)(i) of section 11,
(d) where
a co-ordinated support plan has been prepared (and not
discontinued) for the child or young
person-
(i) any
of the information contained in the plan by virtue of
subsection (2)(a) of section 9,
(ii) failure
by the education authority to carry out a review
of the plan as required by subsection
(2) of section 10,
(iii) where
such a review is carried out, failure by the
education authority to complete the
review by the time required by regulations made in pursuance of subsection
(8)(f)(ii) of section 11, or
(iv) a
decision of the education authority to refuse a request
referred to in subsection (4) of
section 10,
(e) where
subsection (4) applies, a decision of the education
authority refusing a placing request
made in respect of the child or young person.
(4) This
subsection applies where, at the time the placing request is
refused-
(a) a
co-ordinated support plan has been prepared (and not
discontinued) for the child or young
person,
(b) no
such plan has been prepared, but it has been established by
the education authority that the
child or young person requires such a plan, or
(c) the
education authority have decided that the child or young
person does not require such a plan
and that decision has been referred to a Tribunal under subsection (1)."
[11] Section 19
specifies the powers of a Tribunal in relation to a reference made under
section 18. Subsection (5) provides in
part:
"(5) Where
the reference relates to a decision referred to in subsection
(3)(e) of that section, the Tribunal
may-
(a) confirm
the decision if satisfied that-
(i) one
or more of the grounds of refusal specified in
paragraph 3(1) or (3) of schedule 2
exists or exist, and
(ii) in
all the circumstances it is appropriate to do so,
(b) overturn
the decision and require the education authority to-
(i) place
the child or young person in the school specified
in the placing request to which the
decision related, and
(ii) make
such amendments to the co-ordinated support plan
prepared for the child or young
person as the Tribunal considers appropriate by such time as the Tribunal may
require."
[12] Section 23
empowers an education authority to request the help of another agency in the
exercise of its functions under the Act.
It states, so far as material:
"(1) Where
it appears to an education authority that an appropriate agency
could, by doing certain things, help
in the exercise of any of the education authority's functions under this Act,
the authority may, specifying what those things are, request the help of that
agency.
(2) For
the purposes of this 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 this subsection in an
order made by the Scottish Ministers.
(3) An
appropriate agency must comply with a request made to it under
subsection (1) unless it considers
that the request-
(a) is
incompatible with its own statutory or other duties, or
(b) unduly
prejudices the discharge of any of its functions."
[13] Section 29
defines a number of terms used in the Act.
Subsections (3) and (4) are in these terms:
"(3) In
this Act, references to a child or young person for whose school
education an education authority are
responsible are to any child or young person being, or about to be, provided
with school education-
(a) in
a school under the management of the education authority, or
(b) in
pursuance of arrangements made or entered into by the
authority.
(4) In
this Act, references to a child or young person belonging to an area are to be
construed in accordance with section 23(3) of the 1980 Act."
[14] Section 22
introduces Schedule 2, stating:
"Schedule 2 makes provision about
placing requests in relation to children and young persons having additional
support needs."
[15] Schedule 2
provides in part:
"1. Sections
28A, 28C, 28E, 28F and 28G of the 1980 Act (which make
provision as to the making of placing
requests and appeals in relation to the refusal of such requests) do not apply
in relation to children and young persons having additional support needs and
instead the provisions of this schedule apply in relation to such children and
young person.
Duty to comply with placing requests
2 (1) Where the parent of a child having
additional support needs
makes a request to an education
authority to place the child in the school specified in the request, being a
school under their management, it is the duty of the authority, subject to
paragraph 3, to place the child accordingly.
(2) Where
the parent of a child having additional support needs
makes a request to the education
authority for the area to which the child belongs to place the child in the school
specified in the request, not being a public school but being-
(a) a
special school the managers of which are willing to
admit the child
(b) a
school in England, Wales or Northern Ireland the
managers of which are willing to
admit the child and which is a school making provision wholly or mainly for
children (or as the case may be young persons) having additional support needs,
or
(c) a
school at which education is provided in pursuance of
arrangements entered into under
section 35 of the 2000 Act,
it is the duty of the authority,
subject to paragraph 3, to meet the fees and other necessary costs of the
child's attendance at the specified school.
...
4. ...
(2) On
complying with a placing request relating to a child for whom a co-
ordinated support plan has been
prepared (and not discontinued), an education authority must modify accordingly
the nomination in the plan of a school to be attended by the child."
The facts
[16] The material
facts are not in dispute. M, who was
born on 4 April 1991, suffers from cerebral palsy and is registered blind. He and his parents reside in the local
authority area of West Dunbartonshire. West Dunbartonshire
Council is responsible for M's education in terms of the Education (Scotland) Act 1980. M attends D A, a mainstream, non-special
school which is in the area of that authority and managed by them. His mother, the appellant and reclaimer, does
not want him to attend D A and considers that he should be educated in an
appropriate special school. A S, a
school which is in the area of Glasgow City Council and under their management,
is such a school. She accordingly made a
placing request to Glasgow City Council to place M in A S. Her request was dated 21
June 2006. In August 2006 West Dunbartonshire Council
were in the course of preparing a CSP designed to address M's additional
support needs. On 15 August 2006 Glasgow
City Council refused the reclaimer's request on the ground that placing M in A
S would breach the requirement in section 15(1) of the Standards in Scotland's
Schools etc Act 2000 that, unless specified circumstances arise in relation to
the child, education should be provided in a school other than a special school. On 24 August 2006 West Dunbartonshire Council issued
their CSP for M. It nominates D A as the
school to be attended by M.
The decision of the
Tribunal
[17] The reclaimer
referred Glasgow City Council's refusal of her placing request to a Tribunal. Both West Dunbartonshire Council and Glasgow
City Council were called as respondents.
The Tribunal heard submissions on behalf of all the parties at a
preliminary hearing on competency. In
their decision, dated 26 February 2007, they undertook a detailed survey of
the terms of the relevant legislation and of their rules of procedure (the Additional
Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006,
SSI 2006, No 88). They concluded that
since there was no statutory provision for the hearing by the Tribunal of a
reference relative to the decision by Glasgow City Council, the Tribunal had no
jurisdiction to entertain it. They
accordingly dismissed the reference.
The decision of the
Lord Ordinary
[18] Before the
Lord Ordinary junior counsel for the reclaimer pointed out that the parent of a
child who did not have additional support needs was entitled to make a placing
request to any education authority, including an authority who were not
responsible for the child's education, for the child to be placed in a school
under their management and, subject to certain conditions, the authority had a
duty to place the child accordingly. There
was a right of appeal against the refusal of such a request to an appeal
committee and from the appeal committee to the sheriff (the 1980 Act, sections
28A-28F). Counsel argued that it could
not have been the intention of Parliament, in passing the 2004 Act, not to
provide for a right of appeal to the Tribunal against decisions of education
authorities who refused placement requests in respect of children with
additional support needs, for whose education they were not responsible, when a
right of appeal lay against such decisions in respect of children who did not
have additional support needs. So to
construe the Act, counsel submitted, would be productive of such absurdity or
discrimination that Parliament could not have so intended. The respondents, on the other hand, argued
that there was no appeal to the Tribunal from any decision of an education
authority refusing a request to place in a school managed by them a child with
additional support needs for whose education they were not responsible. The Lord Ordinary observed that the point was
one of pure statutory construction. He
held that having regard to the provisions of the 2004 Act the Tribunal had no
jurisdiction to hear a reference in relation to a decision of an education
authority regarding a placement request where that authority was not the
authority responsible for the education of the child in respect of whom the
request had been made, nor was the authority for the area in which the child
resided nor an authority who had assumed responsibility for the child's
education. His Lordship considered that
such a construction did not result in injustice or have any absurd or
discriminatory effect. He accordingly
refused the appeal.
