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OUTER HOUSE, COURT OF SESSION
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XA151/07
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[2008] CSOH 60
OPINION OF LORD WHEATLEY
in
APPEAL TO THE COURT OF
SESSION
under
Education (Additional
Support for Learning) (Scotland) Act 2004
in the case of
S.C.
Appellant;
against
CITY OF EDINBURGH COUNCIL
Respondents:
in respect of
A decision of the
Additional Support Needs Tribunal for Scotland dated 28 August 2007
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Act: Stacey, Q.C.,
O'Carroll; Wright Johnston &
Mackenzie LLP
Alt: J.J. Mitchell, Q.C., Stirling; G
Lindsay, Edinburgh City Council
15 April 2008
[1] The appellant
resides in Edinburgh and is the mother of H.C. ("the
child"), who is presently 14 years of age, and who is autistic and has
severe learning difficulties. He lives
with the appellant and her two younger children. A co-ordinated support plan was prepared for
the child on 4 April 2007 by virtue of section 9 of the Education
(Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act"), and in
terms of that plan he attends St Crispin's School, which is a local
authority special school run by the respondents. The appellant had made a placing request to
the respondents in terms of Schedule 2 of the 2004 Act on behalf of her
son, seeking to have him accommodated at Daldorch House School, a residential special school in
Ayrshire. The respondents refused this
request and the appellant then made a reference to the Additional Support Needs
Tribunal, who confirmed the respondents' decision and further refused the
placing request by a decision dated 28 August 2007.
It is against that decision that the present appeal is taken, in terms
of section 21 of the 2004 Act.
Section 21 allows an appeal on a point of law. If successful, the outcome of the present
appeal is that this court may remit the reference back to the Tribunal or to a
differently constituted tribunal, giving such directions about the
consideration of the case as the court considers appropriate, and making such
ancillary orders as are considered necessary or appropriate.
[2] The relevant
sections of 2004 Act for the purpose of this appeal are as follows:
"1(1) The 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
subsection (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 a 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.
...
4(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.
5(1) Every
education authority must in exercising any of their functions in connection
with the provision of school education, take account of the additional support
needs of children and young persons having such needs.
(2) Every
education authority must, subject to subsection (3), provide such additional
support as is appropriate for each child -
(a) under school age (other than a
prescribed pre-school child),
(b) belonging to the authority's area, and
(c) who has additional support needs arising
from a disability (within the meaning of the Disability Discrimination Act 1995
(c.50)) which the child has.
...".
School education is defined in terms
of section 29 of the Act (the definition section) by reference to sections 1(5)(a)
and 135(1) of the Education (Scotland) Act 1980 as meaning:
"... progressive education appropriate
to the requirements of pupils in attendance at schools, regard being had to the
age, ability and aptitude of such pupils, ...".
[3] In addition,
section 17 of the 2004 Act sets up the Additional Support Needs Tribunal
for Scotland, and section 18 deals with
references, such as the present application, in relation to a co-ordinated
support plan. The relevant parts of the
section in the present case are section 18(3)(e) and (4)(a). Section 19 provides the powers of the
Tribunal in relation to references under section 18. Section 19(5) provides:
"Where the reference relates to a
decision referred to in subsection (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 ... as ... appropriate ...".
[4] By virtue of
section 22, schedule 2 of the 2004 Act makes provision about placing
requests. Paragraph 2(1) of
schedule 2 provides:
"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, place
the child accordingly."
[5] Paragraph 3
provides:
"(1) The
duty imposed by subparagraph (1) or, as the case may be, subparagraph (2)
of paragraph 2 does not apply -
(a) if placing the child in the specified
school would -
(i) make it necessary for the authority to
take an additional teacher into employment,
(ii) give rise to significant expenditure on
extending or otherwise altering the accommodation at or facilities provided in
connection with the school,
(iii) be seriously detrimental to the
continuity of the child's education,
(iv) be likely to be seriously detrimental to
order and discipline in the school,
(v) be likely to be seriously detrimental to
the educational wellbeing of pupils attending the school,
(vi) assuming that pupil numbers remain
constant, make it necessary, at the commencement of a future stage of the
child's primary education, for the authority to elect either to create an
additional class (or an additional composite class) in the specified school or
to take an additional teacher into employment with the school, or
(vii) though neither of the tests set out in
paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of
the school would be exceeded in terms of people numbers,
(b) if the education normally provided at
the specified school is not suited to the age, ability or aptitude of the
child,
...
