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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 139
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XA55/07
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OPINION OF LORD CLARKE
in the appeal of
W.D.
Appellant;
under
the Education
(Additional Support for Learning) (Scotland)
Act 2004, Section 21
against
A decision of an
Additional Support Needs Tribunal dated 5 February 2007
ญญญญญญญญญญญญญญญญญ________________
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Appellant: Williamson;
Pagan Osborne
Respondents: Johnston, QC, Ross; Solicitor for Edinburgh District Council
6 July 2007
Introduction
[1] This
is an appeal from a decision of an Additional Support Needs Tribunal dated
5 February 2007 under the Education (Additional Support for Learning)
(Scotland) Act 2004, section 21, the matter having been remitted from the Inner
House for determination in the Outer House.
[2] The
decision appealed against relates to a preliminary question as to the scope of
the Tribunal's jurisdiction. The
Tribunal's jurisdiction is a creature of the 2004 Act which contains specific
provisions relating to the extent and nature of that jurisdiction. The question which ultimately rises is,
therefore, one of pure statutory construction.
The Agreed Facts
[3] The appellant and her son, M.
C., who is now 16 years of age, reside in the local authority area of West
Dunbartonshire. West
Dunbartonshire Council were originally convened as first respondents to the
proceedings but they have intimated to the Court, by letter from their agents,
that they do not intend themselves to appear, but that they support the
Tribunal's decision. In terms of the
Education (Scotland)
Act 1980, West Dunbartonshire Council is responsible for the education of
M. That is a matter that is not in
dispute between the parties. The child M.
has been attending a mainstream, non-special school. In August 2006, West Dunbartonshire Council
were in the course of preparing, in compliance with their statutory duties
under the 2004 Act, a co-ordinated support plan designed to address M's
additional support needs. I will come
back to the relevant statutory provisions, in due course, but for the moment it
is of significance to note that in terms of section 9(2)(b) of the 2004
Act any such plan must contain "a nomination of a school to be attended by the child
or young person" to whom the plan relates.
[4] On
21 June 2006, the
appellant made a request to Glasgow City Council for a placement of M. in a
school in their area. That school, which
I was advised by counsel for the appellant, is a school which has a high
reputation for dealing with children with special needs. It has to be noted that Glasgow City Council
has, in terms of the legislation relating to education of children in Scotland,
no responsibility for the education of M.
On 15 August 2006
Glasgow City Council, who are now the sole respondents in the present
proceedings, refused the appellant's request.
On 24 August 2006
West Dunbartonshire Council issued their plan for M. It included, in terms of section 9(2)(b)
of the 2004 Act, the nomination of a mainstream school within their area, as
the school which M. should attend.
Counsel for the appellant made it clear to the Court that the appellant
had no complaint about the other provisions in the plan. She is not appealing against West
Dunbartonshire's decision in formulating that plan. The decision she seeks to appeal against is
the decision of the respondents in refusing her request for a placement of M.
in the school which they manage.
[5] The
appellant is the child's primary carer.
The child is very severely disabled and is registered blind. He receives support from a social work
mobility worker, learning assistants, specialist teaching staff and a
physiotherapist. Attendances at an
orthotics clinic are arranged for him and respite care and social work input is
given to facilitate more social interaction.
I understand that all of these facilities are provided by West
Dunbartonshire Council. The appellant
considers that the child M. would make more social and educational
progress in a special school of a type that she considers West Dunbartonshire
Council does not at present operate, but, of which the school, managed by the
respondents, is an example.
[6] The
Tribunal, in its decision of 5 February
2007 reached the conclusion that it had no jurisdiction to hear
reference made to it in relation to the decision of the respondents of
15 August, to refuse the appellant's requested for a placement of M. at
the school they manage.
The Statutory Context
[7] In addressing the relevant
statutory provisions, counsel for the appellant, in the first place, drew the
Court's attention to section 28(1) of the Education (Scotland) Act 1980 as
amended, which is to the following effect:
"In the exercise
and performance of their powers and duties under this Act (the Scottish
Ministers) and education authorities shall have regard to the general principle
that, so far as is compatible with the provision of suitable instruction and
training and the avoidance of unreasonable public expenditure, pupils are to be
educated in accordance with the wishes of their parents."
Reference was then made to sections
28A-28F of the 1980 Act which, it was said, provide machinery whereby parents
of children without special needs can make a request to any education authority
for their child to be placed in a school under its management and, subject to
certain conditions, the authority has a duty to place the child
accordingly. These provisions go on to
establish a system of appeal committees to hear appeals, to deal with decisions
to refuse such requests and from the decisions of such appeal committees an
appeal lies to the sheriff. Sections 60-65 of the 1980 Act inter alia, made provision, in relation to the functions of
education authorities in respect of children and young persons with special
educational needs. These provisions were
repealed by the 2004 Act. The provisions
of section 28A-28F of the 1980 Act, however, remain in force, in relation to children
without special needs. Schedule 2
of the 2004 Act deals with placing requests on behalf of children and young
persons with what are now described as additional support needs.
[8] The
main purpose of the 2004 Act, however, was to replace the provisions of sections
60-65 of the 1980 Act, in relation to the education authorities' functions in
respect of children with special needs, with a new statutory scheme relating to
such children and, in particular, introduced the concept of co-ordinated
support plans in respect of such children and young persons. The 2004 Act also established, by
section 17, new tribunals known as the Additional Support Needs Tribunal
for Scotland. The position of the respondents, which was
accepted by the Tribunal in the present case, was that there is no appeal to
these tribunals from any decision of an education authority refusing an
application for the placement of a child with additional support needs, in a
school managed by it, where the education authority, in question, is not
responsible for that child's education.
The appellant accepted that there was no appeal from such a decision to
an education committee and then to the sheriff.
Her argument was that it could not have been the intention of
Parliament, in passing the 2004 Act, not to provide for a right of appeal to
the new tribunals against decisions of education authorities which refused
placement requests in respect of children or young persons with additional
support needs, for whose education they were not responsible, when a right of
appeal lay against such decisions, ultimately to the sheriff, in respect of
such decisions when the child or young person, in question, did not have
additional support needs.
