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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 67
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XA182/06
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OPINION OF LORD GLENNIE
in appeal under
Section 21 of the
Education (Additional Support for Learning) (Scotland)
Act 2004
By
JT as Legal
Guardian for KT
Appellant:
against
A decision by the
Additional Support Needs Tribunal dated 22 September 2006 refusing a request for a
Co-ordinated Support Plan to be prepared by Stirling Council
ญญญญญญญญญญญญญญญญญ________________
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Appellant:
Logan; Campbell
Smith, W.S.
Respondents:
J. Scott; Dundas
& Wilson
30 March 2007
Introduction
[1] This is an appeal to the Court of Session under section 21 of
the Education (Additional Support for Learning) (Scotland)
Act 2004 ("the 2004 Act") against a decision of the Additional Support Needs
Tribunal (variously "ASNT" or "tribunal") dated 22 September 2006.
By that decision the ASNT confirmed the decision of Stirling Council not
to make a co-ordinated support plan in respect of KT. This appeal is brought by Mrs T as K's legal
guardian. The appeal has been remitted
to the Outer House in terms of Rule of Court 41.44. Before me, both the appellant and Stirling
Council were represented by counsel.
Co-ordinated support plans
[2] In my Opinion on the Appeal by SM as legal guardian to J
against a Decision by the Additional Support Needs Tribunal (unreported, 21 December 2006, [2006] CSOH 201) I
considered certain parts of the 2004 Act.
That appeal related to the refusal of a placing request for J. In paras.[2]-[4] of that Opinion I summarised
what I understood to be the legislative context in which those issues required
to be addressed. That context is
relevant here also.
[3] One of the objects of the 2004 Act is the co-ordination of
additional support for children with additional support needs. That co-ordination is required where such
support is provided from more than one source.
The precise circumstances in which a co-ordinated support plan is
necessary are identified in section 2.
The determination of the present appeal against the refusal to make a
co-ordinated support plan for K requires a detailed consideration of the terms
of that section. It provides as follows:
"2 Co-ordinated
support plans
(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 authority themselves.
(2) For the
purposes of subsection (1)-
(a) a factor is a complex
factor if it has or is likely to have a significant adverse effect on the
school education of the child or young person,
(b) multiple
factors are factors which-
(i) are not by
themselves complex factors, but
(ii) taken together, have
or are likely to have a significant adverse effect on the school education of
the child or young person."
If a
co-ordinated support plan is required, the education authority becomes under an
obligation to co-ordinate the provision of the additional support needed by the
particular child. The child receives no
further additional support. The value to
the child and his or her parents lies in the fact that the support is
co-ordinated by the education authority, which is in the best position to carry
out that task. The burden on the
education authority is administrative.
The scale of that administrative burden presumably depends on the extent
of the additional support from different agencies. The decision on whether or not the child
requires a co-ordinated support plan has no bearing on the decision whether or
not to grant a placing request. Mrs
Scott, on behalf of the Council, which is the relevant education authority,
confirmed that this was the position.
[4] There are other provisions in the 2004 Act dealing with the
obligations on an education authority to establish whether a child has
additional support needs or requires a co-ordinated support plan, and with the
duty to prepare such a plan if the requirement is established. I do not need to set out the details of those
provisions.
K
[5] I take the details about K from the findings in fact made by
the ASNT. Since, under section 21 of the
Act, an appeal lies only on points of law, those findings set out the basic
facts upon which this appeal must be decided.
In the interests of anonymity I have de-personalised some of the
description of K and her condition.
[6] K is 12 years old. She
is adopted. She attends her local
primary school, a local authority school run by Stirling Council, and commenced
Primary 7 in August 2006. She has major
difficulties with her vision and is registered blind though not educationally
blind. She has learning
difficulties. She has a differentiated
curriculum and requires support in her education. She has an IEP (Individualised Education
Plan) to support her learning. She has
dyscalculia, which results in difficulties working with and recognising
numbers. She may require additional support
in connection with phonetics and backward span.
She is socially isolated, has few friends and finds it difficult to form
and maintain friendships.
