DECISION OF THE CONVENER ON A PRELIMINARY ISSUE
Case Ref No: D/11/2012
Child: 15 years
Date of Hearing: 14th May 2012.
TYPE OF REQUEST: PLACING REQUEST
- REFERENCE
A reference dated 18th November 2011 was received by the Tribunal’s Secretariat on 9th December 2011 in respect of a refusal of a Placing Request made by way of the Appellant’s letter dated 29th June 2011. The Appellant had made a Placing Request in respect of a place at special school not being a school under the management of an education authority.
- SUMMARY OF THE DECISION
The reference is incompetent. The reference is dismissed in terms of Rule 18 (4) having regard to Rule 18 (2)(b) of The Additional Support Needs Tribunals for
- PROCEDURAL HISTORY
The reference was received by the Tribunal Secretariat on 19th December 2011. A case statement period was set and the parties advised of the appropriate timetable. The parties were allowed to submit further papers and upon receipt of a letter dated 25th January 2012 (T18) it became apparent that the child, was already attending at the specified school and had been doing so for some time. As a result, a Direction was issued on 1st February 2012 directing the parties as follows:-
“I direct both parties to submit representations in writing clarifying:-
i. when the written placing request was submitted;
ii. where child is currently attending school;
iii. when she commenced there; and
iiii. the competence of the reference as a whole and with particular regard to section 18(1) of the Education (Additional Support for Learning)(
Parties were given the opportunity of considering the written submissions of the other and an opportunity to further respond in writing, if so advised. The Respondents written submissions confirmed their opposition to the reference on the grounds of incompetency. The Appellants sought and were granted an extension of time to lodge their written submissions. Thereafter, at the request of the Appellants, a preliminary oral hearing was assigned for 14th May 2012 at 10am. There were further papers lodged by the Appellants (T57 – T114) on 10th May and these were not objected to by the Respondents. Both parties lodged further papers during the course of the oral hearing and these were accepted into the Bundle (T115 – T188).
- SUMMARY OF THE RELEVANT FACTS
The child was born on 1996. The Reference form (T1-12) states that there has been a diagnosis of Potocki-Shaffer Syndrome and that she also has visual impairment and mobility and co-ordination issues. She lives with her parents within the area of the education authority’s responsibility.
The child had been attending at Academy, a school under the management of the EA since S1. A Placing request dated 29th June 2011 was submitted to EA nominating School, as the specified school. Due to the School summer holidays EA advised the appellant that there would be a delay in making a decision on the Placing Request.
The child attended at Academy until the end of term in June 2011. The new term started on 18th August 2011. The child did not attend at school at the start of the new term. A meeting was held by EA between the school and parents on 22nd August 2011. Minutes of the meeting, prepared by Pupil Support Department, Academy, were lodged . At that meeting parents advised that child did not intend to return to Academy, that the fees for the first term at School, had already been paid and that she was due to start at School, on 31st August 2011. In terms of the said Minutes, under the heading of Actions, it was stated “child is to be removed from the roll of Academy” and “Update ASN managers that child will be starting at school 31/08/11”. The timescale stated for both actions was “immediately”. It was a matter of agreement that child’s name was removed from the roll on 25th August 2011.
In terms of the same Minutes under the term “Actions”, it further stated-
“Assessment of child’s current and future needs – ongoing
To contact xxxx xxxx (Social Work Disability team) to help with assessment – ongoing
To look at funding of child’s placement – ongoing
To keep in touch with the EA + xx xxxx – as required.”
School, had made an offer of a place to Child by letter dated 24th June 2011 (T14). Parents accepted the offer on 22nd August 2011 (T61– T62). Child commenced at School, on 31st August 2011. Her attendance there was arranged by her parents on a privately funded basis and was not pursuant to any arrangement entered into by EA. School is a private special school and is not under the management or control of an Education Authority.
The Placing Request by Parents was refused by EA by letter dated 12th October 2011 (T13). The penultimate paragraph of that letter advised that, in terms of the Education (Additional Support for Learning)(Scotland) Act 2009 there was a right of appeal to the Tribunal and that any such appeal should be submitted to the Tribunal within 2 months of receipt of the letter.
