ASNTS_D_09_2015_30.09.14

ANONYMISED DECISION OF THE TRIBUNAL

Decision of the Tribunal

The Reference is struck out under rule 18(4) of the Rules on the basis that, in terms of Rule 18(2)(b), the Reference is not within the jurisdiction of the Tribunal.

Reasons for decision

Background

1. This is a decision on a request from the Appellant to strike out the reference under rule 18(4) of the Tribunal rules on the basis that the reference is not within the jurisdiction of the Tribunal. The path this request has taken is unusual since it has not arisen out of the Tribunal noticing a potential jurisdictional problem (which is the path envisaged in rule 18(1)) but instead it has come from a request from one of the parties. Even more unusually, the request for the striking out of the reference comes from the Appellant. Further, the question I need to answer here is a novel one.

Procedure

2. Following the initial request from the Appellant’s representative, I issued a direction dated 23^rd July 2014, seeking further clarification of the Appellant’s arguments. Following on from the Appellant’s response to that direction, I held two conversations by conference call with the two representatives, on 6^th and 22^nd August 2014. In the first conference call, a general discussion of the point in issue took place, and the parties agreed that they would explore the possibility of producing a Joint Minute of Admissions, with a view to avoiding, if possible, the hearing of evidence on the jurisdiction point. By the date of the second conference call, a draft Joint Minute was produced by the Appellant. It was agreed during that call that the Joint Minute would be converted into a statement of uncontested facts, since many of the facts recorded in the draft Joint Minute were facts which the Respondent was not in a position to dispute, but could not agree. Following that call, the Appellant’s representative produced an Uncontested Statement of Facts, which the Respondent’s representative confirmed was acceptable as a basis for my consideration of the point in issue. Having considered the arguments, I released my decision on 1^st September 2014 and these reasons follow.

3. In reaching my decision, I took account of the various arguments made by e-mail and during the calls from both representatives and the reference application, as well as:

(1) The said Uncontested Statement of Facts;

(2) Letter dated  June 2014 from Headteacher of School A, to the Appellant; and

(3) E-mail from Headteacher of School A to the Appellant dated June 2014.

The Jurisdiction Issue

4. The question for decision is whether or not the request made by the Appellant to the Respondent to place The Child in School A, was a valid placing request under the Education (Additional Support for Learning) (Scotland) Act 2004 (‘the 2004 Act). The key question is around the meaning of the phrase ‘willing to admit The Child’ in Schedule 2, paragraph 2(2)(a) of the 2004 Act.  The Appellant made a request to the Respondent to place THE CHILD in School A on 15^th February 2014. That request was refused on 10^th April 2014. That refusal was followed by the lodging of this Reference on 12^th June 2014. On around 14^th July 2014, the Appellant’s representatives intimated the request to strike out the Reference for want of jurisdiction.

5. The Appellant’s argument is that there was no firm offer of a place, nor was there a firm willingness to admit THE CHILD, at the time of the making of the request to place. There was never, then, a valid placing request. If this is correct, the purported refusal of the request was not a refusal to which the 2004 Act applies, and so the reference seeking to challenge that refusal was not a reference within the scope of the 2004 Act and the 2006 Rules. The Respondent’s position was neutral. The Respondent did wonder whether, even if the terms of Schedule 2 paragraph 2(2) were not fully satisfied, this inevitably led to the request not being a valid placing request; she pointed here to the apparent purpose of that provision as being to define when the obligation on an education authority to meet the fees and costs of The Child’s attendance in the school applies (see the final sentence of paragraph 2).

Analysis

6. Dealing with The Respondent’s point first, although an interesting one, in my view if a request does not comply with the relevant requirements in Schedule 2 paragraph 2(2) of the 2004 Act (always assuming that Schedule 2, paragraph 2(1) does not apply), it is not a placing request at all. This is clear from the wording of Schedule 2 paragraph 2(3), which defines a placing request as a request under either sub-paragraphs (1) or (2) of paragraph 2. Of the three alternative conditions in Schedule 2, paragraph 2(2), it is clear that neither (2)(b) nor (c) apply here. Paragraph (2)(a) does apply here.

7. In order to be a placing request under paragraph 2(2)(a) of Schedule 2 to the 2004 Act, the managers of the special school in question (here, School A) must have been ‘willing to admit The Child’. The question of the stage at which that willingness must exist was discussed with Parties. It seems clear to me that the willingness to admit (whatever that means) must exist at the time of the making of the request to place. It makes no sense, in my view, to consider the position at any other point in time. If the willingness to admit exists at the time of the request, then it is a placing request, if not, it is not a placing request, and never has been. The position at the time of consideration of the argument is technically irrelevant. Of course, from a practical point of view, if the managers of the special school have withdrawn their willingness to admit The Child, that is very likely to lead to the reference being withdrawn, and where not, would ultimately will lead to the refusal of the reference on the basis that in all the circumstances it is appropriate to confirm the refusal decision (s.19(4A)(a)(ii) of the 2004 Act).