[7] I should quote from findings in fact 5 and 6:
"5. K has been assessed as requiring speech
and language therapy to address underlying difficulties with receptive and
expressive language. K has good
functional communication which may have masked her difficulties. She uses visual clues (along with other
contextual clues) to understand information given to her verbally. This is limited by her low vision. She has difficulties with auditory
memory. The nature and frequency of the
speech and language therapy required will be informed by her response to
initial therapy which is scheduled to take place once each week for a period of
8 to 10 weeks from October 2006. The
degree of Speech and Language Therapy required by K is high.
6. K requires mobility training and
environmental adjustments that reflect her low vision. She also requires specialist aids to allow
her to access educational materials."
Other findings refer to the
requirement for assistance from a specialist teacher in visual impairment and a
support for learning teacher. Since
these requirements are met by the education authority in the exercise of its
functions relating to education, I need not go into further detail. The findings in fact end by noting that K's
needs are likely to increase in the transition process between primary and
secondary school, which will require increased additional support from
education services to include mobility training and independent living skills.
The dispute before the ASNT
[8] There was no dispute that in K's case the conditions set out
in paras.(a), (b) and (c) of section 2(1) of the 2004 Act were satisfied, i.e.
that the Council, in its role as education authority, is responsible for K's
school education, that K has additional support needs arising from multiple
factors, and that those additional support needs are likely to continue for
more than a year.
[9] The issue before the tribunal was as to whether K required
significant additional support (i) from the education authority and (ii) from
one or more other appropriate agencies.
As to the first of these matters, the tribunal found, contrary to
arguments put forward on behalf of the Council, that K did require significant additional
support to be provided by the Council in the exercise of its functions relating
to education. The Council does not
challenge that finding.
[10] The remaining issue in dispute was whether K required
significant additional support from other appropriate agencies.
The decision of the ASNT on the
disputed issue
[11] The ASNT decided this issue against the appellant. They decided that K did not require
significant additional support from another appropriate agency. Their reasons appear from the following
passages under the heading "Reasons for Decision":
"5. K's needs require significant additional
support to be provided by the authority.
Contrary to the position of the authority, it is clear that K's needs in
respect of her visual impairment, her mobility, her dyscalculia, her social
isolation and her learning difficulties require significant additional
support. Although not a matter for the
Tribunal, the support she has been receiving throughout primary school could
not be described as anything other than significant. K's needs in respect of education have not
diminished.
6. The remaining issue for deliberation
was whether K's needs in respect of Speech and Language Therapy require
significant additional support to be provided by a Speech and Language
Therapist.
7. The tribunal had the benefit of hearing
from Sally Gray, the Speech and Language Therapist who prepared a report ... It is unfortunate that Mrs Gray's views on
K's needs are preliminary in nature. The
true extent of her needs will only become apparent in response to an initial
period of therapy. Her needs, as
presently known, require a high level of therapy for a short period and advice
to teachers and school staff which will be implemented on a long term
basis. However, such a level of therapy
cannot be said to be significant.
8. Mrs Gray gave evidence of the differing
types and degrees of speech and language therapy provided to children with
additional support needs. These ranged
from monitoring of children with one sound phonetic difficulty without any
direct therapy at one end of the spectrum to daily therapy for children with
severe communication disorders at the other end of the spectrum. Mrs Gray described four levels of therapy:
low, medium, high and substantial. A
substantial level of therapy involved almost daily direct therapy input
including signing and signing tuition, assistance with specialist aids from
picture boards to talking books to head pointers to talking computers and
specialist assistance to teachers, classmates and school staff. She described a high level of therapy as
including short term direct therapy, development of strategies for teachers and
schools staff to assist the child and monitoring. She described how she thought that K's
difficulties may be quite subtle and would require to be teased out in therapy
but she described a short period of therapy followed by strategies being given
to the class teacher to ensure that verbal information, in particular, given to
K is given in such a way that she can fully understand the instructions. This would involve short sentences,
repetition and confirmation. Although high,
the level of therapy described is not outwith the standard level.
9. In those circumstances, the Tribunal
could not be satisfied that K's additional support needs required significant
additional support from a Speech and Language Therapist."
