ASNTS_D_05_2006_05.01.07

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

**This decision was appealed to the Court of Session. The opinion of the Court was issued on 12/07/2007. The appeal was allowed. **

 

 

 

Reference:              d/05/2006

 

Gender:                   Female

 

Age:                        12

 

Type of Reference: CSP not required

 

 

 

 

 

1. Reference

 

The father (“the appellant”) has made a reference to the Tribunal as he disagreed with the Education Authority’s view that the child does not require a coordinated support plan. The reference is made under section 18 (3) (b) (i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

 

 

2. Decision of the Tribunal

 

The Tribunal determines that the Education Authority is not responsible for the child’s school education (in terms of section 2 (1) (a) of the Act); consequently, the child does not require a coordinated support plan.

 

 

 

3. Preliminary Matters

 

Two additional documents not already lodged as productions were referred to in the course of the hearing and, with the Tribunal’s agreement, were submitted for the Tribunal’s consideration by the education authority.

 

 

4. Summary of Evidence

 

The evidence considered by the Tribunal consisted of the documents lodged by the parties and submissions made on their behalf. Parties agreed that it was not necessary to lead any oral evidence in the course of the hearing. Various issues were clarified by discussion involving all present as the hearing proceeded.

 

 

5. Findings in Fact:

 

(1) The child was born in October 1994 and lives with her parents.

 

(2) The child formerly attended her local primary school where she completed her primary education in June 2006.

 

(3) The child is exceptionally gifted in music. She sat the SQA Higher music examination in June 2006 and obtained an “A” pass. She requires additional support to enable her to develop her talents and abilities to their fullest potential.

 

(4) The child has a particular interest in languages, especially Italian, as an important language for professional singers.

 

(5) The child and her parents hope she will be able to complete her school education by around the age of 14 so that she can commence full-time music studies at that point. In the meantime they wish her to be based at home and to have as rounded an education as her increasing musical studies and commitments permit.

 

(6) Prior to the summer of 2006, the father raised concerns with the Local Authority about how these objectives would be achieved on the child’s transfer to her local secondary school.

 

(7) From June to August 2006 further discussion and correspondence took place, in the course of which the father proposed that the local authority should use its Gifted Child Funding Programme to fund a private education for the child, as it would not be possible for her to have a normal academic education under the local authority umbrella.

 

(8) By the end of July, the father and the Education Authority had agreed at least in outline that:

• the child’s educational programme from August 2006 would involve individual tutoring in academic subjects at home with a view to fast-tracking her to sit Standard Grades and / or Highers in 2007 and 2008.
• certain subjects would be studied at home
• except when in conflict with musical commitments, she would attend her local High School for a specially-organised curriculum
• the child’s specialist musical studies would continue, involving specialist tutoring and regular attendance at classes held at the Royal Scottish Academy of Music and Drama (RSAMD), Glasgow
• one of her academic courses would be taught through a distance learning course; this would require to be accessed via the school as the child is under 16
• the home tutoring would be provided by professional teachers employed directly by the parents, under private contract so that they would be in absolute control
• the Local Authority would fund the specialist music tutoring, transport costs to music lessons, and the cost of home tutoring under its Gifted Child Funding Programme.
• this arrangement would run through 2006-2007 and, subject to review, 2007-2008

 

(9) Distance learning is a standard method by which certain limited uptake subjects are accessed.

 

(10) The programme as above has been implemented from August 2006. The child’s home tuition is carried out by personnel recruited and managed by her parents. The local authority have no input into the selection or management of the home tutors, and have no quality assurance role. They have no role in relation to the overall balance of the child’s curriculum and consider themselves to have no control over the child’s attendance at her local High School.

 

(11) The child’s name appears on the roll of the High School under a special arrangement for attendance. The school consider that she appears on the roll solely for safety and insurance purposes. The parents receive an automated phone call on each day when the child is not at the school, under the Council’s new child protection arrangements. The parents write to advise the school if the child will not be attending school due to other commitments.

 

(12) In 2002 the Scottish Executive issued guidance on the circumstances in which parents may choose to educate their children at home. Education authorities are required to give effect to the guidance by virtue of section 14 of the Standards in Scotland’s Schools etc Act 2000. The guidance states that one of the circumstances in which parents do not require to seek the consent of the education authority to home educate their child is if their child has finished primary education in one school but has not started secondary education in another; in such circumstances parents may simply notify the authority that they intend to home educate.

 

(13) The guidance also encourages education authorities to provide resources for home educated children and to adopt a reasonable and flexible approach in this respect. Examples of such support given in the guidance include allowing access to learning centre resources and allowing access to school resources where feasible.

 

 

6. Reasons for decision:

 

The central issue in this case was whether the child met the statutory tests for having a coordinated support plan. For the appellant, his representative argued that she did. The representative said that:

• the child had additional support needs in relation to both her musical gifts and her languages, in respect of which the provision is additional to and different from that ordinarily provided for pupils
• these additional support needs are complex and likely to continue for more than 1 year.
• the local education authority are responsible for the child’s education as she attends the local High School, albeit part-time, and her parents have neither sought not been given permission to withdraw her from school
• as a fall-back position, even if the child has in fact been withdrawn from school and the local authority are simply using their power to assist under section 5 (4) of the 2004 Act, they are thus providing education either in a school under their management or in pursuance of arrangements they have made or entered into, and are thus responsible by virtue of section 29 (3) of the 2004 Act.
• an analogy could be drawn with the situation of placement in a specialist school following a placing request, where the Council would still have responsibility even though the school was not under their management.
• the college providing the distance learning package and the RSAMD both require to provide support to meet the child’s needs; both are “appropriate agencies” by virtue of the ASL (Appropriate Agencies) (Scotland) Order 2005 made under section 22 of the 2004 Act.

