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Cite as: [2007] ScotCS CSOH_139, [2007] CSOH 139

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 139

XA55/07

OPINION OF LORD CLARKE

in the appeal of

W.D.

Appellant;

under

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

against

A decision of an Additional Support Needs Tribunal dated 5 February 2007

________________

Appellant: Williamson; Pagan Osborne

Respondents: Johnston, QC, Ross; Solicitor for Edinburgh District Council

6 July 2007

Introduction

[1] This is an appeal from a decision of an Additional Support Needs Tribunal dated 5 February 2007 under the Education (Additional Support for Learning) (Scotland) Act 2004, section 21, the matter having been remitted from the Inner House for determination in the Outer House.

[2 ] The decision appealed against relates to a preliminary question as to the scope of the Tribunal's jurisdiction. The Tribunal's jurisdiction is a creature of the 2004 Act which contains specific provisions relating to the extent and nature of that jurisdiction. The question which ultimately rises is, therefore, one of pure statutory construction.

The Agreed Facts
[3 ] The appellant and her son, M. C., who is now 16 years of age, reside in the local authority area of West Dunbartonshire. West Dunbartonshire Council were originally convened as first respondents to the proceedings but they have intimated to the Court, by letter from their agents, that they do not intend themselves to appear, but that they support the Tribunal's decision. In terms of the Education (Scotland) Act 1980, West Dunbartonshire Council is responsible for the education of M. That is a matter that is not in dispute between the parties. The child M. has been attending a mainstream, non-special school. In August 2006, West Dunbartonshire Council were in the course of preparing, in compliance with their statutory duties under the 2004 Act, a co-ordinated support plan designed to address M's additional support needs. I will come back to the relevant statutory provisions, in due course, but for the moment it is of significance to note that in terms of section 9(2)(b) of the 2004 Act any such plan must contain "a nomination of a school to be attended by the child or young person" to whom the plan relates.

[4 ] On 21 June 2006, the appellant made a request to Glasgow City Council for a placement of M. in a school in their area. That school, which I was advised by counsel for the appellant, is a school which has a high reputation for dealing with children with special needs. It has to be noted that Glasgow City Council has, in terms of the legislation relating to education of children in Scotland, no responsibility for the education of M. On 15 August 2006 Glasgow City Council, who are now the sole respondents in the present proceedings, refused the appellant's request. On 24 August 2006 West Dunbartonshire Council issued their plan for M. It included, in terms of section 9(2)(b) of the 2004 Act, the nomination of a mainstream school within their area, as the school which M. should attend. Counsel for the appellant made it clear to the Court that the appellant had no complaint about the other provisions in the plan. She is not appealing against West Dunbartonshire's decision in formulating that plan. The decision she seeks to appeal against is the decision of the respondents in refusing her request for a placement of M. in the school which they manage.

[5 ] The appellant is the child's primary carer. The child is very severely disabled and is registered blind. He receives support from a social work mobility worker, learning assistants, specialist teaching staff and a physiotherapist. Attendances at an orthotics clinic are arranged for him and respite care and social work input is given to facilitate more social interaction. I understand that all of these facilities are provided by West Dunbartonshire Council. The appellant considers that the child M. would make more social and educational progress in a special school of a type that she considers West Dunbartonshire Council does not at present operate, but, of which the school, managed by the respondents, is an example.

[6 ] The Tribunal, in its decision of 5 February 2007 reached the conclusion that it had no jurisdiction to hear reference made to it in relation to the decision of the respondents of 15 August, to refuse the appellant's requested for a placement of M. at the school they manage.

The Statutory Context
[7 ] In addressing the relevant statutory provisions, counsel for the appellant, in the first place, drew the Court's attention to section 28(1) of the Education (Scotland) Act 1980 as amended, which is to the following effect:

"In the exercise and performance of their powers and duties under this Act (the Scottish Ministers) and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents."

Reference was then made to sections 28A-28F of the 1980 Act which, it was said, provide machinery whereby parents of children without special needs can make a request to any education authority for their child to be placed in a school under its management and, subject to certain conditions, the authority has a duty to place the child accordingly. These provisions go on to establish a system of appeal committees to hear appeals, to deal with decisions to refuse such requests and from the decisions of such appeal committees an appeal lies to the sheriff. Sections 60-65 of the 1980 Act inter alia, made provision, in relation to the functions of education authorities in respect of children and young persons with special educational needs. These provisions were repealed by the 2004 Act. The provisions of section 28A-28F of the 1980 Act, however, remain in force, in relation to children without special needs. Schedule 2 of the 2004 Act deals with placing requests on behalf of children and young persons with what are now described as additional support needs.