8. This timing point is relevant here, since the letter and e-mail from the Headteacher of the school (documents (2) and (3) above) are not, on the face of it, evidence of the position at the earlier date of the making of the placing request. Having explored this issue, however, and considering the uncontested facts, and all of the material available to me, it seems clear that the position of School A on the possible admission of THE CHILD has been consistent from the date of the request onwards.

9. The question of what is meant by the phrase ‘willing to admit’ lies at the heart of this jurisdictional challenge.

10. Firstly, it is important to note that Parliament has not made the existence of an offer of a place in the special school a prerequisite of a valid placing request under Schedule 2, paragraph 2(2)(a) of the 2004 Act.  It would have been simple to do so, by the use of different language there (such as ‘…have offered The Child a place in that school’). The requirement of an offer to place exists elsewhere in the same Schedule (Schedule 2, paragraph (3)(f)(iv)) and while this requirement exists in a different context to the one I am considering (namely, in the context of a ground of refusal where the education authority must have offered to place The Child in a school other than the one in the placing request), the choice of different language in the provision in question indicates that Parliament intends that being ‘willing to admit’ has a different meaning from offering a place.

11. Secondly, it does not seem sensible for there to be a requirement that an offer of a place in the special school in question must exist in order that the request to place The Child there is a placing request. At the stage when the school’s position on whether The Child may attend there first arises, a request to the education authority to place The Child there will not yet have been made.  At that time, then (when the approach is made to the school by The Child’s carer(s)) it is impossible to predict when The Child will (if at all) come to be placed there. The placing request may, of course, be granted. Even where that happens, that will take time. Much more time will pass if the request is refused and there is a reference to the Tribunal, resulting in a decision on the question of whether the Respondent should be ordered to place The Child in the school. In such an event, there may be many months between the initial approach by the parent to the school and the date of the Tribunal’s decision. The roll of any school may have dramatically changed over this period of a number of months. Indeed, it is even possible that The Child’s needs (as identified) may have changed over that period, such that The Child can no longer be accommodated in the special school. It does not seem sensible, then, for there to be a requirement of an offer of a place for The Child at the initial stage of the process, firm or otherwise.

12. So much for what is not a willingness to admit a child. Turning to consider what that phrase does mean, in my view it means that the special school in question must be prepared, in principle, to admit The Child. This is a sensible interpretation given the use of these words, and the early stage at which the attitude of the school is being measured. In this case, this test is not satisfied. The key issue here is that the special school has not yet assessed the suitability of THE CHILD for admission. Indeed, THE CHILD has not met with any of the school staff. The school has been at pains to stress (both in the e-mail and letter (2) and (3), above, from the Headmaster) that such an assessment would be necessary prior to a decision on THE CHILD’s admission. The school does indicate that it is believed that it could meet THE CHILD’s needs, but this is ‘subject to formal assessment’ (see the letter at (2) above). There may be a willingness to admit a child (in the context of the 2004 Act) where there remains a condition to be fulfilled before it can become a firm willingness (such as a condition that a place in the school is available when The Child is ready to attend or one to the effect that the needs of The Child at the time of admission have not materially changed). However, where the condition is that an assessment of suitability takes place, this is, in my view, sufficiently significant to prevent that willingness amounting to the school being prepared, in principle, to admit The Child. To put it another way, a special school cannot be regarded as being prepared, in principle, to admit a child prior to an assessment of the suitability of the school for The Child’s needs.

Other Factors

13. There was some discussion of the normal practice of special schools, and whether other special schools normally issue a firm willingness to admit a child at the stage of making the request to place, but ultimately, I decided that I should not take this into account. The sole question for me is: was there, in this case, a placing request within the meaning of the 2004 Act?

14. I took the same approach to consideration of the impact of my decision. I left out of account the question of what would happen if I decided that there was a 2004 Act placing request. Had I done so, the current reference might be the only one that could be made within 12 months of the lodging of the reference (see s.18(7) of the 2004 Act). However, again, that does not have a bearing on the question I have to answer.

Conclusion

15. Since the managers of the special school (personified in the Headteacher) were not (at the time the request to place The Child was made) willing to admit THE CHILD, that request was not a placing request within the meaning of the 2004 Act. There was therefore no refusal of a placing request, and therefore this reference (which purports to challenge that refusal decision) falls outwith the jurisdiction of the Tribunal. This reference requires, therefore, to be struck out.