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Cite as: [2008] CSIH 51, [2008] ScotCS CSIH_51, 2009 SC 47, 2008 GWD 28-435, 2008 Fam LR 129

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Eassie

Lord Reed

Lord Carloway

[2008] CSIH 51

OPINION OF THE COURT

delivered by LORD CARLOWAY

in the appeal by

WA'S LEGAL REPRESENTATIVE

Appellant

against

THE HIGHLAND COUNCIL

Respondents

_______

Appellant : Logan; Campbell Smith WS

Respondent : JM Scott QC; Biggart Baillie LLP

22 August 2008

1. Statutory Framework

[1] This is an appeal under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) against a decision of an Additional Support Needs Tribunal dated 16 January 2008 confirming a decision of the respondents dated 8 October 2007 that WA (the child) does not require a Co-ordinated Support Plan (CSP). Such an appeal lies only on a point of law.

[2] The 2004 Act imposes a duty upon every education authority to "make adequate and efficient provision for such additional support as is required" for each child in their area (section 4(1)). It sets out an elaborate scheme regulating the provision of that support; being support needed when a child "is, or is likely to be, unable...to benefit from school education" without its provision (s 1(1)). Additional support is "provision which is additional to, or otherwise different from, the educational provision made generally for children" (s 1(3)). The authority must identify those children who have additional support needs and those having such needs who also require a CSP (s 6(1)(a)). In terms of section 2(1) a child requires a CSP if:

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

(i) one or more complex factors, or

(ii) multiple factors,

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

(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or

(ii) by one or more appropriate agencies...as well as by the education authority themselves".

[3] A parent can request an education authority to establish whether any child has additional support needs and requires a CSP. The authority "must...comply with the request unless the request is unreasonable" (s 6(2)). A parent can also request that the authority arrange for the child to undergo "a process of assessment or examination" and, again, the authority "must comply with the assessment request unless the request is unreasonable" (s 8(1)). Assessment or examination includes "educational, psychological or medical assessment or examination" (s 8(4)).

[4] In establishing whether a child has additional support needs or requires a CSP, the education authority must (s 12(2)):

(a) seek and take account of relevant advice and information from such appropriate agencies and other persons as the education authority think appropriate".

If the authority establish that a child requires a CSP then they must prepare such a plan (s 9(1)). If the authority decide not to comply with any request, then they must (s 28(2)):

"(a) inform the person who made the request of that decision, [and]

(b) in so doing give reasons for the decision..."

The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 (SSI No 518) provide (regulation 4) that the authority must advise the parent of the decision within a certain period.

[5] A parent is entitled to refer the decision of the educational authority on the requirement of a child to have a CSP to the Additional Support Needs Tribunal (s 17). The Tribunal may (s 19(2)):

"(a) confirm the decision, or

(b) overturn the decision and require the education authority to take such action as the Tribunal considers appropriate by such time as the Tribunal may require".

In exercising its powers, a Tribunal must "take account, so far as relevant, of any code of practice published by the Scottish Ministers" in terms of the Act (s 19(7)). Education authorities must also do so (s 27(8)).

[6] There is a Code of Practice called "Supporting Children's Learning". Chapter 3 of the Code sets out guidance on the Act's provisions for identifying needs. Much of the Code appears to be repetition or re-wording of the terms of the statute, presumably on the basis that the statutory language requires to be modified for the benefit of those who will have practical involvement with additional support needs. In relation to a refusal to comply with a request for assessment, Chapter 3 states (para 38):

"...unreasonableness in this context is an objective test - what a third party might consider unreasonable. It will be for the education authority to consider each individual case on its own facts and circumstances. In some circumstances an authority will need to consider carefully whether to comply. For example, the authority may decide not to comply with the request where assessment:

· may not be in the best interests of the child...

· may not be seen as being relevant given the child's...circumstances

· ...

· may repeat assessments already carried out".

The Code goes on to explain that it is for the authority to consider who is the appropriate person to carry out any particular assessment and that, where a range of assessments is required, the authority should seek to bring these within one assessment process to avoid duplication (para 39).