[8 ] The main purpose of the 2004 Act, however, was to replace the provisions of sections 60-65 of the 1980 Act, in relation to the education authorities' functions in respect of children with special needs, with a new statutory scheme relating to such children and, in particular, introduced the concept of co-ordinated support plans in respect of such children and young persons. The 2004 Act also established, by section 17, new tribunals known as the Additional Support Needs Tribunal for Scotland. The position of the respondents, which was accepted by the Tribunal in the present case, was that there is no appeal to these tribunals from any decision of an education authority refusing an application for the placement of a child with additional support needs, in a school managed by it, where the education authority, in question, is not responsible for that child's education. The appellant accepted that there was no appeal from such a decision to an education committee and then to the sheriff. Her argument was 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 new tribunals against decisions of education authorities which refused placement requests in respect of children or young persons with additional support needs, for whose education they were not responsible, when a right of appeal lay against such decisions, ultimately to the sheriff, in respect of such decisions when the child or young person, in question, did not have additional support needs.

[9 ] Section 1 of the 2004 Act introduced the concept of "additional support needs". It provides:

"1(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.

(2) In sub-section (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.

(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,.....".

Section 2 of the Act then introduces the concept of "co-ordinated support plans" in the following terms:

"2(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,

(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 authorities themselves...."

Section 23(1) of the 1980 Act provides as follows:

"An education authority shall have power to provide in or in connection with any public school, or other educational establishment under their management, school education or further education or other services under this Act or additional support within the meaning of the Education (Additional Support for Learning) (Scotland) Act 2004.... for any pupil belonging to the area of some other education authority or of a local education authority in England and Wales".

Section 23(1A) of the 1980 Act then goes on to provide:

"Without prejudice to any other provision of this Act, or any provision of the 2004 Act, for the purposes of their duty under section 1 of this Act or their functions under sections 4 and 5 of the 2004 Act an education authority shall have power to make arrangements with another education authority (in this subsection referred to as a 'provider authority') for the provision of school education or further education or additional support within the meaning of the 2004 Act for any pupils belonging to the area of the authority in a school or educational establishment under the management of the provider authority".

Section 23(3) of the 1980 Act then states:

"The Secretary of State may make regulations prescribing the areas to which particular classes of pupils receiving school education are to be deemed to belong for the purposes of this section.... and for the purposes of the 2004 Act and any such pupil to whom the regulations apply shall be deemed to belong to the area determined in accordance with the regulations. Any other pupil receiving school education shall, for the aforesaid purposes, be deemed to belong to the area in which his parent is ordinarily resident, and any pupil receiving further education shall be deemed to belong to the area in which he himself is ordinarily resident...."

It was not suggested, that, in this case the child M. falls to be regarded as to belonging to the area covered by the respondents, Glasgow City Council.

[10 ] Section 4 of the 2004 Act, as its heading indicates, sets out the duties of education authorities in relation to children and young persons for whose education they are responsible. These duties are stated in the following terms:

"(1) Every education authority must -

(a) in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person, and

(b) make appropriate arrangements for keeping under consideration -

(i) the additional support needs of, and

(ii) the adequacy of the additional support provided for, each such child and young person.

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

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

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

[11 ] Junior counsel for the appellant submitted that the duties provided for in section 4(1) co-exist with the duties expressed in section 2(1) of the Standards in Scotland's Schools Etc. Act 2000 which is in the following terms:

"Where school education is provided to a child or young person by, or by virtue of arrangements made, or entered into, by, an education authority it shall be the duty of the authority to secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential".

Section 6 of the 2004 Act goes on to provide for every education authority to make arrangements for identifying, from among the children and young persons for whose school education they are responsible:

" (i) those who have additional support needs, and

(ii) those having additional support needs who require a co-ordinated support plan, and

(b) the particular additional support needs of the children and young person so identified".

[12 ] In addition the section provides for each authority to deal with requests that they consider whether or not any child or young person, for whose school education they are responsible, has additional support needs or requires a co-ordinated support plan. Section 9 of the Act then deals with the duty of education authorities in respect of the preparation of co-ordinated support plans and what these plans must contain.

[13 ] As has already been noted, it is section 17 of the 2004 Act which establishes the Additional Support Needs Tribunals for Scotland. Section 17(1) provides:

"Tribunals to be known as Additional Support Needs Tribunals for Scotland (each referred to in this Act as 'a Tribunal') are to be constituted in accordance with this Act to exercise the functions which are conferred on a Tribunal by virtue of this Act".