[9] Section
1 of the 2004 Act introduced the concept of "additional support needs". It provides:
"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,.....".
Section 2 of the Act then
introduces the concept of "co-ordinated support plans" in the following terms:
"2(1) For the purposes of this Act, a child or
young person 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 or young person,
(b) the child or young person 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 authorities
themselves...."
Section 23(1) of the 1980 Act
provides as follows:
"An education
authority shall have power to provide in or in connection with any public
school, or other educational establishment under their management, school
education or further education or other services under this Act or additional
support within the meaning of the Education (Additional Support for Learning)
(Scotland) Act 2004.... for any pupil belonging to the area of some other
education authority or of a local education authority in England and Wales".
Section 23(1A) of the 1980 Act then
goes on to provide:
"Without prejudice
to any other provision of this Act, or any provision of the 2004 Act, for the
purposes of their duty under section 1 of this Act or their functions under
sections 4 and 5 of the 2004 Act an education authority shall have power to
make arrangements with another education authority (in this subsection referred
to as a 'provider authority') for the provision of school education or further
education or additional support within the meaning of the 2004 Act for any
pupils belonging to the area of the authority in a school or educational
establishment under the management of the provider authority".
Section 23(3) of the 1980 Act then
states:
"The Secretary
of State may make regulations prescribing the areas to which particular classes
of pupils receiving school education are to be deemed to belong for the
purposes of this section.... and for the purposes of the 2004 Act and any such
pupil to whom the regulations apply shall be deemed to belong to the area
determined in accordance with the regulations.
Any other pupil receiving school education shall, for the aforesaid
purposes, be deemed to belong to the area in which his parent is ordinarily
resident, and any pupil receiving further education shall be deemed to belong
to the area in which he himself is ordinarily resident...."
It
was not suggested, that, in this case the child M. falls to be regarded as to
belonging to the area covered by the respondents, Glasgow City Council.
[10] Section 4 of the 2004 Act, as its heading indicates, sets out
the duties of education authorities in relation to children and young persons for
whose education they are responsible. These duties are stated in the following
terms:
"(1) Every education authority must -
(a) in relation to each child and young
person having additional support needs for whose school education the authority
are responsible, make adequate and efficient provision for such additional
support as is required by that child or young person, and
(b) make appropriate
arrangements for keeping under consideration -
(i) the additional support needs of, and
(ii) the adequacy of the additional support
provided for, each such child and young person.
(2) Subsection (1)(a) does not require an
education authority to do anything which -
(a) they do not otherwise have power to do,
or
(b) would result in unreasonable public expenditure
being incurred."
[11] Junior counsel for the appellant submitted that the duties
provided for in section 4(1) co-exist with the duties expressed in section 2(1)
of the Standards in Scotland's
Schools Etc. Act 2000 which is in the following terms:
"Where school
education is provided to a child or young person by, or by virtue of
arrangements made, or entered into, by, an education authority it shall be the
duty of the authority to secure that the education is directed to the
development of the personality, talents and mental and physical abilities of
the child or young person to their fullest potential".
Section 6 of the 2004 Act goes
on to provide for every education authority to make arrangements for
identifying, from among the children and young persons for whose school
education they are responsible:
" (i) those
who have additional support needs, and
(ii) those having additional support needs
who require a co-ordinated support plan, and
(b) the particular additional support needs
of the children and young person so identified".
[12] In addition the section provides for each authority to deal
with requests that they consider whether or not any child or young person, for
whose school education they are responsible, has additional support needs or
requires a co-ordinated support plan.
Section 9 of the Act then deals with the duty of education
authorities in respect of the preparation of co-ordinated support plans and
what these plans must contain.
[13] As has already been noted, it is section 17 of the 2004
Act which establishes the Additional Support Needs Tribunals for Scotland. Section 17(1) provides:
"Tribunals to be
known as Additional Support Needs Tribunals for Scotland
(each referred to in this Act as 'a Tribunal') are to be constituted in
accordance with this Act to exercise the functions which are conferred on a Tribunal
by virtue of this Act".
[14] Section 18 of the 2004 Act is the statutory provision which
sets out the jurisdiction of the Tribunals.
That section is headed as follows "References to Tribunal in Relation to
Co-Ordinated Support Plan". It is a very detailed provision. Section 18(1) deals with those who may
bring a reference to the tribunal. It
provides as follows:
"Any of the
persons specified in sub-section (2) may refer to a Tribunal any decision,
failure or information specified in subsection (3) relating to any child or
young person for whose school education an education authority are
responsible."
Section 18(2) then specifies as
follows:
"The persons
referred to in subsection (1) are -
(a) where the decision,
failure or information relates to a child, the parent
of the child,
(b) where the decision, failure or
information relates to a young person -
(i) the young person, or
(ii) where the young person lacks capacity to
make the reference, the young person's parent."
Section 18(3) defines the
decisions, failures and information referred to in section 18(1) in the
following way:
"The decisions,
failures and information referred to in subsection (1) are -
(a) a decision of the education authority
that the child or young person -
(i) requires a co-ordinated support plan,
or
(ii) following a review carried out under
section 10, still requires such a plan,
(b) a decision of the education authority
that the child or young person -
(i) does not require such a plan, or
(ii) following a review carried out under
section 10, no longer requires such a plan,
(c) where it has been established that the
child or young person does require a co-ordinated support plan, failure by the
education authority to prepare a plan by the time required by regulations made
in pursuance of subsection (8)(f)(i) of section 11,
(d) where a co-ordinated support plan has
been prepared (and not discontinued) for the child or young person -
(i) any of the information contained in the
plan by virtue of subsection (2)(a) of section 9,
(ii) failure by the education authority to
carry out a review of the plan as required by subsection (2) of section 10,
(iii) where such a review is carried out,
failure by the education authority to complete the review by the time required
by regulations made in pursuance of subsection (8)(f)(ii) of section 11,
or
(iv) a decision of the education authority to
refuse a request referred to in subsection (4) of section 10.