[7] Chapter 4 of the Code deals specifically with CSPs. Again it repeats some of what is said in the statute and regulations. It states:

"27. Where an education authority propose to establish whether a child...requires a co-ordinated support plan they must also comply with a request for an assessment or examination made by the parent...unless the request is unreasonable. The parent ...can request that the educational authority arrange for the child...to undergo a process of educational, medical, psychological or other type of assessment or examination (or a combination of these) for the purposes of establishing if there is a requirement for a co-ordinated support plan...

28. Educational assessments are an intrinsic part of day-to-day practice in schools. Education authorities...should consider also any other available assessments (e.g. health or social work) and decide whether there is any requirement or need for further detail.

29. ...In reaching a decision about whether any request is reasonable or not, an education authority will have regard to the individual circumstances of the child...".

2. Background and Procedure

[8] The Tribunal recorded (finding 8) the procedure culminating in the respondents' decision. The appellant had originally written to the respondents on 25 July 2007 formally requesting a determination of whether WA had additional support needs and, if so, whether he required a CSP. She requested that a number of professionals carry out assessments, namely: an educational psychologist; a speech and language therapist; an occupational therapist; a physiotherapist; an information communication technology (ICT) specialist and a social worker. The letter detailed why she thought that such assessments were desirable. This letter was acknowledged by the respondents' Director of Education on 10 August, referring to it only as a request for a determination on whether WA required a CSP. It stated that the matter was being passed onto the Additional Support for Learning Co-ordinator.

[9] The respondents then organised a meeting at the school on 6 September. This was attended by: Wendy Munro, the deputy head teacher; Judith Macleod, the support for learning teacher; Audrey Wardlaw, the nurse assistant; Heather Sked, the educational psychologist; Deborah Smit, the speech and language therapist; Dr Anne McPheat, the community paediatrician; Sue Roddick, a senior social worker; together with the appellant and her supporter. This meeting used a "CSP Transitional Tool" as a model for discussion. The Minutes relative to the application of this Tool, which include references to the appellant's concerns about WA, read:

"Question 2B Discussion around the term "Significant" and the level of need. Consideration given to Social Emotional issues. [WA] requires support, but it doesn't seem to be a high level. He is in groups for maths, language, reading...

Question 4B SALT input. [WA] would benefit from daily input, but this could be done at home or with LSA. The medical opinion from Dr Anne McPheat is that he doesn't need a high level of co-ordinated input to educational planning...

...

Question 2B Consideration of this question that there are multiple factors arising from health and disability, social and emotional and to an extent learning environment.

Question 4A ...He has been observed by Heather Sked having good interactions with other children, although he is shy. Dr Ann McPheat explained that he wouldn't be diagnosed with Aspergers or underlying communication disorder.

Social Work could do work on anxiety and social interaction but it would not be needed long term. This could be undertaken by Donna CSW. Social Work assessment would not require long term involvement.

Concern from Heather Sked Ed Psych that his perception of what is happening may not be what is seen to be happening. He may be worrying about things...".

Certain action points were noted before the conclusion that:

"In the opinion of the meeting [WA] doesn't require CSP with IEP an IEP or further assessments".

[10] By letter dated 21 September, the appellant wrote to the respondents and referred to the minutes of the meeting. She noted the conclusion but asked when she would receive written notification of the decision. She continued:

"Although the professionals at the meeting have not agreed to further assessments, could you confirm if this is also the Education Authority's opinion and if so, I presume the Education Authority are stating that my requests for assessments and examinations are unreasonable? If this is correct, would you provide me with reasons why my requests for assessments/examinations are unreasonable".

Stephen Iliffe, the respondents' Senior Manager (Additional Support Needs), replied by letter of 25 September stating that he had received a copy of the information compiled during the meeting and, having reviewed the matter, supported the "view of the meeting, namely that it is not appropriate to compile a Co-ordinated Support Plan" for WA. He advised that formal written notification would follow. In relation to the request for assessments, he wrote that:

"information was supplied on 6^th September from all of the services you mentioned except the information/communication technology specialist. I have, however, spoken to school staff about this and they do not feel that involving that service would be beneficial".