Parents sought legal advice from xxxx and met with an advocate from xxxx on 8th November 2011, who advised them that the correct route in their circumstances may be to appeal to the Education Appeals Committee. On 14th November 2011 they telephoned EA for confirmation of the correct way to appeal and were advised that the correct way to appeal was through the Tribunal. With the assistance of xxxx a reference was submitted to the Tribunal dated 18th November 2011 (T113- T114).
The preliminary question for the ASNTS is whether the reference dated 18th November is competent in terms of section 18(1) of the Education (Additional Support for Learning)(Scotland) Act 2004, as amended.
- THE RELEVANT STATUTORY PROVISIONS AND AUTHORITIES
Education (Additional Support for Learning)(
Education (Additional Support for Learning)(
D_02_2011
WD v Glasgow City Council 2007 SLT 1057
R v Secretary of State for Health ex parte Quintavalle 2003 WLR 692
Stock v Frank Jones (Tipton) Limited (1978) 1 WLR 231
RB v Additional Support Needs Tribunal
Code of Practice 2010
Bennion on Statutory Interpretation
- SUBMISSIONS OF THE PARTIES
Following my Direction dated 1st February 2012 both parties submitted helpful written Submissions (T22- T23 for the Respondents and T36- T45 for the Appellants). At the oral hearing on 14th May further submissions were made. I found these further oral submissions to be most helpful in assisting me in reaching my decision.
At the outset of the oral hearing the Appellants sought to depart slightly from their written submissions. The Appellants had referred me to the Code of Practice but submitted that whilst due regard should be had to the Code, it should not be treated as determinative. Where there was any contradiction, the words of the statute should be preferred to those of the Code.
It was conceded that in the written submissions it was stated that the only remedy open to the parents if the reference was held to be incompetent was by way of a section 70 complaint to the Ministers, but this was no longer being insisted upon as it was accepted that they could also make an appeal to an Appeal Committee.
The Appellants wished to add to their written submissions in relation to their Esto submission - the relevant date, being the date when the test requires to be satisfied (3 part or 2 part) was the date of the request or decision and not the date of the reference, - in support of this they referred to s28 of the Act which puts certain responsibilities upon the education authority; s28(2)(e) – when refusing a placing request they must provide the person making the request (i) the right to refer the decision to an appeal committee or (ii) Tribunal, as appropriate
- DECISION AND REASONS FOR THE DECISION
The question I have to determine is whether the jurisdiction of an Additional Support Needs Tribunal for Scotland (“Tribunal”) extends to a reference relating to a refusal by an education authority of a placing request in respect of a place at a special school made to them in respect of a child who has additional support needs, where, at the time of making the reference, that child is no longer a child for whose school education the education authority are responsible.
The agreed pertinent facts are:
29/06/11 Placing request submitted
18/08/11 New term begins at Academy
22/08/11 Meeting between Academy and Parents
22/08/11 Parents accept the offer of a place at School
25/08/11 Child was removed from the roll of Academy
31/08/11 Child commenced attendance at School
28/08/11 Possible deemed date of refusal.
12/10/11 The Placing Request is formally refused
18/11/11 The present Reference was submitted to the ASNTS
Accordingly, at the date that the reference was submitted, the child was already enrolled at the specified school and continues to attend there.
For assistance I have narrated the relevant parts of the Act in my decision. The amendments brought in by the 2009 Act are shown in bold and where there are italics, these are my additions. References to a child include a child or young person.
References may be made to the Tribunal only in terms of s18 (1) of the Education (Additional Support for Learning) (
“18. References to Tribunal (deleted “in relation to a co-ordinated support plan”)
18(1) Any of the persons specified in subsection (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 (3) lists the decisions, failures or information that can be referred to the Tribunal.
The part of section 18(1) that gives rise to the present difficulty is the final 9 words, namely “for whose school education an education authority are responsible”. This would appear, on the face of it, to indicate that an authority should be responsible for the child’s education at the time of making the referral. If this is correct, then the present reference would appear to be incompetent, as the child was removed from the roll of Academy on 25/08/11 and the reference was dated 18/11/11.
