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Cite as: [2008] CSOH 61, [2008] ScotCS CSOH_61

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 61

OPINION OF LORD MATTHEWS

Appeal to the Court of Session

Under section 21 of the Education (Additional Support for Learning)(Scotland) Act 2004

DG as legal guardian of JF

Appellant;

Against a decision by the Additional Support Needs Tribunal on 3 October 2007 to uphold the refusal of the placing request for JF at AH school Derbyshire by Argyll and Bute Council

Respondents

________________

Appellant: Logan; Campbell Smith WS

Respondents: Duncan; Balfour and Manson LLP

15 April 2008

INTRODUCTION

[1] This is an appeal against a decision of an Additional Support Needs Tribunal dated 3 October 2007 in terms of which they confirmed a decision of Argyll and Bute Council to refuse a request by the appellant for the placing of her son JF at AH school in Derbyshire.

[2] The relevant placing request had been made by the appellant on 2 March 2007 and was refused on 2 May 2007.

[3] She then made a reference to the Additional Support Needs Tribunal for Scotland dated 22 May 200 but the Tribunal by decision dated 3 October 2007 upheld the refusal.

[4] It is against that refusal that the appellant now appeals in terms of section 21 of the Education (Additional Support for Learning)(Scotland) Act 2004. Answers were lodged on behalf of Argyll and Bute Council, the relevant education authority.

[5] Mr Logan appeared for the appellant and Mr Duncan for the respondents.

[6] The grounds of appeal are four in number.

[7] The first is that the decision of the tribunal failed to address the relevant questions in law. There was no assessment as to the child's needs, which was an essential fact. Secondly, and in particular, the Tribunal did not address whether his needs included a residential or "24/7" programme as recommended by Hughes & Co, educational psychologists, and Mrs J the headmistress of AH school. Thirdly the Tribunal provided no reasons for their decision and no explanation for their apparent preference of one party's evidence to another. The reports and evidence did not address the need or lack of need for a "24/7" programme and there was accordingly no evidence before the Tribunal which allowed them to conclude that the child's needs did not require the special facilities provided by AH school. The fourth ground was not the subject of detailed argument and I need not mention it further.

[8] The Answers refer to the statutory framework and insist, broadly speaking, that the Tribunal addressed the appropriate questions and that there was sufficient evidence for them to reach their conclusions. It is averred that the rules (the Additional Support Needs Tribunals for Scotland (Practice and Procedure)Rules 2006) do not require the Tribunal to provide a reasoned decision and that in setting out findings in fact and a discussion of their reasoning they went further than was required. (As will be seen this argument was not insisted in). In any event such reasons as were given were adequate. In so far as the appeal was based on questions of fact that was outwith the jurisdiction of the Court.

[9] The factual and statutory background to the case is set out in the submissions of the parties to which I now turn.

[10] Suffice it to say at the moment, that the child has a number of difficulties and it was agreed on all hands that his current school, H school, was not appropriate for him. The local authority contend that his needs can be met by K school whereas the appellant contends that he should go to AH school in Derbyshire.

The legislative background

[11] The principal Act with which this appeal is concerned is the Education (Additional Support for Learning)(Scotland) Act 2004. Section 1 defines additional support needs and it reads as follows:-

"1(1) A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.

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

(3) In this Act, "additional support" means -

(a)in relation to a prescribed pre-school child, a child of school age or a young person receiving school education, provision which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the same age in schools (other than special schools) under the management of the education authority for the area to which the child or young person belongs,

(b)in relation to a child under school age other than a prescribed pre-school child such educational provision as is appropriate in the circumstances."

[12] Section 2 of the Act provides for co-ordinated support plans for the provision of additional support where the child's additional support needs arise from one or more complex factors or multiple factors in certain circumstances. I need not rehearse the terms of that section, it being sufficient to indicate that JF has a co-ordinated support plan in place.

[13] There are further provisions in the Act in relation to co-ordinated support plans but I need not touch upon them.

[14] Section 17 sets up the Additional Support Needs Tribunals for Scotland and section 18 provides for references to a tribunal of inter alia decisions relating to any child or young person for whose school education an education authority are responsible. In terms of Section (18)(3)(e), these decisions include, where sub-section (4) applies, a decision of the education authority refusing a placing request made in respect of the child or young person. Subsection (4) applied in the present case.

[15] Section 19 sets out the powers of Tribunals in relation to references and section 21 deals with an appeal to the Court of Session against a tribunal decision.

[16] That section is in the following terms:-

"21 (1) Either of the persons specified in subsection (2) may appeal on a point of law to the Court of Session against a decision of a Tribunal relating to a reference made under section 18.

(2) The persons referred to in subsection (1) are -

(a) the person who made the reference to the Tribunal,

(b) the education authority concerned.

(3) Where the Court of Session allows an appeal under subsection (1) it may -

(a) remit the reference back to the Tribunal or to a differently constituted Tribunal to be considered again and give the Tribunal such directions about the consideration of the case as the court considers appropriate,

(b) make such ancillary orders as it considers necessary or appropriate."

[17] Section 22 makes provision about placing requests in relation to children and young persons having additional support needs.

[18] Paragraph 2 of schedule 2, so far as relevant, is to the following effect:-

"2(1) Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.

(2) Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being -

(a) a special school the managers of which are willing to admit the child,

(b) a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs, or

it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school.

(3) A request made under sub-paragraph (1) or (2) is referred to in this Act as a "placing request" and the school specified in it is referred to in this schedule as the "specified school".

[19] Paragraph 3 of schedule 2 sets out circumstances in which the duty on the local authority under paragraph 2 does not apply. For present purposes the relevant circumstances are set out in paragraphs 3 (1)(d) and 3 (1)(f). These read as follows:-

"3(1)(d) if, where the specified school is a school mentioned in paragraphs 2(2)(a) or (b) the child does not have additional support needs requiring the education or special facilities normally provided at that school,...

3 (1)(f) if all of 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 the 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 the specified school, and

(iv) the authority have offered to place the child in the school referred to in paragraph (ii)..."

[20] The issue with which the appeal was concerned effectively turned on paragraphs 3 (1)(d) and 3 (1)(f)(ii).

[21] The upshot of the provisions is that the local authority is bound to make provision for the child to be educated at the specified school unless the circumstances in the sub-paragraphs obtain.

Submissions for the appellant

[22] As well as drawing my attention to the statutory background Mr Logan referred firstly to the co-ordinated support plan which was at R10 of the appellant's inventory of productions and subsequent pages. R12 set out the factors giving rise to J's additional support needs. He has dyspraxic difficulties affecting fine and gross motor skills. He learns at a slow pace, has a limited attention span and poor short term memory. He has a very low self control threshold, resulting in regular confrontations with peers. He has poor organisational abilities and is anxious.

[23] He is also in receipt of certain medication, although I was informed that he was no longer taking one of the specified drugs.

[24] Broadly speaking he has difficulties involving him in regular fights and exclusions from school.

[25] Mr Logan referred to the Tribunal's findings in fact 7-13 which were not in dispute. These were as follows:

"7. Both parties agree that J should not remain a pupil at H Academy and that a more suitable placement must be achieved.

8. J has been excluded from H Academy on a number of occasions. D (the appellant) is very concerned about such exclusions and their use has recently increased.

9. A clinical psychology assessment of J carried out in February 2007 by Doctor Liam Dorris, Consultant Paediatric Neuropsychologist at Yorkhill Hospital stated that "J is a boy with mild learning disabilities and at present I do not think he fits criteria (sic) for any other significant development or psychiatric disorder.

10. There were increased concerns about J throughout S2 and there was ongoing monitoring of his progress by school staff and the educational psychologist. His S2 Pupil Profile stated that J "had moderate learning difficulties and dyspraxia which results in him having a short attention span and a tendency to move off-task and become verbally aggressive and offensive. He can lose his temper easily." The principal area of concern was J's social and behavioural adjustment.

11. J was referred to speech and language in 2001. In 2004 his language skills were found to be within normal limits for his age. J was re-assessed in 2007 and a view was formed that intervention was not appropriate.

12. H Academy is a large mainstream secondary school. J finds the social demands of such an environment difficult to manage. J exhibits signs of anxiety and stress within the school.

13. J requires an alternative school with reduced social and emotional demands. This is not disputed by the authority."

[26] Mr Logan submitted that there was more information in the Tribunal's reasoning than in the findings in fact. The witnesses who gave evidence were the appellant, J, a Ronald Gould (wrongly described as Robert Gould on the front page of the decision) Mrs Anne Lee from H Academy, Miss Gerry Campbell from K school and Mrs Veronica Jenkins from AH school, who gave evidence via a telephone link.