The Tribunal were to conclude that this letter was not sufficiently informative.

[11] On 8 October, the respondents' Additional Support for Learning Co-ordinator wrote to the appellant under reference to the meeting and stated:

"The Educational Authority considered whether a Co-ordinated Support Plan was required.

It was agreed at this meeting that [WA] did have Additional Support Needs but did not require a Co-ordinated Support Plan at this Time.

The reasons for this are:

· [WA] does not require substantial or significant additional support provided by education (i.e. a continuing requirement for high level adaptation or elaboration of the curriculum and learning environment).

· [WA]'s Additional Support Needs do not require a significantly high level of co-ordinated input to educational planning from one or more agencies in addition to education".

It was this decision that the appellant challenged before the Tribunal.

3. The Tribunal

[12] The Tribunal heard oral evidence from: Heather Sked, educational psychologist; Wendy Munro, the deputy head teacher; Stephen Iliffe (supra); and the appellant. They had before them a number of reports and letters from various professionals involved with the child, including those from the community paediatrician (Dr Anne McPheat) and the speech and language therapist (Deborah Smit). The Tribunal also had the completed CSP Assessment Tool (supra). The Tribunal found in fact that:

"1. [WA] is aged eight. He lives with his mother who is a single parent. [WA] has lived with her since he was fifty weeks old. He was formally adopted by the Appellant in June 2001.

2. [WA] is presently a pupil in [C] Primary School in Inverness. This is a mainstream primary school, although it is designated by the Authority as a school for children with physical impairment. [WA] has attended there since P1. His start at primary school was deferred for one year due to his difficulties and he continued to attend the school's nursery class. [C] Primary School is in close proximity to [WA]'s home, but he does not actually live within its catchment area.

3. [WA]'s class has a high incidence of children with Additional Support Needs in that there are ten such children in a class of twenty-four. Out of these ten children four are described by the school as having 'higher needs' and [WA] is one of these. In addition to the teacher there is a classroom assistant and learning support auxiliary within the class. The latter works closely with [WA] and is his 'named supporter'. She is not the named supporter for any other child in the class.

4. [WA] has an abnormality of the twenty-second chromosome known as DiGeorge syndrome or Velo-Cardio-Facial-Syndrome. As a result [WA] has certain health difficulties, namely minor heart problems, fluctuating hearing loss, pains in his feet (particularly at night), low muscle tone, reduced stamina, bowel problems and learning difficulties.

5. Whilst at nursery [WA] had an Individualised Educational Plan (IEP). This did not continue in Primary 1.

6. Within the classroom [WA] is described by the school as having low self-esteem and lacking in confidence. He is reported to be shy when outside the classroom. Although he has learning difficulties in the area of processing, particularly auditory processing, he is in the top reading group in the class.

7. [WA] has the involvement of the following agencies, outwith education: a/ Community Paediatrician, Dr McPheat. [WA] attends regular review clinics with Dr McPheat sometimes held within the school. b/ School Nurse, Anne Johnstone. She attends the school infrequently and has had no involvement with [WA] since May 2007. c/ Physiotherapy. A physiotherapy assessment was done in respect of W. In March 2007 [WA] was discharged from physiotherapy with the conclusion "[WA] is an active boy who participates well in all activities at school offering no complaints." d/ Speech and Language Therapy (SALT), Deborah Smit. [WA] is seen by Ms Smit who attends the school regularly to see the children on her caseload. She saw [WA] for assessment and two blocks of therapy over the course of 2007. She feels he would benefit from regular practice of his speech, even for five to ten minutes each day and the school are aware of this. They can provide either the classroom assistant or the learning support auxiliary to fulfil this role. e/ Children's Service Worker, Donna Hareman. [WA] had input from Donna Hareman to help him develop socially and behaviourally in P1. She has no input with [WA] at present although he has recently been re-referred. She is part time in the school and is jointly funded by education and social work."