(e) where subsection (4) applies, a decision
of the education authority refusing a placing request made in respect of the
child or young person."
Section 18(4) then provides:
"This subsection
applies where, at the time the placing request is refused -
(a) a co-ordinated support plan has been
prepared (and not discontinued) for the child or young person,
(b) no such plan has been prepared, but it
has been established by the education authority that the child or young person
requires such a plan, or
(c) the education authority have decided
that the child or young person does not require such a plan and that decision
has been referred to a Tribunal under subsection (1)...."
Section 29(3) of the 2004 Act
provides as follows:
"In this Act,
references to a child or young person for whose school education an education
authority are responsible are to any child or young person being, or about to
be, provided with school education -
(a) in a school under the management of the
education authority, or (b) in
pursuance of arrangements made or entered into by the authority".
The Appellant's Submissions
[15] Junior counsel for the
appellant, from the outset, recognised that it was very difficult to argue that,
on the plain meaning of the wording of the provisions of section 18(1),
(3)(e) and (4) and the provisions of section 29(3) of the 2004 Act, the
Tribunal had jurisdiction to hear a reference of a decision of an education
authority regarding a placement request in respect of a child for whose education
that authority was not responsible. Her
approach was to remind the Court that a right of appeal (albeit to a different
appellate structure) was available in the case of children and young persons,
without additional support needs, where a placement request had been made to,
and refused by, an education authority which was not responsible for the
education of the child or young person.
To construe the 2004 Act provisions, in such a way as to allow for a
distinction between the rights of children and young persons with additional
support needs on the one hand, and children without such needs on the other
hand, was productive of what she, at different times, categorised in different
ways as "anomalous", "absurd", "unjust" or "discriminatory". It was necessary therefore, counsel
submitted, to look for a meaning of the statutory provisions which did not
produce such an outcome but which conferred on persons such as the appellant a
right of appeal against the respondents' refusal of her request and, in particular,
a right of appeal to the specialist tribunal.
She informed the Court that a similar problem did appear to have arisen
under the pre-2004 Act legislation in relation to children with special
needs. Reference was made to a
discussion of the point in Scott, Education
Law in Scotland, paragraphs 18-86 to 18-92.
At para. 18-88 the writer opined, in relation to the pre-2004 position
"The appeal provisions of these cases are unworkable". She nevertheless went on to seek to indicate
how they might be made to work. Taking
up a somewhat similar approach to the provisions of the 2004 Act, junior
counsel for the appellant submitted that to get over the apparent anomaly, or
absurdity, the Court should read section 29(3)(a) of the 2004 Act as covering
the position of M. in relation to the respondents at the time they decided to
reject his parent's request. This would
require the Court to consider that at that time M. was "about to be provided
with school education in a school under (their) management". That was not an argument put to the Tribunal,
when the question of its jurisdiction was before it. It was not an argument elaborated upon in
submission before me.
[16] My attention was then drawn by counsel to section 10 of
the 2004 Act which deals with the review of co-ordinated support plans. It was suggested, accordingly, that even
though West Dunbartonshire Council had nominated the mainstream school in the
plan provided for M., that could be altered on review. Junior counsel also sought to address how,
from a practical point of view a co-ordinated support plan, provided by one
education authority might be made to operate when the child's school was in
another authority's area. In this
respect reference was made to The Additional Support for Learning (Co-ordinated
Support Plan) (Scotland)
Amendment Regulations 2005 (No. 518), in particular Regulation 9 thereof
which provides for transfer of a plan where a child or young person to whom it
relates moves
"from, without
any immediate intention of returning to, the area of the education authority
which prepared the plan ('the original authority') into that of another
authority to which area the child or young person then belongs ('the new
authority')."
It was not, however, I think,
suggested by counsel for the appellant that, in any legislative provision,
either primary or secondary, is the position of a child for whom an authority
responsible for his education and in whose area he resides, has prepared a plan
but the child is placed in a school which is under the management of another
education authority.
[17] Junior counsel for the appellant invited the Court to have
regard to the provisions of Schedule 2 of the 2004 Act. Section 22 of the Act provides, "Schedule 2 makes provisions about placing
requests in relation to children and young persons having additional support
needs." Paragraph 2(1) of Schedule 2 is
in the following terms:
"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."
Paragraph 5(1) of the Schedule then
provides:
"A parent who
has made a placing request may refer a decision of the education authority
refusing the request to an appeal committee set up under section 28D of the
1980 Act."
Paragraph 7(1) of the Schedule is
in the following terms:
"A parent who
has made a reference to an appeal committee under paragraph 5 may appeal
to the sheriff against the decision of the appeal committee on that reference."
[18] Junior counsel for the appellant stressed that in paragraph
2(1) the reference was to "an education authority" (emphasis
added). That meant it was said, that a
parent can make a request to any education authority to place his child in one
of their schools and that the authority had a duty to accept that request
subject to the provisions of paragraph 3 of Schedule 2. Accordingly, it was submitted,
paragraph 2 confers an enforceable right on the parent in such a
case. Any refusal to recognise that
right should, it was said, be subject to appeal. [Junior counsel, in discussion, did accept
that if her construction of the statutory provisions was not correct a refusal
might be the subject of judicial review.]
[19] The argument before the Tribunal had been that, having regard
to the provisions of paragraph 2 and paragraph 5 of Schedule 2 and the
provisions of section 18(1) of the 2004 Act, where there was a co-ordinated
support plan in place in respect of a child, prepared by the education
authority responsible for his school education, and a decision by another
authority to refuse the parents' request made in terms of paragraph 2 of
Schedule 2, the parent of the child could refer the latter decision to the
Tribunal. That approach was not
precluded by the wording of section 18(1).
Having regard to the provisions of the Interpretation Act 1978,
section 6, the reference in section 18(1) to "any decision" should be held
to embrace the plural, "decisions".
Section 18, it was submitted, used the expressions "the Education
Authority" and "an education authority" (emphasis added) interchangeably
but a clear distinction was being drawn in Schedule 2 between the two
concepts.