[27] The Tribunal formed the view that Mrs Lee knew J well. She gave an account of his experiences at H Academy, the view of the school being that his main problem revolved around his social skills and dealing with other people in the school surroundings. Her view was that J would benefit from a transfer to another school which might be able to provide a more fostered environment where they could be more supportive of J and spend more time addressing social life skills. Her view was that he would benefit from a smaller school providing a slower pace and support in smaller and more structured task related groups throughout the day. His greatest barrier was his social skills. She was of the firm view that the social environment was very critical for him. She could not specifically comment on either AH school or indeed K school from any direct knowledge.

[28] Mr Logan then drew my attention to the evidence of Miss Gerry Campbell from K school. That school provided education for children from 5-19 years old and in the current S3, where J would be going, there were 7 pupils, all with moderate learning difficulties. Miss Campbell had not met with J but had been given a copy of the Hughes & Co report. She stated that apart from the 24 hour curriculum there was nothing that she considered did not fit the profile of the pupils at her school. She was of the view that K school could meet J's needs.

[29] Mr Logan emphasised that she had not met or seen J.

[30] He then turned to the evidence of Ronald Gould. He was the Head of Service, Secondary Education and Pupil Support, Argyle and Bute Council. There was no suggestion that he had any particular educational qualifications.

[31] He was the gentleman who had refused the placing request and said that his role was as a strategic manager of the service. He collated a collective picture of J after a period of discussion and debate. He listed all the various individuals who contributed to the decision making process and stated that they worked by "consensus". He concluded that "a joint view was come to". That view concluded that J should leave H Academy and that K school was the best and most suitable placement for him. He stated that J required a smaller class size, pastoral and appropriate welfare, and appropriate support through staffing and class structures in terms of his learning and his education. He stated that K school would fulfil all these requirements and would provide a caring environment, where his welfare would be paramount with good support for social development.

[32] Once again Mr Logan pointed out that Mr Gould had not met J. He had in fact decided against AH school three months before the authority wrote to the school.

[33] This was pointed out in the submissions of Mrs Dilworth who had appeared for the appellant before the Tribunal.

[34] Since Mr Gould had had no direct contact with J he was not in a position to asses his needs. He did not consider whether J required 24 hour care or not.

[35] Mr Logan then returned to the evidence of Mrs Lee and emphasised that she knew J well.

[36] He submitted that the weight of the evidence was that J suffered from social problems rather than learning ones and that that was effectively the evidence relied on by the respondents in so far as it was given by witnesses.

[37] The appellant had given evidence herself. She spoke of a number of difficulties at home and how J was in the house. She was genuinely concerned about J and about his expulsion from school. She stated that "academic achievement is not everything. He needs to cope socially. They need to get a balance." She described her views on AH school. In her opinion the staff were very professional and could communicate with J. She spent several hours at the school during a visit which she and J had. He had loved his time there (a week). She said that he had been involved in many activities during the week and had made many friends although she herself did not see the school in operation. J referred to people at that school already as friends.

[38] The decision goes on as follows:-

"D was also able to tell us about the various activities J has been involved in locally....D now finds J's behaviour harder to handle as he now feels he needs to be more independent. She stated that J needs to be persistently challenged about his behaviour. D described her experience of visiting K school and AH school to the Tribunal in detail. We noted that J would not visit K school which he perceived as a specialist school whereas he sees AH school as a boarding school.

D stated that AH school were able to give the appropriate level of support J requires. She felt that they would be able to work well with J. The provision would be "continuous, consistent and 24 hours."

[39] This was a lady who obviously knew her son well, although she was not a professional witness.

[40] Mr Logan stressed that her evidence was that J needed continuous 24 hour care (although that is something of a gloss).

Mr Logan then looked at the evidence of Veronica Jenkins in detail.

The Tribunal recorded it thus:

"The Tribunal heard evidence by telephone link from Mrs Veronica Jenkins, the headmistress for almost the last three years of AH school. She stated that the school currently has a school roll of 94 students, 29% having speech and language impairment. The vast majority of pupils are on the autistic spectrum (Asperger's Syndrome) and have social communication difficulties, stating that for them social interaction can be very difficult. Pupils range from 8 years to 19 years old. Mrs Jenkins commissioned the Hughes & Co report.

The Tribunal noted in detail the curriculum provided by the school and also recent exam results. We were provided with details of how the school operates and their extensive use of placements in colleges and work. The Tribunal also noted the staffing provision within the school and the extra-curricular facilities available. The residential provision was described in detail. Mrs Jenkins stated that in her opinion J needed a 24 hour programme in order to build up relationships and friends. She stated that during the day is mainly academic study and that necessary life and social skills require also to be practised with the other pupils and staff after the normal school day is typically over. She provided feedback from the school following upon J's visit. She stated that he coped reasonably well, that any problems were shared, that he enjoyed being there and that he wanted to be there. She also commented that J had already started to form friendships even from this relatively short visit to the school....The school currently have four other pupils from Scotland. She stated that all these pupils would be able to integrate back into their own communities again. She also stated that they would be able to make friendships and linkages again in their own community.

Dr Jefferies expressed his surprise that Mrs Jenkins considered J's profile suitable for AH school. We noted their separate evidence in this matter. Mrs Jenkins concluded that "J has identified needs and we can meet those needs." When pressed by Dr Jefferies about the characteristics of pupils with moderate learning difficulties Mrs Jenkins stated that she had no direct experience of teaching such pupils and was therefore unable to comment further."

[41] I was then referred to the report from Hughes & Co which is at A42 and subsequent pages in the inventory of productions.

[42] This was the expert report which the Tribunal considered. No one from the company gave evidence but that was not required.

[43] The compilers of the report interviewed the child and also members of staff, observed him in school and had discussions with his mother as well as undertaking an intellectual assessment.

[44] My attention was drawn in particular to the discussion with his mother. Part of that was recorded as follows:

"Apparently the Local Authority Social Services Department were now undertaking a "Section 23 Assessment" but no support was yet in place. She explained that J's needs had been spotted much earlier than had his elder brother who is also 15 years and has global delay, Tourettes Syndrome and an Autistic Spectrum Disorder. Having experienced the difficulties of the older child she had been watchful of J's development. J spent two terms in a Special Needs nursery before transferring to a mainstream nursery and his Statement was issued at aged 6 years when he was in Year 2 of the Infant School in Hampshire.

Asked if anyone else in the family showed similar characteristics J's mother indicated that his father and perhaps others in his father's family displayed some common characteristics. She felt that the military life helped his father (cope) better than did J in a less structured and controlled environment. Disagreements between J's parents including lack of agreement about how to deal with J's problems led to serious tensions and, ultimately, to the parents' divorce....

We discussed the many symptoms and (characteristics) seen in the two boys and in their father. Clearly J's mother believes that Autistic Spectrum Disorders of some kind and to some degree of severity are at the heart of their functioning. That such conditions overlapped with other neurological conditions including dyspraxia and dyslexia was discussed. J's mother was most concerned that provision for J should consider all aspects of his functioning and needs. She clearly felt that it was the behaviour that needed most attention but not at the expense of understanding and dealing with underlying causes which, she felt, were related to Autism and poor social understanding."

[45] The intellectual assessment showed J to be below the mainstream range of ability. However my attention was drawn particularly to the following comments at the end of the intellectual assessment:

"Examination of the bundle of records indicated that concerns currently being expressed at school mirror those of J's mother and centre on his behaviours and relationships with peers. J had difficulty keeping up with his peers especially in situations requiring physical skill. This clearly frustrated J who lacked the necessary social skills to communicate his wishes effectively. His time in the Support Base seems to have been quite a relief to him but concerns were expressed that he may become over reliant on support.

J's lack of understanding of social conventions and of the needs and feelings of others seems to be at the back of many of his behavioural difficulties and their consequences. The need to develop self awareness and self control is repeated many times in his teacher's reports as is the need to cope with moderate amounts of change. However, little seems to have been done directly to help these developments nor has the need to modify the environment in which he works and lives nor has the need to modify the demands placed on J been acknowledged.

The conclusions and recommendations are 32 in number but my attention was not drawn to all of them. Numbers 1-6 read as follows:

"1. J is a child of below mainstream ability. Comparison of the scores of 1993 and 2007 is problematic since different versions of the British Ability Scales were used. In both versions the emphasis in testing younger children is on using their verbal skills. In older children more abstract and non-verbal skills are sampled.