 

He commended the local authority for the support plan they were already giving and suggested that a coordinated support plan would simply formalise the current arrangements and encourage closer cooperation between agencies.

 

 

For the local authority, their representatives accepted that the child has additional support needs in relation to her musical abilities. Beyond that, he contested all the key points made by the appellant’s representative and said:

• the local authority is not responsible for the child’s education: the parents had in effect notified the Council that they were withdrawing her from school at the transition point between primary and secondary school (although he accepted that no-one had described what was happening precisely in these terms in the course of correspondence over the summer of 2006).
• the Council is exercising its power to assist and offering support to home education, as it is encouraged to do by the Scottish Executive guidance
• but provision of funding and other support under the power to assist does not amount to “providing education” in terms of section 29 (3) of the 2004 Act; in home education, it is the home educator who is responsible for provision. Here, the Council has no control over curriculum, staffing or attendance.
• the placing request analogy does not apply; in that case the Council would still be responsible and would undertake a rigorous assessment process, and specific and different statutory provisions would apply
• the child does not have additional support needs in respect of languages; the 5-14 curriculum would meet all her needs outwith music, and distance learning provision is commonly used throughout the Council for schools with limited uptake in courses
• neither the distance learning provider not RSAMD qualify as appropriate agencies as the Council has not requested them to help under section 23 of the 2004 Act
• if the child had a coordinated support plan, the Council would be required in terms of its statutory duties and its accountability to HMI to review the breadth and balance of the child’s curriculum; the Council would also require to exercise more control over the provision for the child, for instance by insisting on disclosure checks for all tutors.

 

 

In closing comments, the appellant’s representative said:

• the degree of control the appellant exercises over the child’s programme is only possible because the Council had agreed to it
• although there is no statutory definition of home education, in statutory terms a child either is or is not at school; the fact is that the child is attending her local High School
• in the case of Guild v. City of Edinburgh Council (Outer House, 19^th December 2001), the Court of Session had accepted that it would be competent for parents to challenge a Record of Needs with a view to having their own home named as the child’s school
• “additional support needs” is a very broad term, as noted in the case of Sim v. Argyll and Bute Council (Court of Session Outer House, 13^th September 2006), and a need to access a subject by distance learning is sufficiently unusual to constitute an additional support need.

 

 

The fundamental issue is whether the Council is responsible for the child’s school education. With the benefit of hindsight, it is regrettable that neither the parents nor the authority sought in course of correspondence and discussions to clarify the statutory basis and definition of the programme being negotiated for the child.

 

We are clear that by the time the school sessions started in August 2006, the child was on a programme of home education which was being supported by the local authority under its discretionary powers. We accept that the evidence before us includes no unambiguous references to education at home or to the statutory guidance issued under section 14 of the Standards in Scotland’s School etc Act 2000. Nevertheless we view this as the only satisfactory way to characterise in legal terms the situation described in Findings (7)-(11) above, and find support for that interpretation in the Guidance referred to in Findings (12)-(13). We thus conclude that the Council are not “responsible for the school education of the child or young person” in terms of section 2 (1) (a) of the 2004 Act.

 

Although the term “home education” was never used in any correspondence, the appellant referred at various points to private education and to having absolute control over the child’s programme. He sought and received the Council’s support for this programme. We agree with the authority that what they are providing is discretionary support under their power to assist. We reject the argument that provision of any such support automatically entails responsibility as a misinterpretation of section 29 (3) that would place that subsection at loggerheads both with the overall scheme of the Act and with the pre-existing guidance on home education. We find no assistance in Guild v. City of Edinburgh Council since it concerned a preliminary point on the pre-existing and very different statutory scheme for Records of Needs.

 

We consider the question of control to be central to the question of responsibility. The Council have no role in the selection, vetting and appointment of any of the child’s tutors; no quality assurance role whatsoever; and no control over the overall balance of the curriculum that the child follows. It is clear from the terms of the arrangement for the child’s attendance at the High School that the parents would have an extremely strong defence if the authority sought to enforce the child’s attendance for the agreed days at school. In the circumstances, we consider the facts that the child’s name appears on the school roll to be of little significance other than for the limited purposes suggested by the authority.

 

Had we taken a different view on the question of responsibility, we would have been satisfied that the child meets all the other criteria for preparation of a coordinated support plan. The child has additional support needs in relation to her musical abilities that are complex and long-term, although we do not consider that she has additional support needs in relation to her languages; the distance learning link is no different from arrangements routinely made for many limited uptake courses in the Council’s schools. The child’s music-related needs require significant additional support to be provided by RSAMD; we consider the fact that the authority has not sought RSAMD’s involvement under section 23 to be irrelevant to the question of whether it fits the statutory definition of “appropriate agency”.

 

We would, however, have reached any decision resulting in preparation of a coordinated support plan with something of a heavy heart. We consider it highly unlikely that the child’s programme could continue in anything like its current form if the authority had to take on responsibility for control of the programme, since they would then have to ensure the breadth and balance of the child’s curriculum to satisfy wider statutory and inspectorate requirements that might in themselves not fit easily with the aspirations of the child and her parents.

 

In closing, we wish to commend the parents for the efforts they have made to develop and implement a programme for the child that will nurture her exceptional talents whilst also retaining as much normality as possible. We also wish to commend the Council for the admirable support they have provided, and take comfort from the clear expressions of intention to continue that support made on their behalf in the course of the hearing.