[14 ] Section 18 of the 2004 Act is the statutory provision which sets out the jurisdiction of the Tribunals. That section is headed as follows "References to Tribunal in Relation to Co-Ordinated Support Plan". It is a very detailed provision. Section 18(1) deals with those who may bring a reference to the tribunal. It provides as follows:

"Any of the persons specified in sub-section (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."

Section 18(2) then specifies as follows:

"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."

Section 18(3) defines the decisions, failures and information referred to in section 18(1) in the following way:

"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."

Section 18(4) then provides:

"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)...."

Section 29(3) of the 2004 Act provides as follows:

"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".

The Appellant's Submissions
[15 ] Junior counsel for the appellant, from the outset, recognised that it was very difficult to argue that, on the plain meaning of the wording of the provisions of section 18(1), (3)(e) and (4) and the provisions of section 29(3) of the 2004 Act, the Tribunal had jurisdiction to hear a reference of a decision of an education authority regarding a placement request in respect of a child for whose education that authority was not responsible. Her approach was to remind the Court that a right of appeal (albeit to a different appellate structure) was available in the case of children and young persons, without additional support needs, where a placement request had been made to, and refused by, an education authority which was not responsible for the education of the child or young person. To construe the 2004 Act provisions, in such a way as to allow for a distinction between the rights of children and young persons with additional support needs on the one hand, and children without such needs on the other hand, was productive of what she, at different times, categorised in different ways as "anomalous", "absurd", "unjust" or "discriminatory". It was necessary therefore, counsel submitted, to look for a meaning of the statutory provisions which did not produce such an outcome but which conferred on persons such as the appellant a right of appeal against the respondents' refusal of her request and, in particular, a right of appeal to the specialist tribunal. She informed the Court that a similar problem did appear to have arisen under the pre-2004 Act legislation in relation to children with special needs. Reference was made to a discussion of the point in Scott, Education Law in Scotland, paragraphs 18-86 to 18-92. At para. 18-88 the writer opined, in relation to the pre-2004 position "The appeal provisions of these cases are unworkable". She nevertheless went on to seek to indicate how they might be made to work. Taking up a somewhat similar approach to the provisions of the 2004 Act, junior counsel for the appellant submitted that to get over the apparent anomaly, or absurdity, the Court should read section 29(3)(a) of the 2004 Act as covering the position of M. in relation to the respondents at the time they decided to reject his parent's request. This would require the Court to consider that at that time M. was "about to be provided with school education in a school under (their) management". That was not an argument put to the Tribunal, when the question of its jurisdiction was before it. It was not an argument elaborated upon in submission before me.

[16 ] My attention was then drawn by counsel to section 10 of the 2004 Act which deals with the review of co-ordinated support plans. It was suggested, accordingly, that even though West Dunbartonshire Council had nominated the mainstream school in the plan provided for M., that could be altered on review. Junior counsel also sought to address how, from a practical point of view a co-ordinated support plan, provided by one education authority might be made to operate when the child's school was in another authority's area. In this respect reference was made to The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 (No. 518), in particular Regulation 9 thereof which provides for transfer of a plan where a child or young person to whom it relates moves

"from, without any immediate intention of returning to, the area of the education authority which prepared the plan ('the original authority') into that of another authority to which area the child or young person then belongs ('the new authority')."

It was not, however, I think, suggested by counsel for the appellant that, in any legislative provision, either primary or secondary, is the position of a child for whom an authority responsible for his education and in whose area he resides, has prepared a plan but the child is placed in a school which is under the management of another education authority.

[17 ] Junior counsel for the appellant invited the Court to have regard to the provisions of Schedule 2 of the 2004 Act. Section 22 of the Act provides, "Schedule 2 makes provisions about placing requests in relation to children and young persons having additional support needs." Paragraph 2(1) of Schedule 2 is in the following terms:

"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."

Paragraph 5(1) of the Schedule then provides:

"A parent who has made a placing request may refer a decision of the education authority refusing the request to an appeal committee set up under section 28D of the 1980 Act."

Paragraph 7(1) of the Schedule is in the following terms:

"A parent who has made a reference to an appeal committee under paragraph 5 may appeal to the sheriff against the decision of the appeal committee on that reference."

[18 ] Junior counsel for the appellant stressed that in paragraph 2(1) the reference was to "an education authority" (emphasis added). That meant it was said, that a parent can make a request to any education authority to place his child in one of their schools and that the authority had a duty to accept that request subject to the provisions of paragraph 3 of Schedule 2. Accordingly, it was submitted, paragraph 2 confers an enforceable right on the parent in such a case. Any refusal to recognise that right should, it was said, be subject to appeal. [Junior counsel, in discussion, did accept that if her construction of the statutory provisions was not correct a refusal might be the subject of judicial review.]

