Legislation

".... 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 sub-section (1)."

This case turns on the meaning of the phrase "at the time the placing request is refused".

[7] Further provision in relation to placing requests is made in terms of schedule 2 to the Act of which the following provisions should be noted.

Paragraph 5, which provides:

"(1) 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.

(2) Sub-paragraph (1) does not apply where the decision of the Education Authority refusing the request may be referred to a tribunal under section 18(1) ...".

Paragraph 6, which provides:

"....(4) Sub-paragraph (5) applies where -

(a) after a reference is made to an Appeal Committee under paragraph 5, but

(b) before the Committee has disposed of the reference,

there is referred to a tribunal under section 18(1) a decision of the education authority that the child to whom the reference relates does not require a co-ordinated support plan.

(5) Where this sub-paragraph applies -

(a) the Appeal Committee must transfer the reference to the Tribunal, and

(b) on being so transferred, the reference is to be treated as if made to the Tribunal under section 18(1)."

Paragraph 7(8) and 7(9) makes similar provision for transfer pending an appeal to the sheriff.

Section 19(5) deals with the powers of a Tribunal in relation to a reference under section 18(3)(e), providing in section 19(5)(c) that they may,

"where -

(i) the decision was referred to the Tribunal by virtue of the application of sub-section (4)(c) of that section, and

(ii) the Tribunal has confirmed the decision of the Education Authority that the child or young person does not require co-ordinated support plan, refer the decision to an Appeal Committee set up under section 28D of the 1980 Act."

The Issue

[8] The argument before me turned on the proper interpretation of section 18(4) of the 2004 Act, and in particular the meaning of the phrase "at the time the placing request is refused.

Submissions

Legal Principles

[9] Relying on various passages in Bennion on Statutory Construction, Counsel for the appellant made the following propositions:

1. The text is the pre-eminent indication of the legislature's intention.

2. The legal meaning of an enactment is taken to be that which corresponds to the literal meaning.

3. Before the literal meaning may be displaced, there must be very powerful factors to weigh against it. The factors must be compelling or too great to ignore.

4. A strained construction may be justified where:-

(a) there is a repugnance between the words of the enactment and those of some other enactment; or

(b) the consequences of the literal meaning are so undesirable that Parliament cannot have intended them; or

(c) there is an error in the text that plainly falsifies Parliament's intention.

In the absence of such factors it may be perverse not to apply a literal construction.

5. Law should be certain and predictable. A citizen should be able to determine the legal consequences of his or her actions. It is relevant that the legislation is designed to be construed without the assistance of lawyers.

6. Rights in relation to legal proceedings should not be removed, except under clear authority of law.

7. The principle expressio unius est exclusio alterius may indicate against a strained construction.

[10] Counsel then referred to Stock v Frank Jones (Tipton) Limited (1978) 1 W.L.R. 231, and Viscount Dilhorne's comments at page 234G that:

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

She also referred to the comments of Lord Edmund-Davies at page 238 that:

"... dislike of the effect of a statute has never been an accepted reason from departing from its plain language."

At the same page, in respect of an argument relating to the "anomalies" which would arise from giving effect to the words used in a statute, Lord Scarman quoted a passage from an earlier case that

"It is not enough that the words, though clear, lead to a 'manifest absurdity'... 'if the language of a statute be plain admitting of only one meaning, the legislature must be taken to have meant and intended what is has plainly expressed, and whatever it has in clear terms enacted must be enforced, though it should lead to absurd or mischievous results'".

At page 239 he went on to say that:

"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."

Counsel submitted that this case is entirely supportive of her position.

1. In interpretation of statutes the court seeks to ascertain and give effect to the intention of Parliament.

2. The text is the primary indication of that intention.

3. Wherever possible the text should be given its ordinary and natural meaning having regard to its context.

4. If such an approach is contrary to the purpose of the Act or produces injustice, absurdity, anomaly or contradiction or otherwise renders it unworkable, a wider and more liberal approach may be taken.

[12] He too referred to the case of Stock v Frank Jones (Tipton) Limited, this time to the speech of Lord Simon of Glaisdale at page 236 where, in relation to purposive construction of a statute he said:

"... it is essential to bear in mind what the court is doing..... What the court is declaring is 'Parliament has used words which are capable of meaning either X or Y: although X may be the primary natural and ordinary meaning of the words, the purpose of the provision shows that the secondary sense, Y, should be given to the words'. So too when X produces injustice, absurdity, anomaly or contradiction. The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said, rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct, these should coincide. So if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory, objective, anomaly, etc.) which throw light on what the draftsman meant to say."

[18] There was specific provision for a placing request appeal to be remitted to a Tribunal where there was an intervening occurrence of the circumstances of section 18(4)(c) (the making of a decision that a child did not need a plan). This could be found in paragraphs 6(4), 6(5), 7(8) and 7(9) of Schedule 2 to the 2006 Act. If the construction identified in the respondents' note of argument were adopted, these provisions would be redundant. On the respondents' argument all intervening cases would automatically fall to be remitted to a Tribunal.

[19] Alternatively, on the second construction argued for the respondents, the Appeal Committee or Sheriff would be required, by statutory provision, to remit to a Tribunal on the circumstances of section 18(4)(c) intervening. However they would also be required to do so where the circumstances of section 18(4)(a) or (b) intervened, but without statutory authority to do so.

[20] Furthermore, the absence of specific statutory provisions for referral in respect of the intervening occurrence of circumstances identified in sections18(4)(a) or 18(4)(b) suggested that it was not the intention of Parliament that there should be referral in such circumstances.