[13] The Tribunal confirmed the decision of the respondents. They considered that the issue was whether or not the child satisfied the requirements of section 2(1) and thus required a CSP. They stated that they were "satisfied that there was sufficient evidence available to [the Tribunal] to reach a fair decision".

[14] The Tribunal summarised the complaints of the appellant. These were that the child was not coping well at school, either socially or with his writing and arithmetic. The appellant thought that a dedicated support person should assist him in class and that social work support should help him with his social skills. The appellant explained why she thought the child ought to be assessed by an Occupational Therapist, notably his pencil grip and stair climbing. She also sought an ICT assessment because of the child's need to learn at a computer. The Tribunal referred to the evidence of the educational psychologist, who had assessed the child at the end of 2006. She had concluded that the child was "well placed within his class and was making good progress across the curriculum". The Tribunal noted the deputy head teacher's evidence to the effect that she had considered the ICT question. Having consulted the support for learning teacher, she had felt that the child's learning difficulty was not at the severe level required for ICT involvement. The Tribunal noted too Mr Iliffe's position, as the person with overall management responsibility for the respondents' assessment and decision. He accepted that the respondents had "slipped up" in dealing with the Occupational Therapy request, but had agreed with the deputy head that no ICT assessment was required. He had also accepted that the time scale in the Regulations had not been complied with.

[15] The respondents had submitted that the evidence revealed that there was no significant additional support needed from the education authority in exercise of their other functions in terms of the Act, or from any other appropriate agency. In particular "there was no ongoing physiotherapy, speech and language therapy, social services and occupational therapy input". The meeting at the school, which had had a multi-agency attendance, including the community paediatrician, had concluded that the child had not required a high level of support. It was accepted that the request had not been dealt with properly, but that there was a separate remedy in that regard. The specific requests for occupational therapy and ICT assessments "required to be evidenced and the Authority did not have any evidence that they were necessary". The appellant submitted that the authority should have complied with her requests and claimed that the whole process had been fundamentally flawed because of the admitted failures and that a CSP was required on the evidence.

[16] The Tribunal's reasons read as follows:

"The Tribunal accepted the evidence from the school and the educational psychologist that [WA] is coping well and is receiving additional support appropriate to his needs.

Although the Appellant was adamant that there was a need for occupational therapy and ICT assessment the Tribunal concluded that it was not possible, without evidence of what support may be needed, to find that any other agency required to provide significant support to [WA].

The Tribunal were concerned that the Appellant had made a detailed request for specific assessment and examination of [WA] and this had not been comprehensively dealt with by the Authority. The Tribunal's view, having regard to section 8 of the Act, was that it was proper for the Appellant to request other types of assessment beyond education (para 39 of the Code of Conduct (sic)) but not to specify the steps that that assessor required to take e.g. not to require the educational psychologist to 'determine [WA]'s potential/IQ...'. It was also open to the Authority to refuse the assessment request as unreasonable (section 8(1) of the Act). That is what the Authority purported to do here in relation to the Appellant's specific requests for assessment by an occupational therapist, ICT specialist and Social Work Department. However, it is the Tribunal's view that the Authority's written response [of 25 September] fell far short of the requirements contained within section 28(2) of the Act.

Nevertheless, in considering whether the Authority made the correct decision in not complying with the Appellant's request the Tribunal had regard to para 38 of the Code of Conduct (sic). This sets out the reasons that the Authority may have for such a refusal to comply. The Authority's position at the Hearing was that assessment was not undertaken in those three areas as there was no evidence of a need for any of them.

The Tribunal noted that this was one of the reasons set out in para 38 (bullet point 2). The Tribunal agreed with this position, having regard to the evidence in [WA]'s case.