[19 ] The argument before the Tribunal had been that, having regard to the provisions of paragraph 2 and paragraph 5 of Schedule 2 and the provisions of section 18(1) of the 2004 Act, where there was a co-ordinated support plan in place in respect of a child, prepared by the education authority responsible for his school education, and a decision by another authority to refuse the parents' request made in terms of paragraph 2 of Schedule 2, the parent of the child could refer the latter decision to the Tribunal. That approach was not precluded by the wording of section 18(1). Having regard to the provisions of the Interpretation Act 1978, section 6, the reference in section 18(1) to "any decision" should be held to embrace the plural, "decisions". Section 18, it was submitted, used the expressions "the Education Authority" and "an education authority" (emphasis added) interchangeably but a clear distinction was being drawn in Schedule 2 between the two concepts.

[20 ] The reasoning of the Tribunal in reaching its decision that it had no jurisdiction to hear a reference of the respondents' refusal to make the placement seems to be found at page 32 of the Appeal Print where they say,

"The Tribunal has considered the issues raised in this preliminary hearing very carefully. We adopt the host authority's argument in this respect as set out above since the interpretation suggested is clearly indicated by the wording of the provisions. In the absence of any indication that the primary legislation anticipated references involving home and host authorities, both with an interest in the terms of a co-ordinated support plan, and in the absence of Rules permitting the President and/or convener and the Tribunal greater powers to take all steps necessary to ensure that a reference could be heard having regard to representations from all interested parties addressing the grounds in which references may be made to the Tribunal, we cannot be persuaded that the appellant can proceed with a reference against the host authority without explicit provision."

[21 ] Junior counsel for the appellant was particularly critical of the Tribunal decision at page 27 where they state:

"The 1980 Act, as amended, reflects the procedures appropriate in anticipation of a change in local government boundaries. These provisions do not anticipate the interaction of the 2004 Act and the introduction of the statutory powers conferred by a CSP. Thus whilst consideration of further statutory provisions gives an indication of the expectations in relation to inter-authority co-operation, the circumstances of the present reference are not anticipated by this legislation or by the guidance in the Code."

That passage, it was submitted, betrayed a failure by the Tribunal, who had just set out the provisions of section 23 of the 1980 Act, to appreciate that section 23 had been amended by Schedule 3, paragraph 3(4) of the 2004 Act, to provide for co-operation between education authorities, where a co-ordinated support plan had been prepared in relation to a child or young person under the 2004 Act. In addition, the Tribunal had apparently overlooked the provisions in section 23 of the 2004 Act which provided for inter-authority co-operation. This was a serious misdirection which meant that they had approached the question of jurisdiction on a flawed basis, in particular, in apparently holding the view that the scheme of the statutory provisions did not provide for the situation as advanced by the appellant.

[22 ] In attacking the Tribunal's approach to the construction of the legislation, junior counsel for the appellant referred me to various passages from Bennion Statutory Interpretation 4^th Ed. Part XXI which is headed "Construction against Absurdity". The text sets out a number of propositions in support of the rule on statutory construction so described by the writer. For example at page 832 the following appears:

"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example where it appears, that Parliament really intended it or the literal meaning is too strong".

Junior counsel then referred me to other passages in the text. So, at page 836, it is stated:

"The courts are anxious to facilitate the smooth working of legal proceedings, provided that injustice is not caused. A judge is master of the procedure of the court, subject always to the relevant law and the supervisory powers of higher courts. He or she seeks to avoid the intention of the law being stultified".

This passage was, apparently, prayed in aid to seek to persuade the Court, in the present case, to interpret the legislation as providing a right of appeal to the Tribunal, since otherwise "the intention of the law would be stultified" and injustice would follow. Junior counsel then referred to page 845 of the work where it is stated "The court seeks to avoid a construction that creates an anomaly or otherwise produces an irrational or illogical result", and to a further passage at page 846, where it is stated "Every legal system must seek to avoid unjustified differences and inconsistencies in the way it deals with similar matters". Having regard to the rights of parents of children, without additional support needs, in relation to appeals against decisions of education authorities refusing requests for placements, it was submitted that to hold that the 2004 Act did not clothe the parents of children with such needs, with similar rights, would be productive of such absurdity or such discrimination that Parliament could not have so intended and the appeal should be allowed.

The Respondent's Reply
[23 ] In reply, senior counsel for the respondents contended that the Tribunal had correctly construed the limits of its jurisdiction and that the appeal should be refused for a number of reasons.

