FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Bonomy Lord Menzies	[2012] CSIH 48 XA40/11 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Appeal by CITY OF EDINBURGH COUNCIL Appellants; against A DECISION OF THE ADDITIONAL SUPPORT NEEDS TRIBUNAL FOR SCOTLAND DATED 10 MARCH 2011 _______

Act: Stirling; Head of Legal & Administrative Services, City of Edinburgh Council

1 June 2012

[1] This is an appeal by City of Edinburgh Council ("the Council"), the education authority for their area, against a determination dated 10 March 2011 by the Additional Support Needs Tribunal for Scotland ("the Tribunal") with respect to a child, RM, who currently resides in that area. The father of RM had appealed to the Tribunal against a decision by the Council not to make in respect of RM a co-ordinated support plan under the Education (Additional Support for Learning) (Scotland) Act 2004.

[2] That Act provides:

"1(1) A child ... has additional support needs for the purposes of this Act where, for whatever reason, the child ... 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 ...

...

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

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

(a) in relation to ... a child of school age ... provision whether or not educational provision which is additional to, or otherwise different from, the educational provision made generally for children ... of the same age in schools (other than special schools) under the management of the education authority responsible for the school education of the child ...

2(1) For the purposes of this Act, a child ... requires a plan (referred to in this Act as a 'co-ordinated support plan') for the provision of additional support if -

(a) an education authority are responsible for the school education of the child ...,

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

(i) one or more complex factors or

(ii) multiple factors,

(c) those needs are likely to continue for more than a year, and

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

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

(ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves."

NHS Lothian is an appropriate agency within the meaning of section 23(2).

[3] RM is an 12 year old girl, albeit developmentally she is around 4 years of age. She suffers from Smith Magenis Syndrome leading to developmental delay, short attention span and challenging behaviour, hypercholesterolaemia, sleep difficulties, enuresis, learning disability, poor motor co-ordination and conductive hearing loss. She is a pupil at Donaldson's School, Linlithgow, a special school, whose staff, including a number of health and educational professionals concerned with RM, are all employed by the Council in the exercise of their functions relating to education.

[4] There was no dispute before the Tribunal that RM has additional support needs and that subparagraphs (a), (b) and (c) of section 2(1) of the Act were all satisfied. The issue was whether (d) was satisfied. The Tribunal concluded that it was satisfied as respect both of the alternatives of that subparagraph, the first in relation to certain provision made by the social work department of the Council, the second in relation to certain provision made by NHS Lothian. An appeal to this court lies only on a point of law (section 21(1)). The Council contends that in a number of respects the Tribunal erred in law. Some of these alleged errors were procedural in character (such as the adequacy of the findings of fact made), others were substantive (as to whether, on the material before it, the Tribunal could reasonably have reached the view that the child's additional support needs required significant additional support to be provided either by the social work department or by NHS Lothian).

[5] The Tribunal heard oral evidence from each of RM's parents, from the Depute Head Teacher at Donaldson's School and from RM's social worker. It also had certain documentary material before it. This included a report which the Tribunal had itself directed that the Council provide listing the frequency, nature, intensity and duration of involvement of each professional or group of professionals not employed by Donaldson's School ("the external provision report"). It is clear that the Tribunal put significant reliance on the content of that report.

[6] The formal findings of fact made by the Tribunal are within a relatively narrow compass. They include a finding that a number of professionals are involved in providing support to the child, some of whom are directly employed by the Council in performance of its functions as education authority, some by NHS Lothian, and some by the social work department of the Council. Support is also provided by a project funded by the social work department and some by care paid for by the child's parents. These professionals are listed. They include seven professionals employed by the Council as education authority through Donaldson's School, and an educational psychologist also employed by the Council as educational authority, professionals (including RM's social worker) employed by the social work department of the Council and a number of professionals employed by NHS Lothian. These last include Dr Joan Ritchie (associate specialist community child health), Dr Tom Marshall (consultant paediatrician) and Ms Zoe Sell (senior community respiratory physiotherapist). The formal findings of fact also include the following:

"5.4 The child is undergoing medical investigations for a chronic cough by the Consultant Paediatrician employed by NHS Lothian, which is progressing slowly due to the unsettling effect on her of hospital visits.