2. J's verbal skills now seem to be substantially lower than his scores in 1993 suggested but his non-verbal skills appear to be at a similar, low level. It is my view that the overall scores today are more reliable than those from 1993.

3. J presents with a number of characteristics typical of Asperger's Syndromes, especially poor understanding and responses to social situations. However he seems, on the basis of present information, to all short of the criteria for a formal diagnosis of Asperger's Syndrome.

4.I suggest that the approaches used to support the difficulties and difference associated with Asperger's Syndrome would provide an appropriate framework for helping J. At the same time further information can be gathered, especially about his responses to an appropriate programme of support, to allow further consideration of the diagnosis and of his needs in the future.

5. While I feel the provision of resources and support needed by J can be put in place within the mainstream this would rely on experienced and well informed staff able to flexibly implement a plan which extends well beyond the age of 16 years. A traditional mainstream school is unlikely to be able to provide the full framework of support needed.

6. That so much of J's needs involve social situations lends weight to the suggestion that a 24 hour curriculum is required. Clearly this would be difficult to implement while he attends a traditional mainstream school and I feel that the consequential demands on J's family would be an unreasonable additional pressure on their already stretched resources. Therefore, a residential establishment with sixth form provision is required."

Numbers 31 and 32 were in the following terms:

"31. J appears to have significant motor control difficulties. These have led to avoidance of some activities with the unfortunate consequence of limiting his practice and mastering of key skills. Paradoxically his reported avoidance of physical activities such as PE and sport did not extend to playing soccer at AH school, perhaps because he found himself with a peer group less skilled than he. The advice of an Occupational Therapist about his co-ordination skills is essential and the recommendations made in this report should be modified in the light of that advice.

32. J's verbal skills appear to have declined and his use of language skills is variable. This suggests that he still has unresolved language difficulties. The advice of a Speech and Language Therapist about his language skills is essential and the recommendations made in this report should be modified in the light of that advice."

[46] Mr Logan submitted that there was a recurring theme that J's major problems were social rather than academic. The Hughes report was clear and stated in terms that he needed a 24 hour curriculum.

The Tribunal also had a report by Dr Dorris. That was referred to by them when they dealt with the submissions.

[47] What they said was this:

[48] "Dr Jefferies stated that a "balancing decision" emerged over time and that "dialogue is continuous." He explained that he consulted with colleagues, considered extensive information available to him and referred us to Dr Dorris's report. With all this information he considers K school an appropriate school for J. He stated that J was regarded as a young person with a moderate learning disability in terms of Dr Dorris report of 1 May 2007. Dr Dorris went on to say at R19:

"I do not think that J has attention deficit hyperactivity disorder, nor any aspect of autism spectrum disorder. In think he can be viewed as a boy with learning difficulties who is struggling to an extent to maintain himself within a social group and is somewhat vulnerable to exploitation."

[49] Dr Dorris also concluded that he did not see any evidence of progressive symptoms that would justify a diagnosis of Tourettes.

[50] In conclusion, Dr Dorris stated:

"In summary J is a boy with mild learning disabilities and at present I do not think he fits criteria for any other significant developmental or psychiatric disorder."

[51] The submissions went on as follows:

"Dr Jefferies suggested that there was nothing in the independent report from Hughes & Co to suggest that what was needed was outwith the provision of K school apart from the 24 hour recommendation, which he argued did not follow conclusively from the assessment results."

[52] The implication from that, said Mr Logan, was that the recommendation had come out of the blue but that was not justified when one examined the report.

[53] The evidence relied on by Dr Jefferies was Dr Dorris's report. None of the other witnesses was able to address the 24 hour recommendation.

[54] The report by Dr Dorris itself was at R17 and consisted really of a letter to Dr Jefferies. J had attended two appointments, on 15 February and 8 March 2007. It was apparent from the first paragraph that the appellant was particularly keen to obtain some assessment of whether J might have attention deficit hyperactivity disorder, Tourettes syndrome or indeed aspects of Autistic Spectrum disorder.

[55] There was no clear indication as to what Dr Dorris's remit was but it was reasonable to assume that he would have investigated these matters.

[56] Mr Logan drew my attention particularly to the second and third pages of the report. The relevant parts are in the following terms:-

"On reviewing J's psychological condition I did not find any evidence of formal psychological disorders such as depressed mood or anxiety, and J did not report any problems with sleep, appetite or mood. J did feel that he was often quite tense at school and his mother feels that he is often out of his depth both in terms of the academic and also the social demands of being in a mainstream school with more able peers. J himself told me that he was rather worried about his willingness to take on other people when challenged and realised that he was probably more likely to come off worse in the long term using this strategy. I understand that J has seen Dr Jane Duttie, child psychiatrist, who had been investigating the possibility of Tourettes syndrome. Mrs G told me that J had experienced ticks and twitches and also obsessive behaviour... and frequent facial stereotype movements. Mrs G told me that these behaviours had not been quite so apparent in the last 6 months. I did observe J to engage in more frequent eye blinks and twitches whilst this was being discussed and both agreed that when his attention was drawn to these behaviours then he was more likely to engage in them. I understand that he is not currently taking any medication and that there has been no formal diagnosis in relation to any tic disorder. Mrs G told me that there was no family history of Tourettes or obsessive compulsive disorder, nor of any other significant developmental or psychiatric condition.

J presented as a very friendly and open young man who initially tried to impress me as being streetwise and confident and did seem to take some pride in telling me he was known to be able to handle himself and physically able to stand up for himself. J is very keen to present himself as an assertive and confident young man and is keenly aware that he has some learning difficulties which can sometimes leave him vulnerable in social situations. J did impress me as being a sensitive young man who was able to consider the needs of others and was keen to support his mother in terms of describing (his brother's) behaviour and also thinking about how he can best support other members of his family....J obtained a verbal comprehension index score of 73 (4^th. %tile) and a perceptual reasoning index of 51 (0.1 %tile). J therefore had a significant difference between his verbal and non-verbal abilities favouring the former. Overall, J can be viewed as having a mild learning disability and I felt that his attention skills and overall organisational abilities were in keeping with his level of overall ability.....I did not think that J has attention deficit hyperactivity disorder nor any aspects of autistic spectrum disorder. I think he can be viewed as a boy with learning disabilities who is struggling to an extent to maintain himself within a social group and is somewhat vulnerable to exploitation. J is the first to admit however that he will sometimes engage in disruptive behaviour in order to hide some of his learning difficulties and in order to feel that he is popular and able to be accepted by others in the group. ...On J's last appointment he told me that he had been suspended that week due to being in another fight. J told me that he had been frequently bullied by a group of boys and also teased by other girls in the group. He did show more frequent eye blinks and mouth twitches during this session and it would seem to be one of the ways in which J addresses anxiety and frustration. Mrs G told me that she had put in a placing request for another school, AH in Derby and was hoping that this may be a more appropriate environment for J. I am sure that Mrs G will be discussing these things with you in due course.

In summary J is a boy with mild learning disabilities and at present I do not think he fits the criteria for any other significant developmental or psychiatric disorder. He does have a tendency towards facial tics exacerbated by anxiety and I had discussed these behaviours in the context of J's developmental needs. Mrs G in any event does not wish to seek any medication in relation to these behaviours. Again I think it was useful for Mrs G to be able to discuss her views of J at this point in his life and whilst I have not arranged any further follow up I have told Mrs G I am happy to speak with her at her convenience should she wish to discuss anything further. I would not view myself as having anything further to offer in relation to J's additional support for learning plan but I would be happy to discuss with anyone involved with his care or education other issues that may arise."

[57] It was apparent therefore that Dr Dorris did not express any view about AH school. He was aware of the placing request but expressed no view on it. What he was trying to do was not directly related to the issue before the tribunal which was what school environment was appropriate for J.

[58] It was not the educational difficulties which were the main problem. If Dr Dorris had expressed a view that the specified school was not required then the tribunal could take that into account but he had not.

[59] At the end of its judgment the Tribunal said the following:

"The Tribunal fully considered both the respective suitability and the respective costs in their deliberations of the two schools. We also fully considered the education or special facilities normally provided by AH school."

[60] Thereafter they simply declared themselves satisfied that the various statutory tests were met.

[61] There was no reasoning given as to why the evidence from Veronica Jenkins, the Hughes & Co report, the appellant and J had been rejected and no explanation how the Tribunal had reached a view as to what J's needs actually were.