[24 ] In the first place the plain meaning of section 18 of the 2004 Act was that that it was only the decisions of education authorities responsible for the education of young persons and children in question which are subject to the jurisdiction of the Tribunals. That matter was put beyond doubt by the provisions of section 29(3). Having regard simply to the plain meaning of words, and the factual position in the present case, it could not be seriously argued that the child in the present case was a child "about to be provided with education in a school managed by the respondents."

[25 ] The concept of the co-ordinated support plan which was at the heart of the 2004 legislation, pointed, it was submitted, very strongly to the role of the Tribunal being confined to dealing with decisions of authorities charged with the duties in relation to such plans. To broaden the jurisdiction to bring in other authorities would be to go beyond the scheme of the legislation. It was implicit, it was submitted, in section 18(4) of the 2004 Act that the education authorities whose decisions were subject to a reference to the Tribunal were authorities involved in preparing a plan. Sub-paragraphs (a), (b) and (c) of section 18(1) were all addressing the key concept of the plan. The use of the perfect tense in these sub-paragraphs indicated that the education authorities, whose decisions to refuse placement requests, might be referred to the Tribunal, had already been involved, in some way, in relation to the matter of a plan for the children and young persons in question. There was, no doubt, that in terms of the legislation, the sole responsibility for preparing a plan rested on the education authority responsible for the education of the child or young person in question. The matters referred to in section 18(3)(a)-(d) were matters which were the responsibility of the education authority responsible for the education of a child or young person. In section 18(3)(e) the reference to a decision of "the education authority" (emphasis added) must, it was submitted, be a reference to the authority responsible for the preparation of any plan. The terms of section 18(4) simply endorsed this approach.

[26 ] I was then referred by senior counsel for the respondents to section 1(3)(a) of the 2004 Act and the definition, contained therein, of the expression "additional support" referred to above. The idea of "additional support" was defined by reference to additions to what is normally provided by the education authority in whose area the child or young person belongs. This fitted in, it was submitted, with the general approach being one of there being a territorial basis of responsibility. "Additional support" was the basis upon which a co-ordinated support plan was formulated. This factor pointed up the difficulties of dealing with two authorities whose approaches to the child in question might be different.

[27 ] Senior counsel then referred to section 19 of the 2004 Act which deals with the powers of the Tribunal. Section 19(5) relates to references regarding decisions refusing placing requests as referred to in section 18(3)(e). Section 19(5) provides:

"Where the reference relates to a decision referred to in sub-section (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..."

In order to understand how that provision might work, it was necessary, it was submitted, to regard the reference in section 19(5)(b) to "the education authority" as being a reference only to the authority responsible for the child's education. In the circumstances of the present case the appellant's approach to the legislation required the reference in SS. 5(b)(i) as referring to the respondents and the reference in SS. 5(b)(ii) being, in the present case, a reference to the West Dunbartonshire Council. If that had been the intention of Parliament then the wording of section 19(5) would have been different. The natural inference, however, to be taken from the existing words, was that the powers of the tribunals specified in terms of section 19(5)(b), (i) and (ii) were powers requiring the same authority to do the things specified therein.

[28 ] I was then referred by senior counsel to certain authorities in relation to the rules of statutory construction. In the first place reference was made to Stock v Frank Jones (Tipton) Ltd (1978) 1 WLR 231 and to certain dicta in that case. The case related to the construction of a provision in the Trade Union and Labour Relations Act 1974 regarding unfair dismissal and a distinction that had been drawn, in that case, between the members of two classes of workers who had joined a strike, one class having been dismissed from employment and the other class, having not been so dismissed. At page 234C Viscount Dilhorne said this:

"It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17^th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it' (Coke 4 Inst. 330).

If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature".

At page 235 his Lordship continued, "Much weight was sought to be placed on the anomalies which it was said would result from giving effect to the words used by Parliament." His Lordship went on to say that he was by no means satisfied that all the anomalies lay on one side of the case and concluded at page 235E-F that in any event "the existence of anomalies, if they exist, cannot limit the meaning to be attached to clear language in a statute".

[29 ] At page 238-E Lord Edmund-Davies explained that even if the policy implicit in the relevant statutory provision was open to criticism "the statutory language is clear beyond doubt and must prevail".

[30 ] At page 238G-H Lord Scarman stated:

"I wish, however, to add a few words of my own on the 'anomalies' argument. Mr Yorke for the appellants sought to give the words a meaning other than their plain meaning by drawing attention to what he called the 'anomalies' which would result from giving effect to the words used by Parliament. If the words used be plain, this is, I think, an illegitimate method of statutory interpretation unless it can be demonstrated that the anomalies are such that they produce an absurdity which Parliament could not have intended, or destroy the remedy established by Parliament to deal with the mischief which the Act is designed to combat."

