DE
ON APPLICATION FOR REVIEW
Background and Procedure
This is a Review Application (“the Application”) by the Appellant, made under Rule 45A of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (“the Rules”). The Appellant seeks a review of our decision dated 7th March 2013, averring that the decision was based on an error in law, under Rule 45A(1)(a).
The Application was lodged on 4th April 2013. On 15th May 2013 the Convener held a conference call with the parties’ representatives to discuss further procedure. Following this call the Convener directed the Respondent to intimate its reply to the Application within 21 days and allowed the parties a period to carry out adjustments to the Application and Answers (see Direction of 16th May 2013). Both the adjusted Application and adjusted Answers having been received, and the parties having given their written consent to dispense with a hearing, in terms of Rule 45A(4), the Convener deliberated with the other Tribunal members and we reached our decision on the Application.
Rule 45A(1) states:-
If, on the application of a party, a Tribunal is satisfied that –
(a) its decision was based on an error of fact or in law;
(b) a party, who was entitled to be heard at a hearing but failed to be present or represented, had a good reason for failing to be present or represented and the interests of justice require; or
(c) otherwise that the interests of justice require,
the Tribunal may review and vary or revoke the relevant decision, order or award.
Rule 45A (6) states
If, having reviewed the decision, the decision is to be varied or revoked, the Tribunal must substitute the decision it thinks fit or order a rehearing before either the same of a differently constituted Tribunal.
Decision on the Review Application.
The Tribunal are satisfied that there had been no error in law in the Decision dated 7th March 2013 and accordingly reject the appeal.
The Review Application
The original Decision was on a Reference brought in terms of section 18 of the Education (Additional Support for Learning)(Scotland) Act 2006, as amended (“the Act”). The failure complained of was a failure in terms of section 18(3)(d)(ia), namely, failure by the Respondents to provide or make arrangements for provision of additional support identified within the Co-ordinated Support Plan (“CSP”) as being required by the child in order to achieve the educational objectives as also stated within the CSP.
The CSP, dated 9th May 2012 identified as an Educational Objective -
“[the child] will learn to respond to his environment and communicate in ways that will not involve him harming himself”.
The CSP identified the Additional Support Required –
“Speech and Language Therapist will work with [the child] on a weekly basis.”
The Respondents accepted almost from the outset that no Speech and Language Therapist had been provided to work with the child (“The child”) on a weekly basis, and that there had, in fact, been a failure in terms of section 18(3)(d)(ia). It is correct to say that, having drafted a CSP, and in the absence of a review, an Education Authority are expected to deliver the terms of the CSP for so long as it remains in force, other than in truly exceptional circumstances. Accordingly, the first part of the Tribunal’s decision was to make a finding that there had been a failure. The Tribunal understands that the Review Application does not seek to interfere with this part of the decision.
Having made this finding, it was for the Tribunal to exercise its powers in terms of section 19 of the Act. In particular, section 19(3) states that where there has been such a failure -
“the Tribunal may require the educational authority to take such action to rectify the failure as the Tribunal considers appropriate by such time as the Tribunal may require.”
At the hearing it was principally the position of the Applicant that, as the CSP makes a reference to Speech and Language Therapy (“SLT”), and no SLT was being provided, the Tribunal should exercise its powers to order the Respondents to now make provision of SLT on an ongoing basis, as well as additional SLT to make up for that which had not taken place up until that date.
The part decision of the Tribunal, which is to be reviewed, is –
“However, the Tribunal does not consider it to be necessary or appropriate to order the Respondents to now make such provision. The Tribunal require the Education Authority to carry out an early review of the CSP, said review to be finalised no later than 1st June 2013.”
Consideration of the Application
The Appellant argues that eleven errors of law were made in the original decision and we consider them in the order in which they were proposed by the Appellant.
(a) Whether the use of the word “necessary” in the decision represents an additional, non-statutory and unwarranted test.
In the decision dated 7th March 2013 the finding of the Tribunal was that it “was not necessary or appropriate” to order the Respondents to now make provision for SLT. Section 19 (3) states that the Tribunal may require the Authority to take such action as the Tribunal considers appropriate.
The use of the word “may” gives the Tribunal a discretion as to whether to require the authority to take action, and the use of the word “appropriate” refers to the action to be taken. Accordingly, before being in a position to decide what action would be appropriate, the Tribunal had to consider if any action was, in fact, necessary.
Whilst the word “necessary” does not appear in section 19(3), the purpose of the action that may be ordered is to remedy a failure as defined in section 18(3)(d)(ia) of the Act. That subsection refers to a failure to provide or make arrangements for the provision of the additional support...identified by virtue of section 9(2)(a)(iii). Section 9 refers to the duties of an education authority to prepare co-ordinated support plans. Subsection (2)(a)(iii) requires that a co-ordinated support plan must contain “the additional support required by the child” to achieve the educational objectives identified in the plan.