[20] The reasoning of the Tribunal in reaching its decision that it
had no jurisdiction to hear a reference of the respondents' refusal to make the
placement seems to be found at page 32 of the Appeal Print where they say,
"The Tribunal
has considered the issues raised in this preliminary hearing very carefully. We
adopt the host authority's argument in this respect as set out above since the
interpretation suggested is clearly indicated by the wording of the
provisions. In the absence of any
indication that the primary legislation anticipated references involving home
and host authorities, both with an interest in the terms of a co-ordinated
support plan, and in the absence of Rules permitting the President and/or convener
and the Tribunal greater powers to take all steps necessary to ensure that a
reference could be heard having regard to representations from all interested
parties addressing the grounds in which references may be made to the Tribunal,
we cannot be persuaded that the appellant can proceed with a reference against
the host authority without explicit provision."
[21] Junior counsel for the appellant was particularly critical of
the Tribunal decision at page 27 where they state:
"The 1980 Act,
as amended, reflects the procedures appropriate in anticipation of a change in
local government boundaries. These
provisions do not anticipate the interaction of the 2004 Act and the
introduction of the statutory powers conferred by a CSP. Thus whilst consideration of further
statutory provisions gives an indication of the expectations in relation to
inter-authority co-operation, the circumstances of the present reference are
not anticipated by this legislation or by the guidance in the Code."
That passage, it was submitted,
betrayed a failure by the Tribunal, who had just set out the provisions of
section 23 of the 1980 Act, to appreciate that section 23 had been amended
by Schedule 3, paragraph 3(4) of
the 2004 Act, to provide for co-operation between education authorities, where
a co-ordinated support plan had been prepared in relation to a child or young
person under the 2004 Act. In addition,
the Tribunal had apparently overlooked the provisions in section 23 of the
2004 Act which provided for inter-authority co-operation. This was a serious misdirection which meant
that they had approached the question of jurisdiction on a flawed basis, in
particular, in apparently holding the view that the scheme of the statutory
provisions did not provide for the situation as advanced by the appellant.
[22] In attacking the Tribunal's approach to the construction of the
legislation, junior counsel for the appellant referred me to various passages
from Bennion Statutory Interpretation
4th Ed. Part XXI which is headed "Construction against Absurdity". The text sets out a number of propositions in
support of the rule on statutory construction so described by the writer. For example at page 832 the following
appears:
"The court seeks
to avoid a construction of an enactment that produces an unworkable or
impracticable result, since this is unlikely to have been intended by
Parliament. Sometimes, however, there
are overriding reasons for applying such a construction, for example where it
appears, that Parliament really intended it or the literal meaning is too
strong".
Junior counsel then referred me to
other passages in the text. So, at
page 836, it is stated:
"The courts are
anxious to facilitate the smooth working of legal proceedings, provided that
injustice is not caused. A judge is
master of the procedure of the court, subject always to the relevant law and
the supervisory powers of higher courts.
He or she seeks to avoid the intention of the law being stultified".
This passage was, apparently,
prayed in aid to seek to persuade the Court, in the present case, to interpret
the legislation as providing a right of appeal to the Tribunal, since otherwise
"the intention of the law would be stultified" and injustice would follow. Junior counsel then referred to page 845
of the work where it is stated "The court seeks to avoid a construction that
creates an anomaly or otherwise produces an irrational or illogical result",
and to a further passage at page 846, where it is stated "Every legal
system must seek to avoid unjustified differences and inconsistencies in the
way it deals with similar matters".
Having regard to the rights of parents of children, without additional
support needs, in relation to appeals against decisions of education
authorities refusing requests for placements, it was submitted that to hold
that the 2004 Act did not clothe the parents of children with such needs, with
similar rights, would be productive of such absurdity or such discrimination
that Parliament could not have so intended and the appeal should be allowed.
The Respondent's Reply
[23] In reply, senior counsel for
the respondents contended that the Tribunal had correctly construed the limits
of its jurisdiction and that the appeal should be refused for a number of
reasons.
[24] In the first place the plain meaning of section 18 of the 2004
Act was that that it was only the decisions of education authorities responsible
for the education of young persons and children in question which are subject
to the jurisdiction of the Tribunals. That
matter was put beyond doubt by the provisions of section 29(3). Having regard simply to the plain meaning of
words, and the factual position in the present case, it could not be seriously
argued that the child in the present case was a child "about to be provided
with education in a school managed by the respondents."
[25] The concept of the co-ordinated support plan which was at the
heart of the 2004 legislation, pointed, it was submitted, very strongly to the
role of the Tribunal being confined to dealing with decisions of authorities charged
with the duties in relation to such plans.
To broaden the jurisdiction to bring in other authorities would be to go
beyond the scheme of the legislation. It
was implicit, it was submitted, in section 18(4) of the 2004 Act that the
education authorities whose decisions were subject to a reference to the
Tribunal were authorities involved in preparing a plan. Sub-paragraphs (a), (b) and (c) of section
18(1) were all addressing the key concept of the plan. The use of the perfect tense in these sub-paragraphs
indicated that the education authorities, whose decisions to refuse placement
requests, might be referred to the Tribunal, had already been involved, in some
way, in relation to the matter of a plan for the children and young persons in
question. There was, no doubt, that in terms
of the legislation, the sole responsibility for preparing a plan rested on the
education authority responsible for the education of the child or young person
in question. The matters referred to in
section 18(3)(a)-(d) were matters which were the responsibility of the
education authority responsible for the education of a child or young
person. In section 18(3)(e) the
reference to a decision of "the education authority" (emphasis added)
must, it was submitted, be a reference to the authority responsible for the
preparation of any plan. The terms of
section 18(4) simply endorsed this approach.
[26] I was then referred by senior counsel for the respondents to
section 1(3)(a) of the 2004 Act and the definition, contained therein, of the
expression "additional support" referred to above. The idea of "additional support" was defined
by reference to additions to what is normally provided by the education
authority in whose area the child or young person belongs. This fitted in, it was submitted, with the
general approach being one of there being a territorial basis of
responsibility. "Additional support" was
the basis upon which a co-ordinated support plan was formulated. This factor pointed up the difficulties of
dealing with two authorities whose approaches to the child in question might be
different.