[31 ] Applying those dicta to the circumstances of the present case, senior counsel for the respondents submitted that there was no warrant for adding to the plain wording of the relevant statutory provisions. Had Parliament intended that it should be possible to make references to the Tribunal of decisions of the kind to which the present proceedings relate, then it could easily have expressed that intention for example, by adding at the end of section 18(1) words such as "or any education authority to whom a placement request has been made." Parliament had not done so because it had not intended to do so.

[32 ] While recognising that the approach to statutory construction had developed, to some extent, over the last 30 years or so, particularly under the influence of the approach required in interpreting European legislation, so that a purposive approach to the construction of legislation may play a greater role than in past times, senior counsel maintained that matters had not gone so far as the approach advanced on behalf of the appellant required. That that was so was demonstrated by a relatively recent decision of the House of Lords in the case of Customs & Excise Commissioners v Zielinszki Baker & Partners Ltd (2004) 1 WLR 707. In that case, which was concerned with the question as to whether a barn was part of a protected building for VAT purposes, Lord Nicholls, who was in a minority of one, sought to resolve this question by applying what he described at paragraph 8 as a "meaningful, purposeful interpretation", to the legislation in question to avoid, what he considered, would otherwise be a "strange result". The other members of the House of Lords, however, reached the conclusion that they were required to apply the plain meaning of the statutory provision in question even if, to some eyes, at least, that might seem to produce an anomalous result. Lord Hope at paragraph 21 put matters this way:

"The consequences of this approach to the definition may be to produce results which appear odd and unreasonable. The facts of the present case can perhaps be said to fall into that category. The house and the outbuilding are in the same occupation, they are occupied together as a single dwelling and both buildings fall within the definition of a listed building for the purposes of the 1990 Act. Prior to the abolition of the rating system for domestic properties by the Local Government Finance Act 1988, they would have been entered in the valuation list as a single hereditament. But there is no getting away from the fact that it is only the outbuilding and not the house that is being altered, and it is the house and not the outbuilding that has been listed. We must take the definition in note (1) as it stands, and we must construe it as we find it. In my opinion the ordinary meaning of the words used, taken in the order in which they are set out in the definition, leads inevitably to the result contended for by the commissioners."

The approach of the majority, in that case, senior counsel submitted showed that, at the highest level, courts still showed a reluctance to depart from the ordinary meaning of a statute even when apparent anomalies may be thrown up.

[33] I was then referred to the unreported decision of an Extra Division of the Inner House, in the case of J.T. v Stirling Council, 21 June 2007, in which the Opinion of the Court was delivered by Lord Nimmo Smith and which was concerned with the construction of provisions in the 2004 Act, in particular section 2(1)(d). At para. 22 of the Court's Opinion it is stated as follows:

"In considering the question of the proper construction of section 2(1)(d) of the 2004 Act, we have decided to follow the normal approach to the interpretation of statutory provisions. This requires ordinary words of the English language to be given their ordinary and natural meaning, as it appears from the words themselves, the context of the specific provision in which they appear, and the context of the statute as a whole."

That was the approach which the Court should take to the construction of the provisions of the 2004 Act with which the present case was concerned.

[34 ] In making the submissions he had made thus far, senior counsel for the respondents was addressing what he contended was the plain meaning of the wording of section 18. He then broadened his approach by looking at what he described as the wider context and purpose of the legislation. The division of responsibility within the legislation, it was submitted, was fundamentally done on a geographical basis. There were two key notions. The first, found in section 29(3) was the notion of responsibilities being placed upon authorities in respect of children or young persons being provided with school education in schools under the management of the education authority in question, or in pursuance of arrangements made or entered into by that authority. The second notion was to be found in section 29(4) in the reference to children or young persons belonging to an area which was to be construed in accordance with section 23(3) of the 1980 Act. In short, the notion of belonging to an area was that a pupil belongs to an area in which his parents are normally resident. These two notions gave rise to certain duties owed to persons who meet the definitions, by authorities linked to them, by those definitions, but there was no third class of duties owed to other persons, imposed by the legislation. The very notion of additional support needs as set out in section 1 of the Act was tied territorially. Again the key notion of the co-ordinated support plan was based on the requirement for the preparation of such plans being imposed upon authorities responsible for the education of the child or young person in question. The duties imposed under section 4 were defined by reference to the responsible authority. The duties of authorities contained in section 5 were owed to two classes of persons only, first, those belonging to the area of the authority in question and second, to persons for whose education the authority was responsible. There was no third category of persons to whom duties were owed. The same pattern continued throughout the legislation. Reference was made to the provisions of section 6 and section 7. These features of the substantive provisions of the primary legislation pointed to a more restrictive jurisdiction having been given to the Tribunal than was contended for by the appellant, reflective of the statutory duties in the provisions just referred to, and upon whom, and in what circumstances, those duties were placed.