In essence, the ASNT concluded in
terms of section 2(1)(d)(ii) of the 2004 Act, that K required significant
additional support to be provided by the education authority in the exercise of
its functions relating to education.
K's needs also required additional support to be provided by another
appropriate agency, i.e. support from a Speech and Language Therapist. However, the additional support required from
a Speech and Language Therapist was not "significant", or at least the tribunal
could not be satisfied that it was.
Section 2(1)(d)(ii) requires both categories of additional support, i.e.
both that provided by the education authority and that provided by the
other appropriate agencies, to be "significant". Being unable to find that the additional
support provided by the Speech and Language Therapist was "significant", the
tribunal concluded that, whilst section 2(1)(a), (b) and (c) were applicable in
the case of K, section 2(1)(d)(ii) was not; and, therefore, that the statutory
requirements for a co-ordinated plan were not met.
Submissions on the appeal
[12] For the appellant, Mr Logan presented two main arguments. His first was that the ASNT had only
considered section 2(1)(d)(ii) of the 2004 Act.
They had failed to consider whether the case fell within section
2(1)(d)(i). There was material before
them relating to psychological services and also to the requirement for
mobility training, environmental adjustments and specialist aids. He pointed to a list of equipment in the
documentation before the tribunal. The
tribunal had a duty to consider whether the case fell within section 2(1)(d)(i)
of the Act, and therefore had a duty to investigate who was providing these
services. They had failed in that duty.
[13] Mr Logan's second point was that the ASNT had erred in their
determination of whether the additional support provided from the Speech and
Language Therapist was "significant". He
submitted that from para.8 of the Reasons, quoted above, it appeared that the
tribunal had thought that because the level of therapy required by K was described
by Mrs Gray as "high" rather than "substantial", it could not be termed
"significant". He suggested that the
tribunal had allowed itself to be guided by the terminology used by Mrs Gray to
describe the level of treatment, and had wrongly equated "significant" with
"substantial". The tribunal appeared to
have been influenced by the analysis that "although high, the level of therapy
described is not outwith the standard level".
On a broader level, he submitted that the statement in para.7 of the
Reasons, that her needs, as presently known, required a high level of therapy
for a short period, meant that the level of additional support in this area
could not properly be regarded as other than "significant". The tribunal must have applied a meaning to the
word "significant" that it could not properly be made to bear.
[14] Mr Logan referred me to the guidance to which s.27 of the 2004
Act required the court and the tribunal to have regard. The guidance is contained in a document
published by the Scottish Executive entitled: "supporting children's learning:
code of practice". Chapter 4 discusses
the question of eligibility for a co-ordinated support plan. Mr Logan submitted that the example given in
para.13 of the guidance assisted his client's case.
[15] For Stirling Council, Mrs Scott submitted that Mr Logan was
wrong to read the passage at paras.8 and 9 of the Reasons as showing that the
tribunal had wrongly equiparated "significant" and "substantial". Para.8 was simply a summary of Mrs Gray's
evidence to the tribunal. Mrs Scott
directed me to para.16 of the guidance, which says this:
"The Act does
not define what 'significant additional support' means. The use of the terms 'significant' signals
that the scale of the support ... stands out from the continuum of possible
additional support."
That paragraph and the next then
proceed to give examples of what would amount to significant additional
support. She emphasised that for the
additional support to be "significant" it should stand out from the normal. She suggested that the intention behind the
Act was that the administrative burden of preparing a plan and working to it
should be imposed only in a small number of cases. Others who did not fall within section
2(1)(d) would still have their support needs met, but there would be no need
for central planning and co-ordination.
If it was not clear whether a co-ordinated support plan was required, it
could be refused and reviewed later.
[16] Mrs Scott further submitted that the question whether the
additional support provided by a body outside the education authority was
"significant" was essentially one for the tribunal with which the court could
not, or at least should not, interfere.
The tribunal had to make a value judgment. Whether the additional support provided to K
was or was not significant was a question of fact and, as such, could not be
challenged on an appeal under the 2004 Act.
