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OUTER HOUSE, COURT OF SESSION
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[2008] CSOH 175
OPINION OF LORD PENROSE
in the cause
EAST RENFREWSHIRE DISTRICT
COUNCIL
Pursuers;
against
GLASGOW CITY COUNCIL
Defenders:
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Pursuer: Sanderson; Brodies
Defenders: Lindsay, City of Edinburgh Council Legal Division
12 December 2008
[1] The parties
are the education authorities for their respective areas. As such each has the duty to secure that there
is made for its area adequate and efficient provision of school education:
Education (Scotland) Act 1980, the "1980 Act", section 1(1).
That duty may be discharged by the
provision of school education within the authority's area, or, in appropriate
circumstances, in the areas of other education authorities. Accordingly, section 23 of the 1980 Act, as
amended, empowers education authorities to provide education and other services
for a pupil or pupils belonging to the area of another education authority. So far as is material for present purposes,
children of families resident in one authority's area may be provided with
school education in another authority's area under and in terms of arrangements
agreed between the authorities, or as a result of the exercise by the parents
of a child of the right of choice, within certain constraints, of the school in
which that child receives school education.
[2] The dispute
between the parties relates to the cost of the provision, in the course of
school education at establishments managed by the pursuers within their area,
of additional support services for children of families ordinarily resident in
the defenders' area, who therefore 'belong' to the defenders' area. In each case the child was placed in school
as a result of a parents' application to the pursuers. The debate proceeded on the basis that all of
the children in question in the present case were already in schools managed by
the pursuers in May 2004 when local government reorganisation took effect. Neither then nor subsequently have there been
arrangements between the parties relating to the school education of the
children in question. With the possible
exception of children D.D. and L.McG, all of the children were placed following
applications made under and in terms of section 28 of the 1980 Act. As from 14 November 2005, section 28 was superseded in
relation to children with additional support needs by schedule 2 to the
Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act). The new provisions, defining the authorities'
obligations, were discussed in WD v Glasgow City Council 2007 SC 11. Neither party suggested that the issue depends
to any extent on which statute providing for parental choice is applicable. In each case, a high priority is given to
parental choice in the selection of the school at which the child receives
school education. The authority
addressed may place the child without the consent of the authority to whose
area that child belongs.
[3] It was agreed
that, in terms of the 2004 Act, the pursuers had at all material times the
obligation to provide for the additional support needs of the children
identified in the pleadings. Section
4(1) of the 2004 Act provides, subject to qualifications that are immaterial
for present purposes:
"Every education authority must -
(a)
in
relation to each child and young person having additional support
needs for whose education the
authority are responsible, make adequate and efficient provision for such
additional support as is required by that child or young person..."
Section 29(3) of the 2004 Act
provides:
"In this Act, references to a child ...
for whose school education an education authority are responsible are to any
child ... 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."
It follows that by whichever
mechanism an authority becomes responsible for the school education of children
and young persons, it has obligations under the 2004 Act to those children to
provide for their additional support needs.
[4] Each party
lodged notes of argument relating to the live issues in the case, to which they
adhered in the course of submissions. The
gist of the defenders' argument was that they were not obliged to provide for
additional support of the children in question because they were not
responsible for their school education, and were therefore not liable for the
relative costs. They had not been
involved in the placement of the children, and there was no arrangement between
them and the pursuers that provided for payment. The pursuers argued that the defenders were
liable because the children belonged to their area, and that liability for the
cost of additional support fell to be determined on that basis. Each argument depended on close analysis of
the material statutory provisions.
[5] At various
stages in the defenders' submissions it was argued that the approach for which
they contended was supported by common sense, or by the obvious policy
underlying the legislation. I have not
found this a useful approach. It is
generally understood that many elements of grant distribution to local
authorities are based on the "client group method", using statistically
relevant indicators many of which are population based. Expenditure on basic school education in the
primary and secondary sectors is funded using the relevant school rolls for
primary and secondary pupils. However,
expenditure on pupils with additional support needs is included in the category
of special education. The Scottish
Executive's publication "Expenditure on School Education in Scotland 2006-07",
paragraph 8, states:
"It is not possible to calculate
expenditure per pupil in special education. Expenditure in this category
includes additional support for pupils in mainstream schools as well as funding
of special schools, and in some cases covers funding for pupils in neighbouring
authorities' special schools or additional funding of their support in their
mainstream schools ... "
While this paragraph refers
specifically to the statistical data for the period of the report, it reflects
a distinction of some importance between the funding of general school
education and the funding of special education, including additional needs
funding. While the former is funded on a
per capita basis by reference to school rolls, the latter is funded on a
population basis.