(d) if, where the specified school is a
school mentioned in paragraph 2(2)(a) or (b), the child does not have
additional support needs requiring the education or special facilities normally
provided at that school,
...
(f) if all the following conditions apply,
namely -
(i) the specified school is not a public school,
(ii) the authority are able to make provision
for the additional support needs of the child in a school (whether or not a
school under their management) other than the specified school,
(iii) it is not reasonable, having regard both
to the respective suitability and to the respective cost (including necessary
incidental expenses) of the provision for the additional support needs of the
child in the specified school and in the school referred to in
paragraph (ii), to place the child in a specified school, and
(iv) the authority have offered to place the
child in the school referred to in paragraph (ii),
...".
[6] In refusing
the placement request, the Tribunal relied on paragraph 3(1)(f) referred to
above. The local authority, in deciding
initially to refuse the request, also relied on paragraph 3(1)(d), but the
Tribunal did not refer to this part of the subsection in their decision.
[7] In general
terms, these various statutory provisions have to be considered against the
background of section 27 of the Act, which provides for a Code of Practice
and Directions which must inform the way in which the statutory provisions are
observed. In addition regard must be had
to section 2 of the Standards in Scotland Schools Act 2000 and
section 20 of the Education (Scotland) Act 1980.
[8] In these
circumstances, the appellant tabled eight grounds of appeal. Senior counsel for the appellant began her
submissions with the eighth and last ground of appeal, which is to the effect
that the Tribunal failed to observe the requirements of natural justice, in
that one of the three members of the Tribunal had worked for the respondents'
statutory predecessors (Lothian Regional Council) from 1970 until 1996, when
she became an employee of the respondents until her retirement in 2001. As such, she had management responsibilities
for all of the 26 special schools in the respondents' area, including
St Crispin's. She had in the past
become aware of one of the witnesses for the respondents, A.B., in the course
of her career as a co-employee, and (contrary to what is said in the grounds of
appeal) had worked in the same local authority department as S.P., another of
the respondents' witnesses. After her
retirement, this Tribunal member had been employed as a consultant in the same
general area of work for West Lothian Council.
None of this was disclosed at the Tribunal hearing. Solicitors acting for the appellant had
sought clarification of the position from the Tribunal, and eventually, shortly
before the hearing in the present appeal, the President of the Tribunal, who in
fact presided over the hearing which produced the Tribunal's decision in the
present case, wrote a letter to the Deputy Principal Clerk of Session,
intimating her response to the appellant's enquiry. It appeared to be accepted that the terms of
this letter should form the basis of the discussion in this ground of appeal,
although senior counsel for the respondents only saw the letter on the morning
of the hearing, and in addition disagreed with the opinion expressed by the
Tribunal President that she had no right to appear in the instant appeal.
[9] The position
of the Tribunal, in both general terms and in respect of the circumstances
which gave rise to the present ground of appeal, is this. The Tribunal customarily sits with a chair
and two other members, in terms of schedule 1 of the 2004 Act. The Scottish Ministers must appoint a panel
of suitably qualified individuals to act as conveners of a tribunal, under
paragraph 3(1)(a) of the schedule, and a panel of suitably qualified
individuals to fill the other two positions on the tribunal in terms of
paragraph 3(1)(b). Because of the
specialised nature of the Tribunal's work, and the relatively restricted number
of individuals who were qualified to sit on the Tribunal, the President had
from the outset identified the possibility of conflicts of interest arising in
the composition of the tribunals, particularly in respect of present or past
connections between panel members on the one hand and local authorities and
their employees on the other. She
therefore drew up a Code of Practice to deal with such situations. In terms of that scheme, a form was produced
which required panel members on any particular tribunal to indicate any real or
potential conflict of interest they might have with any of the named local
authorities in Scotland. In the present
case, the panel member in this ground of appeal did not tick the potential
conflict box in respect of the respondents where in terms of the Code of
Practice it might appear that she should have done so. She identified an actual conflict of interest
only in respect of her present employment with West Lothian Council.