In this connection, she referred me to Boots the Chemist v. Ayrshire and Arran Primary Care NHS Trust 2001
SC 479 at paras.[6]-[7].
Discussion
[17] I have no hesitation in rejecting the first submission for the
appellant. In response to a question
from the bench, Mr Logan accepted that it had not been submitted to the
tribunal on behalf of K that there were items of equipment or other services
which were being or would be supplied by the education authority in the
exercise of its functions other than those relating to education, so as to
bring the case within section 2(1)(d)(i).
He submitted, however, that once the tribunal had identified the
services being provided, the onus was on them to ask themselves whether the
case fell within the section. In
response to a further question, he accepted that he had no instructions that
the services and equipment were supplied by the education authority in the
exercise of its functions other than those relating to education. He could not even go so far as to submit that
the tribunal ought to have found that the case fell within section 2(1)(d)(i).
[18] In those circumstances, the appeal on this point cannot
possibly succeed. An appeal under
section 21 of the 2004 Act is on a point of law. Whilst it may not always be fatal to an
appeal that the point has not been raised before the tribunal, and whilst the
tribunal may be under a duty to carry out some investigation of its own,
nonetheless a party seeking to challenge a decision must, at the very least, be
able to assert that, had it considered the point, the tribunal would or should
have come to a conclusion favourable to the appellant. Mr Logan was unable even to go that far. I therefore reject his first submission. In fairness to the tribunal and to the
Stirling Council, I should add that Mrs Scott told me that the services to
which Mr Logan referred were, in fact, all provided by the Council in the
exercise of its functions relating to education. On that basis, the appellant would be unable
to bring herself within section 2(1)(d)(i) in any event.
[19] There is considerably more force in Mr Logan's second
point. I do not consider that he is
exactly right when he says that the tribunal have allowed themselves to be
misled by Mrs Gray's terminology and have equiparated "significant" with
"substantial". Mrs Scott is correct in
her submission that all the tribunal is doing in that passage is summarising
the effect of Mrs Gray's evidence.
Nonetheless, in my opinion the tribunal has erred in law in its
assessment of what level of additional support is or is not "significant". I have reached this conclusion for a number
of reasons.
[20] The word "significant" is capable of having a range of meanings
and nuances, from large or considerable at one end of the range to noteworthy
or worthy of consideration at the other.
The context is all-important. On
any view, however, the tribunal's decision that the level of speech and
language therapy required by K is "high" (see finding in fact 6 and para.7 of
the Reasons) but not "significant", strikes one as surprising. It prompts one to ask what test of
significance the tribunal is applying.
[21] The tribunal gives no explanation of what they mean by
"significant". But the structure of the
Reasons suggests that the tribunal was influenced by the hierarchy described by
Mrs Gray. The tribunal recites Mrs
Gray's opinion that K required a high level of therapy, involving one to one
therapy for a short period followed by strategies being given to the class
teacher. In Mrs Gray's hierarchy, this
was at the third level of four, ranking above low and medium but below
substantial. Further, that level of
therapy, according to Mrs Gray, was "not outwith the standard level", by which,
I understand (from her report, which I was permitted to see) the standard level
of support provided the speech and language therapy department in which Mrs
Gray worked. The tribunal follow this
recital of Mrs Gray's position by saying that "in those circumstances" they
could not be satisfied that the speech and language therapy needed by K was
significant. It seems clear that the
tribunal regarded the fact that the required therapy was not outwith the standard
level as of importance in informing its decision that it could not be described
as significant. The tribunal may also
have been influenced by the fact that the one to one therapy would only last
for a short period.
[22] In considering this approach, it must be remembered that this
part of the 2004 Act is concerned with identifying cases where co-ordination of
additional support is required.