[27] Senior counsel then referred to section 19 of the 2004 Act
which deals with the powers of the Tribunal.
Section 19(5) relates to references regarding decisions refusing
placing requests as referred to in section 18(3)(e). Section 19(5) provides:
"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,
(b) overturn the decision and require the
education authority to -
(i) place the child or young person in the
school specified in the placing request to which the decision related, and
(ii) make such amendments to the co-ordinated
support plan prepared for the child or young person as the Tribunal considers
appropriate by such time as the Tribunal may require..."
In order to understand how that
provision might work, it was necessary, it was submitted, to regard the
reference in section 19(5)(b) to "the education authority" as being a reference
only to the authority responsible for the child's education. In the circumstances of the present case the
appellant's approach to the legislation required the reference in SS. 5(b)(i)
as referring to the respondents and the reference in SS. 5(b)(ii) being,
in the present case, a reference to the West Dunbartonshire Council. If that had been the intention of Parliament
then the wording of section 19(5) would have been different. The natural inference, however, to be taken
from the existing words, was that the powers of the tribunals specified in
terms of section 19(5)(b), (i) and (ii) were powers requiring the same
authority to do the things specified therein.
[28] I was then referred by senior counsel to certain authorities in
relation to the rules of statutory construction. In the first place reference was made to Stock v Frank Jones (Tipton) Ltd (1978) 1 WLR 231 and to certain dicta in that case. The case related to the construction of a
provision in the Trade Union and Labour Relations Act 1974 regarding unfair
dismissal and a distinction that had been drawn, in that case, between the
members of two classes of workers who had joined a strike, one class having
been dismissed from employment and the other class, having not been so
dismissed. At page 234C Viscount
Dilhorne said this:
"It is now
fashionable to talk of a purposive construction of a statute, but it has been
recognised since the 17th century that it is the task of the
judiciary in interpreting an Act to seek to interpret it 'according to the
intent of them that made it' (Coke 4 Inst. 330).
If it were the
case that it appeared that an Act might have been better drafted, or that
amendment to it might be less productive of anomalies, it is not open to the
court to remedy the defect. That must be
left to the Legislature".
At page 235 his Lordship continued,
"Much weight was sought to be placed on the anomalies which it was said would
result from giving effect to the words used by Parliament." His Lordship went on to say that he was by no
means satisfied that all the anomalies lay on one side of the case and
concluded at page 235E-F that in any event "the existence of anomalies, if they
exist, cannot limit the meaning to be attached to clear language in a
statute".
[29] At page 238-E Lord Edmund-Davies explained that even if the
policy implicit in the relevant statutory provision was open to criticism "the
statutory language is clear beyond doubt and must prevail".
[30] At page 238G-H Lord Scarman stated:
"I wish,
however, to add a few words of my own on the 'anomalies' argument. Mr Yorke for the appellants sought to give
the words a meaning other than their plain meaning by drawing attention to what
he called the 'anomalies' which would result from giving effect to the words
used by Parliament. If the words used be
plain, this is, I think, an illegitimate method of statutory interpretation
unless it can be demonstrated that the anomalies are such that they produce an
absurdity which Parliament could not have intended, or destroy the remedy
established by Parliament to deal with the mischief which the Act is designed
to combat."
[31] Applying those dicta
to the circumstances of the present case, senior counsel for the respondents
submitted that there was no warrant for adding to the plain wording of the
relevant statutory provisions. Had
Parliament intended that it should be possible to make references to the
Tribunal of decisions of the kind to which the present proceedings relate, then
it could easily have expressed that intention for example, by adding at the end
of section 18(1) words such as "or any education authority to whom a placement
request has been made." Parliament had
not done so because it had not intended to do so.
[32] While recognising that the approach to statutory construction
had developed, to some extent, over the last 30 years or so, particularly under
the influence of the approach required in interpreting European legislation, so
that a purposive approach to the construction of legislation may play a greater
role than in past times, senior counsel maintained that matters had not gone so
far as the approach advanced on behalf of the appellant required. That that was so was demonstrated by a
relatively recent decision of the House of Lords in the case of Customs & Excise Commissioners v Zielinszki Baker & Partners Ltd
(2004) 1 WLR 707. In that case, which
was concerned with the question as to whether a barn was part of a protected
building for VAT purposes, Lord Nicholls, who was in a minority of one, sought
to resolve this question by applying what he described at paragraph 8 as a
"meaningful, purposeful interpretation", to the legislation in question to
avoid, what he considered, would otherwise be a "strange result". The other members of the House of Lords,
however, reached the conclusion that they were required to apply the plain
meaning of the statutory provision in question even if, to some eyes, at least,
that might seem to produce an anomalous result.
Lord Hope at paragraph 21 put matters this way:
"The
consequences of this approach to the definition may be to produce results which
appear odd and unreasonable. The facts
of the present case can perhaps be said to fall into that category. The house and the outbuilding are in the same
occupation, they are occupied together as a single dwelling and both buildings
fall within the definition of a listed building for the purposes of the 1990
Act. Prior to the abolition of the
rating system for domestic properties by the Local Government Finance Act 1988,
they would have been entered in the valuation list as a single hereditament. But there is no getting away from the fact
that it is only the outbuilding and not the house that is being altered, and it
is the house and not the outbuilding that has been listed. We must take the definition in note (1) as it
stands, and we must construe it as we find it.
In my opinion the ordinary meaning of the words used, taken in the order
in which they are set out in the definition, leads inevitably to the result
contended for by the commissioners."
The approach of the majority, in
that case, senior counsel submitted showed that, at the highest level, courts still
showed a reluctance to depart from the ordinary meaning of a statute even when
apparent anomalies may be thrown up.