Submissions for the
reclaimer
[19] Senior counsel
for the reclaimer submitted that if the Lord Ordinary's construction of the
2004 Act was correct, the parents of children with additional support needs
were unable to make placing requests in respect of state schools in areas of
Scotland outside the area in which they lived;
and even if they could make such requests, they could not refer a
refusal to the Tribunal. Counsel
contrasted such requests with other placing requests. Parents of children with additional support
needs had a conditional right to be granted a placing request in respect of a
school under the management of the authority of the area in which they lived
(2004 Act, Schedule 2, paragraph 2(1)); or
in respect of a school not being a "public school" (a school under the
management of an education authority: 1980
Act, section 135(1), applied by the 2004 Act, section 29(2)) which was either a
special school the managers of which were willing to admit the child (2004 Act,
Schedule 2, paragraph 2(2)(a)), or a school in England, Wales or Northern
Ireland of the kind referred to in paragraph 2(2)(b) of the Schedule, or a
school at which education was provided by persons other than education
authorities (paragraph 2(2)(c)). The
parents of children who did not have additional support needs had a conditional
right to be granted a placing request in respect of a school under the
management of any education authority in Scotland (1980 Act, section 28A(1)). Counsel pointed out that an "education
authority" was a council constituted under section 2 of the Local Government (Scotland) Act 1994 (1980 Act, section 135(1),
applied by the 2004 Act, section 29(2)), and thus "any education authority" was
any local authority in Scotland.
In all these other cases, said counsel, an appeal could be brought
before a specialist tribunal if the placing request was refused. In the present case, however, if the Lord
Ordinary was right, M's parent had no remedy if West Dunbartonshire Council ("West Dunbartonshire") and Glasgow City Council
("Glasgow") could not agree that M should attend A S, the school managed by Glasgow:
there was no mechanism whereby Glasgow could be obliged to take M. It was accepted that West Dunbartonshire was the education authority
responsible for the school education of M, and that Glasgow had no such responsibility until
they acceded to a placing request or the Tribunal overturned their refusal to
grant a placing request. West
Dunbartonshire had placed other pupils in A S by arrangement with Glasgow in
terms of section 23(1A) of the 1980 Act;
but if the two Councils could not agree that M should go to A S, then
according to the Lord Ordinary M was without a remedy; and that was the complaint. The question was whether the legislation
allowed the reclaimer to challenge Glasgow's refusal to educate M at A S.
[20] Counsel
submitted that the parent of a child with additional support needs was entitled
to make a placing request to an education authority other than that of the area
in which they lived ("an out-of-area request").
The object of the Act, as appeared from its long title, was to benefit
children with additional support needs. Counsel
referred to J T v Stirling Council [2007] CSIH 52, a decision of an
Extra Division which construed the expression "significant additional support"
in section 2(1)(d) of the 2004 Act. It
is there provided that a child requires a co-ordinated support plan ("CSP") if
his or her needs "require significant additional support to be provided" by the
education authority or one or more appropriate agencies. The Court held at paragraph [24] that the
significance was to be found in the extent of the provision by the education
authority, and not in its effect on the child.
Counsel observed that that did not mean that the Act had been passed for
the benefit or convenience of education authorities. The case was not in point and did not support
either party to the reclaiming motion.
[21] Counsel
examined Schedule 2 to the 2004 Act and began by observing that although the scheme
of the Act was in general to focus on the education authority responsible for
the child in question, paragraph 2(1) allowed a parent to make a placing
request to any education authority in Scotland:
the right to make a request was not limited either geographically or by
any requirement that the child should already have a relationship with the
requested authority. Paragraph 2(2), on
the other hand, which is concerned with requests to place a child in a school
which is not a "public school", required the parent to make the request to the
education authority for the area to which the child belonged. The plain meaning of paragraph 2(1) was that
it conferred on the parent a right to make an out-of-area placing request. While the Act emphasised that one education
authority had responsibility for the child's school education (section 29(3)),
that was not a reason for distorting the plain words of the statute, as the
Lord Ordinary had done at paragraph 47 of his Opinion. There was no coherent reason why the parent
of a child in the position of M should not be able to make an out-of-area
request. The responsible authority did
not necessarily have to provide the child's school education. The wording of paragraph 2(1) was comparable
to that of section 28A of the 1980 Act, which conferred on the parent of a
child who did not have additional support needs the right to make a placing
request to any education authority in Scotland.
A second version of section 28A had applied to pupils such as M, then
known as "recorded children", before the coming into effect of the 2004 Act. (Section 28A was inserted by section 1(1) of
the Education (Scotland) Act 1981, which also substituted a version of section
28A which made provision in relation to "a recorded child" by Schedule A2, paragraph 3: Schedule A2 was repealed by paragraph 3(14)
of Schedule 3 to the 2004 Act.) Under
the previous legislation it had been competent to make an out-of-area placing
request in respect of a recorded child (Janys M Scott, Education Law in Scotland (2003), paragraph 18-86). The effect of the Lord Ordinary's approach
had been to take away the out-of-area rights of such children.
[22] Discussing
other provisions of Schedule 2, counsel observed that paragraph 4(2), which
provides that on complying with a placing request an education authority must
modify the nomination of the school in the CSP, did not create difficulty for
the appellant. Counsel submitted that if
Glasgow accepted the placing request, or if the Tribunal required them to do
so, West Dunbartonshire would amend and retain M's CSP because they would
remain responsible for M's school education and would be required by section
10(1) of the 2004 Act to keep the CSP under consideration.
[23] Counsel
referred to paragraphs 5 and 6 of Schedule 2, which are concerned with a
reference of a refusal of a placing request not to the Tribunal but to an
appeal committee set up under section 28D of the 1980 Act. That procedure does not apply where the
refusal may be referred to a Tribunal under section 18(1). The appeal committee is concerned with cases
which do not raise any question as to a CSP:
counsel referred to paragraph 6(4) and
(5).
[24] Counsel then
turned to the provisions of the 2004 Act relative to references to a Tribunal. He observed that Schedule 1 to the Act, which
is concerned with procedure, did not in paragraph 11 make provision for rules
as to who the parties to a reference should be.
In the present case there had been no practical difficulty in the
appearance of two respondent authorities before the Tribunal. Counsel submitted that section 18(1)
permitted references relative to any child for whose education any education
authority were responsible. Section
18(3)(e) permitted the reference of a refusal of a placing request where
section 18(4) applied. Section
28(2)(e)(ii) also referred to the right to refer the decision to a Tribunal. Section 19(5) empowered the Tribunal to
confirm the refusal or to overturn it and require the amendment of the CSP.
[25] Counsel also referred
to Supporting children's learning: code of practice published by the
Scottish Executive in 2005 as statutory guidance relating to the 2004 Act. Section 19(7) of the Act obliged the Tribunal
to take into account, so far as relevant, any code of practice published by the
Scottish Ministers under section 27(1). Section
27(2)(h) allowed a code of practice to include provision as to the carrying out
of the duties under paragraph 2(1) and (2) of Schedule 2. Counsel observed that in chapter 7 of the code
of practice at paragraph 36 the discussion of references to the Tribunal
regarding the refusal of placing requests did not indicate that the right to
refer was limited to refusals by the home authority or the authority who had
prepared the CSP. In chapter 8,
paragraphs 2 and 3 did not say that while the parent of a child without
additional support needs could make an out-of-area placing request, the parent
of a child with such needs could not do so.
[26] Counsel
attached importance to section 29(3) of the 2004 Act which provides that
references to a child for whose school education an education authority are
responsible are to any child (a) in a school under the management of the
education authority, or (b) in pursuance of arrangements made or entered into
by the authority. It was possible,
counsel submitted, for a child like M to fall within both (a) and (b): to be a child in a school under the
management of Glasgow, but to be there in pursuance of arrangements made by
West Dunbartonshire in terms of section 23(1A) of the 1980 Act. That could also be the result of a successful
placing request, or of a decision by the Tribunal overturning the refusal of a
placing request. The child's CSP would
remain with West
Dunbartonshire, as already discussed.