In summary the Authority have failed to comply with the technical requirements of section 28(2) but their refusal to carry out the Assessments sought by the Appellant is justifiable. In these circumstances the Tribunal considers that the Authority's failure in this area does not constitute a fundamental flaw of their whole decision to refuse a CSP. However, it is to be hoped that the Authority will take steps to ensure that the requirements set out in section 28 are fully complied with in the future.

The Tribunal found that neither section 2(d)(i) or (ii) was satisfied in that the child's needs did not require significant additional support from any function of the authority other than education, nor from any other appropriate agency. The Tribunal agreed with the points made in the submissions made by the solicitor for the Respondent in reaching this decision".

4. Submissions

(a) APPELLANT

[17] The appellant's contention was a straightforward one. It was that the Tribunal had misdirected themselves in law in failing to ensure that they or the respondents had the information necessary to ascertain WA's additional support needs. They had thereby been unable to determine whether the test for a CSP, notably whether the child required "significant" additional support, had been met. The focus of the submission was the failure by the respondents to comply with the request for Occupational Therapy and ICT assessments (see Grounds of Appeal 1 and 3, Ground 2 not being advanced). A request having been made, there ought to have been reports dealing with those areas. If the respondents had failed to carry out their duties under sections 8 and 12 to obtain assessments and to take into account the advice and information from appropriate agencies, then the Tribunal required to instruct those assessments and take the resultant advice and information into account before reaching their own decision. The Tribunal had failed to make clear findings about what the child's needs were. Reference was made to: RB v Highland Council [2007] CSOH 126, Lord Brailsford at para 8; SM v City of Edinburgh Council (sub nom. SM, Appellant) 2007 FamLR 2, Lord Glennie at paras 37-38; and JT v Stirling Council 2007 SC 783

(b) RESPONDENTS

[18] The respondents maintained that there was only one issue for determination and that was whether the Tribunal had been entitled to reach a decision on whether the child required a CSP on the basis of the information before them or whether their decision to do so was "perverse" in the Wednesbury sense (Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223). They had been entitled to reach the decision and no error of law had occurred. The problem stemmed from the Tribunal's use of the word "evidence" in two different ways. The first was in relation to whether there was a prima facie basis for a need to assess and the second was in the ordinary sense of the information before the Tribunal. The Tribunal recognised that, on the basis of the information before the authority, there was no basis for proceeding to make further assessments. Hence, the information was complete. The community paediatrician had been present at the meeting of 6 September and had been a party to the decision that no further assessment was necessary. Caution was required when a Court approached the decision of an expert tribunal, whose decision should be read as a whole (AH (Sudan) v Home Secretary [2007] 3 WLR 832, Lord Bingham of Cornhill at para 1, Lord Hope of Craighead at para 19, Baroness Hale of Richmond at para 30, Lord Brown of Eaton-under-Heywood at para 43). What was being argued here was an appeal on the facts and not the law (G v Argyll and Bute Council 2008 SLT 541, Lord Matthews at para [70] quoting from HA v Secretary of State for the Home Department 2008 SC 58, Lord Macfadyen at paras [10] - [17]). On the construction of the Act, reference was also made to JT v Stirling Council (supra), Lord Glennie at para [25] and C v City of Edinburgh Council 2008 SLT 522, Lord Wheatley at paras [28] - [29]. The Tribunal had correctly identified the issue in law. They had concluded as a matter of fact that there was no prima facie basis for further assessments and that the respondents' failure adequately to give their reasons for this did not affect the fact that they were justified in not making these assessments. The Tribunal had had a considerable body of evidence about the child and had been entitled to accept it. There was no perversity in their decision that they had sufficient information upon which to proceed.

5. Decision

[19] In AH (Sudan) v Home Secretary (supra para 19), Lord Hope endorsed what had been said by Baroness Hale (para 30) on the need for caution when a court is asked to examine the decision of an expert tribunal, which the Additional Support Needs Tribunal undoubtedly is. He continued:

"A decision that is clearly based on a mistake in law must, of course, be corrected. Its reasoning must be explained, but it ought not to be subjected to an unduly critical analysis".