In the online Collins Dictionary, when considering the word “required” as an adjective, the definition is given as “essential, needed, necessary”. When considering the meaning of the word when used as a verb, we find the description “ to impose as a necessity; make necessary”.
(http://www.collinsdictionary.com/dictionary/english/required)
In the application for Review the Appellant themselves make reference to the decision of Lord Glennie in Sim v Argyll & Bute Council [2006] CSOH at [18] “the obligation on the education authority....must be to make provision for the child’s special needs as have been identified in the Record of Needs as being necessary.”
We find that the Tribunal were entitled to give consideration to the additional support identified in the CSP that the respondents have admitted to failing to provide. In this particular reference, the additional support was the provision of SLT on a weekly basis. As the Tribunal have a discretion, by use of the word “may” in Rule 19(3), as to whether to now make an order for provision of that additional support, we were entitled to consider if there was evidence that the support identified was, in fact required, or “necessary”. Our finding was, on the evidence, that there was little information as to why this provision was inserted into the CSP; there had been no formal SLT assessment of The child at the time of drafting the CSP; The child had subsequently been discharged from the services of SLT; the school had their own linked SLT and regularly seek input and training from SLT for the benefit of all children in the school, including The child; the reason for the discharge was because it was felt that there was nothing that SLT could add to the support already in place from the school. The finding of the Tribunal was that there was no evidence that The child required the additional support of SLT, over and above what is already being provided by the school, to enable him to benefit from education, or that without the provision of SLT that he is unable or likely to be unable to benefit from school education. Having made that finding, the Tribunal were entitled to state that the making of an order was not necessary or appropriate. Accordingly, we find that there was no error in law.
Even if this were not true, the decision stated “necessary or appropriate”, and so the removal of the words “necessary or” does not affect the final decision.
(b) The remedy granted (an early review) is likely to result in the discontinuation of the CSP.
The decision of the Tribunal can not take into account what the “likely” result of any review will be. There is an assumption that the parents will have an input into the review process. If the parents are, in fact, correct and the provision of SLT is required for The child, then this will be stated within the reviewed CSP with a renewed commitment by the Authority to provide the same.
(c) The ordering of an early review with a deadline for finalising the review of 1st June 2013 would, in fact, extend the statutory timescale for the Authority by two weeks.
The Tribunal had considered the CSP dated May 2012 and had noted that in terms of the CSP it stated that a review should be commenced by May 2013 and completed by 1 August 2013. The Tribunal also noted that the Authority had started an early review process, in terms of section 10(3) of the Act by inviting the parents to a meeting on 15th March 2013 for the purposes of carrying out a review. The fact that the parents had indicated their unwillingness to take part in the process does not, of itself, mean that the review does not proceed.
Section 10(3)(b) of the Act allows the Authority to carry out a review of a CSP “if they consider it necessary or expedient to do so because of a significant change in the circumstances of the child, since the plan was prepared, or last reviewed.”
There was no evidence put before us to suggest that the Authority had considered there to have been a “significant change”, and no explanation for the early review in the letter (A7). Accordingly, we found that the Respondents did not satisfy the test set out in section 10(3) and were not entitled to call for an early review. It was for this reason that we included in our Decision an order for a review to take place earlier than stated in the body of the CSP.
(d) and (e) The Tribunal had erred in reasoning that the use of the word “rectify” implied that the child had suffered some inequity or disadvantage, and further, by seeking evidence of this and also, evidence that an order for provision would alleviate the same.
It is not in dispute that the word “rectify” as it appears in section 19(3) refers to rectifying the failure. The Tribunal required to consider the reason why it may be necessary to order the Respondents to rectify the failure.
The word “may” clearly implies that the Tribunal have a discretion as to whether to order the Respondents to take action. If there was not intended to be discretion, then the Rules would have said “must” and the only decision the Tribunal could be asked to make is “has there been a failure, yes or no?”
However, as the words “may” and “as appropriate” are in the statute, we not only have to consider that there has been a failure, but also should an order be made to rectify the failure and, if so, what order would be appropriate.
In order to reach our decision as to whether an order should be made, we were entitled to consider the effect of the failure. As stated above, the failure was to provide the additional support which was required to enable the child to meet the educational objective identified within the CSP. If the additional support is not required to meet the educational objective, then the Tribunal were entitled to consider whether they should exercise their discretion to now order the Respondents to take action.