[62] If there had been two competing bodies of evidence then that was one thing. In this case however all of the evidence pointed one way, namely that he needed a 24 hour curriculum. There was no evidence that it was not necessary.

[63] There were three findings in fact which pertained to this matter namely 19, 20 and 24.

[64] These were as follows:

19. The Authority are able to make provision for the additional support needs of J and have offered a place to J in K school.

20. The provision of education at K school is suitable for the additional support needs of J who currently remains on the roll of H Academy.

24. J does not have identified additional support needs requiring the education or special facilities normally provided at AH school.

[65] 20 and 24 did not really add anything of substance to No. 19. It had to be considered in light of the evidence however. The lady from K school had said that they could offer everything in the Hughes report except the 24 hour care. On what basis had that requirement been rejected? The lady had never even met J.

[66] The question really came to be whether the Tribunal was entitled to hold that J did not need 24 hour care. If they were so entitled then that was an end of the matter. If there had been evidence to that effect then it was a matter for them to weigh it up.

[67] They were obliged at least to explain why they were not persuaded by the Hughes & Co report. There were references to the report but there was no criticism directed to it other than that of Dr Jefferies who said that the conclusions did not follow.

[68] Mr Logan then turned to consider a number of authorities.

[69] These were HA v The Secretary of State for the Home Department [2007] CSIH 65, RB [2007] CSOH 126 and SM as legal guardian to J [2006] CSOH 201, 2007 fam LR 2.

[70] The first of these was an appeal under section 103B of the Nationality, Immigration and Asylum Act 2002, dealt with by an Extra Division.

[71] The Opinion of the court was delivered by Lord Macfadyen. Mr Logan referred to this case because of the discussion in it as to the proper approach to identifying errors of law. He quoted verbatim paragraphs 10-17 inclusive of the opinion of the court as follows:

"[10] At the outset of the development of his main submission, Mr Devlin accepted that the appeal to this court is an appeal on point of law only. He accepted that this court could not simply examine the evidence with a view to forming its own view as to the facts established. He said that it was not his submission that this court was entitled to enter into the assessment of the evidence on the merits of the claim. However, he submitted, that did not mean that the court was prevented from examining a decision for error of law merely because the decision involved findings of fact or inferences drawn from findings in fact. A finding in fact might disclose an error in law if there was insufficient evidence to support it. In asylum cases, the assessment of whether there was sufficient evidence to support a finding in fact called for the most anxious scrutiny. Such an assessment should be based on a holistic view of all the relevant evidence.

[11] The soundness of Mr Devlin's initial concession is amply borne out by observations made in Mehmet Kahye v Secretary of State for the Home Department [2003] EWCA Civ 317, which was cited to us by Mr Stewart for the respondent. In that case Scott Baker LJ said:

"10. ...[I]t is clear to me that the way in which the renewed application is advanced is nothing more than a disagreement with the tribunal's findings of fact. That does not found a basis for an appeal to this court, which has to be on the ground that the tribunal erred in law...

12. ...In my judgment, it is high time that [those] involved in these cases...appreciate...that it is wholly inappropriate to try to dress up an appeal as a point of law which is really a disagreement with the fact-finding conclusions of the tribunal."

The point was reinforced in the judgment of Lord Woolf of Barnes CJ at paragraphs 14 to 17. We are not to be taken as suggesting that in the present case the submissions made by Mr Devlin involved any abuse of the procedures of the court, but it is salutary to be conscious of the risk of allowing the limitation of the right of appeal to points of law to be circumvented or eroded by characterising in one way or another as points of law matters that are truly mere disagreement with the fact-finder on matters of fact.

[12] Although at first Mr Devlin appeared to be arguing that any conclusion on a matter of fact required to be founded on sufficient evidence, whether that conclusion was a positive finding in fact or a refusal to accept evidence as credible or plausible, as his submission developed it came to be that where evidence was rejected as incredible or implausible, there had to be grounds for so rejecting it which would bear scrutiny. The reason for rejection might lie in the acceptance of other evidence, but did not inevitably do so. It must not rest on mere conjecture or speculation. Evidence might, however, be rejected as incredible or implausible if it lay so far beyond human experience as to be inherently unlikely.

[13] It is as well to bear in mind, in approaching the question of whether a decision on credibility involves any error of law, that, as the Immigration Judge reminded himself at paragraph 23 of his determination, the standard of proof incumbent on the appellant is the low standard of reasonable likelihood (Sivakumaran)[1988] Imm AR 147; Kaja [1995] Imm AR 1; Karanakaran [2000] Imm AR 271). It is also right for us to bear in mind, as Mr Devlin submitted we should, that cases of this nature, which involve fundamental human rights, "call for the most anxious scrutiny" (Bugdaycay [1987] 1 AC 514 per Lord Bridge of Harwich at 531G; see also Regina v Ministry of Defence, Ex parte Smith [1996] QB 517 per Simon Brown LJ at 537-8).

[14] In support of his submission that decisions on matters of credibility or plausibility require to be adequately explained. Mr Devlin cited two cases. The first of these was HK v Secretary of State for the Home Department [2006] EWCA Civ 1037. In that case the leading judgment was given by Neuberger LJ, who observed (at paragraph 24) that the court could normally be expected to refuse to interfere with findings of primary fact and the drawing of inferences from such conclusions. At paragraph 25 his lordship continued:

"However...this does not mean that we cannot quash the decision of the Tribunal in this case merely because it involved findings of fact and the drawing of inferences from those findings. Thus, in E v Secretary of State [2004] QB 1044 Carnwarth LJ...said at paragraph 66 that 'a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law', albeit subject to certain conditions which he then enumerated."

[72] Although Devlin cited the passage, he did not develop any submission based on the dictum of Carnwarth LJ, and we need therefore say nothing more about it except that we reserve our opinion on the soundness or at least the scope of the proposition. Neuberger LJ went on (in paragraph 26) to recognise perverseness in connection with a finding in fact as an aspect of error in law, and quoted from R (Iran) v Secretary of State [2005] EWCA Civ 982, per Brooke LJ at paragraph 11, where the concept of perversity was recognised as including "irrationality or unreasonableness in the Wednesbury sense" as well as "a finding in fact that was wholly unsupported by evidence". In paragraph 27, his Lordship discussed the particularly acute difficulty of the fact-finding exercise in asylum cases (Gheisari v Secretary of State [2004] EWCA Civ 1854). His Lordship continued:

"28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. Ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

29.Inherent improbability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of the residents of this country will be wholly unfamiliar. ...

30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala v Secretary of State [2005] CSOH 73 [reported sub nom. Wani v Secretary of State for the Home Department 2005 SLT 875]. At paragraph 22 he pointed out that it was 'not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion' (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done 'on reasonably drawn inferences and not simply on conjecture or speculation'. He went on to emphasise, as did Pill LJ in Gheisari[sic], the entitlement of the fact-finder to rely 'on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible. However, he accepted that 'there will be cases where actions which may appear implausible if judged by...Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background."

[15] The second case relied on by Mr Devlin was Reid v Secretary of State for Scotland 1999 SC (HL) 17, [1999] 2 AC 512. He quoted the following passage from the speech of Lord Clyde at 41H-42B (541F-542A):

"Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have misused or abused the authority which it had. It may be departed from the procedures which either by statute or at common law as matters of fairness ought to have been observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or sufficient evidence, to support it or through account being taken of irrelevant matter, or through failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence."

We have no difficulty in accepting that those observations, made in the context of judicial review, are applicable also in the context of a statutory appeal confined to points of law. However, we note that, comprehensive as Lord Clyde's observations were, they had no need to, and therefore did not, address the particular issue of the basis on which a tribunal's approach to questions of credibility may disclose error in law.

[16] Mr Stewart reminded us of the guidance on the assessment of credibility in the immigration context offered in Esen v Secretary of State for the Home Department 2006 SC 555, per Lord Abernethy delivering the opinion of the court at paragraph 21:

"Credibility is an issue to be handled with great care and with sensitivity to cultural differences and the very difficult position in which applicants for asylum escaping from persecution often find themselves. But our system of immigration control presupposes that the credibility of an applicant's account has to be judged (Asif v Secretary of State for the Home Department 2002 SC 182). Credibility is a question of fact which has been entrusted by Parliament to the adjudicator. The adjudicator is someone specially appointed to hear asylum appeals and has the benefit of training and experience in dealing with asylum seekers from different societies and cultures. Of course, an adjudicator must give his reasons for his assessment. A bare assertion that an applicant's account is implausible is not enough (W321/01A v Minister for Immigration and Multicultural Affairs [2002 FCA 210]. But an adjudicator is entitled to draw an inference of implausibility if it is based on the evidence he has heard and in coming to his conclusion he is entitled to draw on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible (Wani v Secretary of State for the Home Department)."