[27] Counsel
submitted that the Lord Ordinary had erred in relying on the terms of section
22 of the 2004 Act, which enacts that Schedule 2 makes provision about placing
requests in relation to children having additional support needs (paragraph 47
of his Lordship's Opinion). What was
required was that a child should have additional support needs, not that his
home authority should have found that he had additional support needs. A reference to the Tribunal of a refusal of a
placing request
could be made where the education authority had decided that
the child did not require a CSP.
[28] It was also
erroneous for the respondents to rely on section 23 of the 2004 Act, whereby an
education authority may request the help of an appropriate agency, including
any other local authority, in the exercise of their functions under the Act. To confer on the home authority a discretion
to ask for the help of another authority was not comparable to the right of the
child's parent to make a placing request to that authority which was given to
every other class of child and had previously been enjoyed by the parents of
children such as M. Section 23 did not
confer any right to an independent assessment of the question whether M should
attend A S.
[29] Counsel then
discussed the question whether there was a right of appeal against the refusal
of an out-of-area placing request. He
founded on the dictum of Lord Steyn in R
v Emmett [1998] AC 773 at pages 781-782 which is cited in Jones v Ceredigion County Council [2005] EWCA Civ 986, [2005] 1 WLR 3626 at paragraph 45:
"There is a strong presumption that
except by specific provision the legislature will not exclude a right of appeal
as of right or with leave where such a right is ordinarily available: Reg v
Cain [1985] AC 46, 55G-56D, per Lord
Scarman."
Here, said counsel, the nature of the Tribunal was of
importance. He quoted from the Policy
Memorandum relative to the Bill as introduced into the Scottish Parliament on 28
October 2003. Paragraphs 70 and 71 are in these terms:
"70. The
establishment of a new Tribunal system in Scotland will allow cases involving children
or young persons with enduring needs arising from multiple or complex factors, who require a
range of services, to be heard by an expert panel. The Tribunals will help encourage a
consistency of decision-making across Scotland regarding cases which can have
significant resource implications.
71. The
Tribunals, along with the other mechanisms for resolving disputes, which are
provided for in the Bill (mediation and the additional support needs dispute
resolution system) will safeguard the needs of all those children and young
persons with additional support needs. The
thrust of the new system will be to resolve disputes, and ensure that an
outcome is arrived at which is in the best interests of the child or young
person."
[30] Counsel said
that it was the intention of Parliament that there should be appeals from the
refusal of placing requests either to tribunals or to appeal committees. Schedule 2 provided that a parent who had
made a placing request might refer a decision of the education authority
refusing the request to an appeal committee set up under section 28D of the
1980 Act, unless the decision might be referred to a Tribunal under section
18(1): counsel referred to paragraphs
5(1) and (2) and to section 28(2)(e). It
was also clearly the intention of the Act that appeals in relation to CSPs and
placing requests should be heard by the same body, the Tribunal: Schedule 2, paragraph 6(4) and (5). It was not contrary to the structure of the
Act to have two respondents, the education authority responsible for the CSP
and the education authority who had refused the placing request. That rather followed from the right to make
placing requests to out-of-area authorities.
The Act provided a detailed appeal structure with the following features: a conditional right to compliance with a
placing request (Schedule 2, paragraph 2(1) and (2)); specific statutory grounds of refusal of a
placing request (Schedule 2, paragraph 3);
and a specialist tribunal (section 17;
Schedule 1, paragraph 3). If an
application that a child should be educated in an out-of-area school were to be
dealt with only by means of a request by the home authority to the out-of-area
authority in terms of section 23, that would deny to the applicant the benefits
of the appeal structure. The Court
should therefore be disposed to adopt a broad construction of the legislation
if that was at all possible (Jones at
paragraph 45). [31] Counsel further observed that while the
nomination of the school was a key part of the CSP (section 9(2)(b)), it was
clear from the structure of section 18(3) that it fell to be considered as a
separate topic and to be reviewable by the Tribunal only when the requirements
of section 18(4) were met. It was
inherent in the structure of the Act that one authority could be responsible
for the CSP while another could be responsible for the school attended by the
child. Counsel also stated that section
23(1A) of the 1980 Act had been amended specifically to give education
authorities in the position of Glasgow power to provide additional support to
pupils in the position of M; and that
included power to grant a placing request made on his behalf.
[32] Counsel
criticised the view of the Lord Ordinary, stated in paragraph 45 of his
Opinion, that section 18 did not extend the jurisdiction of the Tribunal to a
decision of an education authority who were not responsible for the education
of the child in question. Section 18(1)
provided that a reference might be made to the Tribunal of any decision,
failure or information specified in subsection (3) relating to any child or
young person for whose school education an education authority was responsible. The effect of the definition in section 135
of the 1980 Act of an education authority as a council constituted under
section 2 of the Local Government (Scotland) Act 1994 was to open the Tribunal's
jurisdiction in relation to any child for whose education any local authority
in Scotland was responsible. If it had been intended that only a decision
of the education authority who were responsible for the education of the child
in question was to be subject to the jurisdiction of the Tribunal, that could
have been said in terms. Although the
concept of the CSP was at the heart of the Act, that did not point conclusively
to the role of the Tribunal being confined to dealing with decisions of
authorities charged with duties in relation to such plans. The decisions that were subject to appeal to
the Tribunal were established by section
18(3). Section 18(3)(e) identified both
the decision and the decision-making authority in the same phrase. The fact that the other parts of subsection
(3) referred to the same authority as was mentioned in subsection (1) was
merely a reflection of the general situation and did not place M in the
anomalous position of having his CSP reviewable by the Tribunal but not the
issue of which school he should attend, which was the natural conclusion of
that exercise.
[33] Counsel also
referred to section 19(5), on which the respondents had relied before the Lord
Ordinary. Section 19(5) specifies the
powers of the Tribunal in relation to a reference of a decision refusing a
placing request. Section 19(5)(b) empowers
the Tribunal to
"overturn the decision and require
the education authority to -
(i) place
the child or young person in the school specified in the
placing request to which the decision
related, and
(ii) make
such amendments to the co-ordinated support plan
prepared for the child or young
person as the Tribunal considers appropriate by such time as the Tribunal may
require."
Counsel submitted that while the structure of section 19(5)
might reflect the fact that the education authority making the placing decision
was normally the one making the CSP, section 19(5) did not identify "the"
education authority to which it referred.
Given that further words were needed, the wording could readily be "the
relevant education authority".
[34] Counsel
referred to G G, Petitioner, Outer
House, 11 July 2001, unreported, in which an out-of-area placing request
had been granted in respect of a child for whom a record of needs had been
opened and kept in terms of section 60 of the 1980 Act. Thus out-of-area requests had been permitted
under section 28A of the 1980 Act, both as it applied to recorded children (in
the version in Schedule A2, paragraph 3) and as it applied to other children. When the same words were re-enacted in later
legislation, there was a presumption that Parliament had not intended to change
the law (Cross, Statutory Interpretation (3rd
ed, 1995), pages 169-170). The Lord
Ordinary had failed to construe the 2004 Act in the context of the 1980 Act as
amended. To focus on the CSP as the
centrepiece of the 2004 Act was to create a false dichotomy between the CSP and
a placing request. The issue of which
school the child should attend was at the heart of the CSP. In paragraph 50 of his Opinion the Lord
Ordinary had founded on two authorities to which he had not been referred, Keeney v Strathclyde Regional Council 1986
SLT 491 and Harvey v Strathclyde Regional Council 1989 SLT 612. The
reclaimer in the present case did not quarrel with what had been said in those
cases, and did not contend that the principle that pupils were to be educated
in accordance with the wishes of their parents, enacted in section 28(1) of the
1980 Act, should always prevail. The
reclaimer only said that a placing request of the kind made in the present case
should not be distinguished from other requests that might be made in respect
of M or in respect of mainstream pupils.