5.5 The child's chronic cough has regularly prevented the child from sleeping.

5.6 Tiredness has a big part to play in the child's moods in school and illness can be a big factor. For example, the child has found Monday afternoon sessions difficult to focus in as she is often sleepy. (Donaldson's School, End of Year report: June 2010 ...)."

[7] The external provision report sets out in tabulated form the involvement of various professionals, including Dr Ritchie, Dr Marshall and Ms Sell. That report is clearly the basis on which the Tribunal, in its discussion of section 2(1)(d)(ii), narrates the involvement of these three professionals. That narrative is in the following terms:

"Dr Joan Ritchie

Dr Joan Ritchie, Associate Specialist Community Child Health would expect to see the child and her parents for medical review every 12 to 18 months. She will continue to see the child from time to time as long as she is at school. She has direct involvement with the child and her parents. She performs a liaison role in writing to and speaking with other professionals involved with the child, when required. She receives information from other professionals and shares relevant information with the school nurse. She sends a copy of her report to the therapists based at the school and to the Head Teacher. She will contact them directly if there is specific information that should be shared.

Dr Tom Marshall

Dr Tom Marshall, Consultant Paediatrician, Royal Hospital for Sick Children normally reviews the child approximately every three months in the respiratory out patient clinic. He is currently leading the investigation into the child's chronic cough and is responsible for reviewing her progress in the outpatient clinic, which has increased the current frequency of contact with the child. If the child's chest improves on treatment he will be likely to continue to review child over the next one to two years. If the child's chest remains troublesome he (sic) will require continuing outpatient review for the foreseeable future.

Zoe Sell

Zoe Sell, Senior Community Respiratory Physiotherapist, was initially involved in the child's respiratory physiotherapy care on a weekly basis from August 2010. This involved assessment and treatment of the child's chest, education to her parents about her respiratory condition and ways to manage it with regard to her chest physiotherapy. She was heavily involved with the physiotherapist based at the school, Lynda Currie, in providing her with information regarding the child's hospital admissions and results of investigations. She worked alongside Ms Currie to ensure the child receives physiotherapy daily at her school. This involved four treatment sessions over the space of three months. She remains in monthly contact with Ms Currie. Although she has not seen the child since her last one to one treatment in September 2010, she is always available for a consultation and a rapid response treatment should the child need urgent chest therapy in the community. The child is unlikely to be discharged from her service until she moves into adult care."

The Tribunal continues:

"The Tribunal accepted that the involvement of the above professionals were required to allow the child to meet her educational objectives in terms of her holistic needs. More specifically, Community Child Health: To promote physical and emotional health, which is stated as an educational objective in the CSP [that is, a co-ordinated support plan previously prepared by West Lothian Council in which area the family previously lived].

The Tribunal considered the cumulative support of the appropriate agency, NHS Lothian, to be of sufficient duration to make it worthwhile preparing a CSP."

[8] Although that narrative might more appropriately have been reflected in the formal findings of fact, it is clear that the Tribunal regarded the external provision report as accurate (there appears to have been no dispute before the Tribunal as to its contents) and that it had an evidential basis for that narrative. In these circumstances we are satisfied that that narrative can, along with the formal findings of fact, be taken into account in deciding whether the Tribunal was entitled on the material before it to reach the conclusion that it did under section 2(1)(d)(ii).

[9] Neither the Tribunal nor RM's father was represented before the court. Miss Stirling appeared for the Council. We are grateful to her for the Note of Argument which she prepared and for her oral submissions, which were presented in a measured and balanced way. It is nonetheless unfortunate that we did not have the benefit of representation for RM's father.

[10] A child's plan has been prepared for RM by the Council under its general responsibility for children in its area. That plan identifies, as the "Plan Partners", a substantial list of medical and educational professionals including Dr Ritchie, Dr Marshall and Ms Sell. The lead professional is identified as Marion Candlish, RM's social worker. This plan identifies the immediate plans for the child's wellbeing and the longer term desired outcome for her. The various actions to be undertaken to achieve these aims are set out.