[10] In her letter
of 7 March 2008 the President outlined the career of the Tribunal
member in question in some detail. She
pointed out in particular that the member had worked as a teacher for Edinburgh
Corporation from 1971 to 1974 and then as an acting head teacher or depute head
teacher for Lothian Regional Council from 1976 to 1996. Her employment as an Assistant Director of
Education for Edinburgh City Council from 1996 to 2001 was for an area which
did not cover St Crispin's.
Following her retirement in 2001 she had not had any further connection
with education services in Edinburgh.
The President went on to advise that the Tribunal member had not
informed her that she had a previous connection with St Crispin's School; however, she assumed that in view of her role
with the authority she would have had some connection with the school in the
past but not within the last five years.
The Tribunal member had subsequently confirmed that she had had no
connection with St Crispin's since 1996 when it was one of 26 special
schools for which she had responsibility.
At that time she would visit the school at most twice each year. The nature of the school had altered since
that time and the Tribunal member had no knowledge of the current staff, or of its
current circumstances. Accordingly, the
President regarded the Tribunal member's past connection with the authority and
the school as so remote as not to give rise to the imputation of a conflict of
interest. Immediately prior to the
hearing, the member concerned indicated that she had come across the social
work consultant, A.B., in her work in Lothian Region many years ago, but did
not know her personally and doubted if there would be any mutual
recognition. Again the President took
the view that this contact was too remote to give rise to any implication of
bias. No reference appears to have been
made concerning the witness S.P.
[11] In these
circumstances counsel for the appellant maintained that the Tribunal member in
question had failed to indicate that she had a possible conflict of interest in
this matter because of her past association with the respondents and their
statutory predecessors, and in particular because of her earlier connection
with St Crispin's School. She was
in error not only because of her failure to observe the common law rules which
required her to declare any such interest, but also because she was in conflict
with the Tribunal's own practice directions.
The test of such matters was most recently described in the case of Helow v Advocate General 2007 SC 303, which explained that the test to be
applied in these circumstances was whether the fair-minded and informed
observer, having considered the facts, would conclude that there was a real
possibility that the judge was biased by reason of membership of an
association. It was said that the
judicial oath was an important protection, not only against actual bias, but
also against apparent bias. The apparent
bias in the present case would be that as a former employee of the respondents,
the Tribunal member in question might be thought to favour their case; that in particular she might be swayed by the
additional cost to her former employers were the appellant to succeed, and that
she might favour the school which had been under her general management some
years before. Senior counsel accepted
that given the facts and circumstances it was very likely that, had the
potential conflict of interest been declared, the President would have
justifiably concluded that there was in the event no real conflict. The member's failure had been not to inform
the President; that was what led to the
apparent bias. The President clearly
understood the risk of such bias. That
was why the practice directions were drafted.
It was not enough to raise the conflict of interest position in general
terms; the matter had clearly to be
discussed in each individual case. There
may be circumstances where such past connections would disqualify a panel
member from sitting; and others where it
would not. Here the relevant
circumstances in respect of the conflict was the length of service in the respondents'
employment in an area of special or additional support needs in a senior
position. In the case of Helow there had been the protection of
the judicial oath; here this did not
apply. The test of apparent bias had not
be satisfied in the present circumstances.
[12] For the
respondents, senior counsel readily accepted that if this ground of appeal was
justified that alone would mean that the appeal would succeed. If the rules of natural justice had been
breached, there would have been no proper discussion of the issues before the
Tribunal and the process would have been fundamentally flawed. The facts which the court had to consider
appear from the President's letter of 7 March 2008, which he had only
received in the week of the present hearing;
the court had to rely on those facts only and could not make speculative
inferences on them. These facts were
that the Tribunal member had worked for the respondents up to 2001 and no
later, some six years before the Tribunal hearing. She had limited management responsibilities
for St Crispin's and 25 other schools run by the respondents until 1996. The nature of St Crispin's was now
different in character from what it had been at that time. The appellant could not now argue that what
had happened was a breach of their Tribunal's own rules, because this was not
part of the present grounds of appeal.
That was a very different argument from a claim that the common law
rules of natural justice had been breached.
In this latter respect what was claimed was that what the Tribunal
member ought to have done was to tick the box in the President's form that
suggested a possible conflict of interest in cases involving the respondents. However, the President was already aware of
the particular connection between the Tribunal member and the local authority,
and had come to the view that the connection was too remote. Accordingly, this criticism was unjustified.