[33] I was then referred to the unreported decision of an Extra
Division of the Inner House, in the case of J.T.
v Stirling Council, 21 June 2007, in which the Opinion of
the Court was delivered by Lord Nimmo Smith and which was concerned with the
construction of provisions in the 2004 Act, in particular section 2(1)(d). At para. 22 of the Court's Opinion it is
stated as follows:
"In considering
the question of the proper construction of section 2(1)(d) of the 2004 Act, we
have decided to follow the normal approach to the interpretation of statutory
provisions. This requires ordinary words
of the English language to be given their ordinary and natural meaning, as it
appears from the words themselves, the context of the specific provision in
which they appear, and the context of the statute as a whole."
That was the approach which the
Court should take to the construction of the provisions of the 2004 Act with
which the present case was concerned.
[34] In making the submissions he had made thus far, senior counsel
for the respondents was addressing what he contended was the plain meaning of
the wording of section 18. He then
broadened his approach by looking at what he described as the wider context and
purpose of the legislation. The division
of responsibility within the legislation, it was submitted, was fundamentally
done on a geographical basis. There were
two key notions. The first, found in
section 29(3) was the notion of responsibilities being placed upon authorities
in respect of children or young persons being provided with school education in
schools under the management of the education authority in question, or in
pursuance of arrangements made or entered into by that authority. The second notion was to be found in section
29(4) in the reference to children or young persons belonging to an area which
was to be construed in accordance with section 23(3) of the 1980 Act. In short, the notion of belonging to an area
was that a pupil belongs to an area in which his parents are normally
resident. These two notions gave rise to
certain duties owed to persons who meet the definitions, by authorities linked
to them, by those definitions, but there was no third class of duties owed to
other persons, imposed by the legislation.
The very notion of additional support needs as set out in section 1 of
the Act was tied territorially. Again
the key notion of the co-ordinated support plan was based on the requirement
for the preparation of such plans being imposed upon authorities responsible
for the education of the child or young person in question. The duties imposed under section 4 were
defined by reference to the responsible authority. The duties of authorities contained in
section 5 were owed to two classes of persons only, first, those belonging
to the area of the authority in question and second, to persons for whose education
the authority was responsible. There was
no third category of persons to whom duties were owed. The same pattern
continued throughout the legislation.
Reference was made to the provisions of section 6 and
section 7. These features of the
substantive provisions of the primary legislation pointed to a more restrictive
jurisdiction having been given to the Tribunal than was contended for by the
appellant, reflective of the statutory duties in the provisions just referred
to, and upon whom, and in what circumstances, those duties were placed.
[35] The provisions of sections 9 and 10 which related specifically
to co-ordinated support plans endorsed that approach. Section 11(8)(e) and the 2005
Regulations S.I. 518, in providing for transfer of plans for children and
young persons for whom they have been prepared and who moved from the area of
one education to that of another was a clear indication, it was submitted, that
while the responsibility might be transferred, there was to be only one
authority responsible for such children and young persons. Sections 15 and 16 provided for mediation
services and dispute resolution. It was
clear from the terms of those provisions that those facilities were to be
provided in relation to disputes between education authorities and those
belonging to their area and not in relation to those who did not belong their
area. This, it was submitted, was
another clear indication that the Act was not intended to impose duties on authorities
owed to persons outwith their responsibility or area.
[36] There was, it was submitted, by senior counsel for the
respondents a further basis for arguing that the appellant's position as
regards the Tribunal's jurisdiction was wrong.
The territorial limitations to be found in the 2004 Act, as just
discussed, were not new. They had
existed in the 1980 Act (as amended).
The 2004 Act was part of a general scheme for the provision of school
education in Scotland. At the very beginning of the 1980 Act, the
territorial limits, on the duties placed on authorities was recognised in
section 1(1) which is to the following effect:
"Subject to
sub-sections 1A and 2A below, it shall be the duty of every education authority
to secure that there is made for their area adequate and efficient provision
of school education and further education." (emphasis added).
"An education authority" is defined
in section 135 of the 1980 Act as meaning "a council constituted under section
2 of the Local Government Etc (Scotland) Act 1994 and 'area' in relation to an
education authority shall be construed accordingly." There was nothing new or surprising, it was
submitted, about education authorities having their responsibilities restricted
territorially. That was the basis upon
which they had operated since at least 1980.
Very clear wording, it was argued, would be required to be found in the
2004 Act to displace the notion that an education authority's responsibility was
limited to those in its area together with those in respect of whom it had made
arrangements.
[37] Otherwise, senior counsel submitted, the provisions of the 1980
Act were not helpful in deciding what was the extent of the jurisdiction of the
new tribunals created by the 2004 Act.
Accordingly, no real assistance could be derived from the passages
referred to by counsel for the appellants, from Education Law in Scotland which was dealing with different
legislation. In any event, the
observations of the writer of that work were based on the assumption that there
was a legally enforceable statutory right, available to parents of children
with special needs in relation to decisions by education authorities not
responsible for their education, but to whom placing requests had been made and
refused. But that was simply to beg the
question as to whether there was such an enforceable right.
[38] In the last chapter of his submissions, senior counsel
addressed the provisions of Schedule 2 of the 2004 Act upon which counsel
for the appellant had relied as providing substantial support for her position. Senior counsel for the respondents submitted
that the appellant's position on this point really amounted to saying that
because paragraph 2(1) of Schedule 2 refers to a request "to an
education authority", which phrase was not qualified, for example, with the
words "for the area to which the child belongs", the inference must be that it
was intended to cover a reference to any education authority, to which a
placement request may have been made.
That inference was, however, it was submitted, not justified, having
regard to the scheme of the Act, taken as a whole. The schedule was expressly enacted by virtue
of section 22 of the Act which referred to the schedule making provisions
about placing requests in relation to children and young persons having additional
support needs. So the first question to
be addressed, before Schedule 2 came into play, was whether the child in
question had additional support needs.
That was a matter, as had been seen, for the education authority
responsible for the school education of the child or young person in
question. It was accordingly, it was
submitted, implicit in Schedule 2 that the placing requests referred to
were placing requests to authorities who were responsible for the education of
the children or young persons in question.
Unless an education authority had assumed responsibility for such a
child or young person, there was no duty owed by an education authority to a
child or young person outside their area.