What is there said about an adjudicator is, we accept, applicable to an immigration judge.

[17] In the light of the cases cited to us it is convenient at this stage to formulate some propositions about the circumstances in which an immigration judge's decision on a matter of credibility or plausibility may be held to disclose an error in law. The credibility of an asylum-seeker's account is primarily a question of fact, and the determination of that question of fact has been entrusted by Parliament to the immigration judge (Esen, paragraph 21). This court may not interfere with the immigration judge's decision on a matter of credibility simply because on the evidence it would, if it had been the fact-finder, have come to a different conclusion (Reid, per Lord Clyde at 41H). But if the immigration judge's decision on credibility discloses an error of law falling within the range identified by Lord Clyde in the passage quoted above from Reid, that error is open to correction by this court. If a decision on credibility is one which depends for its validity on the acceptance of other contradictory facts or inference from such facts, it will be erroneous in point of law if the contradictory position is not supported by any, or sufficient, evidence, or is based on conjecture or speculation (Wani, paragraph 24, quoted with approval in HK at paragraph 30). A bare assertion of incredibility or implausibility may disclose error in law; an immigration judge must give reasons for his decisions on credibility and plausibility (Esen, paragraph 21). In reaching conclusions on credibility and plausibility an immigration judge must draw on his common sense and his ability, as a practical and informed person, to identify what is, and what is not, plausible (Wani, paragraph 24, page 883L, quoted with approval in HK at paragraph 30 and in Esen at paragraph 21). Credibility, however, is an issue to be handled with great care and sensitivity to cultural differences (Esen, paragraph 21), and reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose culture and customs are very different from those in the United Kingdom (HK at paragraph 29). There will be cases where actions which may appear implausible if judged by domestic standards may not merit rejection on that ground when considered within the context of the asylum-seeker's social and cultural background (Wani, paragraph 24, page 883I, quoted with approval in HK at paragraph 30). An immigration judge's decision on credibility or implausibility may, we conclude, disclose an error of law if, on examination of the reasons given for his decision, it appears either that he has failed to take into account the relevant consideration that the probability of the asylum-seeker's narrative may be affected by its cultural context, or has failed to explain the part played in his decision by consideration of that context, or has based his conclusion on speculation or conjecture."

[73] Mr Logan conceded that HA and cases like it dealt with potentially life threatening situations. Nonetheless this mater was of great importance to J. His life was effectively on hold while it was under consideration.

[74] He submitted that it was clear from the speech of Lord Clyde in Reid that if there was an absence of sufficient evidence to support a finding in fact then there had been an error of law which entitled me to quash the decision.

[75] His submission was that there was no sufficient evidence to support the findings about J's needs. There was no evidence to support the finding in fact that K school, which did not offer a 24 hour curriculum, met his needs.

[76] The decision was therefore flawed and there had been an error of law.

[77] He accepted that no question of credibility as such arose in the current case as it did in the immigration cases but in order to justify their decision the Tribunal should have explained their acceptance or rejection of evidence. Why did they reject the evidence of Mrs Jenkins, the Hughes & Co report and to some extent that of the teacher from HA, the appellant and J himself? While credibility might be a different matter, the comments of the Inner House nonetheless applied to this case, where the Tribunal had chosen not to accept a large body of evidence.

[78] There was no material which allowed them to reject that evidence. An immigration judge would have required to give reasons for doing so and the Tribunal ought to have done so also. There was no discussion of how they reached their decision. Mutatis mutandis the comments in paragraph 17 of the opinion of the Inner House applied to this case.

[79] There has been an error of law in failing to give reasons why this evidence was not accepted.

[80] Mr Logan then entered into a submission as to whether or not there was a requirement to give reasons, his position being, broadly speaking, that if there was no such requirement then the appeal process would have been rendered nugatory. I need not go into this discussion in view of a concession by Mr Duncan to that effect based on the terms of the Act itself.

[81] Paragraph 14 (1)(b) of schedule 1 of the Act provides that the decision of a Tribunal must be recorded in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision.

[82] To that extent the respondents answer 4.8, denying that there was any requirement to give reasons, was plainly wrong.

[83] Mr Logan accepted that pages and pages of detailed reasoning were not required but there had to be something. The only mention in the judgment was a reference to the submissions by Dr Jefferies to the effect that Hughes and Co's conclusion that J required a 24 hour curriculum did not follow from the body of their report.

[84] Mr Logan submitted that it was J's social difficulties and not his learning difficulties that required the 24 hour care. The Tribunal appeared to have proceeded on the basis that he was not too bad in educational terms.

[85] The case of RB, referred to by Mr Logan, was one which in my opinion depended very much upon its own facts. It was an appeal under section 1 of the Act in which Lord Brailsford decided that the Tribunal had erred in law because the findings in fact were, broadly speaking, insufficient to enable it to reach a proper decision on the crucial issue.

[86] I do not consider that it has any particular bearing on the issue before me. It is simply an illustration of the general principle that if a decision is made on inadequate findings in fact then there can be said to have been an error of law.

[87] In the current case the Tribunal did not make any specific finding as to whether or not J required 24 hour supervision. By inference they decided that he did not. If he did require it then K school was not appropriate.

[88] The findings in fact did not therefore address the critical issue in this case.

[89] In the case of SM the Tribunal had given no weight to a report because there was no evidence as to the qualifications of the author. This matter was dealt with in paragraphs 37-42 inclusive of the opinion of the Lord Ordinary, Lord Glennie. These are to the following effect:

"[37] I have come to the conclusion that in this respect the ASNT did err in law. I fully accept that in the ordinary course a decision as to what weight to attach to a piece of evidence is a matter entirely for the tribunal. But if the tribunal makes a decision to attach no weight at all to a report, that is equivalent to refusing to admit it in evidence. It is mere sophistry to suggest that there is a distinction in this respect between, on the one hand, refusing to admit a piece of evidence and, on the other, admitting it but declining to attach any weight to it. If the objection to the report was that the author lacked any appropriate qualifications, that would be a ground for refusing to admit it. It is accepted that the correctness of such a decision could raise a question of law. The question does not cease to be one of law simply because the tribunal deals with the same objection in a different way.

[38] Having said that, there might be some force in Mrs. Scott's submission if the ASNT were simply presiding over an adversarial process. In formal adversarial proceedings, if one party does not lead evidence as to the qualifications of the person producing a report, it is, I suppose, open to the other to invite the court or tribunal to refuse to admit the evidence. In the modern world, I cannot conceive of a court acceding to such an invitation without at least some enquiry as to that person's qualifications; and only if it turned out that he or she had none might the court or tribunal refuse to admit the report. But a reference to the ASNT is not intended to be either formal or wholly adversarial. And, in my judgment, the role of the tribunal is intended to be, to some extent at least, inquisitorial.

[39] The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 set out, as Rule 3(1) states, a procedural code

"with the overriding objective of enabling a Tribunal with the assistance of the parties to deal with references fairly and justly."

[90] Rule 3(2) elaborates on this:

"(2) Dealing with references fairly and justly includes-

(a) dealing with the reference in ways which are proportionate to the complexity of the issues and to the resources of the parties;
(b) seeking informality and flexibility in the proceedings under these Rules;
(c) ensuring, so far as practicable, that the parties are on an equal footing procedurally and are able to participate fully in the proceedings, including assisting any party in the presentation of his or her case without advocating the course he or she should take;
(d) using a Tribunal's special expertise effectively; and
(e) avoiding delay, so far as compatible with the proper consideration of the issues."

Rule 4 gives further guidance:

"(1) A Tribunal must seek to give effect to the overriding objective when it-

(a) exercises any power under these Rules; or
(b) interprets any rule.

(2) In particular a Tribunal must manage references actively in accordance with the overriding objective."

Although other Rules are detailed, dealing with such issues as citation of witnesses and lodging of documents, they do not detract from the general principles. Indeed, the Rules are to be interpreted so as to enable the ASNT to act in accordance with the overriding objective of fairness and justice.