[6] As a result
of these funding arrangements, the pursuers do not receive funding from
Scottish Ministers for the provision of the additional support needs of pupils
belonging to the Glasgow area. The defenders do receive grant, on a
population basis, which includes funding of additional needs of children
belonging to their area. There would be
a superficial policy attraction, favourable to the pursuers, in a solution that
transfers grant money to the authority incurring the relevant expenditure. On the other hand, for reasons related to the
detailed terms of the 1980 Act following amendment, the defenders may not be
relieved of the obligation to provide for children with additional needs who
belong to their area, except where there is in place an arrangement with the
providing authority. That is the basis
of the policy argument advanced by the defenders, as I understand it. In such circumstances common sense, generally
or in the context of local government finance, is unlikely to provide guidance
on the proper disposal of the issue that arises in this case.
[7] There is an
issue on record whether Scottish Ministers were entitled to determine the
quantification of the pursuers' claims. But
that is resolved by the answer to the question whether the pursuers are
entitled to any payment at all. If they
are, Scottish Ministers were entitled to determine the issue of quantification:
section 23(2) of the 1980 Act. If they are not, there is no issue of
quantification. The issue between the
parties depends on the sound construction of the statutory provisions as they
are found. The parties are in agreement
that if the defenders are liable in principle, the sums sued for are payable.
[8] Read short,
the material provisions of section 23 of the 1980 Act, on which the debate
turned, are as follows:
"(1) An
education authority shall have power to provide in or in connection with any
public school ... 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 ...
(1A) Without
prejudice to any other provision of this Act [or any provision 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 ... additional support within the meaning of the 2004 Act ...
for any pupils belonging to the area of the authority in a school ... of the
provider authority.
(2) Where
an education authority ... have provided school education ... for any pupil
belonging to the area of some other authority [or have provided additional
support within the meaning of the 2004 Act for any such pupil], the education
authority ... may, if a claim therefore is made within the prescribed period,
recover from that other authority such contributions in respect of such
provision as may be agreed by the authorities concerned ... or, in default of
such agreement, as may be determined by the (Scottish Ministers), who shall
have regard to the estimated cost of such provision."
[9] As already
mentioned, section 4 of the 2004 Act places responsibility for making adequate
and efficient provision for the additional support needs of the relevant
children on the pursuers. The section provides
that the responsible authority should also "make appropriate arrangements" for
review of the additional support needs of and the adequacy of the additional
support provided for those children. Expressions
containing the word "arrangement(s)" appear throughout the provisions in
question. In section 4 the 'arrangements' appear clearly to be administrative
arrangements made by the authority in order to implement its duties to provide
appropriate school education.
[10] Section 23(1A)
of the 1980 Act envisages "arrangements" of a different character from those
put into effect to comply with the education authority's internal operations. These appear to be arrangements entered into
between two education authorities, for placing pupils belonging to one area in
schools managed by the provider authority. In the aftermath of the
reorganisation of local government, and the resulting allocation of
responsibility for school education to new local authorities, there was a clear
risk that the new boundaries would separate children belonging to one area from
the schools provided by the superseded regional authority for their education. Subsection (1C) provided that any pre-existing
arrangements for the school education of such children should continue until
changed. Subsection (1A) appears to have
envisaged that similar new arrangements might be required between two or more
of the new education authorities.
[11] The power to
enter into arrangements under subsection (1A) is wide, and clearly may result,
for example, in general arrangements for the movement of all children living in
specified parts of the area to which they belong across local authority
boundaries for school education. Subsection
(1B) allows the local authority for the area to which such children belong to
take such arrangements into account when addressing the arrangements they
themselves are obliged to put in place for the provision of school education
within their own area. Section 23(2)
makes provision for the allocation of the costs of such provision as between
the authorities involved. In that way,
the actual provision of additional support and the incidence of the cost of
that provision correspond.
[12] The defenders
contend, in substance, that that exhausts the scope of section 23(2). The provision, on the defenders' argument,
only comes into play when there are arrangements entered into between the
authorities, consequent on a request by the authority to which a child belongs
to a providing authority to place the child, and a child is placed in a school
under the management of the providing authority in implement of those
arrangements. The defenders contend that
placement across local authority boundaries, in response to parental choice,
does not fit into the scheme of section 23 as amended. The defenders make appropriate provision for
additional needs within their area, and subsection (1B) does not entitle them
to restrict the provision so made to allow for parental placing requests that
cross boundaries. The defenders advance
a separate argument based on the language of section 23(1). It is contended that the provision of
additional support for the children in question is a matter of obligation, in
terms of section 4(1) of the 2004 Act, and does not result from the exercise of
the power to make such provision conferred by section 23(1). The provision in question therefore does not
fall within section 23 at all. The
circumstances fall entirely outwith the scope of the section.