[13] That left the
question of previous contact itself.
Claims of general bias were based either on prior connection, or on statements
of association with a particular point of view made outwith or within the court
setting. In the present case, the court
was concerned with the contact some six to eleven years in the past. This was far too remote to cause any real
concern; what is said by the appellant
here in effect is that any connection, however tenuous, would be enough to
satisfy the test of potential bias.
Reference was made to the case of Locabail
(UK) Limited, Bayfield Properties Ltd
v Waldorf Investment Corporation and
Others 2000 QB 451 and Gillies
v Secretary of State for Work &
Pensions 2006 SC (HL) 71.
[14] I have concluded
that in the present circumstances it cannot be said that there is any substance
in the view that the Tribunal member's past connection with the school was
sufficient to suggest an apparent bias that would invalidate the hearing. The member's previous involvement was not
sufficiently intimate in character nor sufficiently close in time to suggest to
a reasonable and informed observer that there was any significant risk that the
Tribunal member would give favoured consideration to the circumstances and
interest of either the school or the respondents. It is specifically accepted by the appellant's
counsel that she had brought her past involvement with the respondents to the
attention of the President in general terms in the past, and that the President
had justifiably concluded that there was no real risk of conflict or bias. While this fact had not been brought to the
attention of the appellant in the present case, it is I think appropriate to
conclude that an informed and objective observer, in possession of all the
relevant facts, would not have perceived any partiality on the part of the
Tribunal member sufficiently serious to justify the view that there had been a
breach of natural justice. Perhaps more
significantly, however, even if it could be maintained that the Tribunal member
should have publicly brought her interest to the attention of the hearing, the
test of what kind of facts and circumstance would justify the conclusion of
perceived bias was not met, in terms of the authorities cited by senior counsel
for the respondent. For example, in Gillies v Secretary of State for Work and Pensions, a challenge similar to
that taken in the present case was made against a medical member of a
disability appeal tribunal, who in addition to that work prepared reports for
the Benefits Agency. Although the doctor
in question was performing both employments at the same, and did not disclose
her connection, allegations of potential conflict of interest were firmly
rejected. As in the present case it was
held to be desirable that members of a specialist panels should be widely
experienced in their selected field of expertise. Such experience does not necessarily by
itself lead to bias, or to the perception of bias to a reasonable and informed
observer. I am satisfied that in both Gillies and the present case, a
fair-minded observer would understand that the tribunal member in question was
bringing objective expertise and specialist knowledge to bear on the problems
brought before the Tribunal. Such
experience is essential for the operation of specialist tribunals, and there is
no more reason to think that a tribunal member would favour either of the
possible disposals available to the Tribunal.
I therefore reject the eighth ground of appeal.
[15] The remaining
grounds of appeal were concerned with various challenges to the Tribunal's
decision on the merits of the appellant's case for a placing request to Daldorch House School.
The first ground of appeal did not require to be discussed, as it was
accepted that the erroneous reference to section 19(5)(b)(i) of the Act in
the decision was merely a typing error.
However, in terms of the second ground of appeal, senior counsel for the
appellant submitted that the Tribunal had adopted the wrong test in refusing
the placing request. In considering the
additional support needs of the child, the Tribunal had adopted too narrow and
restricted an approach. The respondents
had a duty to grant the planning request under paragraph 2 of
schedule 2 to the Act unless the provisions of paragraph 3 of the
schedule applied. This submission
required a detailed examination of the Tribunal's decision against the
background of the statutory provisions and related documents.
[16] It was
accepted that the child in the present case required additional support. This was defined in section 1(3)(a) of
the Act. At page 16 of its decision
the Tribunal accepted that this support was not confined to what can be
provided within the school, or within the time that the school day allowed, but
that learning in school had to be reinforced in the home environment. This did not mean, according to senior counsel
for the appellant, that the requirement for additional support could be
satisfied simply by providing more schooling.
At page 14 of its decision, the Tribunal noted that both
St Crispin's and Daldorch were able to make provision for the child's
additional support needs. This
demonstrated that the Tribunal had wrongly based their decision entirely on
educational support in a teaching environment; in counsel's submission such
support could not be confined to what the school provides. Reference was made to the Code of Practice at
pages 27 and 28, where, it was said, external support factors had to be
considered in assessing a child's needs.