[35 ] The provisions of sections 9 and 10 which related specifically to co-ordinated support plans endorsed that approach. Section 11(8)(e) and the 2005 Regulations S.I. 518, in providing for transfer of plans for children and young persons for whom they have been prepared and who moved from the area of one education to that of another was a clear indication, it was submitted, that while the responsibility might be transferred, there was to be only one authority responsible for such children and young persons. Sections 15 and 16 provided for mediation services and dispute resolution. It was clear from the terms of those provisions that those facilities were to be provided in relation to disputes between education authorities and those belonging to their area and not in relation to those who did not belong their area. This, it was submitted, was another clear indication that the Act was not intended to impose duties on authorities owed to persons outwith their responsibility or area.

[36 ] There was, it was submitted, by senior counsel for the respondents a further basis for arguing that the appellant's position as regards the Tribunal's jurisdiction was wrong. The territorial limitations to be found in the 2004 Act, as just discussed, were not new. They had existed in the 1980 Act (as amended). The 2004 Act was part of a general scheme for the provision of school education in Scotland. At the very beginning of the 1980 Act, the territorial limits, on the duties placed on authorities was recognised in section 1(1) which is to the following effect:

"Subject to sub-sections 1A and 2A below, it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education and further education." (emphasis added).

"An education authority" is defined in section 135 of the 1980 Act as meaning "a council constituted under section 2 of the Local Government Etc (Scotland) Act 1994 and 'area' in relation to an education authority shall be construed accordingly." There was nothing new or surprising, it was submitted, about education authorities having their responsibilities restricted territorially. That was the basis upon which they had operated since at least 1980. Very clear wording, it was argued, would be required to be found in the 2004 Act to displace the notion that an education authority's responsibility was limited to those in its area together with those in respect of whom it had made arrangements.

[37 ] Otherwise, senior counsel submitted, the provisions of the 1980 Act were not helpful in deciding what was the extent of the jurisdiction of the new tribunals created by the 2004 Act. Accordingly, no real assistance could be derived from the passages referred to by counsel for the appellants, from Education Law in Scotland which was dealing with different legislation. In any event, the observations of the writer of that work were based on the assumption that there was a legally enforceable statutory right, available to parents of children with special needs in relation to decisions by education authorities not responsible for their education, but to whom placing requests had been made and refused. But that was simply to beg the question as to whether there was such an enforceable right.

[38 ] In the last chapter of his submissions, senior counsel addressed the provisions of Schedule 2 of the 2004 Act upon which counsel for the appellant had relied as providing substantial support for her position. Senior counsel for the respondents submitted that the appellant's position on this point really amounted to saying that because paragraph 2(1) of Schedule 2 refers to a request "to an education authority", which phrase was not qualified, for example, with the words "for the area to which the child belongs", the inference must be that it was intended to cover a reference to any education authority, to which a placement request may have been made. That inference was, however, it was submitted, not justified, having regard to the scheme of the Act, taken as a whole. The schedule was expressly enacted by virtue of section 22 of the Act which referred to the schedule making provisions about placing requests in relation to children and young persons having additional support needs. So the first question to be addressed, before Schedule 2 came into play, was whether the child in question had additional support needs. That was a matter, as had been seen, for the education authority responsible for the school education of the child or young person in question. It was accordingly, it was submitted, implicit in Schedule 2 that the placing requests referred to were placing requests to authorities who were responsible for the education of the children or young persons in question. Unless an education authority had assumed responsibility for such a child or young person, there was no duty owed by an education authority to a child or young person outside their area. To interpret the provisions of Schedule 2, as the appellant invited the Court to do, was inconsistent with the scheme of the Act as a whole. Reading the Act as a whole it could not be argued that paragraph 2(1) in the Schedule, created a duty on education authorities owed to children who belonged to other areas and for whom they had assumed no responsibility.

[39 ] The scheme of the legislation, it was submitted, was as follows:

1. Education authorities owed duties to persons for whose education they were responsible.

2. Certain duties were owed by education authorities, and they had certain powers in relation, to persons for whose education they were not responsible, but who belonged to their area.

An education authority owed no duty to a child or young person not belonging to their area and for whom it had not assumed responsibilities.