It was stated in the decision that “there was little evidence before the Tribunal... to reach the conclusion that the child had suffered a set back or been impaired in his abilities as a result of the failure... ” (italics are mine) (page 4 of the Decision) The purpose of the additional support was to enable The child to achieve his educational objective if this could not be achieved with the support of the school alone. While section 19 does not require us explicitly to consider if there has been any disadvantage, it does give discretion for the Tribunal to consider whether to make an order, and if so, to consider what order is appropriate. That being so, the Tribunal is entitled to consider if, in fact, the provision being complained of is “required” in terms of section 9(2)(a)(iii). If the additional support was required and not being provided, we were entitled to conclude that this failure in provision would be likely to disadvantage the child in his ability to meet the educational objective. There would have been inequity in that the child would be in a worse position than if the additional support had been provided. The purpose of giving the Tribunal the power to make an order for the Respondents to take action to provide the additional support is more than a paper exercise and must be to correct or alleviate any disadvantage suffered by the child as a result of the lack of the additional support.
In the absence of any evidence to prove that the additional support was required, either now or even at the time of drafting of the CSP, we turned to look at the evidence that appeared to show that it was not required. This included the facts that the parents appeared not to have disagreed with the decision to discharge The child from SLT; that The child was making good progress both at school and at home; and the fact that he had achieved results beyond what had initially been predicted for him when he commenced at the school, all in the absence of additional SLT. Accordingly, we find that there was no error in law.
(f) The Tribunal erred in seeking evidence that the continuing self harm arose solely from the child’s communication difficulties that SLT could affect.
The educational objective was stated to be...”The child will learn to respond to his environment and communicate in ways that will not involve him in harming himself.”
The appellant’s position was that this objective had not been fully met and so the requirement for SLT remained. This was on the basis that there was an admission from the witnesses that The child was continuing to exhibit some self harming behaviour. However, the objective was not to prevent all self harming behaviour, but to teach The child to respond and communicate in ways that will not involve him in harming himself. The letter of Discharge from SLT stated that that objective had been fulfilled. The Tribunal were entitled to consider whether the continuing self harming behaviour arose solely out of communication difficulties or whether there were other triggers for such behaviour. The decision refers to the evidence that sometimes there was no apparent trigger for an outburst of screaming and self harming. Accordingly the Tribunal were entitled to come to the decision that they did and we accordingly find that there was no error in law.
(g) The Tribunal erred in insisting that clear evidence about what form SLT input should take should be provided
The Tribunal had stated in the Decision –
“Even if the Tribunal had been satisfied that SLT was necessary, there was no clear evidence about what form such input should take – whether SLT would be required to work directly, one on one with The child, or indirectly, devising and monitoring strategies for others to implement.”
This was an obiter remark as the decision had already been made that no order should be made. The remark reflected the fact that the CSP stated that SLT should work with The child on a weekly basis but there was no evidence about what this would entail.
There was evidence that at The child’s school prior to attending at SK’s, SLT did not work directly with The child on a one to one basis, but rather that they were involved in devising strategies for those working with The child. Concern was expressed on behalf of the Applicants that if there was no provision of SLT at SK’s then there was no mechanism for an SLT practitioner to oversee the implementation of SLT strategies. Devising strategies for others or overseeing others in their implementation of strategies appeared to be contrary to the provision that SLT should work with The child.
If the Tribunal had been of the view that an order for the provision for SLT should be made, then it would have been open, in terms of the Act, to the Tribunal to call for additional evidence to ensure that the action to be ordered was appropriate. However, as it had been determined that SLT was not shown to be required, this does not form the basis of the judgement. Accordingly we find that there has been no error in law.
(h) The amendment of the Act by inserting section 18(3)(d)(ia) and the corresponding amendment of section 19(3) supposes the default that the Tribunal would take action and would specify a time in which the action should be taken.
The use of the word “may” should be ascribed its ordinary meaning and gives the Tribunal the discretion as to whether to make an order or not. There is nothing in the Act to suggest a “default” position which the Tribunal should have to justify departing from, otherwise the Act would have provided that the Tribunal MUST order the appropriate action. Accordingly, we find that there has been no error in law.
(i), (k) The approach taken by the Tribunal- to expect there to have been fresh independent expert evidence of the child’s needs; of a detriment arising out of those needs; and that SLT would successfully address the detriment, would place an unreasonable burden upon parents. If it was felt that such evidence was required, they should have given notice to the appellants and appointed a suitably qualified person to inquire and report on the same.
The Appellants chose to base their reference, and their approach at the hearing, solely on the fact that the CSP made provision for SLT and that SLT had not been provided. They assumed that there was no discretion open to the Tribunal and that, upon a finding that a failure had been established, the Tribunal must order that the provision now be provided, as stated in the CSP.