Co-ordination is not required where the additional support comes only
from one provider in one capacity. In
such a case, the provider will, no doubt, be expected to co-ordinate the
additional support it provides. But
where the additional support is provided by two or more providers, or by one
provider (the education authority) exercising different functions, a need is
identified in the Act for co-ordination of such support, but even then only
where the additional support from more than one source is "significant". The legislative intent seems clear. The word "significant" is used in section
2(1)(d) of the 2004 Act to contrast with "insignificant" or "not requiring
attention". There is obviously no need
for co-ordination of additional support where the support provided by one of
the two providers is insignificant. The
remaining significant support, being provided by only one provider, requires no
external co-ordination. But equally,
where the additional support from two or more providers is not insignificant,
co-ordination is required. I cannot see
any indication in the Act that the Scottish Parliament intended a higher
threshold than this to be surmounted before a co-ordination support plan is
required.
[23] Further, I cannot see why it is relevant to consider whether
the additional support provided by a particular provider, such as the speech
and language therapy department of an NHS hospital, is outwith the standard
level of support provided by that department.
What matters is whether the additional support provided to the child by
each of two providers (or by at least two of several providers) is sufficiently
important to require co-ordination. The
focus is on the support to the child. Is
the support to that child from more than one provider "significant", so as to
require co-ordination by the education authority? It is quite immaterial whether that support is
outwith the norm of the support provided by the particular provider.
[24] A consideration of section 2(2) of the 2004 Act points to the
same conclusion. The same word
"significant" is used in section 2(2) in defining "complex" and "multiple"
factors. These are factors which, by
themselves (complex) or taken together (multiple), have or are likely to have
"a significant adverse effect" on the school education of the child. The focus of attention is on the effect on
the child. Will there be a significant
adverse effect on the child's education?
The expression "significant additional support" in section 2(1)(d) is
used to identify support needed by the child as a result of those complex or
multiple factors. In other words, it is
needed to address the significant adverse effect on the child's education. This suggests that the significance of the
required additional support under section 2(1)(d) should be judged by reference
to its anticipated impact on the child rather than by reference to how it ranks
amongst the general level of support provided by any particular provider.
[25] It follows that I consider that the tribunal applied an
incorrect test of what requires to be established before additional support
could be said to be "significant". That
is an error of law. I accept Mrs Scott's
point that a decision on whether something is or is not significant is prima facie a question of fact. But where it appears that the decision is
based on a misapprehension of what is meant, in the relevant legislation, by
"significant", or if the decision can only be explained on the basis that there
must have been such a misapprehension, then an appeal on a point of law can and
should succeed. I shall remit the
reference back to the tribunal. On the
basis of the evidence they have already heard, and in light of their findings
that the level of the additional support provided by way of therapy is high, I
anticipate that they will proceed without hearing further evidence to a
decision that section 2(1)(d)(ii) is satisfied.
But that is a matter for them.
[26] I have noted that the high level of therapy may be provided for
a short period. It does not seem to me
that in the ordinary case this is likely to be critical to the determination of
whether or not it is significant. In
such a case the co-ordinated support plan may be brief; and it may be possible,
after a later review, to dispense with it altogether if there is no longer a
need for therapy.
[27] I was also pressed with the argument that the preparation of a
co-ordinated support plan was expensive and burdensome. I have some doubt about the force of this
argument. A co-ordinated support plan is
only required to co-ordinate the support that is given by the education
authority and others. The less support
is required, the less burdensome the co-ordinating role of the education
authority. I do not see this as a real
problem.
[28] In para.16 of the guidance, the Scottish Executive attempts to
define what is meant by "significant" by saying that the use of that term
"signals that the scale of the support ... stands out from the continuum of
possible additional support". I am not
entirely sure what that means. If it is
intended to invite a comparison between the support needed by the particular
child and the support normally given by the provider, I consider that it is in
error. But I also consider that it is
wrong if it is intended to invite some other comparison. The test of whether particular additional
support is "significant" is directed to assessing whether, when other
significant additional support is provided, there is a requirement for
co-ordination. This has to be judged
simply by asking whether the additional support in itself is significant; it
has nothing to do with any comparison with other possible additional support.
Disposal
[27] In the circumstances, I shall allow the appeal and remit the
reference back to the ASNT for reconsideration in light of this Opinion. If, on the remission, they come to the view
that section 2(1)(d)(ii) is satisfied, the question of the appeal against the
refusal of the placing request will require further consideration. However, that matter is not before me.