In short, the whole circumstances of the child, including his family
situation, had to be taken into account.
The Tribunal had erred in law in concluding that the child's additional
support needs outwith the school are currently and sufficiently dealt with at
St Crispin's. This is demonstrated
by the Tribunal's finding-in-fact 13 at page 6 of their decision, where
it concludes that Daldorch was equipped to meet the additional support needs of
the child through a 24 hour curriculum.
This was not available at St Crispin's, although the Tribunal had
found that the child clearly had additional support needs outwith the school
day. Accordingly, counsel submitted that
the Tribunal had failed to apply the correct test in paragraph 3(1)(f)(ii)
of schedule 2 of the Act, and in particular that they failed to consider
all parts of that test fully and properly.
[17] In support of
this ground of appeal, senior counsel for the appellant then turned her
attention to ground 4, in which it is claimed that the Tribunal, in
considering the appropriate test in terms of paragraph 3(1)(f)(ii) of the
second schedule to the Act, took into account the sources of irrelevant
material. (Paragraphs 4(i)
and (iv) of these grounds were not pursued as it was accepted by the
appellant's counsel that these matters were not appropriate for the purposes of
her submissions). However, counsel
argued that what was referred to in paragraphs 4(ii) and (iii) of the
Grounds of Appeal demonstrated that the Tribunal had considered irrelevant
material in reaching their decision. In
the first of these examples, at pages 17 and 18 of the decision, the
Tribunal concluded that the home circumstances for many children were less than
ideal, but still fell short of what might be required to provide compulsory or
even emergency measures for the care and safety of the child. Counsel submitted that it was unclear what
relevance this reference had, but it appeared to put an additional hurdle in
the way of the appellant's request.
Further, in terms of ground 4(iii), reference is made at
page 50 of the decision to the requirements of the Standards in Scotland
Schools Etc. Act 2000. Again it is
entirely unclear why placing the child in a school such as Daldorch was likely
to be inconsistent with that Act.
[18] In further
support of the appeal, senior counsel had then referred to two passages in the
evidence (narrated in ground of appeal 3) which pointed to the conclusion
that the children's needs of additional support would be served by providing
him with a residential placement. The
Tribunal appeared to ignore this testimony, but had given no reason for
rejecting it. Firstly, R.F., an
educational psychologist, was of the view that the child would receive
structural help in a residential home, and offered views about whether his
needs could be met with at home, and A.B., a social worker, had given evidence
that the child needed five days residential care each week. However, the Tribunal in its decision did not
accurately or fully deal with these important sources of evidence, and failed
to explain why they were rejected. For
all these reasons, in terms of the third and fourth grounds of appeal, counsel
maintained that Tribunal's reasoning was fatally flawed and this vitiated their
decision.
[19] Senior counsel
for the appellant then submitted, in terms of her fifth and sixth grounds of
appeal, that there was no, or insufficient, evidence before the Tribunal which
would justify its conclusions on the financial costs of accommodating the child
at St Crispin's and Daldorch respectively.
This was significant in considering the requirements of
paragraph 3(1)(f)(iii), which the Tribunal clearly relied on in deciding
that there were circumstances which allowed them to hold that the duty to
comply with the appellant's request was not applicable. In view of the significance, which the
Tribunal attached to the respective financial costs of the two schools, the
Tribunal would be expected to identify an appropriate comparison of these two
sets of figures, based on clear evidence.
In finding-in-fact 19 the Tribunal found that the cost of placing the
child at Daldorch would be £178,899 per year.
This figure is said not to include travel costs, but the Tribunal
decided that that expense, in the case of Daldorch, would be comparable with
the current daily travel costs of the child going to St Crispin's. In addition, the Tribunal found (at page 19
of their decision) that the proposed care support package currently in place
had been estimated to be in the order of £46,532. Counsel argued that although she accepted the
figures for Daldorch, she had no idea from a consideration of the evidence
where the travel costs or the St Crispin's figures came from. In making this crucial comparison, the
Tribunal had apparently relied on evidence not before it.
[20] In respect of
the final ground of appeal (ground 7) senior counsel for the appellant considered
the powers and responsibilities of the Tribunal in relation to references made
to it. In terms of section 18(1)
and (3)(e) of the Act, provision is made for a reference to be made to the
Tribunal in circumstances such as the present.