[40] The general principles governing the ASNT and references to it include the following. The ASNT is under a duty to act in accordance with the overriding objective. Accordingly it must deal with references "fairly and justly". In doing this it is entitled to expect the assistance of the parties, but they are to assist the tribunal in the performance of this duty. Any failure on their part does not relieve the ASNT of its obligation. It must seek (and encourage) informality and flexibility. It must assist parties in the presentation of their cases. It must, where necessary, take the lead. It must manage references actively. The role of the ASNT under the Rules is quite different from that of a court. Whilst it would be wrong to describe it as wholly inquisitorial in nature, the process envisaged by the Rules is very far from being simply adversarial.

[41] To my mind, the way in which the ASNT dealt with the question of the report from the OP Nursery was in conflict with its duty. The appellant had a lay representative helping him. If the ASNT thought that without knowing the detailed qualification of Ms. SW they could attach no weight to the report from the nursery school, the Convener should have said so and given the appellant an opportunity of dealing with it. No doubt it could easily have been remedied, by telephone or by fax or some other rapid method of communication. Or the tribunal itself could, with the agreement of the parties, have made its own enquiries. There is power to allow further witnesses to be called, either in person or by remote means. When the tribunal identified this aspect as crucial to the issue raised by the appellant, it should at least have considered whether to ask that Ms. SW give evidence.

[42] It follows, in my judgment, that the ASNT erred in law in the way in which it dealt with this aspect of the evidence."

[91] Mr Logan submitted that potentially the same had happened in this current case. A report had been presented to the tribunal and it had effectively been ignored with no reasons being given.

[92] As I understood him Mr Logan did not seek to present any substantial argument on the fourth ground of appeal, which appears to be nothing more than an observation in any event.

Submissions for the respondents

[93] Mr Duncan invited me to refuse the appeal.

[94] It had been presented essentially on two grounds he said.

[95] The first of these was a failure in the assessment of the need for residential care and the second one was a failure to provide reasons for the decision.

[96] In relation to the first he invited me to consider whether the Tribunal had in fact failed to assess J's care needs and secondly was there evidence available to enable them to reach the decision which it did.

[97] He had no difficulty with Mr Logan's general approach to the task of the court when dealing with questions of fact raised in an appeal such as this.

[98] In particular he relied on paragraph 15 of the opinion of the court in HA. He reminded me that that was a case of an asylum seeker and was a matter of some anxiety. Questions of credibility arose and none of that was the case here. Mr Duncan understood Mr Logan to accept that if there was any evidence which supported the decision that J's need for additional support did not require the facilities at AH school then that was an end of that part of the appeal.

[99] He drew my attention to section 19 (5) of the Act which is in the following terms:

"(5) Where the reference relates to a decision referred to in sub-section (3)(e) of that section, the Tribunal may-

(a) confirm the decision if satisfied that -

(i) one or more of the grounds of refusal specified in paragraph 3 (1) or (3) of schedule 2 exists or exist, and

(ii) in all the circumstances it is appropriate to do so..."

[100] That subsection also entitled the Tribunal to overturn the decision and require the education authority to take certain actions.

[101] The current appeal did not raise any issue as to whether in all the circumstances of the case it was appropriate to confirm the decision of the Tribunal, the only issue being as to the applicability of paragraphs 3 (1)(d) and 3 (1) (f)(ii) of schedule 2.

[102] The question of onus did not play any significant part.

[103] As far as 3 (1)(d) is concerned Mr Duncan submitted that the question was whether the child's needs for additional support required the education or special facilities normally provided at the specified school, although the sub paragraph was framed in negative terms.

[104] The Tribunal had to look at what was generally and normally provided at the school in assessing whether the child's needs required him to go there. The first leg of the appeal was really confined to the question of 24 hour residential care. However the Tribunal had to look at a wider picture than that. They might never get to the issue whether residential care was required because there might be other aspects of the facilities provided by the school that were not required.

[105] This school's roll consisted almost entirely of children with Autism. A substantial proportion of the children at the school had speech problems. The Tribunal would have been entitled to conclude that the sort of facilities on offer there were not required for J and if so it did not require to consider whether residential care was required or not. The whole of the care package had to be looked at but in his analysis Mr Logan had effectively looked at it through a telescope.

[106] So far Mr Duncan had been looking at paragraph 3 (1)(d). He submitted however that paragraph 3 (1)(f)(ii) was also in play. The question was whether there was any evidence that the authority were able to make provision for the additional support needs of J in a school other than the specified school. Mr Duncan accepted I think that if J did need residential care then it was difficult for the authority to bring itself within that provision.

[107] There was a discussion as to the scope of 3 (1)(d). The result of that was that Mr Duncan, as I understood him, submitted that an education authority had to perform a balancing act. It had to look at the whole of the child's needs and also the care package offered by the specified school. It might be that a particular school catered for some of the needs and another school catered for others with neither school catering for both. In these circumstances a judgement would have to be made.

[108] There might be difficult decisions to be made at the margins but in general a balance was required.

[109] I understood Mr Logan to accept that this was the proper approach and I think that it must be.

[110] It may be that there are children who require all of the facilities at a particular school whereas other children will only require some of them. The question has to be looked at in the round.

[111] The first of Mr Duncan's submissions was that there was indeed evidence which enabled the Tribunal to reach its decision.

[112] He looked first of all at some of the findings in fact. Numbers 4 and 5 were in the following terms:

4. J transferred to H Academy in August 2005 and remains a pupil at that mainstream local authority school. He is currently in S3. He has moderate learning difficulties and lacks fine motor skills appropriate to a young person of his age. J also exhibits significant social and behavioural difficulties.

5. A co-ordinated support plan was opened for J on 6^th June 2007. A meeting of the CSP Screening Group on 18 April 2007 discussed J and accepted that issues were arising within H Academy in relation to his "social integration and behavioural difficulties." It was specifically noted at this meeting that after a recent assessment of J by a speech and language therapist it was concluded that intervention was not required. They further noted that an assessment by a Clinical psychologist showed consistently with previous assessments that J has general learning difficulties and that his weaker area is in relation to "perceptual reasoning" rather than verbal skills. The Screening Group concluded that a CSP should be opened for J. The placing request was made for J on 2^nd. March 2007 after a written offer of a placement was made at AH school on 28 February 2007. This offer followed upon a residential visit by J at that school and an assessment by an independent Chartered Educational Psychologist (Hughes & Co) resulting in a written report dated 14 February 2007."

Finding in fact 11 was in the following terms:

"11. J was referred to Speech and Language in 2001. In 2004 his language skills were found to be within normal limits for his age. J was re-assessed in 2007 and a view was formed that intervention was not appropriate."

Finding in fact 14 was in the following terms:

"14. K school is the closest school which caters primarily for children with moderate learning difficulties. It is a non-denominational primary and secondary school for pupils with moderate or severe and complex learning difficulties. K school provides small class groups, individualised education programmes and pastoral care."

Finding in fact 17 was as follows:

"17. According to their Prospectus, AH school is a residential and day special school for children and young people whose "special education needs arise from their difficulties in speech, language and communication." They state that they are the largest specialist school in the UK in this field. The OFSTED report in 2005 concluded that they provided "satisfactory provision for students with speech and language difficulties, autism and/or Asperger's syndrome." It is an independent special school and is part of a group of schools belonging to the SENAD group. The managers of the special school are willing to admit J to said school."

There were therefore findings about J himself and findings about the services normally provided by the specified school. Finding in fact 24 was to the following effect:

"J does not have identified additional support needs requiring the education or special facilities normally provided at AH school."

[113] Mr Duncan submitted that that was a finding the Tribunal was entitled to make based on the findings to which he had previously referred. Even if they had discussed the question of residential care it would have been appropriate for them to decide that the facilities normally provided by AH school were not required. Presumably AH school was not the only school which provided residential care.

[114] Mr Duncan referred also to the evidence of Mrs Anne Lee who knew J well. It was noted that there was support for him in nearly every subject at H Academy. His support plan was age and stage and situation appropriate and it was the view of the school that J's main problem revolved around his social skills and dealing with other people in the school surroundings. In school he could be loud, boisterous, used inappropriate language and could be easily wound up. He was, however, an endearing young man who expressed humour and who liked to take part. He liked both one to one and small group settings and contributed positively. He found it challenging to cope with the pace of the school, the social aspect of the school and moving around the school. H Academy had approximately 1400 pupils and J could spark off very quickly but he would take responsibility for his behaviour when appropriately challenged. He would benefit from a transfer to another school which might be able to provide a more fostered environment where they could be more supportive of him and spend more time addressing social life skills. Her view was that he would benefit from a transfer to a smaller school providing a slower pace and support in smaller and more structured task related groups throughout the day. She reiterated that his greatest barrier was his social skills. It was suggested that in a smaller calmer setting he might not display the same behaviour as described above. She was unable to comment on either AH school or K school. She had, however, commented on the social support required and on the benefits to J of smaller classes and groups. That was evidence as to what his needs were.