To interpret the provisions of Schedule 2, as the appellant invited
the Court to do, was inconsistent with the scheme of the Act as a whole. Reading the Act as a whole it could not be
argued that paragraph 2(1) in the Schedule, created a duty on education
authorities owed to children who belonged to other areas and for whom they had
assumed no responsibility.
[39] The scheme of the legislation, it was submitted, was as
follows:
1. Education authorities owed duties to
persons for whose education they were responsible.
2. Certain duties were owed by education
authorities, and they had certain powers in relation, to persons for whose
education they were not responsible, but who belonged to their area.
An education authority owed no duty
to a child or young person not belonging to their area and for whom it had not
assumed responsibilities.
[40] Senior counsel for the respondents accepted that the position
was different in the case of children who did not have additional support
needs. The parents of such children did
have the right to seek a placement in a school, operated by an education
authority to whose area they did not belong, and in respect of children for
whose education the authority had no responsibility. Any refusal of such a request was subject to
appeal. But this difference was not
productive of anomaly because of the concept of co-ordinated support plans and
the fact that special schools were much fewer in number than mainstream
schools. Moreover, any question of
anomaly was removed, or substantially reduced, when one had regard to the provisions
of section 23(1) of the 2004 Act.
Section 23(1) provides as follows:
"Where it
appears to an education authority than an appropriate agency could, by doing
certain things, help in the exercise of any of the education authority's
functions under this Act, the authority may, specifying what those things are,
request the help of that agency".
Section 23(2) goes on to
provide:
"For the
purposes of this Act, each of the following is, in relation to any education
authority, an appropriate agency namely -
(a) any other local authority...".
Section 23(3) is in the
following terms:
"An appropriate
agency must comply with a request made to it under subsection (1) unless it
considers that the request -
(a) is incompatible with its own statutory
or other duties, or
(b) unduly prejudices the discharge of any
of its functions".
[41] Senior counsel for the respondents submitted that those
particular enactments would allow an education authority, such as West
Dunbartonshire Council, responsible for preparing a co-ordinated support plan, to
make a request to another authority, like the respondents, to place a child in
a school operated by them and the other authority would require to comply with
that request subject to the conditions set out in section 23(3). Those provisions re-affirmed the territorial
basis for responsibility established in the other provisions of the Act. This was the relevant provision for dealing
with the possible involvement of an education authority in relation to a child
for whom another authority, as the authority responsible for the child's
additional support needs, had prepared a co-ordinated support plan.
[42] Turning to the appellant's criticisms of the Tribunal's
decision in the present case, senior counsel for the respondents accepted that
the Tribunal, in what they said in the first paragraph of page 27 of their
decision, appeared to have overlooked the fact that section 23 of the 1980
Act had been amended to provide for inter-authority co-operation. This was only one feature of a decision which
was arrived at by looking at the statutory scheme as a whole. Moreover, in submission to the Tribunal the
amended section 23 of the 1980 Act was brought to the Tribunal's
attention. In any event, it could be seen, from what was said in the remainder
of page 27 of their decision, that the Tribunal were fully aware of the
possibility of inter-authority co-operation and at pages 24-25 they had
commented on the provisions of the new section 23 of the 2004 Act. Accordingly, whatever might be said as to
what they stated at paragraph 1 of page 27 it was clear from the rest
of the decision that the Tribunal had referred to all the relevant statutory
provisions and material. Lastly, senior
counsel submitted that the appellant's reliance on the provisions of
section 6 of the Interpretation Act to the effect that the singular may
embrace the plural as supporting her position as to how section 18(1) might be
construed, ignored the context in which that provision found itself, which
context argued against the expression "any decision" as having the meaning
argued for by the appellant.
[43] In a short reply, junior counsel for the appellant re-emphasised
that the construction argued for by the respondents resulted not only in
injustice but in discrimination as between the rights of parents of able-bodied
children and parents of children who had additional support needs.
Decision
[44] Having considered the
submissions made on behalf of both parties in these proceedings, I have come,
without much difficulty, to the clear conclusion that the appeal should be
refused, for the reasons advanced on behalf of the respondents. The point is ultimately one of pure statutory
construction no more, no less. I am
entirely satisfied that having regard to the provisions of the 2004 Act the
Tribunal has no jurisdiction to hear a reference in relation to a decision of
an education authority, regarding a placement request, where that authority is
not the authority responsible for the education of the child in respect of whom
the request was made, nor is the authority for the area in which such a child
resides nor is an authority who has assumed responsibility for the child's
education.
[45] The new regime set up for children or young persons with
additional support needs by the 2004 Act has, in my judgment, as its
centrepiece, or raison d'๊tre, the concept of co-ordinated support plans and
the resultant duties of education authorities to provide such plans for
children or young persons for whose school education the authority in question
is responsible. The substantive
provisions of the Act are directed to implementing the statutory purpose of
putting these concepts into practice.
Section 19 establishes the Additional Support Needs Tribunals for Scotland. It is section 18 which establishes the
jurisdiction of the Tribunal. The terms
of the heading of the section, which is part of the Act, are, in my view
instructive. They are "references to
tribunal in relation to co-ordinated support plans". The heading does not, for example, go on to
say "and other relevant or connected matters".
Section 18(3), in a detailed and prescriptive fashion, sets out the
decisions, failures and information which may be referred to the Tribunal. On a plain reading of what follows in that
section I am satisfied that for the Tribunal to have jurisdiction, the decision
or failure in question must be a decision of the education authority which is
responsible for the school education of the child or young person in relation
to whom the decision arises or the omission occurs. In particular, and most importantly, the
reference in section 18(3)(e), when taken along with subsection 4, to "a
decision of the education authority refusing a placing request made in respect
of the child or young person...", in my judgment, having regard to the scheme of
the Act as a whole and, in particular, the other provisions of section 18,
does not extend to a decision of an education authority not responsible for the
education of the child or young person in question and, accordingly, the
preparation of a plan in respect of that child or young person. The matter goes further because of the wording
of section 29(3). On the agreed facts,
in the present case, and despite junior counsel for the appellant's brave
attempt in that regard, it cannot be argued that the child M., ever stood in a relationship
with the respondents as described in that subsection.