[13] The pursuers'
response to the primary contention of the defenders is that there is no warrant
on a sound interpretation of the 1980 Act as amended for restricting section
23(2) to circumstances falling within subsection (1A). There is no anomaly such as would be required
to justify a departure from the clear words of the statute. In response to the second contention, it is
argued that the defenders confuse two concepts, that of 'responsibility' for
additional needs, with which the 2004 Act is concerned, and the issue of
liability for the cost of provision with which section 23 is concerned. Section 29(3) of the 2004 Act applies
exclusively for the purposes of that Act, and has no bearing on the
interpretation of the 1980 Act as amended. The defenders' equiparation of responsibility
under the 2004 Act and financial liability underlines the fallacy in their
approach.
[14] In my opinion
the defenders' argument depends on the restriction of the scope of subsection
(2) by implying language that does not appear in the provision, and offends
against the basic rules of interpretation of statutory provisions. In effect it requires the subsection to be
read as if it contained some such words of qualification as 'in accordance with
an arrangement made under and in terms of subsection (1A) of this section'. Mr Sanderson referred to Crais on Legislation,
ninth edition, paragraphs 17.1.4., 17.1.6 and 17.1.9, and to the observations
in Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 of Viscount Dilhorne at
234 and of Lord Simon of Glaisdale at page 643 in support of his submission
that it was inappropriate to gloss the plain words of section 23(2) as Mr
Lindsay's argument required. In my opinion he was correct in so submitting.
[15] Prior to the
amendments introduced by the 2004 Act, the material parts of section 1(1) and
1(2) of the 1980 Act existed in substantially the form they now have with the
exception of the express references to the provision of additional support
services. On the face of the provisions,
the amendments of sub-section (1) had as their objective the widening of the
power of an education authority to provide for children belonging to other
local authority areas by extending the power to include additional support
within the 2004 Act, and the corresponding amendment of sub-section (2) made
correlative changes to the financial provisions consequent on the provision of
such additional support services. There
is nothing to suggest that subsection (2) should be construed restrictively as
applying only where there was in force an arrangement under sub-section (1A).
[16] There may be a
lack of structural consistency in the current provisions which is highlighted
by the defenders' argument. The
allocation of funds for special education, including additional support, on a
population basis is consistent with the view that the authority receiving the
allocation of central government funds has the obligation to secure provision
for special needs and additional support needs for pupils belonging to their
area. Section 1(1) of the 1980 Act is
uncompromising in its terms: every
education authority has a duty to secure that there is made for their area
adequate and efficient provision of school education. Unless the local authority's obligation to
provide for children belonging to its area is qualified in an appropriate way,
there is a risk of over-provision arising from over-lapping supplies since
there is a clear obligation on the education authority actually responsible for
the provision of school education also to secure necessary additional support. Since section 23(1B) is restricted in its
scope to situations covered by subsection (1A), there would appear to be little
or no scope for implying a power to reflect an allowance for parental placing
requests in the source authority's own arrangements, so restricting its section
1(1) duties. However, the introduction
of subsections (1A), (1B) and (1C) left subsection 23(1) substantially
unaffected, and there was no material alteration in the terms or scope of
subsection (2).
[17] As I
understand the general structure of the provisions, there may therefore be an
anomaly in respect that the defenders lack specific statutory authority to
restrict the arrangements they put in hand in discharging their own educational
responsibilities to reflect the assumption of responsibility by the pursuers. But one could not on any view describe the
result as involving that "clear and gross balance of anomaly" identified by
Lord Simon of Glaisdale as the starting point for a departure from the plain
words of the statute. Further, if there
is an anomaly, it can readily be addressed by an arrangement between the two
authorities that takes account of their liabilities and falls within subsection
(1A). In my opinion, so far as the
primary argument of the defenders is concerned, the plain language of the
statute entitles the pursuers to recover from the defenders appropriate sums
reflecting the cost of additional support services provided by them to children
belonging to the defenders' area notwithstanding that the children were placed in
response to parental choice. If there is
an anomaly, on a proper understanding of the funding arrangements for school
education, which cannot be removed by arrangement between the authorities, that
is a matter for the Scottish Parliament to resolve.
[18] So far as the
second contention of the defenders is concerned, I consider the approach of the
pursuers to be correct. The 2004 Act
places responsibility for the provision of additional support on the authority
responsible for the school education of relevant children. That is agreed. The scope of the powers of an education
authority to provide services for the benefit of those who do not belong to its
area remains a matter regulated by the 1980 Act, as are the financial
implications of the supply of such services. Without the amendments to section 23 expressly
referring to the 2004 Act, issues might have arisen whether the power conferred
extended to additional support, and issues could clearly have arisen whether
the cost of any services so provide could have been recovered. It could no doubt have been argued that the
provider authority had implied power to do what the 2004 Act obliged it to do. But the amendments to the 1980 Act put all
such issues beyond question. So far as
section 23 deals with these issues, it is, in my opinion, independent of the
allocation of responsibility in the 2004 Act.
[19] In the whole
circumstances, I shall sustain the first plea-in-law for the pursuers, repel
the pleas-in-law for the defenders and grant decree de plano as concluded for.