[35] Senior counsel
for the reclaimer did not make any submissions in support of the following
grounds of appeal:
"6. The
Lord Ordinary was required by section 101 of the Scotland Act 1998 to read and
give effect to the relevant provisions of the 2004 Act in a way which was
compatible with Convention rights. However,
the Lord Ordinary's approach to the interpretation of the relevant provisions
of the 2004 Act, if it is correct, results in a discriminatory difference of
treatment as regards the rights of appeal between persons in the position of
the Appellant's severely disabled child and similarly disabled children wishing
to attend grant-aided or private schools out of their own area as well as
able-bodied children in relation to placing requests. There is no objective justification for this
difference in treatment which is accordingly in violation of Article 2,
protocol 1 taken together with Article 14 of the European Convention on Human
Rights.
7. Acts
of the Scottish Parliament such as the 2004 Act, which are incompatible with
the Convention, are not law pursuant to section 29(2)(d) of the Scotland Act
1998. This appeal raises a devolution
issue."
[36] Senior counsel
stated that if the reclaimer failed on the arguments he had presented, he would
wish an opportunity to consider the position and present argument in support of
those grounds of appeal on another occasion.
His primary motion, however, was that we should recall the Lord
Ordinary's interlocutor of 6 July 2007 and the decision of the Tribunal
dated 26 February 2007 and remit the reference back to the
Tribunal to consider it again, in terms of section 21(3) of the 2004 Act.
Submissions for the respondents
[37] Senior counsel
for the respondents submitted that the issue for the Court was the extent of
the jurisdiction conferred on the Tribunal by section 18 of the 2004 Act. Counsel presented his argument in five
sections. First, he submitted that
section 18 did not give the Tribunal jurisdiction over any education authority
other than that which was responsible for the school education of the child. References in the Act to a child "for whose
school education an education authority are responsible" were to any child
being, or about to be, provided with school education either in a school under
the management of the education authority or in pursuance of arrangements made
or entered into by the authority (section 29(3)). Section 18(3) provided that the decisions,
failures and information which might be referred to the Tribunal related only
to that authority, and it was intended that it was that authority who should be
the respondent in the appeal. Looking at
section 18 as a whole, it was clear that the education authority who were
subject to the Tribunal were the authority who had duties in relation to the
CSP. Whether a child had additional
support needs depended on the level of educational provision by the authority
in its area: additional support meant
provision which was 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 belonged (section 1(3)(a)).
Different educational authorities might provide different levels of
provision. In section 18, it was
reasonable to infer that the education authority referred to in subsection
(3)(e) was the authority mentioned in subsections (3)(a) to (d), that is, the
authority responsible for the CSP, who were the "home" authority. That was clear from subsection (4), which
referred only to the authority responsible for the CSP. Further, the verbs in subsection (4)(a), (b)
and (c) were in the perfect tense,
indicating that the authority had already prepared the CSP, or established that
the child required a CSP, or decided that the child did not require a CSP. That authority could only be the home
authority.
[38] As the Lord
Ordinary had pointed out at paragraph 45 of his Opinion, the heading of section
18 was, "References to Tribunal in relation to co-ordinated support plan": it did not go on to say "and other relevant
or connected matters". Headings were
admissible aids to construction (R v
Montila [2004] UKHL 50, [2004] 1 WLR 3141 at paragraphs 33 to 36). The heading of the section was the same as
the heading of clause 13, the corresponding provision in the Bill. The Explanatory Notes to section 18, which
were likewise admissible, were not conclusive but did not suggest that a
plurality of education authorities could be involved in a reference to the
Tribunal. As to the relevant canons of
statutory construction, counsel referred to Stock
v Frank Jones (Tipton) Ltd [1978] 1 WLR 231, Viscount Dilhorne at pages
234G-235F, Lord Simon of Glaisdale at page 237E-G, Lord Edmund-Davies at page
238D-E, Lord Fraser of Tullybelton at page 238E-F and Lord Scarman at pages
238F-239F. It could not be said in the
present case that there was "clear and gross balance of anomaly" (Lord Simon of
Glaisdale at page 237F) or a drafting mistake "which in its context defeats the
intention of the Act" (Lord Scarman at page 239E). The essence of the appellant's argument was
that some addition had to be made to the words of the section, whose meaning
was plain, in order to extend the jurisdiction of the Tribunal which was
concerned with the CSP and the education authority responsible for it.
[39] Secondly,
senior counsel for the respondents argued that the construction of section 18
for which he contended was consistent with the wider context and purposes of
the Act. The Act was predicated on an
education authority's responsibility being only to those in its area: it had a responsibility to others only in so
far as it made or entered into arrangements to that effect. The division of responsibility for school
education had been traditionally geographical.
References in the Act to a child for whose school education an education
authority are responsible were to any child being, or about to be, provided
with school education either in a school under the management of the education
authority or in pursuance of arrangements made or entered into by the authority
(section 29(3)). Section 29(4) provided
that references to a child "belonging to an area" were to be construed in
accordance with section 23(3) of the 1980 Act.
Section 23 of the 1980 Act was concerned with the provision by an
education authority for the education of pupils belonging to areas of other
authorities. Section 23(3) made
provision for regulations prescribing the areas to which particular classes of
pupils receiving school education were to be deemed to belong for the purposes
of, inter alia, section 23 and the
2004 Act, and any such pupil to whom the regulations apply was to be deemed to
belong to the area determined in accordance with the regulations. Any other pupil receiving school education was
for those purposes to be deemed to belong to the area in which his parent is
ordinarily resident. A child belonging
to an area was somewhat different from a child for whose school education the
education authority were responsible: the
former was a child in the authority's area for whose school education they were
not responsible, such as a child below school age or a child who was being
educated at an independent school or at home.
There was no third category of pupil towards whom the education
authority owed duties.
[40] Counsel then
surveyed the provisions of the 2004 Act.
In section 1(3) the key term "additional support" was not given an
absolute meaning, but a meaning which referred to the educational provision
made by the education authority for the area to which the child belonged. It was clear from section 2(1)(a) that the
basis on which a CSP came to be made was that an education authority were
responsible for the school education of the child. Section 2(1)(d)(i) required co-ordination
between the authority in the exercise of any of their other functions, such as
those relating to health or social work, as well as their functions relating to
education, and section 2(1)(d)(ii) required co-ordination between the education
authority and other appropriate agencies, including any other local authority
(section 23(2)(a)). Section 4 was concerned
with the duties of an education authority in relation to children with
additional support needs for whose school education they were responsible
(section 4(1)(a)). An education
authority was obliged to provide additional support for such children belonging
to their area (section 5(2)(b)), but was only empowered to provide such support
for other children belonging to their area for whose school education they were
not responsible (section 5(4)). Section
6(1) imposed a duty on each education authority to identify, from among the
children for whose school education they were responsible, those with
additional support needs, and of those children, those who required a CSP. The further duties imposed by section 6(2)
and (6) likewise arose only in relation to a child for whose school education
the authority were responsible. Section
7 dealt with children belonging to the area of the authority for whose school
education the authority were not responsible:
in relation to such children section 7 conferred certain powers, but did
not impose duties, upon the authority, other than a limited duty to provide
information and advice (section 7(6), (7), (8)); and it was to be noted that the children must
belong to the area of the authority. The
only children towards whom an authority's duty to provide school education was
not determined geographically were those who were provided with school
education in pursuance of arrangements made or entered into by the authority,
in terms of section 29(3)(b).
[41] Counsel then
reviewed the provisions of the 2004 Act relative to CSPs. Section 9(1) required an education authority
to prepare a CSP where they had established that a child for whose school
education they were responsible required a CSP.
Section 10(1) also imposed on them a duty to keep under consideration
the adequacy of any CSP prepared for any children belonging to their area. It could not be inferred that an education
authority assumed responsibilities for children belonging to other areas. The responsibility imposed by section 10(1)
remained with the authority who had prepared it. If the child was thereafter transferred to a
school managed by another education authority in response to a request by the
home authority, the latter remained responsible for keeping the CSP under
review. There was no provision for the
transfer of that responsibility in these circumstances. Section 11(8) empowered the Scottish
Ministers to make by regulations provision as to the transfer of CSPs when the
children for whom they are prepared move from the area of one education
authority to that of another, but not when a child continued to live in the
area of one authority and was transferred to a school in the area of another. Section 12(2) imposed on an education
authority onerous duties to seek and take account of relevant views, advice and
information when establishing whether a child required a CSP and preparing a
CSP. The nomination of the school in the
CSP (section 9(2)(b)) followed upon the identification of the particular support
needs of the child (section 6(1)(b)) and the taking account of the matters
specified in section 12. It was natural
to infer that the education authority who had gathered and considered all that
material and had formed the view that a CSP was required, was in by far the
best position to form a view as to which school should be nominated as that to
be attended by the child. The
appellant's argument involved that an out-of-area education authority who had
not done any of this work should be expected to deal with a placing request.