In terms of section 19(5)(a)(i) and (ii), the Tribunal may confirm
the decision of the local authority refusing the placing request if firstly it
is satisfied that one or more of the grounds referred to in paragraph 3(1)
or (3) of Schedule 2 for the Act exist or exits; and secondly, that in all the circumstances
it is appropriate to do so. There is
therefore a two-stage process that must be undergone before the Tribunal can
confirm the refusal of a placing request, namely that one of the specified
grounds is established and secondly, that having regard to all of the
circumstances of the case, the Tribunal find it appropriate to confirm the
refusal.
[21] The Tribunal
sets out its reason for its decision from page 8 of its decision onwards,
and after the preamble sets out the relevant legislation in full. It notes that in effect the local authority
will have to meet the costs of placing the child at Daldorch. The Tribunal accepts (at page 12) that
they have to approach their decision in two stages. They have considered the evidence in respect
of the first stage and concluded that both St Crispin's and Daldorch are
able to make provision for the child's additional support needs. They also considered the comparative costs of
the two schools. However, when it came
to consider the second stage referred to in section 19(5)(a)(ii), as to
whether it was appropriate to confirm the refusal of the placing request (at
page 22), the Tribunal provides little by way of explanation as to how it
reached this decision. In counsel's
submission, it provided insufficient reasons as to why it had considered its
decision to be appropriate. It simply
concludes on the basis of a consideration of all the evidence, the arguments of
the parties, and the circumstances of the child, that there were no grounds for
exercising any discretion in favour of the appellant and it was therefore
appropriate to uphold the grounds of refusal.
No specific reasons, or considerations in respect of all the relevant
factors are provided to explain why this is so.
It was not a matter for their discretion. Particular regard should have been had to the
child's home circumstances and the appellant's working arrangements, as well as
the needs of the whole family. Reference
was made to the case of Wordie Property Co
Ltd v Secretary of State for Scotland
1984 S.C. 345 at page 349, and to Rule 37(2) of the relevant
Statutory Instrument (The Additional Support Needs Tribunal for Scotland
(Practice and Procedure) Rules 2005 S.I. 514, (which provides that any decision
of the Tribunal shall contain, or have annexed to it, a statement of the facts
found by the Tribunal and the reasons for the decision.) Counsel submitted that in the present case it
was impossible to understand the reasons for the decision as to why the Tribunal
had found it appropriate to confirm the refusal, and this failure constituted
an error in law.
[22] In his
response to the substantive grounds of appeal, senior counsel for the
respondents made a number of preliminary points. Firstly, he submitted that an appeal under
this legislation was only available on a point of law (section 21(1) of
the Act). However, with a single
exception of finding-in-fact 19 (which was concerned with transport costs)
the appellant made no criticisms of any of the findings-in-fact made by the
Tribunal. Secondly, the entire
legislative scheme is in respect of education, and the educational needs of
children; it is not in respect of the
social and care needs of the child, and still less in respect of the social and
care needs of the child's family. The
appellant's error here was to assume that as soon as any need was identified in
the child's family, the Tribunal had to recognise it. It may be that the distinction between what
needs are educational and what are not is difficult to draw, but that is
precisely what the education authority and the specialist tribunal are set up
to determine. In the facts of the
present case, the Tribunal was well entitled to hold that the child's
educational needs were equally well met at each of the two schools, and that
St Crispin's was able to satisfy all the educational needs of the
child. Having regard to the significant
difference in costs between the two schools, it would have been perverse to
accede to the placing request. On the question
of whether it was then appropriate to reach this decision, it would be again
perverse if the Tribunal had come to the view that the position of the education
authority was reasonable, and then considered it inappropriate to continue to send
the child to St Crispin's.
[23] Turning his
attention to the appellant's first, second and third grounds of appeal, counsel
maintained that the appellant had failed to distinguish between the educational
needs and the other kinds of need of the child.
The core fallacy was the assumption that any need that the mother could
identify for herself, such as respite assistance or childminding, were
educational needs. However, an
examination of the terms of section 1(3) of the Act make it clear that the
Act is about the provision of educational needs beyond, or different to, what
is normally given; residential support
cannot be sought to support what happens at home. That would plainly not be educational
support. Reference was made London Borough of Bromley v Special Educational Needs Tribunal and
Others [1999] E.L.R. 260 and R (Tottman)
v Hertfordshire County Council [2003]
E.L.R. 763.