[46] As regards the argument put forward initially to the Tribunal,
and repeated before me, that in section 18(1) the reference to "any decision"
should be read as "any decisions" relying on the Interpretation Act, and that,
so read, the sub-section opened up the possibility of referring to the Tribunal
decisions of authorities not charged with the responsibility of providing the
education of the child or young person in question, I am satisfied, for the
reasons advanced by senior counsel for the respondents, that that argument fails
to pay proper attention to the structure of the Act of as whole and the context
in which section 18(1) finds it place.
It seems to me, in addition, that section 18(1), as elaborated upon
by section 18(2), is primarily addressing the question of persons who
might have the right to refer a relevant decision etc., to the Tribunal. It is, on the other hand, section 18(3)
which defines those decisions etc. which might be referred.
[47] It was, of course, accepted, correctly, on behalf of the
respondents that parents of children without additional support needs, have
under the 1980 Act, the right to request an education authority, not
responsible for their child's education, to place their child in a school in
that authority's area and that there is an appeal system available in respect
of refusals of such requests, first of all, to education committees and, thereafter,
to the sheriff. In that connection,
counsel for the appellant, as has been noted, understandably sought to
highlight the provisions of Schedule 2, paragraph 2(1) of the 2004
Act and the wording "a request to an education authority" (which falls to be
contrasted with the reference to "a request to the education authority" (emphasis
added), in paragraph 2(2)) as supportive of the construction the appellant
sought to have placed on section 18. At
first blush the reference to "an education authority" in paragraph 2(1)
might be read as creating a right (subject to conditions) in the parent to have
his child placed in a school under the management of an authority not
responsible for the child's education in terms of the legislation. For the reasons advanced by senior counsel
for the respondents, however, I have reached the conclusion that such a
construction is not correct, having regard to the scheme of the Act as a whole,
and that the reference in paragraph 2(1) is to be read as a reference to the
authority responsible for the child's education. The wording of section 22 under which the
Schedule is enacted points, in particular, to that result. But I should stress that, even if I am wrong
about that, I am of the view that this sub-paragraph in Schedule 2 does not,
and was not intended to, have the effect of extending the jurisdiction of the
Tribunal which, in my judgment, is fixed by section 18 of the Act.
[48] Ultimately the submissions put forward by the appellant, in my
judgment, involved detecting what, no doubt, is felt by the appellant to be a
genuine grievance and then to seek to add to, or fundamentally distort, the
plain language of the relevant legislation, to remove that perceived
grievance. That can never, in itself, be
a legitimate approach to statutory interpretation. In my judgment the following words of
Lord Edmund-Davies in the Stock
case at page 238C-D, "But dislike of the effect of a statute has never
been an accepted reason for departing from its plain language" are as true
today as when they were uttered and that that is so, is, in my view amply
supported by the decision of the House of Lords in the case of Zielinski Baker. To accept otherwise would result in the
courts usurping the function of the legislature.
[49] In any event, though much was made on behalf of the appellant
of the injustice, or absurdity and discriminatory effect of the construction
placed upon the legislation by the respondents, I am not persuaded that any
such descriptions are at all apt when one considers the scheme of the 2004 Act
as a whole. The children and young
persons provided for in that Act are being provided with rights and facilities
not provided to, and not required by, children and young persons without these
needs. They are, therefore, being treated
differently as a result of the scheme of the Act. That that different treatment should result
in a different approach in relation to placement requests does not, in my view,
inevitably result in any injustice or unfairness, but may be regarded as a reasonable
and rational consequence of that different approach. The preparation of the appropriate plan must
have, as one of its most important features, a choice of educational
establishment which the child is to attend, - see section 9(2)(b). The approach of the legislation, as I see it,
is designed to have a single authority, provide a holistic and integrated
approach to the child's needs. Seen in
that way, and, in particular, having regard to the important provisions of
section 23 of the 2004 Act, which enable the appropriate education
authority to request the assistance of, inter
alia, another education authority, which request must be complied with
unless certain conditions are fulfilled, and which would include a placement
request, I see no merit in the submission that the construction of the relevant
provisions relating to jurisdiction, advanced on behalf of the respondents are
productive of absurdity, or that they in any sense defeat the purposes of the
legislation.
[50] I should add that, as has been noted, junior counsel for the
appellant placed very much at the forefront of her submissions the provisions
of section 28(1) of the 1980 Act which direct that, in the exercise and
performance of their powers and duties under that Act, education authorities
shall have regard to the general principle that pupils are to be educated in
accordance with the wishes of their parents.
That, of course, is not a rule of statutory construction and cannot, in
itself, have the effect of altering the plain meaning of the statutory
provisions in question. In any event it
has to be borne in mind that the general principle referred to in that
sub-section is not absolute as was held in the case of Keeney v Strathclyde Regional
Council 1986 SLT 491. The Lord
Ordinary in that case (Lord Ross) held that the terms of the sub-section did
not provide that the wishes of parents must in all cases prevail. That is particularly true, in my view, where
statute has specifically addressed the particular issue in question, as I consider
it has in the present case. In Harvey v Strathclyde Regional Council 1980 SLT
612 Lord Keith at page 615 appeared to indicate that the general principle
contained in the sub-section would not apply when the matter in question was
the subject of special statutory provisions.
[51] For completeness, I should add that in reaching my conclusion
on the matter, I did not find any assistance to be gleaned from the passages
referred to from the textbook Education
Law in Scotland because, as senior counsel for the respondents pointed out,
the passages referred to, dealt with the previous legislative regime and more
importantly, perhaps, were based, like the appellant's approach in the present
proceedings, on an assertion, or assumption, that there should be an appellate
machinery available, without having full regard to the fact that the intention
of Parliament as embodied in the wording of the legislation in question
excluded such a thing.
[52] In addition the criticisms made of the Tribunal's decision in
the first paragraph of page 27 are nothing to the point for the reasons given
on behalf of the respondents.
[53] For all the foregoing reasons, I consider that the appeal
should be refused.