It was submitted for the Appellant that the Act, as amended, should be interpreted to reflect the intention of Parliament, namely, to enable parents of children with additional support needs to make a placing request for a place at an independent special school to an education authority and to provide an appeal to the Tribunal where such a placing request was refused. They submitted that such appeals should be exclusively considered by the Tribunal. This should be the case regardless of whether or not an education authority are, at the time of the reference, responsible for the child’s education. To interpret the Act in any other way would lead to injustice or absurdity. In order for this outcome to be achieved, it would be necessary and appropriate to disregard the final 9 words.
The submissions of the Respondents were that the Act should be given its plain and ordinary meaning, and to have to delete words to give rise to the interpretation sought by the Appellants would be a radical departure from the normal rules of statutory interpretation.
Secondly for the Appellants, if it is to be determined that the Act states that the education authority require to be responsible for the child’s education before the Tribunal has jurisdiction, the Appellants submitted that the date at which the education authority are responsible should be taken as the date of the placing request, not the date of the reference.
Thirdly for the Appellants, if it is to be determined that the Act states that the education authority require to be responsible for the child’s education at the date of the decision rather than the date of the placing request, the Appellant submitted that date should be the deemed date of decision, in terms of Schedule 2 section 4(3), not the date of the written decision.
For assistance with interpreting the Act I was referred to Bennion on Statutory Interpretation (T145 –T146) and in particular,
“Section 195. The plain meaning rule.
It is a rule of law (in this Code called the plain meaning rule) that where, in relation to the facts of the instant case:
- The enactment under inquiry is grammatically capable of one meaning only, and
- On an informed interpretation of that enactment the interpretative criteria raise no real doubt as to whether that grammatical meaning is the one intended by the legislator,
The legal meaning of the enactment corresponds to that grammatical meaning, and is to be applied accordingly.”
With regard to the grammatical meaning of the relevant section the Act itself seeks to offer assistance. Section 29 defines a number of terms used in the Act and the relevant subsection is s29 (3) which is in these terms:
“Section 29 Interpretation
...
(3) In this Act, and subject to subsection (3A), 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.
(3A) For the purposes of this Act, where arrangements are made or entered into by an education authority in respect of the school education of a child or young person with another education authority, the authority responsible for that school education is the authority for the area to which the child or young person belongs despite the education being, or about to be, provided in a school under the management of another authority.”
This would appear to support the argument that, at the time of making the reference, an education authority (not the education authority, so not necessarily the education authority who made the decision) must have responsibility for the child’s education.
However, it was submitted by the Appellants that to interpret the section in this way, when reading it along with the terms of s18 (3) (da) created an anomaly. That subsection is as follows:-
“18(3)(da) the decision of an education authority refusing a placing request made in respect of a child or young person (including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible)-
- Made under sub-paragraph (1) of paragraph 2 of schedule 2 in relation to a special school, (a placing request to a school under the education authority management), or
- Made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a school mentioned in paragraph (a) or (b) of that sub-paragraph.” (a special school which is not under education authority management i.e. a private school)
It was submitted that by use of the words “including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible” placed this subsection in conflict with the apparent requirement by s18(1) that an education authority should be responsible.
In order to address this anomaly, it is necessary to consider the wording of s18 (1) closely. It was submitted that, rather than s18 (1) imposing a 3 part test upon appellants, as suggested in the case of D_02_2011 (which is not binding upon this Tribunal), instead it should be read as imposing only a 2 part test. When considering if this can be correct, it would appear that the two scenarios are as follows:-
3 stage test-
-Are they a person specified in s18 (2)
-Is the decision one which comes under the terms of s18 (3)
-Are an Education Authority responsible for the education of the child or young person to whom the decision relates
2 stage test-
-Are they a person specified in s18(2)
-is the decision relating to a child or young person for whose school education an education authority are responsible one which comes under the terms of s18(3)
I do not believe that it assists the appellants in either scenario, as the Act is worded in the present tense, and no ordinary reading of the Section can change this.
The question remains, does the Tribunal have jurisdiction to consider a reference from a parent whose child is not under the responsibility of an education authority in relation to a placing request for a place in a special school.