It is also, as Lord Hope said, important not to read passages in a Tribunal's determination in isolation, but to consider the decision as a whole. In the present case, adopting that caution, no error of law appears from the decision.

[20] The Act contains a number of requirements, which an education authority must comply with in assessing whether a child requires a CSP. However, a failure by an authority to comply with a particular provision will not inevitably result in a reference to a Tribunal being successful. The Tribunal may, no doubt, have regard to these requirements. They may have regard to the fact that Parliament has provided that assessments ought to be carried out, when it is not unreasonable to do so. But it is important to note that these requirements are not re-imposed upon the Tribunal. The Tribunal are entitled to re-assess the merits of a particular issue and to reach their own conclusion on a child's needs. As such, the Tribunal will bring its specialist knowledge to bear on these merits, including on whether a decision ought to be reached on the information made available to them.

[21] The Tribunal addressed themselves to the correct issue. That was whether the child satisfied the requirements of section 2 and thus required a CSP, by reason (in short) of requiring significant long term additional support beyond that provided by the respondents purely as an education authority. In looking at that issue, which is essentially one of fact, the Tribunal went into some detail in their examination of the respondents' conduct of the original requests for assessment and the reasons given for the original decision of 8 October 2007. That was necessary because the powers of the Tribunal upon a reference are either to confirm that decision or to require the education authority to act differently. They considered whether the refusal to carry out occupational therapy and ICT assessment had been reasonable and concluded that the respondents had been entitled to refuse the assessments as unreasonable, even if the decisions in that regard had not been intimated properly or timeously. The Tribunal have adequately explained why they reached that view. But, even if there had been a prospect that the respondents' failures had created a deficiency in their reasoning, the Tribunal re-visited this issue themselves and reached their own view.

[22] The Tribunal specifically found that there "was sufficient evidence available to [them] to reach a fair decision". Although at one point the Tribunal refer to it not being possible "without evidence of what support may be needed, to find that any other agency required to provide significant additional support to" WA, this is said specifically in relation to the appellant's assertion that there was a need for occupational therapy and ICT assessment (an assertion not supported by any professional witness). It is made clear later in the reasoning of the Tribunal that they consider, on the basis of the evidence and materials before them, that there was no need for assessment in those areas or for support beyond that already being given. This conclusion was an entirely reasonable one on the material before them. The Tribunal listened to the appellant's contentions upon the need for further assessments. But the Tribunal had reports from several professionals, including the community paediatrician. They could see how the original decision at the meeting of 6 September had been reached after a multi-agency discussion. The opinion of that meeting had been that the child did not require further assessments. The question of an ICT assessment, if it had not been specifically addressed at the meeting, had been considered and rejected by Mr Iliffe shortly afterwards. He explained the basis for that to the Tribunal. Quite apart from the written material, the Tribunal heard from the educational psychologist and the deputy head teacher on the child's difficulties. Having regard to the apparently unanimous views expressed to the Tribunal from a wide range of professionals orally and in writing, there is no basis in law for faulting the Tribunal's view that they had sufficient information upon which to reach a conclusion on the reference without the need for specific occupational therapy, ICT or other assessments.

[23] The Tribunal carried out a reasoned analysis of the material before them and were able to establish a number of facts. In particular, they were able to detail exactly what involvement the child had with persons not directly engaged by the education authority (finding 7 (supra)). They scrutinised each activity and concluded that further involvement was either not necessary or could be provided within the setting of the school by the education staff (i.e. by the auxiliary, learning support teacher and children's service worker). They accepted the oral testimony from the deputy head teacher and the educational psychologist that WA was "coping well and is receiving additional support appropriate to his need". The Tribunal were entitled to accept, as they did expressly, the respondents' solicitors' submission that this was a child with no ongoing physiotherapy, speech and language therapy, social services or occupational therapy input, in the sense of requiring these services at a level beyond that already provided in the school. In these circumstances, the Tribunal's decision was adequately supported by the material before them and the appeal must be refused.