[115] Mr Duncan quoted the evidence given by the appellant as follows:

"The Tribunal were very fortunate to hear from D directly. We considered her a very loving and caring mother not only for J but indeed all of her five children. She stated that J can be both loud and demanding at home. He can be silly and show off. J can also be easily agitated resulting in him shouting loudly or even swearing. We also noted the various activities which can be troublesome for J including shaving, cleaning his teeth, showering - all problematic due to being tactile issues, and getting dressed. We noted the tremendous stress all the family must be in at this time due to the eviction order for the 4 bedroomed MOD property. D has also approached her MSP on the matter.

We noted J's typical daily school timetable from the breakfast club until coming home after school on the bus. She stated that J is very easily wound up with a short fuse resulting in frustration. She stated that he enjoys football and swimming and generally wants to be out and about. She stated that his social skills are very immature and that he has no idea what the boundaries are. She stated that she needs to protect J and that is a very difficult situation for her at this stage in his development. We noted her genuine concerns for J including school provision for science and languages. D was clearly very distressed about the expulsions from school and their increased usage in recent times. Commenting upon J, D stated that "Academic achievement is not everything. He needs to cope socially. They need to get a balance." D described her views on AH school. She stated the staff were very professional and could in her opinion "communicate" with J. We noted that she spent several hours at the school during her visit. She said that J loved his week there. She said that he had been involved in many activities during the week and had made friends. She had not seen the school in operation. She stated that J referred to people at that school already as friends.

D was also able to tell us about the various activities J has been involved in locally...D now finds J's behaviour harder to handle as he now feels he needs to be more independent. She stated that J needs to be persistently challenged about his behaviour. D described her experience of visiting K school and AH school to the Tribunal in detail. We noted that J would not visit K school which he perceives as a specialist school whereas he sees AH school as a boarding school.

D stated that AH school were able to give the appropriate level of support J requires. She felt that they would be able to work well with J. Their provision would be "continuous, consistent and 24 hours."

She stated that initially J did not want to leave home. She stated that he loves his home and his family. She no longer has concerns about J leaving home. She stated that his visit to Derby and the school had boosted his confidence.

Commenting on Dr Liam Dorris's diagnosis of J as someone with mild learning difficulties, D stated that in her view his needs are more significant and complex when they are all taken together.

D stated that J has a great deal of potential and has a lot to give. She is very concerned that it could all go wrong and he could end up in prison. She expressed to us that her main concern was J acquiring the necessary social skills in order to become "a productive member of the community." She stated that J needs to make friends and sustain friends and that K school would not meet these needs".

It was plain that the requirement for social support for J came through that evidence and there was nothing in it which indicated why 24 hour support was required. She certainly said that AH school would provide it but had not said why it was necessary.

[116] Mr Duncan then turned to the evidence of Ronald Gould. It was noted in the following terms:

"The Tribunal heard evidence from Mr Ronald Gould, Head of Service, Secondary Education and Pupil Support, Argyle and Bute Council. The Tribunal noted that it was Mr Gould who refused the placing request by his letter (signed by Dr Jefferies) dated 2^nd. May 2007. The Tribunal noted in detail the procedures/timescales followed in reaching the decision about the placing request for J. Mr Gould stated that his role was as a strategic manager of the service and he collated a collective picture of J after a period of discussion and debate. He listed all the various individuals who contributed to the decision making process and stated that they worked by 'consensus'. He concluded that 'a joint view is come to'. That view concluded that J should leave H Academy and that K school was the best and most suitable placement for J. He stated that J required a smaller class size, pastoral and appropriate welfare and appropriate support through staffing and class structures in terms of J's learning and his education. He stated that K school would fulfil all these requirements and would provide a caring environment, where his welfare would be paramount with good support for social development.

Mr Gould reflected upon AH school and J's needs. He stated that his colleagues' view was that there was no need for J to be educated in a residential setting. He stated that the authority must consider the 'respective suitability' of the proposed school (in addition to the respective cost). He further stated that his team were of the view that J's needs could in fact be met more locally. He stated that J was very close to his family and that a placement in K school would allow him to engage with the local community and that maintaining local links is important in the real world situation. He stated that J was in fact regarded as a popular member of his class and that attending K school would allow J to have a good connection with his peers, build up a network within the school, make lasting friendships and go on to college/employment. In many ways Mr Gould considered J's transfer from primary to secondary school to have been a success. There was concern however about the exclusions from school. Mr Gould stated that the 'tipping point' for him in favour of a new placement was that J is not coping within the school and finds it demanding due to the large socially complex size of the structure. There are no appropriate schools within the authority and therefore he looked to neighbouring authorities for provision.

The Tribunal noted that according to Mr Gould the suggestion of AH school was taken seriously for J. He stated that he considered whether such a school would be able to provide appropriate and proportionate support for J. He stated that in all honesty AH school was not appropriate for J's needs. It was not a suitable school for J and that J's additional support needs do not require the education or special facilities normally provided by AH school.

The Tribunal noted all the evidence carefully provided by all witnesses in respect of the respective costs of K school and AH school. It was accepted by both parties that the cost of the latter school was inescapably higher. Mr Gould stated however that he had considered how either school would provide for J for their respective costs. There was no information before him from any source that there was a need for a residential placement... "

[117] This was therefore evidence which the Tribunal was entitled to accept to the effect that residential care was not required. If it was being suggested that less weight should be attached to Mr Gould's view because he had not met J then that did not raise a point of law. Mr Gould was presenting the collective view of those who had been involved with J and assessed him.

[118] The Tribunal had been entitled to accept the evidence that residential care was not required and find that a placement in K school would meet his needs.

[119] If Mr Duncan was right about that then that was the end of this branch of the appeal. Questions of weight might have been raised but that was a matter for the Tribunal.

[120] The next chapter of evidence supported his position, said Mr Duncan. That was the evidence of Mrs Jenkins, the headmistress of AH school. Inter alia that was in the following terms:

"She stated that the school currently has a school roll of 94 students, 29 % having speech and language impairment. The vast majority of pupils are on the Autistic Spectrum (Asperger's Syndrome) and have social communication difficulties, stating that for them social interaction can be very difficult."

[121] Mr Duncan said that only the latter part of that was of relevance to J. He was not on the Autistic Spectrum. The local authority could say that some of the school's facilities would be appropriate for J but looking at it in the round they were entitled to say that this was a school for children with Autism and therefore not a school for J. The report of her evidence went on as follows:

"Pupils range from 8 years to 19 years old. Mrs Jenkins commissioned the Hughes & Company report.

The Tribunal noted in detail the curriculum provided by the school and also recent exam results. They were provided with details of how the school operates and the extensive use of placements in colleges and work. The Tribunal also noted the staffing provision within the school and the extra curricular facilities available. The residential provision was described in detail. Mrs Jenkins stated that in her opinion J needed a 24 hour programme in order to build up relationships and friends."

[122] (Mr Duncan interjected to say that this did not mean that J needed the particular 24 hour programme available at the school.)

[123] Mrs Jenkins evidence went on as follows:

"She stated that during the day is mainly academic study and that necessary life and social skills require also to be practised with the other pupils and staff after the normal day is typically over. She provided feedback from the school following upon J's visit. She stated that he coped reasonably well, that any problems were shared, that he enjoyed being there and that he wanted to be there. She also commented that J had already started to form friendships even from this relatively short visit to the school. Mrs Jenkins recognised that sometimes exclusions are utilised in her school. 15% of pupils currently have a Behaviour Management Programme. There have been two exclusions in the last six months....

The school currently have 4 other pupils from Scotland. She stated that all these pupils would be able to integrate back into their own communities again. She also stated that they would be able to make friendships and linkages again in their own community.

Dr Jefferies expressed his surprise that Mrs Jenkins considered J's profile suitable for AH school. ....Mrs Jenkins concluded that 'J has identified needs and we can meet those needs.'

When pressed by Dr Jefferies about the characteristics of pupils with moderate learning difficulties Mrs Jenkins stated that she had no direct experience of teaching such pupils and was therefore unable to comment further."

[124] Although he did not refer to it I should for completeness indicate that the last paragraph of her evidence was noted as follows:

"She clarified the actual cost of a place for the Tribunal. ....The residential aspect of this placement was required to allow J to make friends, improve his self-esteem, relate to others, improve academically and thereafter to be in employment."