[24] Counsel
submitted that was clear from the evidence in the case that the appellant's
submissions equated personal care with education needs, and that even on the
testimony of the appellant's witnesses before the Tribunal, the child's
educational needs were equally met at St Crispin's and Daldorch. Properly examined there was no evidence to
suggest that the child's educational needs would be served by residential
care; the thrust of the evidence
suggested that the child's educational care was now being satisfactorily met at
St Crispin's. It was true that the
child's personal needs were currently not being met at home but that was due to
the appellant's failure to co-operate with various offers of help.
[25] However, it
was to be hoped that was a temporary situation;
in any event, it was irrelevant to the application. In support of ground 4, the complaints
made, in terms of (ii) and (iii) (accepted as the only two relevant parts of
this ground of appeal) were not central to the Tribunal's decision. In taking into account in the terms of ground
of appeal 4(ii) what circumstances would be required to provide compulsory
emergency measures, having regard to the care and safety of a child (at
pages 17 to 18 of the decision), the Tribunal was prompted by the way in
which the appellant had presented her case.
It clearly appeared to the Tribunal that she wanted for the child
measures which amount in effect to compulsory care, a solution normally sought
by the local authority and opposed by parents.
In respect of ground 4(iii) it is certainly unclear what the
references to the Standards in Scotland Schools Act 2000 mean, but this
reference formed no part of the Tribunal's reasoning and did not amount to an
error in law.
[26] Grounds 5
and 6 contained the only direct criticisms of the Tribunal's
findings-in-fact. It is said that there
was no justification for concluding that travel costs to Daldorch would be
comparable to those currently spent in sending the child to St Crispin's,
and that there was no evidence about the current cost of the support package at
St Crispin's, said in the Tribunal's decision at page 19 to be in the
order of £46,532. However, counsel
for the respondents said that these costs were all in fact a matter of
agreement between the parties prior to the Tribunal hearing. He referred to various productions which had
been produced before the Tribunal, and which he said had been agreed as correct
between the parties. It is perhaps not
entirely clear on what basis the respective travel costs were calculated, but
in view of the astronomical difference between the residential costs at
Daldorch and the day costs at St Crispin's the Tribunal would be fully
entitled to make generalisations about less significant expenses such as the
travel costs.
[27] In respect of
ground 7, counsel submitted that this was really an appeal based on a
supposed failure to give reasons. The
reasons did have to comply with the Wordie
Property test, but on the question of sufficiency of reasons given by the
Tribunal, other authorities were relevant.
Counsel referred to the case of Singh
v The Secretary of State for the Home
Department and The South Bucks
District Council and another v Porter
(No. 2) [2004] 1 W.L.R. 1953.
Counsel maintained that, in the present case, there was no difficulty in
seeing how the Tribunal reached its decision.
There was uncontested evidence that the child's educational needs at
St Crispin's were being met and that the cost of meeting those needs at
Daldorch were significantly more expensive.
The Tribunal also found that what the appellant wanted was a solution
for her personal needs as opposed to the needs of the child. The Tribunal's reasons in respect of the
first stage of its decision were perfectly clear; it was unnecessary for any elaboration in
respect of the second stage.
[28] I have
concluded that on these substantive matters the respondents' submissions are to
be preferred. The appellant's second
ground of appeal proceeds under what I believe is a fundamental
misconception. The appellant has
correctly identified that the respondents are under a duty in terms of
paragraph 2 of the second schedule to the Act of placing a child who has
any additional support needs in accordance with a placing request unless
paragraph 3(1)(f) of the schedule applies.
The appellant maintains that in finding that paragraph 3 (1)(F)
applied, the Tribunal erred in law. It
was said in particular that the Tribunal had accepted that in looking at the
definition of additional support needs of a child, they should not confine that
support to what can be provided within the school, and that by then basing its
decision only on education support offered in a teaching environment, the
Tribunal applied an over-narrow and restricted test.