[11] The issue before the Tribunal was whether additionally RM required a co-ordinated support plan under the 2004 Act. That turned on the nature and content of her additional support needs within the meaning of that Act - needs related to her inability without such support to benefit from (mainstream) school education (section 1). That RM has such needs is undisputed. These needs are set out under the heading "Educational Needs" in a joint report dated 22 June 2010 prepared by two professionals (an educational psychologist and the head of the Visiting Teacher Service). This report was before the Tribunal. The Educational Needs listed are:

·       [RM] needs a total communication environment. This is characterised as an environment where signing (BSL and signed English) are used by all adults and pupils, consistently, and in all learning and social situations throughout the day.

·       [RM] needs an adult within school who is able to tune in to and understand [R's] speech.

·       [RM] needs the opportunity to communicate with peers and develop relationships.

·       [RM] needs support to use her hearing aids consistently and appropriately.

·       [RM] needs a curriculum which is appropriately differentiated to support her learning.

·       [RM] needs support to develop her attention skills.

·       [RM] needs support to develop emotional and behavioural self-management skills.

·       [RM] needs opportunities to further develop her independent living and life skills (e.g., travel, shopping, cooking, attending clubs).

The authors go on to state that: "[RM's] needs are currently being fully met in Donaldson's School".

[12] So far as appears, there was no dispute before the Tribunal that that list was accurate - and exhaustive.

[13] As noted above, the Tribunal found as a fact that RM had a chronic cough which regularly prevented her from sleeping. The resultant tiredness at school had a large part to play in her moods in school. An example was given that she found Monday afternoon sessions difficult to focus in as she was often sleepy. Progress in the treatment of this condition by the consultant physician was slow due to the unsettling effect on the child of the hospital visits. This chronic condition, it may be, had the potential to impact on RM's ability to have benefit from school education. It might, conceivably, have had a bearing on her need for "support to develop her attention skills". But the Tribunal does not explain how the services of Dr Marshall and the other health professionals mentioned are related to that or to any other of the educational needs identified in the report. Nor does it comment on the observation in the report that RM's educational needs are being fully met at Donaldson's School (an establishment the services at which are provided wholly by the Council as education authority). The Tribunal appears to have been misled by an entry in the co-ordinated support plan earlier prepared by West Lothian Council, which identified "to promote physical and emotional health" under the heading "Community Child Health". Many children who have additional support needs will have complex health problems requiring medical attention, but it is only where the (educational) additional support needs require significant additional support from an external agency such as a health authority that section 2(1)(d)(ii) will be satisfied. It is important always to bear in mind that the main emphasis given by the word "significant" is on the extent, in terms of frequency, nature, intensity and duration, of the provision of the additional support, not of its importance to the child (JT v Stirling Council 2007 SC 783 at paras [24]-[25]). It is because the additional support is significant in that sense that a co-ordinated support plan is required. It is not obvious that the occasional involvement of Dr Marshall and the other two health professionals is significant additional support in the requisite sense. The Tribunal does not adequately explain the basis for its conclusion on the application of section 2(1)(d)(ii). In that respect it erred in law.

[14] As to section 2(1)(d)(i), the Tribunal identified the social work department of the Council as a department through which the Council exercised functions other than those relating to education. It identified Deborah McIntyre, support assistant, and "The Yard" as providing additional support. But it appears that, while the support assistant's remuneration is in the event largely funded by the social work department, this is through a care package funding made available to RM's parents, who have a discretion as to how the payments are disbursed. Deborah McIntyre is not an employee of the Council but is engaged directly by RM's parents. The indirect funding of her services does not appear to be significant additional support by the Council in the exercise of any of their functions other than relating to education. Although "The Yard" (a project run by Lothian Autistic Society) is funded by the Council's social work department, it is, as the Tribunal recognised, essentially a respite provision (for the relief of RM's parents and sibling). It is also a pilot project having only some seven months to run as at the date of the Tribunal's decision. While the child's experience there no doubt helps her to develop certain useful life skills, it is not clear how this relates to her school education. This is also indirect support. Again, there is no adequate explanation for the conclusion with respect to section 2(1)(d)(i).

[15] In some circumstances it might have been appropriate to exercise the special power given to the court under section 21(3) of the Act to remit the reference back to the Tribunal or to a differently constituted Tribunal to be considered again. But significant time has now passed since the case was before the Tribunal and it is likely that, to some extent at least, RM's needs will have changed. In that event any reconsideration would better be addressed by a fresh reference. However, for the reasons given above we are satisfied that the appeal must be allowed and the decision of the Tribunal revoked.