[42] Counsel next
analysed section 19(5), which specifies the powers of the Tribunal when the
reference relates to a decision of the education authority refusing a placing
request. Section 19(5)(b) empowers the
Tribunal to
"overturn the decision and require
the education authority to -
(i) place
the child or young person in the school specified in the
placing request to which the decision
related, and
(ii) make
such amendments to the co-ordinated support plan
prepared for the child or young
person as the Tribunal considers appropriate by such time as the Tribunal may
require."
Counsel submitted that the only natural reading of these
provisions was that both (i) and (ii) referred to the home education authority,
and not to any other education authority to which a placing request had been
made. It was the home authority, who had
prepared the CSP, who had to place the child and amend the CSP.
[43] Counsel argued
that the Act did not deal with "cross-border" issues involving more than one
education authority. Section 20(1)
empowered the Scottish Ministers to extend by order the categories of decision,
failure and information in respect of which a reference to the Tribunal under
section 18(1) might be made. Thus they
could, if they thought it appropriate, expand the jurisdiction of the Tribunal
so that it could deal with the refusal of out-of-area placing requests. Counsel supported the view expressed by the
Lord Ordinary in the following terms in paragraph 48 of his Opinion:
"Ultimately the submissions put
forward by the appellant, in my judgment, involved detecting what, no doubt, is
felt by the appellant to be a genuine grievance and then to seek to add to, or
fundamentally distort, the plain language of the relevant legislation, to
remove that perceived grievance. That
can never, in itself, be a legitimate approach to statutory interpretation. In my judgment the following words of Lord
Edmund-Davies in the Stock case at
page 238C-D. 'But dislike of the effect
of a statute has never been an accepted reason for departing from its plain
language' are as true today as when they were uttered and that that is so, is,
in my view amply supported by the decision of the House of Lords in the case of
Zielinszki Baker [Customs & Excise Commissioners v
Zielinszki Baker & Partners Ltd [2004] UKHL 7, [2004] 1 WLR 707, Lord
Hope of Craighead at paragraph 31]. To
accept otherwise would result in the courts usurping the function of the
legislature."
[44] Counsel
attached great significance to the provisions of section 23, which enables an
education authority to request the help of "an appropriate agency", including
any other local authority, in the exercise of any of the education authority's
functions under the Act (section 23(1), (2)(a)). The requested agency is bound to comply with
the request unless it considers that the request is incompatible with its own
statutory or other duties, or unduly prejudices the discharge of any of its
functions (section 23(3)). Counsel
submitted that those provisions fitted in with the notion of the co-ordination
of all the services of which a child might stand in need which was referred to
in the Policy Memorandum relative to the Bill as introduced into the Scottish
Parliament on 28 October 2003.
In the Policy Memorandum the heading "Co-ordinated support plans -
promoting integrated working" appears in the section headed "Policy objectives
of the Bill". Paragraph 26 states:
"26. As
well as introducing a duty on education authorities to identify and address
additional support needs, the Bill introduces a statutory co-ordinated support
plan (CSP). The CSP is for those
children and young persons with enduring additional support needs arising from
complex or multiple factors for whose school education the education authority
are responsible, who require support from a range of providers. The aim of the CSP is to plan long-term and
strategically for the achievement of a child's or young person's educational
outcomes, and to foster co-ordination across the range of services, both within
and outwith the authority, required to support this. ... "
[45] Counsel
submitted that the Act envisaged the following procedure for the placement of a
child in a school managed by another education authority. The child's parent should make a request to
the home education authority that the child should be placed in the school
managed by the other education authority.
The home authority should then make a request under section 23 to that
authority, as "an appropriate agency", to place the child in that school. The latter authority would be obliged to
comply with the request unless they considered that either of the matters
specified in section 23(3) applied to it.
[46] Counsel then
discussed the provisions of sections 15 and 16 of the 2004 Act, which are
concerned respectively with mediation services and dispute resolution, and the
Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005
(SSI 2005, No 501) ("the Dispute Resolution Regulations"). Those, he said, were significant provisions. Section 16(1) permitted the Scottish
Ministers to make by regulations provision about the resolution of disputes
between any education authority and, among others, the parent of any child
belonging to the area of the authority, concerning the exercise by the
authority of any of their functions under the 2004 Act in relation to the child. The regulations so made did not affect the
parent's entitlement to refer any matter to the Tribunal (section 16(3)(b)). Regulation 3(1) of the Dispute Resolution
Regulations provides that where the parent makes an application to the
education authority in relation to "any specified matter", the authority must
make arrangements for a review by an independent adjudicator of the authority's
discharge of their functions under the Act relative to the application. "Specified matters" include a failure by the
education authority "to make a request to an appropriate agency as referred to
in section 23 of the Act" (regulation 2(1);
Schedule, paragraph 2(b)).
[47] Counsel
submitted that it could be inferred from the setting up of mediation and
dispute resolution procedures that there was a clear intention to keep those
issues from the formal procedure of the courts:
the procedures were intended to be less formal, less expensive and more
expeditious than resort to the courts. The adjudicator was independent (regulation 5),
was empowered to seek information (regulation 9(2)) and was required to report
to the authority with recommendations as to how the specified matter should be
resolved (regulation 9(3)). Where the
home authority had failed to make a request to another education authority to
place a child in a school managed by that authority, the independent
adjudicator could review all the material the home authority had collected and
considered, together with other observations, information and advice provided
by the parent or the authority (regulation 9(2)), and arrive at a
recommendation. The Act had not
contemplated the making of a placing request by a person in the area of one
education authority to the education authority of another area, and had not
provided a right of appeal against the refusal of such a request. Parliament had taken the view that the best
approach was for the home authority to request the help of other appropriate
agencies, and to direct disputes about CSPs to informal dispute resolution
procedures. Counsel confirmed that he
was departing from the submission made on behalf of Glasgow City Council to the
Tribunal that the Act conferred a right upon a parent to make a placing request
to an authority in another area (Tribunal decision, page 19; Reclaiming Print, page 28). Such requests should be channelled through
the home authority. The authorities
relied on by the appellant were of no assistance: they were concerned with cases where a right
of appeal in the ordinary way to the ordinary courts had been ousted or removed. In the present case, the question was whether
there was any right of appeal at all.
[48] In the third
section of his argument senior counsel for the respondents examined Schedule 2
to the 2004 Act. He submitted that the
Schedule related to placing requests only in relation to children having
additional support needs (section 22).
In order to establish whether a child had such needs, the education
authority responsible for his or her education was required to make
arrangements for identifying children with such needs and their particular
additional support needs (section 6(1)).
It was therefore implicit in the Schedule that the placing request was
made in relation to a child for whose education the authority was responsible. Since additional support was supplied only to
a child with such needs, it seemed sensible to implement the provision of that
support only in relation to an education authority who knew what the child's
needs were, and that was the authority responsible for the child's education. An authority owed no duty to a child who did
not belong to their area unless they had assumed responsibilities towards that
child by making arrangements. Nothing in
the Schedule involved any departure from the principle that (1) an education
authority owed duties to those children in their area for whose school
education they were responsible; (2)
they had powers in relation to those children in their area for whose school
education they were not responsible; and
(3) they did not owe duties to children not belonging to their area towards
whom they had not accepted any responsibility.
These considerations supported the view that the regime in the Schedule
envisaged only placing requests made to a child's home authority.