[21] The statutory process for appeal against refusal of a placing request includes the right to appeal to the Sheriff from the Appeal Committee. The effect of referral to the Tribunal would be to remove this right of appeal. In respect of intervening circumstances such as section 18(4)(c) there is statutory authority for this, since the Sheriff is, in such a case, required to refer the case to the Tribunal. However on the respondents' argument the right to appeal to the Sheriff would, in other circumstances be removed without statutory authority. Once an appeal is made the right to make it cannot be taken away. In addition, in the event of the intervention of circumstances such as section 18(4)(a) and (b) it would be a necessary consequence for the Sheriff to refer to a Tribunal in both other cases but without the statutory authority to do so.

"where the child or young person is the subject of a placing request, and whether or not that placing request is the subject of the reference, the reference shall state -

(a) whether there is an outstanding reference to an Appeal Committee under paragraph 5 of schedule 2 to the Act; or

(b) whether there is an outstanding appeal to the sheriff under paragraph 7 of that schedule, in which case he shall specify the court in which the appeal is proceeding and, if known to the appellant, any case reference number relative to it."

This envisages that (a) a placing request might independently be the subject of a reference to a Tribunal; but that (b) there may at the same time be a reference to a Tribunal on another issue, whilst the placing request appeal continues to be dealt with by the Appeal Committee. In that case the Tribunal has to be told if there is an outstanding Appeal Committee process in relation to a placing request. The Tribunal and the Appeal Committee look at different issues. The Committee and the Sheriff look at the placing issue, i.e. which school. The Tribunal deals with issues relating to whether a plan is required and certain issues relating to the content, timing and review of such a plan. Counsel submitted that in light of all the considerations, the weight was clearly in favour of a literal construction.

Respondents' submissions

[32] One could infer from paragraphs 6(4) and 6(5) of schedule 2 the intention that where a plan has been, will be or may be prepared the Tribunal is the appropriate forum. It would not have made sense for Parliament to have provided for a transfer to a Tribunal on the circumstances of section 18(4)(c) intervening if the intention had not been for a similar transfer to take place in respect of circumstances (a) and (b).

[35] He agreed that a statutory right of appeal to the Sheriff could only be removed by clear provision but submitted that in the present case the intention to remove it could be inferred.

[36] Paragraph 5(3) of the 2006 Regulations was either neutral or in his favour, since it envisaged the reference of a placing refusal to an Appeal Committee, followed by a reference to a tribunal. It also envisaged that a placing request may be the subject of the reference to the Tribunal.

Discussion

[37] In some ways counsel for the appellant is correct to say that this situation has arisen in unusual circumstances. Normally an education authority will decide at the outset whether a child needs a plan, a decision which could be referred to Tribunal under section18(3)(a) 18(3)(b). A placing request will usually come after a decision in relation to a plan. The present situation is not likely to recur and it is unlikely to be a situation which was considered when the legislation was passed.

[38] I see the attraction in the respondents' argument that it might have made sense for Parliament to provide for transfer to a Tribunal not only when any of the circumstances in section 18(4)(a) to (c) existed at the time of the placing request refusal, but where such circumstances intervened pending appeal. However, Parliament has not so provided. It has made provision only in respect of the intervention of one set of circumstances and I do not think the phrase in question can be interpreted in a manner which infers provision where the other circumstances intervene.

[39] The phrase in question is neither ambiguous nor semantically obscure. Counsel for the respondents himself accepted that the interpretation advanced for the appellant was the ordinary and natural one. On the other hand the respondents' interpretation is not simply a "strained" interpretation it involves a re-writing of the statute. A "strained" interpretation of the phrase which applied to all three subsections might have been easier to accept, but Counsel recognised that this would have made paragraphs 6(4), 6(5), 7(8) and 7(9) of schedule 2 redundant. (It would also have caused problems with the interpretation of paragraph 5(2) of that schedule.) It was for that reason that he sought to restrict his interpretation of the phrase to only two of the three sub-sections which it covers. This, however, causes its own problems.

[40] In the first place, the fact that it was thought necessary to include paragraphs 6(4), 6(5), 7(8) and 7(9) at all suggests that the interpretation of the phrase as a single point of time was within the contemplation of the legislature. Secondly, it suggests a deliberate decision to exclude (a) and (b). Thirdly, the respondents' interpretation would have the effect of removing from the appellant the possibility of a right to appeal to the sheriff. That right is expressly removed in respect of the intervention of the circumstances of section18(4)(c), but in light of that specific provision and the absence of corresponding provisions in respect of (a) and (c) I am not prepared to say, by inference, that it must have been the intention of the legislature to remove this right of appeal. A further problem is that on the respondents' argument, the Appeal Committee process would have to come to an end, for which there is no provision in the Act. Where section 18(1) applies (and thus, section 18(4)) a parent may not make a reference to an Appeal Committee (paragraph 5(2) of schedule 2). However, where circumstances intervene, the reference has already been made and the jurisdiction of the Appeal Committee already established. What then happens to the reference? For an intervention under (c) specific provision exists. For (a) and (b) the respondents argue that it must somehow be assumed to come to an end. This in my view would place an appellant in an unsatisfactory and uncertain position.

[42] For the reasons given in the preceding paragraphs I have concluded that the appellant's argument is to be preferred. A further factor in my reasoning is that the circumstances of the present case are likely to be exceptional. For such circumstances I do not think it appropriate to adopt an interpretation which involves effectively re-writing the section in question.

Decision

[43] I shall accordingly allow the appeal and reduce the decision of 25 August 2006.