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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 126
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XA23/07
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OPINION OF LORD BRAILSFORD
in Appeal
under
Education
(Additional Support for Learning) (Scotland)
Act 2004, section 1
by
R B
Appellant;
against
A decision of an
Additional Support Needs Tribunal dated 5 January 2007
ญญญญญญญญญญญญญญญญญ________________
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Appellant: Williamson;
Pagan Osborne
Respondent: Macfarlane;
Biggart Baillie
12 July 2007
[1] This
is an appeal against a decision of the Additional Support Needs Tribunal dated
5 January 2007 in terms of which decision the Tribunal determined that the relevant
Education Authority was not responsible for a child's (hereinafter referred to
as "C") education in terms of section 2(1)(a) of the Education (Additional
Support for Learning) (Scotland) Act 2004 (hereinafter referred to as "the 2004
Act"). Answers to the appeal were lodged
on behalf of The Highland Council (hereinafter referred to as "the
respondents") who are the Education Authority responsible for the area in which
C resides. Miss Williamson appeared on
behalf of the appellant and Mr Macfarlane appeared on behalf of the
respondents.
[2] On
behalf of the appellant it was submitted that the Tribunal erred in law in
finding in their said decision that the respondent's were not responsible for
C's school education. The argument
advanced was that the Tribunal erred in its approach to construction of section
29(3) of the 2004 Act. In particular it
was submitted that the Tribunal erred in finding as a matter of fact that the
Education Authority did not control and were therefore as a matter of law not
responsible for the education of C. On
behalf of the respondents it was submitted that the Tribunal had both posed the
correct questions in approaching construction to section 29(3) of the 2004
Act and, further, had been entitled on their findings in fact to reach the
decision arrived at.
[3] There
was no dispute between the parties to this appeal as to the relevant statutory
background. Section 1(1) of the 2004 Act
provides that:
"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".
Section 1(3) of the 2004 Act
provides that "additional support" means "....provision which is additional to,
or otherwise different from, the educational provision made generally for
children...". Section 2(1) of the 2004
Act provides
"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
....".
The issue of responsibility for the
education of a child is addressed by section 29(3) of the 2004 Act which provides
that:
"...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".
There is one further provision of
the 2004 Act that must be mentioned.
That is section 5(4) which gives an education authority
discretionary power to provide additional support for children with additional
support needs but for whose school education the authority are not responsible.
[4] It
was common ground before the Tribunal that C was a child who had additional
support needs within the meaning of section 1 of the 2004 Act. C, who was born in 1994, and who was 12 at
the time of the Tribunal hearing, was exceptionally gifted in music. She had sat the SQA Higher Music Examination
in June 2006 and obtained an "A" pass.
I was informed that she was the youngest person in Scotland
ever to have obtained a Higher in music.
She was also particularly talented in languages especially Italian and
Mandarin. It was anticipated that she
would be able to complete her school education by around the age of 14 and
thereafter be both qualified and intellectually equipped to commence Higher
Education in music. On the basis of the
findings in fact by the Tribunal considerable assistance to facilitate C's
education and further her exceptional gifts has already been provided by the
respondents. I was impressed, as it
would seem were the Tribunal, by the extent to which the respondents had
co-operated in furthering C's education and nurturing her talents.
[5] On
behalf of the appellant Miss Williamson submitted that on the basis of the
findings in fact the Tribunal should, in construing section 29(3) of the 2004
Act, have concluded that the respondents controlled the education of C. If this were correct, she submitted, then in
terms of the Act the respondents were responsible for the education of C and
were consequently obliged in terms of section 2(1) of the 2004 Act to prepare
and adhere to a plan for her education referred to in the Act as a
"co-ordinated support plan" for the provision of additional support for
her. Miss Williamson submitted that the
very act of paying for part of C's education, which it was admitted that the
respondents had done, was sufficient to give them control over her education
and bring them within the ambit of responsibility under section 29(3). She further submitted that even if she were
incorrect in that first argument responsibility was established by virtue of
the circumstances of C's education as outlined in the Tribunal's findings in
fact. In particular she pointed to
finding in fact (11) which determined that C's name appeared on the roll of a
high school for which the respondents were responsible.
[6] For
the respondents Mr Macfarlane accepted that the question of construction of
section 29(3) of the 2004 Act depended on the issue of control. As I understood his argument Mr Macfarlane's
position was that if it could be shown that as a matter of fact the respondents
controlled the education of C, then they would qualify as being responsible for
it in terms of the 2004 Act. By contrast
if, as a matter of fact, they did not exercise control over C's education, then
they were not responsible for it. Mr
Macfarlane submitted, in support of the Tribunal's decision, that on the facts
the respondents exercised no control over C's education. It followed that they were not responsible in
the terms of the said Act for C's education.
It was Mr Macfarlane's submission that the extent of the
respondents' involvement in C's education was to provide financial support for
an education plan essentially devised by C's parents. He characterised this as discretionary
support provided by the respondents in terms of the powers granted to them by
section 5(4) of the 2004 Act.
[7] I
reject Miss Williamson's argument that the mere fact of payment for C's
education, or part thereof, by the respondents renders them responsible within
the terms of section 29(3) for that education.
In my opinion payment for C's education is equally consistent with, as
was submitted by Mr Macfarlane, exercise by the respondents of a discretionary
power under section 5(4) of the 2004 Act.
In my view the correct approach to the application of section 29(3)
depends on the issue of control. In the
end of the day I think this was the approach adopted by the Tribunal and
advanced, albeit in slightly different ways, by both the appellant and the
respondent. Put shortly if, as a matter
of fact, the respondents control the education of C then in terms of the
statutory provision they are responsible therefore. On the other hand if there is no control of
C's education then responsibility under section 29(3) does not arise.
[8] On
the approach that I favour and outline above, the essential question of control
is a matter of fact. If that be correct
then this Court only has powers to intervene if it can be shown that the
Tribunal erred in law in their approach to their findings in fact. Having heard full argument I have come to the
view that the Tribunal did so err. Findings
in fact (8) and (9) show that in the main C's parents were responsible for
devising her educational programme. It
seems however in terms of findings in fact (10) and (11) that C was enrolled in
the local high school, albeit her attendance was only part-time and may, I
stress that word, have been very limited.
The findings in fact state, rather cryptically in my view, that "[T]he
school considers that she appears on the role solely for safety and insurance
purposes" (finding in fact (11)). I
find this element of the findings in fact less complete than would be necessary
to make a determinative conclusion on the issue of control of C's
education. In my view it is impossible
to determine the issue of control without fuller knowledge about this aspect of
matters. For this reason I conclude that
the Tribunal have erred in law in reaching the decision they did based on
findings in fact which are, in my view, incomplete and inadequate.
[9] For
the foregoing reasons I determine that the Tribunal has erred in law and in
terms of section 21(3)(a) of the 2004 Act remit this reference back to the
Tribunal to consider this matter again.