[49] Turning to
particular provisions of the Schedule, counsel referred first to paragraph
4(2), which provides that on complying with a placing request relating to a
child for whom a CSP has been prepared, an education authority must modify the
nomination in the CSP of the school the child is to attend. The grammar was unambiguous and made plain
that only a single authority was referred to:
the authority with the duty to modify was the authority who complied
with the request.
[50] Counsel
pointed to paragraph 5 as indicating that it was clearly intended that the
Tribunal had jurisdiction in cases involving a CSP: where the child had additional support needs
but did not require a CSP, the refusal of a placing request might be referred
to an appeal committee set up under section 28D of the 1980 Act.
[51] Counsel
pointed out that nothing was said in the Schedule about out-of-area requests; and he submitted that the inference must be
that such requests had not been contemplated by Parliament. As to the difference in wording between
paragraph 2(1), which refers to "a request to an education authority", and paragraph 2(2) which refers to "a request
to the education authority for which the child belongs", counsel adopted the
view of the Lord Ordinary at paragraph 47 of his Opinion:
"At first blush the reference to 'an
education authority' in paragraph 2(1) might be read as creating a right (subject
to conditions) in the parent to have his child placed in a school under the
management of an authority not responsible for the child's education in terms
of the legislation. For the reasons
advanced by senior counsel for the respondents, however, I have reached the
conclusion that such a construction is not correct, having regard to the scheme
of the Act as a whole, and that the reference in paragraph 2(1) is to be read
as a reference to the authority responsible for the child's education. The wording of section 22 under which the
Schedule is enacted points, in particular, to that result. But I should stress that, even if I am wrong
about that, I am of the view that this sub-paragraph in Schedule 2 does not,
and was not intended to, have the effect of extending the jurisdiction of the
Tribunal which, in my judgment, was fixed by section 18 of the Act."
[52] Counsel also
referred to Supporting children's
learning: code of practice published
by the Scottish Executive in 2005 as statutory guidance relating to the 2004
Act. He stated that it did not contain
any discussion of placing requests made directly to an out-of-area education
authority, and it only discussed placing requests where a child had additional
support needs in general, and not where a child had or required a CSP.
[53] In the fourth
section of his argument counsel adverted to the provisions of the 1980 Act. He submitted that that Act was of little or
no assistance in determining the issue before the Court, which was the scope of
the Tribunal's jurisdiction. The 2004
Act had set up a new and differently configured statutory scheme, with a new
Tribunal to deal with issues relative to the new CSPs, and new provisions as to
mediation and dispute resolution. Statutes
were to be interpreted primarily in their ordinary meaning, not in the light of
their legislative antecedents (Cross, Statutory
Interpretation (3rd ed), page 169). In any event the position as to out-of-area
placing requests under the 1980 Act was unclear. The passages in Scott, Education Law in Scotland at paragraphs 18-86 and 18-88 were
tentatively expressed. The author's view
that the appeal provisions were unworkable might mean that her construction of
the provisions was not the correct one. In
G G, Petitioner, Outer House,11
July 2001,
unreported, there had been no decision by the Court as to the validity of the
out-of-area placing request. Section
23(1A) of the 1980 Act was not concerned with placing requests, but with
conferring on an education authority power to make arrangements with another
education authority for the provision of school education, among other things,
for pupils belonging to the area of the former authority in a school under the
management of the latter authority. Section
28 of the 1980 Act did not give a parent an unqualified right to have his child
educated in accordance with his wishes. Counsel
supported the view of the Lord Ordinary at paragraph 50 of his Opinion that the
general principle stated in section 28 was not a rule of statutory construction
and could not, in itself, have the effect of altering the plain meaning of the
statutory provisions relative to the jurisdiction of the Tribunal. Other provisions of the 1980 Act and the 2004
Act set out circumstances in which a placing request might properly be refused,
and section 15(1) of the Standards in Scotland's Schools etc Act 2000 provided
that, unless specified circumstances arise in relation to the child, education
should be provided in a school other than a special school. The parent's wishes were no more than a
factor to which the education authority were to have regard.
[54] In the final
section of his argument senior counsel for the respondents responded to the reclaimer's
contention that the Lord Ordinary's construction of the provisions as to the
Tribunal's jurisdiction led to an anomalous result. First, he submitted that the reclaimer's
construction of section 18 was inconsistent with the wider context and purposes
of the 2004 Act. Secondly, the duty laid
on an education authority by section 23(3) of the 2004 Act to comply with a
request made to them by another education authority showed that the subject of
co-operation between authorities had not been overlooked and proper procedural
provision had been made for it. The
focus of the Act was upon the education authority who were responsible for the
school education of the child. In the
present case it would be a feasible outcome for West Dunbartonshire Council,
having gathered all the information relative to M, to prepare a CSP which
nominated A S as the school he was to attend.
Thirdly, a decision by the home authority not to make a request to
another authority under section 23 was not one against which there was no
recourse: the dispute could be referred
to an independent adjudicator who could decide whether the decision should be
upheld. In the present case the options
of mediation, dispute resolution and recourse to the Tribunal had been
explained to the reclaimer by the Director of Education and Cultural Services
for West Dunbartonshire Council in a letter dated 3 October
2006
(Appendix, section 3, page 84). Fourthly,
the key purpose of the 2004 Act was the co-ordination and integration of
support for children having additional support needs; and that was best achieved by identifying a
single education authority and co-ordinating the services of other agencies
through that authority. Thus all the
services were brought together in a single CSP for which one authority bore
responsibility.
[55] The Tribunal
had been correct to conclude that the Act did not confer on them jurisdiction
over an authority in the position of Glasgow City Council. They had been right to regard regulation 9 of
the Additional Support for Learning (Co-ordinated Support Plan) (Scotland)
Amendment Regulations 2005 (SSI 2005, No 518) as of no assistance since it
related to the transfer of a CSP when a child moved from the area of one
authority to that of another: those
Regulations did not provide for the transfer of the CSP where a child continued
to live in the area of the home authority but was transferred to a school in
the area of another authority. Although
the Tribunal had overlooked the amendment of section 23 of the 1980 Act at page
27 of their decision (Reclaiming Print, page 36), they had been aware of the
terms of the amended version (Reclaiming Print, pages 34-35) and they had also
been aware of the provisions of section 23 of the 2004 Act. It was clear from the fifth paragraph of
their decision (Reclaiming Print, page 41) that they had had regard to
substantial tracts of the 2004 Act and had not been distracted by secondary
legislation. The Court should refuse the
reclaiming motion and adhere to the interlocutor of the Lord Ordinary.
The reclaimer's reply
[56] In a brief
reply senior counsel for the reclaimer referred to the definition of "placing
request" in paragraph 2(3) of Schedule 2 to the 2004 Act. The question was whether section 18 related
to out-of-area placing requests. Placing
requests were part of the CSP process. Glasgow
City Council had obtained information from West Dunbartonshire Council in
writing relative to the reclaimer's placing request: that was how modern local authorities worked. As to the admissibility of headings as aids
to construction (R v Montila), the
heading of section 18 was neutral. In
any event the Court had no information as to the procedure adopted by the
Holyrood Parliament relative to headings.
Counsel also pointed out that the recommendations of an independent
adjudicator were not binding on the education authority (regulation 10(1) of
the Dispute Resolution Regulations). A
failure by the education authority to make a request to an appropriate agency,
which was one of the specified matters in paragraph 2 of the Schedule to those
Regulations, was not a refusal of a parent's placing request. The dispute resolution procedure was a very
disadvantageous form of remedy.
Discussion
[57] The question
we have to determine is whether the jurisdiction of an Additional Support Needs Tribunal for Scotland extends
to a reference of a refusal by an education authority of a placing request made
to them in respect of a child for whose school education they are not
responsible where the child has additional support needs and requires a
co-ordinated support plan. In order to
resolve that issue we shall consider first the categories of children in
relation to whom an education authority has statutory powers and duties. We shall then examine the nature of an
education authority's responsibilities in relation to a co-ordinated support
plan (CSP) for a child with additional support needs. Against that background we shall analyse the
relevant provisions of the 2004 Act and in particular section 18 and Schedule 2. We shall also notice the legislative
antecedents of the 2004 Act and consider whether the Lord Ordinary's
construction of the provisions would lead to an anomalous result.