However, as already stated, the Tribunal does have a discretion and has to consider whether it should use that discretion to order that the failure be rectified and, if so, what action is appropriate. The effect of the discretion must be to allow the Tribunal, effectively, to review the original CSP. Only by considering the terms of the CSP, the consultations that led to the drafting of the CSP in its current form and whether the additional provision was required to enable to the child to meet the educational objectives identified in the CSP can the Tribunal reach a decision as to whether an order should be made or not.
In reaching its decision the Tribunal also bore in mind the spirit of the Act and the definition of additional support needs, rather than simply taking a pedantic view.
The Tribunal looked at the circumstances that led to this additional provision being identified and included in the CSP. There was very little explanation, bearing in mind that no SLT assessment was carried out at the time the CSP was drawn up, and no witness could give information about why SLT was put into the plan. Prior to The child commencing at SK’s there had been some evidence that SLT did not work directly with The child on a one to one basis. Against this, there was evidence that the SLT Team Leader for the area, carried out an assessment and following this decided to discharge The child from SLT. She confirmed in her evidence that she was satisfied that this had been the correct decision. Her given reason was that there was nothing that she could add to the support already in place from the school. There appeared to be consensus between the school and the SLT that the decision to discharge The child from SLT had been the correct one.
The Tribunal also considered the evidence that there was significant SLT input in the curriculum of SK’s where The child attended. We were entitled to question what additional, direct SLT input could achieve. The SLT specialist had discharged the child. There was consensus between the school and the specialist that additional SLT was not required. In the papers the parents had stated that, on the whole, they did not disagree substantively with the report discharging The child from the services of SLT, so there appeared to be consensus. If it had been felt that there was any doubt about whether additional support SLT was required, it would have been open to the Tribunal to have made an order seeking additional evidence and allowed the parties the opportunity of an additional hearing in respect of the same before making its decision. If there had been any information to suggest that the decision to discharge The child from SLT was incorrect, it would have been open to the Tribunal to seek to investigate this further, by way of seeking a further evidential hearing and also appointing an independent expert, in terms of Rule 24 of the 2006 Rules. This would avoid any unreasonable burden being placed upon the parents in terms of costs.
When bringing a reference before a Tribunal the Appellants were in no different position to a parent who brings a reference in terms of section 18(3)(a), being a reference in respect of a decision of an authority that the child does not require, or no longer requires a CSP; or section 18(3)(d)(i) being a challenge to the information contained within the CSP. In such references the applicants may find themselves having to lead evidence as to their child’s additional support needs. It is not unreasonable for the Tribunal to expect that parties to a reference should lead all relevant evidence to support their position. If they are not financially in a position to do so, then they may raise this with the Convener prior to the hearing and the Convener may then make an appointment of an independent expert as previously stated. Accordingly, the approach of the Tribunal does not place an unreasonable burden upon parents. The Tribunal finds that there was no error in law.
(j) The Authority’s course of action, if they consider that the CSP is no longer appropriate, is to review the plan. Having failed to do so, the Tribunal ought to have ordered the Authority to take action with a view to rectifying the failure to make provision of SLT
The appellant again seeks a “default” position that the Tribunal “must” order the failure to be rectified. The Tribunal’s decision was that the appropriate course of action was for the CSP to be reviewed and made an order to this effect. The Tribunal find that there was no error in law.
Summary of Decision on Application for Review
In our view, on a proper interpretation of Rule 45A, there is a two stage process:-
(1) that the Tribunal must firstly be satisfied that at least one of the three grounds of review in Rule 45A(a)-(c) is met;
(2) then the Tribunal may review and vary or revoke the relevant decision, order or award.
The use of the word “may” in Rule 45A(1) gives discretion to the Tribunal as to how to exercise its powers once a review has taken place. In our view, there are three possible outcomes allowed in terms of this discretion, namely-
i) to review and to vary the decision
ii) to review and to revoke the decision
iii) to review and to uphold the original decision.
This interpretation is guided by the terms of Rule 45A(6) which states-
“If, having reviewed the decision, the decision is to be varied or revoked,..”
Accordingly, there must be an option to the Tribunal to neither vary nor revoke the original decision.
Accordingly the role for the Tribunal is to give consideration to the original decision, and if satisfied that there has been an error in fact or in law in any part of it, to review, or reconsider, the original decision, or such part of it that may be based on an error in fact or law, in order to decide whether or not it needs to be revoked or varied.
The Tribunal are not satisfied that there had been any error in law and so the decision following the Review is to uphold the original decision. That being so, it is the decision of the Tribunal to refuse the Appellant’s request to order a rehearing of the Reference before the same or a differently constituted Tribunal.