[29] I am satisfied
that this is wrong. The whole burden of the
test of what constitutes additional support needs clearly refers to educational
support, and further to education support offered in a teaching
environment. This in turn must refer to
the educational needs of the child, and not to anything else. It cannot refer to the social and environmental
needs of the appellant herself, or indeed of the child. The whole purpose of the legislation is
concerned with the additional educational needs of particular children, more
than can be offered from within the traditional school curriculum. All of the language in which the various
statutory provisions are couched is concerned with education
considerations. In these circumstances
the Tribunal were perfectly correct in basing its decision on the educational
support offered in a teaching environment, and in my view could do nothing else. It is perhaps worth remarking, as counsel for
the appellant said, that the respondents could not in fact supply some of the
social needs of the appellant which were urged in support of her claim that the
child should be moved to a residential school, because she could not cope. This would be essentially a matter for other
legislation. The Tribunal in my view
applied the correct test. This ground of
appeal therefore falls to be refused.
[30] The third
ground of appeal suggests that the Tribunal erred in law by failing to hold that
the child needed a residential place. I
am in considerable doubt as to whether this is a proper ground of appeal at all;
on the face of it it seems simply to
mount to a disagreement about the evidence.
However, even if this is a valid ground of appeal amounting to a claim
that there has been an error in law, the true effect of the evidence does not
necessarily appear to be what the appellant suggests. Neither the evidence of R.F., nor the
evidence of A.B., properly construed, justify the conclusions made by the
appellant under this ground of appeal.
In these circumstances I am satisfied that this ground of appeal too has
not been made out.
[31] The fourth
ground of appeal is concerned with references made in the Tribunal's decision
to the provision of compulsory or emergency measures of care in relation to the
child and the requirements of the Standards in Scotland Schools Act 2000. I can see no force in either of these two
criticisms. As counsel for the
respondents indicated, the first of these matters appears to be connected with
the way in which the appellant made her submissions before the Tribunal. The second reference, although somewhat
obscure, appears to have no direct bearing on the reasoning that underpins the
decision, nor was it suggested that there were any reasons for it to do
so. It may be that the reference was
concerned with provisions in the Code of Practice and Direction. In these circumstances I can detect no error
of law in these two areas of the Tribunal's decision.
[32] In terms of
the fifth and sixth grounds of appeal, I am wholly satisfied that it was
reasonable for the Tribunal to assume that similar costs for travel expenses
would apply to the child's present attendance at St Crispin's, and the
projected attendance at Daldorch. It
does appear likely that there was no physical evidence of costings before the
Tribunal. However, it has to be borne in
mind that if the child was accommodated in a residential school, it would not
be difficult to conclude that travel costs to the school would be
restricted. Bearing in mind that the
child's travel costs at present are incurred on a daily basis, I find it
difficult to see anything to criticise in the Tribunal's summary conclusion
that in these circumstances it clearly would not involve any significantly
greater sums to accommodate travel costs to Daldorch as opposed to the current
expense of sending the child to St Crispin's. I am also satisfied that it was agreed in
terms of the various productions placed before the Tribunal hearing and the agreement
reflected therein concerning in principle the relative costs of the two schools,
that these matters were not in dispute before the Tribunal, that there was
material before the Tribunal to come to a conclusion on these costs, and that
the matter is not relevantly now raised.
I therefore find that there is no significant error of law in these
grounds of appeal.
[33] Turning to the
last ground of appeal, ground 7 maintains that the Tribunal failed to
exercise its discretion in concluding that the decision which it reached was also
appropriate, and further that it they failed to give explanations or reasons
for that. However, it is plain that the
Tribunal fully understood that they had to make their decision in this
two-stage process; that they considered
fully their reasons for concluding that the child's needs were equally well
served at St Crispin's and Daldorch, and that they had ample reason for
refusing the appellant's placing request.
Having done so, it would have been perverse not to have approved of the
decision and to consider that it was appropriate that they should go ahead as
they did. It is plain from their
reasoning that they simply adopted the same considerations in looking at the
question of whether it was appropriate to confirm the refusal as they did on
the merits of that decision. In these
circumstances it is quite clear that the Tribunal have given adequate
consideration to this issue and that their reasoning cannot be faulted. As counsel for the respondent submitted, the
reasoning offered by the Tribunal satisfied the tests established by Singh v The Secretary of State for the Home Department and South Bucks District Council v Porter.
Accordingly, once more, I can find no error in law in terms of this
ground of appeal that would justify interfering with the Tribunal's decision.
[34] For all these
various reasons I am satisfied that the grounds of appeal have not been made
out and that the appeal must be refused.