[40 ] Senior counsel for the respondents accepted that the position was different in the case of children who did not have additional support needs. The parents of such children did have the right to seek a placement in a school, operated by an education authority to whose area they did not belong, and in respect of children for whose education the authority had no responsibility. Any refusal of such a request was subject to appeal. But this difference was not productive of anomaly because of the concept of co-ordinated support plans and the fact that special schools were much fewer in number than mainstream schools. Moreover, any question of anomaly was removed, or substantially reduced, when one had regard to the provisions of section 23(1) of the 2004 Act. Section 23(1) provides as follows:

"Where it appears to an education authority than 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".

Section 23(2) goes on to provide:

"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...".

Section 23(3) is in the following terms:

"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".

[41 ] Senior counsel for the respondents submitted that those particular enactments would allow an education authority, such as West Dunbartonshire Council, responsible for preparing a co-ordinated support plan, to make a request to another authority, like the respondents, to place a child in a school operated by them and the other authority would require to comply with that request subject to the conditions set out in section 23(3). Those provisions re-affirmed the territorial basis for responsibility established in the other provisions of the Act. This was the relevant provision for dealing with the possible involvement of an education authority in relation to a child for whom another authority, as the authority responsible for the child's additional support needs, had prepared a co-ordinated support plan.

[42 ] Turning to the appellant's criticisms of the Tribunal's decision in the present case, senior counsel for the respondents accepted that the Tribunal, in what they said in the first paragraph of page 27 of their decision, appeared to have overlooked the fact that section 23 of the 1980 Act had been amended to provide for inter-authority co-operation. This was only one feature of a decision which was arrived at by looking at the statutory scheme as a whole. Moreover, in submission to the Tribunal the amended section 23 of the 1980 Act was brought to the Tribunal's attention. In any event, it could be seen, from what was said in the remainder of page 27 of their decision, that the Tribunal were fully aware of the possibility of inter-authority co-operation and at pages 24-25 they had commented on the provisions of the new section 23 of the 2004 Act. Accordingly, whatever might be said as to what they stated at paragraph 1 of page 27 it was clear from the rest of the decision that the Tribunal had referred to all the relevant statutory provisions and material. Lastly, senior counsel submitted that the appellant's reliance on the provisions of section 6 of the Interpretation Act to the effect that the singular may embrace the plural as supporting her position as to how section 18(1) might be construed, ignored the context in which that provision found itself, which context argued against the expression "any decision" as having the meaning argued for by the appellant.

[43 ] In a short reply, junior counsel for the appellant re-emphasised that the construction argued for by the respondents resulted not only in injustice but in discrimination as between the rights of parents of able-bodied children and parents of children who had additional support needs.

Decision
[44 ] Having considered the submissions made on behalf of both parties in these proceedings, I have come, without much difficulty, to the clear conclusion that the appeal should be refused, for the reasons advanced on behalf of the respondents. The point is ultimately one of pure statutory construction no more, no less. I am entirely satisfied that having regard to the provisions of the 2004 Act the Tribunal has no jurisdiction to hear a reference in relation to a decision of an education authority, regarding a placement request, where that authority is not the authority responsible for the education of the child in respect of whom the request was made, nor is the authority for the area in which such a child resides nor is an authority who has assumed responsibility for the child's education.

[45 ] The new regime set up for children or young persons with additional support needs by the 2004 Act has, in my judgment, as its centrepiece, or raison d'être, the concept of co-ordinated support plans and the resultant duties of education authorities to provide such plans for children or young persons for whose school education the authority in question is responsible. The substantive provisions of the Act are directed to implementing the statutory purpose of putting these concepts into practice. Section 19 establishes the Additional Support Needs Tribunals for Scotland. It is section 18 which establishes the jurisdiction of the Tribunal. The terms of the heading of the section, which is part of the Act, are, in my view instructive. They are "references to tribunal in relation to co-ordinated support plans". The heading does not, for example, go on to say "and other relevant or connected matters". Section 18(3), in a detailed and prescriptive fashion, sets out the decisions, failures and information which may be referred to the Tribunal. On a plain reading of what follows in that section I am satisfied that for the Tribunal to have jurisdiction, the decision or failure in question must be a decision of the education authority which is responsible for the school education of the child or young person in relation to whom the decision arises or the omission occurs. In particular, and most importantly, the reference in section 18(3)(e), when taken along with subsection 4, to "a decision of the education authority refusing a placing request made in respect of the child or young person...", in my judgment, having regard to the scheme of the Act as a whole and, in particular, the other provisions of section 18, does not extend to a decision of an education authority not responsible for the education of the child or young person in question and, accordingly, the preparation of a plan in respect of that child or young person. The matter goes further because of the wording of section 29(3). On the agreed facts, in the present case, and despite junior counsel for the appellant's brave attempt in that regard, it cannot be argued that the child M., ever stood in a relationship with the respondents as described in that subsection.