[125] There was evidence and indeed findings in fact were made that J had moderate learning difficulties. The Tribunal might have considered it significant that the person speaking about AH school had no experience of children with such difficulties. That could well have been a factor for saying that the facilities at that school were not required.

[126] Dr Dorris's report was referred to in the Tribunal's decision. He had found that J did not have attention deficit hyperactivity disorder nor any aspect of Autism Spectrum Disorder. He thought that he could be viewed as a boy with learning difficulties who was struggling to an extent to maintain himself within a social group and was somewhat vulnerable to exploitation. He concluded that he did not see any evidence of progressive symptoms that would justify a diagnosis of Tourettes and in conclusion stated "In summary J is a boy with mild learning disabilities and at present I do not think he fits criteria for any other significant developmental or psychiatric disorder."

[127] As far as paragraph 3 (1)(d) of schedule 2 was concerned, the Tribunal had evidence before it about what was on offer at AH school and concluded that J's additional support needs did not require its facilities. It was obvious that they compared the services at that school to what J needed. They made findings and observations about levels of needs for language intervention and noted that AH school could and did provide that sort of intervention. There were observations in Dr Dorris's report about the absence of any diagnosis of Autism. Many of the pupils at AH school were autistic. That in itself would have been enough for them to conclude that AH school's services were not required even without considering the question of residential care.

[128] Therefore, contrary to the position adopted by Mr Logan, residential care had been considered. One report had recommended it as well as Mrs Jenkins and to a limited extent the appellant but on the other hand there was the evidence of Mr Gould.

[129] That was all a matter of weight for the Tribunal.

[130] As far as 3 (1)(f) was concerned it was only (ii) which was in dispute. The question was whether K school could meet J's needs. Most of the ground had already been covered, the question being whether there was evidence going to the question. It was obvious that there was.

[131] Mr Duncan drew my attention my attention to findings in fact 14, 19 and 20 which were in the following terms:

19. The authority are able to make provision for the additional support needs of J and have offered a place to J in K school.

20. The provision of education at K school is suitable for the additional support needs of J who currently remains on the roll of H Academy."

[132] This matter was covered in the evidence of Mrs Lee, Miss Campbell and Mr Gould. Mr Duncan professed himself content with the submissions made by Mr Logan about the nature of an error of law in circumstances such as this but he also referred me to the case of Rae v CICB 1997 SLT 291. He referred me in particular to passages at pages 292, 293 and 295 and submitted that the erroneous evaluation of evidence was simply an intra vires error and not an ultra vires one.

[133] He next turned to the question of the adequacy or otherwise of the reasons for the decision.

[134] Schedule 1 of the Act contained inter alia rules of procedure for the Tribunals. These were in paragraph 11. Paragraph 11 (1) provided that the Scottish Ministers must make rules as to their practice and procedure. Paragraph 11 (2) provides that such rules may in particular, include provision for or in connection with...(p)the recording and publication of decisions and orders of a Tribunal.

[135] I have already referred to paragraph 14 to the effect that decisions must be recorded in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision.

[136] Mr Duncan then referred me to the appropriate statutory instrument which is, as I have said, the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (No. 88). Rule 3 provides, as Lord Glennie pointed out, for the overriding objective, which is to enable a Tribunal with the assistance of the parties to deal with references fairly and justly. Rule 3 (2) provides that dealing with references fairly and justly includes...(b)seeking informality and flexibility in the proceedings under these rules....Rule 22 provides for witnesses and their citation. Rules 28 (1) and (2) are in the following terms:

"28(1) At the beginning of the hearing the convenor shall explain the procedure which the Tribunal proposes to adopt

(2) At the hearing of a reference, the parties shall, subject to the provisions of these rules, be entitled to be present and be heard, to give evidence, to call witnesses, to question witnesses and to address the Tribunal both on the evidence and generally on the subject matter of the reference, provided that neither party shall be entitled unless permitted to do so by a convenor, or the Tribunal at a hearing, to call more than two witnesses to give evidence in person in addition to the child or young person."

Rule 29 is in the following terms:

"29(1) Evidence at a hearing may be given in person or by written statement, but, subject to the provisions of these rules, the Tribunal may at any stage of the proceedings require the personal attendance of the maker of a written statement.

(2) A party shall only be permitted to give evidence by written statement if such statement is submitted prior to the expiry of the case statement period or at any time with the consent of the other party and with the approval of a convenor or the Tribunal at a hearing."

[137] Rule 37 (2) provides that the decision of a Tribunal may be given orally at the end of a hearing or may be reserved and, in any event, whether there has been a hearing or not, shall as soon as may be practicable be recorded in a document signed by the convenor.

[138] There were no further requirements as to how the decision of a Tribunal had to be drawn up.

[139] Mr Duncan accepted that the provisions in schedule 1 applied and therefore that the Tribunal had to set out a statement of the facts and the reasons for its decision.

[140] The case of HA had to be looked at in its own context. It was an immigration appeal and matters of credibility and plausibility were discussed. In a case such as that one could easily see that more detailed reasoning would be expected. However if one had to look to authority to see how reasons should be set out in a case of the sort with which we were concerned then one should have regard to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 and in particular to the opinion of the Lord President at page 348 in the following terms:

"So far as para. 11 (1) is concerned all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it. This was the opinion of Megaw J. to be discovered in two cases: Re Poyser and Mills' Arbitration at p. 478 and Givaudan & Co Ltd v Minster of Housing and Local Government at p. 258. With that opinion I agree and I find that it consists well with the approach taken by this court in Albyn Properties Ltd v Knox in considering the reasons which require to be given, in terms of section 12 of the Tribunals and Inquiries Act 1971, for a decision of a rent assessment committee.

I have only to add that in appeals such as these reasons which fail to pass the tests which I have just discussed will demonstrate a failure to comply with statutory requirements which cannot have been other than prejudicial to the appellant."

[141] In the current case the question was whether the informed reader or the court were in any substantial doubt as to what the reasons were.

[142] Mr Duncan submitted that in a sense if his submissions on the first leg of the appeal were accepted then to a large extent it would follow that he had succeeded on the second leg. One could easily understand the decision which had been reached.

[143] In part the criticism was that there was no reasoning as to why the Hughes & Co report had been rejected or the evidence of the appellant and Mrs Jenkins. In Mr Duncan's submission there was no requirement for the Tribunal to explain why they preferred one witness or one piece of evidence to the other. There would be no legitimate purpose in doing that because the Tribunal were the masters of the facts.

[144] Their decision had to be intelligible. If the Tribunal had heard evidence that there was a position x and a position y and they accepted position x then they would not have to say in terms that they preferred x. The Court had no locus to reconsider the weight placed on x or on y so there was no reason or purpose for the Tribunal to explain why they preferred a particular piece of evidence.

[145] Mr Duncan pointed out that there was no full record of the evidence given and an appellate court could not ask why one witness was preferred rather than another.

[146] In all the circumstances the findings in fact and the discussion of the submissions made it plain what the reasons for the decision were.

Reply for the appellant

[147] Mr Logan submitted that the 24 hour requirement was a feature of his submissions but was not the whole of his reasoning. He relied also on the third and fourth paragraph of the conclusions and recommendations in the Hughes and Co report. Paragraph three indicated that he had a number of characteristics typical of Asperger's syndrome although he fell short of the criteria for a formal diagnosis. Paragraph four indicated that the approach used to support the difficulties and distance associated with Asperger's syndrome would provide an appropriate framework for helping J. Therefore the evidence of the headmistress and of Hughes & Co was that what was being offered was a school where there would be a structured environment for 24 hours a day. It was not simply a boarding school like Fettes but was staffed by people trained to deal with pupils like J.

[148] When paragraphs 31 and 32 were considered it appeared that J did need the services of a speech and language therapist, although there was evidence before the tribunal that he did not.

[149] He submitted that anyone who was assessing AH school had to take account of this report and the evidence of the headmistress and it was not obvious why AH school was not thought to be suitable. J needed a very similar environment, whether he was formally diagnosed as suffering from Asperger's syndrome or not.

[150] Difficulties with communication did not simply mean problems with speech. It also covered social difficulties of the type from which J suffered. He had difficulty forming relationships and often got into fights.

[151] Mr Logan agreed to a certain extent that there was a linkage between the two different legs of the appeal. If Mr Duncan was correct that there was sufficient evidence before the tribunal then on one view their decision became more understandable.