[58] First, we note
that each local authority in Scotland is an education authority (1980 Act,
section 35(1), applied by the 2004 Act, section 29(2)). A child in respect of whom an education
authority has explicit statutory powers or duties under the 2004 Act must fall
into one of three categories. The first
two are: a child provided with school
education in a school under the management of the education authority; and a child provided with school education in
pursuance of arrangements made or entered into by the authority. The authority is responsible for the school
education of a child in either of those categories (2004 Act, section 29(3)). In particular, where a child in either
category has additional support needs, the 2004 Act imposes specific duties
upon the authority (e g sections 4,
6, 9). The third category is a child not
within either of the first two categories but belonging to the area of the
authority, that is, a child whose parent is ordinarily resident in the area of
the authority, or a child who is deemed to belong to that area by virtue of
regulations (1980 Act, section 23(3), applied by the 2004 Act, section 29(4)). The authority is not responsible for the school
education of such a child: the child
may, for example, be being educated at an independent school, or at home. In relation to certain children in this
category the authority is obliged to provide additional support (section 5(2), (4)) and certain information and advice
(section 7(6), (7), (8)), and has a discretion to provide certain types of
assistance (section 7(1) to (5)). However,
there is no express provision to the effect that an education authority owes
any statutory duties to a child who does not fall within any of those
categories. In particular, it is not
provided that an authority is obliged to entertain a placing request made in
respect of such a child.
[59] It is also
material to consider, before examining the provisions of the Act dealing with
the jurisdiction of the Tribunal and with placing requests, the nature of an
education authority's responsibilities relative to the provision of a CSP for a
child with additional support needs. In
the first place, the question whether a child has additional support needs is
determined by reference to the nature of the educational provision made
generally for children of the same age in schools under the management of the
education authority for the area to which the child belongs (section 1(3)(a)). Thus, different authorities may have
differing views as to the needs of a particular child in relation to additional
support.
[60] Each authority
must make provision for such additional support as is required by each child
for whose school education they are responsible (section 4(1)(a)). The authority is required to identify, from
among the children for whose school education they are responsible, those who
have additional support needs and those having additional support needs who
require a CSP, and the particular support needs of the latter children (section
6(1)). A CSP is required where an
education authority are responsible for the child's school education and where
the child has additional support needs which require significant additional
support by the authority in the exercise of any of their other functions or by
one or more appropriate agencies (section 2(1)). The authority must then prepare a CSP for the
child and keep it under review (sections 9, 10). It is important to note that the CSP requires
the assistance of agencies other than the education authority themselves as an
education authority (section 2(1)): that
is why it is called a "co-ordinated" support plan. Section 12 accordingly requires the authority
to seek and take account of views, advice and information from, among others,
appropriate agencies, the child or his or her parents, and other persons as the
authority think appropriate. It is only
after those investigations have been undertaken that the plan is prepared. It must contain a number of matters which are
specified in section 9(2). It must state
the education authority's conclusions as to the factors from which the child's
needs arise, the educational objectives to be achieved, the additional support
required and the persons by whom the support should be provided. It must nominate the school the child is to
attend. It must also contain the name
and contact details of the person who is to co-ordinate the additional support,
and those of an officer of the authority from whom advice and information may
be sought.
[61] It is clear,
accordingly, that the nomination of the school is arrived at only after
investigation and the reaching of conclusions by the education authority for
whose school education the child is responsible, and that the nomination of the
school is one part, albeit a most important part, of a co-ordinated plan
designed to provide the child with additional support in order to achieve the
educational objectives which the authority have identified after taking into
account the factors from which his or her additional support needs arise.
[62] Against that
background we now examine section 18 of the Act. An apparent difficulty is presented at once
by the language used at the end of subsection (1), which is in these terms:
"(1) Any
of the persons specified in subsection (2) may refer to a Tribunal any
decision, failure or information specified in subsection (3) relating to any
child or young person for whose school education an education authority are
responsible."
It is plain the words at the end of the subsection are open
to more than one construction. The
reclaimer argued that they meant "any child or young person for whose school
education any education authority in Scotland were responsible": the subsection did not say that the decision
must be that of the education authority responsible for the school education of
the child or young person concerned. While
that is true, we consider that an examination of section 18 as a whole leads
inescapably to the conclusion that on each occasion the words "education
authority" is used, the authority indicated is that responsible for the school
education of the child or young person. It
is clear that the section is dealing with references to the Tribunal in
relation to CSPs. Even if it is not
legitimate to refer to the heading of the section, a matter on which we express
no view, that is obvious from the contents of subsections (3) and (4) of
section 18 and of subsection (5) of section 19.
Subsection (3) sets out the decisions, failures and information referred
to in subsection (1). Those specified in
subsection (3)(a) to (d) relate only to the actings of the authority charged
with responsibilities relative to the child's CSP, that is, the authority
responsible for his or her school education.
That the same authority is referred to in subsection (3)(e) is apparent
not only from the continued use of the expression "the education authority"
which a reader would naturally understand to refer to the authority already
mentioned in subsection (3)(a) to (d), but also from the language of subsection
(4). That subsection applies where, at
the time the placing request is refused, "the education authority" has already
taken any one of three steps in relation to a CSP for the child. Again, that authority can only be the
authority responsible for the child's school education.
[63] Subsection (5)
of section 19 specifies the powers of a Tribunal in relation to a reference
relative to the refusal of a placing request.
The Tribunal may overturn the decision and require "the education
authority" to (i) comply with the placing request and (ii) make appropriate
amendments to the CSP. It was argued for
the reclaimer that in the case of an out-of-area placing request the Tribunal could require the
requested out-of-area authority to place the child in the specified school, and
require the child's home authority to amend the CSP. It appears to us, however, that that is a
strained interpretation of the subsection.
We consider that if Parliament had intended that each of these duties
might be undertaken by a different authority, it would not have used the
expression "the education authority". The
more natural reading of the subsection is that each duty is laid upon the same
authority, and that it is to be inferred that the placing request has been
addressed to the authority who are responsible for the child's school education
and who have prepared the CSP which is now to be amended.
[64] We now turn to
Schedule 2. We begin by observing that,
the jurisdiction of the Tribunal having been defined in section 18, it would be
at least unusual if it were to be extended by the terms of a Schedule related
to another section. Schedule 2 is
introduced by section 22, which states that the Schedule "makes provision about
placing requests in relation to children and young persons having additional
support needs." Counsel for the reclaimer founded on the terms of paragraph
2(1) which refers to a request "to an education authority" and not, as in
paragraph 2(2), to "the education authority for the area to which the child
belongs". He argued that it was clear
from paragraph 2(1) that a parent was entitled to make an out-of-area request
to any education authority in Scotland.
While that may be the effect of a literal construction of paragraph
2(1), it is not in our opinion consistent with other provisions in the Schedule
or in section 18. Paragraph 2(2) makes
it clear that a request that a child be placed in a school which is not a
"public school" must be addressed to the education authority for the area to
which the child belongs, and provides that it is the duty of that authority to
meet the fees and other necessary costs of the child's attendance at the
specified school. The reclaimer's
reading of paragraph 2(1) involves that an out-of-area request may be made
directly to another authority, without reference to the home authority, and
that no provision is made for the meeting by any authority of the costs
necessarily incurred by the child's attendance at the specified school in the
other area. That not only would be
inconsistent with the scheme in paragraph 2(2) but also would be an odd lacuna
in the legislation.
[65] The matter
appears to us to be placed beyond doubt by the terms of paragraph 4(2). It provides that on complying with a placing
request relating to a child for whom a CSP has been prepared, "an education
authority must modify accordingly the nomination in the plan of a school to be
attended by the child." That can only mean that the authority who complies with
the request is the authority who modifies the CSP. An out-of-area authority cannot modify the CSP
because it remains the responsibility of the home authority who prepared it. The plan is transferred to another education
authority only where the child moves from the area of his or her home authority
to the area of a new authority (Additional Support for Learning (Co-ordinated
Support Plan) (Scotland) Amendment Regulations 2005 (SSI 2005, No 518),
regulation 9), and not where the child continues to live in the area of the
home authority but is transferred to a school managed by another authority.
[66] We are unable
to support the reclaimer's argument that a right of appeal to the Tribunal is
to be presumed. The authorities cited by
the reclaimer are concerned with situations in which a right of appeal "is
ordinarily available" (R v Emmett [1998] AC 773, Lord Steyn at pages 781-782). In
R v Cain [1985] AC 46 at pages
55G-56D Lord Scarman was discussing the prohibition of a right of appeal
against a sentence which the court had no power to pass. The issue in Emmett was the exclusion of the general right to appeal against a
confiscation order. The question in Jones v Ceredigion County Council [2005] EWCA Civ 986. [2005] 1 WLR 3626 was
whether an appeal to the Court of Appeal was excluded on an issue in respect of
which the judge had granted leave to appeal to the House of Lords but the House
of Lords had not given leave. In the
present case the question is whether any right of appeal lies to the Tribunal
in respect of the refusal of the reclaimer's out-of-area placing request: there is no question of the ouster of any
right of appeal which is ordinarily available.
[67] Senior counsel
for the reclaimer submitted that we should take into account the provisions of
the 1980 Act, as amended, relative to placing requests in respect of recorded
children. Counsel maintained that the
version of section 28A of that Act which applied to recorded children allowed
the parent of such a child to make a placing request to any education authority
in Scotland.
We are not persuaded that any assistance in reaching a view as to the
making of placing requests and the scope of the Tribunal's jurisdiction is to
be obtained from a consideration of the 1980 Act. The 2004 Act replaces the system provided by
the 1980 Act with a new regime which includes the preparation of CSPs and the
establishment of a new Tribunal. In any
event it is not clear to us that out-of-area placing requests could lawfully be
made in terms of the 1980 Act: G G, Petitioner, Outer House, 11
July 2001,
unreported, is not authority for the validity of such a request. Nor are we satisfied that the refusal of such
a request was a matter which came within the jurisdiction of any specialist
tribunal. We refer with diffidence,
since it was not cited to us, to the now repealed section 63 of the 1980 Act
which was concerned with appeals against decisions about recorded children and
young persons. Section 63 provided, inter alia:
"(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 ...
...
(d) subject
to subsection (4) below, their decision refusing his
placing request in respect of the
child."
It seems clear from the use of the word "their" in section
63(1)(d) that what that provision entitled the parent to do was to appeal to
the committee a decision to refuse a placing request which he or she had made
to the education authority who had the duty to decide whether or not to record
the child, and not such a decision by another authority who had no such
responsibility.
[68] Finally, we
are not satisfied that to construe the 2004 Act as excluding any right of a
parent of a child with additional support needs who requires a CSP to challenge
the refusal of an out-of-area request before the Tribunal is, as the reclaimer
maintained, to reach an anomalous result.
We are not convinced that it is a grave anomaly not to confer such a
right. We recognise that in other cases
a parent has the right to refer the refusal of a placing request to the
Tribunal or to an appeal committee. In
the case of a child with additional support needs who requires a CSP, however,
special considerations arise. The
education authority who are responsible for the child's school education have
to identify the child's needs (section 6(1)), taking into account the level of
educational provision which they make for other children of the same age
(section 1(3)(a)), and are obliged to prepare a CSP after undertaking the
investigations specified in section 12. The
CSP involves the co-ordination of the provision of additional support for the
child (section 11(5)(d)). It states the
education authority's conclusions as to the matters specified in section
9(2)(a) and nominates the school the child is to attend (section 9(2)(b)). Thus the nomination of the school is made
only after the authority have devoted their attention to all these matters. The right of a parent of a child with
additional support needs who has a CSP to appeal to the Tribunal the refusal of
a placing request within the home area recognises the need for such
co-ordination.
[69] It therefore
seems appropriate that the question whether the child should attend instead a
school managed by another authority should be approached with deliberation. The Act provides some scope for the
consideration of that question. It
appears to us that there is nothing to prevent the child's parent from making a
placing request to the home authority that the child should be placed in an
out-of-area school. The home authority
may then make a request to the out-of-area authority in terms of section 23 to
place the child in the specified school.
If the home authority declines to make such a request, that is a
specified matter in relation to which the parent may make an application for a
review of that decision by an independent adjudicator in terms of the Dispute
Resolution Regulations. The adjudicator
is then required to report to the home authority with recommendations as to how
the matter should be resolved. The
adjudicator cannot, however, review any decision by the out-of-area authority
not to comply with the request of the home authority, and his recommendations
as to the home authority's decision are not binding on the home authority.
[70] We appreciate
that the reclaimer does not consider that these arrangements afford her an
effective remedy, but before we would be justified in departing from the words
of the Act, a strict test would have to be met.
It is discussed in Stock v Frank
Jones (Tipton) Ltd [1978] 1 WLR 231.
Viscount Dilhorne, with whom Lord Fraser of Tullybelton agreed, said at
page 235E-F:
"The existence of anomalies, if they
exist, cannot limit the meaning to be attached to the clear language of a
statute."
Lord Simon of Glaisdale said (at page 237F-G):
"[A] court would only be justified in
departing from the plain words of the statute were it satisfied that: (1) there is clear and gross balance of
anomaly; (2) Parliament, the legislative
promoters and the draftsman could not have envisaged such an anomaly, could not
have been prepared to accept it in the interest of a supervening legislative
objective; (3) the anomaly can be
obviated without detriment to such legislative objective; (4) the language of the statute is
susceptible of the modification required to obviate the anomaly."
Lord Scarman said (at page 239C-E):
"If
the words used by Parliament are plain, there is no room for the 'anomalies'
test, unless the consequences are so absurd that, without going outside the
statute, one can see that Parliament must have made a drafting mistake. ... If
a study of the statute as a whole leads inexorably to the conclusion that
Parliament has erred in its choice of words, e.g. used 'and' when 'or' was clearly intended,
the courts can, and must, eliminate the error by interpretation. But mere 'manifest absurdity' is not enough: it must be an error (of commission or omission)
which in its context defeats the intention of the Act."
[71] In the present
case, although the words of section 18(1) and of paragraph 2(1) of Schedule 2
are open to more than one construction when read literally and in isolation,
the language of the Act appears to us to be sufficiently clear. In any event, while we acknowledge that the
reclaimer considers herself to be aggrieved, we are unable to find a clear and
gross balance of anomaly which Parliament could not have envisaged, nor can we
say that Parliament has made a drafting mistake which in its context defeats
the intention of the Act.
Result
[72] In our
opinion, accordingly, the 2004 Act does not make and should not be construed as
making any provision, in respect of a child with additional support needs who
requires a CSP, for the making of a placing request to any education authority
who are not responsible for the child's school education, or for a reference to
the Tribunal of a refusal by such an authority of such a request.
[73] We heard the
reclaiming motion on the summar roll on 14 and 15 August
2007. In view of the wish of senior counsel for the
reclaimer to consider whether to present argument on his sixth and seventh
grounds of appeal in the event that we were not persuaded by his submissions,
we put the case out by order on 23 August 2007 and intimated to counsel that we
were not minded to sustain the arguments for the reclaimer. Counsel then said that he intended to argue
these grounds of appeal. We accordingly
continued the summar roll hearing to a date to be afterwards fixed and
appointed intimation and service on the Advocate General and the Lord Advocate
in terms of Rule of Court 25A.5(3). Thereafter,
however, a motion was enrolled by the reclaimer to abandon grounds of appeal 6
and 7. The motion is not opposed.
[74] We shall
accordingly grant the reclaimer's motion to abandon grounds of appeal 6 and 7
and thereafter refuse the reclaiming motion and adhere to the interlocutor of
the Lord Ordinary.