In their written submissions, the Appellant sought to refer me to the Code of Practice (Revised Edition 2010). In terms of section 19 (7) of the Act “In exercising its powers under this section, a Tribunal must take account, so far as relevant, of any code of practice published by the Scottish Ministers under section 27(1).” At the oral hearing the parties were in agreement that the Code of Practice should not be seen as determinative. However, regard must be given to its terms. Considering its terms did not provide a great deal of assistance as there still appeared to exist the same anomaly.
Chapter 8 is entitled “Resolving Disagreements” and sets out the various methods available, namely mediation, Dispute Resolution and reference to the Tribunal. At page 145 of the Code section 35 the Code explicitly states
“35. A reference can only be made in relation to a child or young person for whom an education authority is responsible. So, for example, parents who have placed their child in an independent school, and where an education authority has no responsibilities for the child’s education, are not able to make a reference to a Tribunal.”
However, chapter 9 is entitled “General Provisions” and seeks to make further provision in relation to placing requests. The Code considers appeal routes at section 18 (page 154) and at page 155 refers to section 18(3) (da) of the Act when setting out situations where a refusal of a placing request may be referred to a Tribunal. It does state that the Act, as amended, makes specific provision for appeals to a Tribunal against refusals to grant the placing request in which there is an issue relating to a special school. It does not explicitly overcome the statement in section 35 of Chapter 8. It does refer back to Chapter 4, which is entitled “School Attendance: Rights, responsibilities and placing requests”.
When looking at Chapter 4 paragraph 2 at page 59 the Code considers 5 circumstances under which a child or young person may not be receiving school education in their local school. The first of these is where parents may be educating the child or young person at home or may have arranged for the child or young person to attend at an independent or grant- aided school. The remaining 4 relate to an education authority having some responsibility for the child’s education, such as where the home education authority has entered into arrangements with another education authority to have the child educated in that education authority’s school.
Paragraph 6, p61 considers situations where parents are providing education at home or through attendance at an independent or grant aided school. Paragraph 7 refers to the education authority’s powers, rather than duties, in respect of such children. Paragraph 10, p63, advises that, in terms of section 18(3) (da) parental appeals can be referred to the Tribunal. This would appear to suggest that the appeal lies with a Tribunal. It is interesting to note that in the preceding paragraphs, 8 and 9 at page 62, when detailing the other avenues where a dispute has arisen, namely mediation and dispute resolution, both paragraphs explicitly state that this is available irrespective of whether the education authority are responsible for the child or young person’s education, but paragraph 10 is silent in this regard.
In order to address this apparent anomaly in both the Code and the Act, it is necessary to consider the actual wording of the Act and the rules as to how the Act should be interpreted.
The parties submitted that I should look at the intentions behind the 2004 Act and the 2009 Act for assistance in interpretation of the Act. Authority for this was to be found in the case of R v Secretary of State for Health ex parte Quintavalle (T129) ; paragraph 8–10 consider the approach to interpretation. I was referred in particular to paragraph 8-
“The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute.....The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose.”
Very helpfully the parties were able to refer me to the Education (Additional Support for Learning)(
The principal purpose of the Act in 2004 can be found in the Policy Memorandum (T147). The purpose was stated to be to modernise and strengthen the system for supporting children and young person’s additional support needs and to enable them to draw benefit from school education.
The Respondents referred me to the following passages (T148) –
“19. The duty to identify and address additional support needs will apply to those children or young persons for whom education authorities provide, or are likely to provide, school education, either directly or indirectly. This encompasses pupils at local authority schools and nurseries, and all those pupils whose education is being funded by education authorities, for example, at independent special schools, independent nurseries or in places outwith schools such as on a traveller site.”
(T149)-
“22. Questions were raised during the consultation about the possibility of extending the scope of the Bill to introduce duties beyond the public sector. Parents wishing to educate their children at home have a statutory right to make the choice to do so and responsibility for the child’s education then rests with the parents. Furthermore, it is not considered reasonable to expect education authorities to be responsible for children and young persons with additional support needs in independent schools (unless placed there by the authority, in the case of independent special schools).”
Paragraph 24 makes it clear that the Bill provides education authorities with the power, as opposed to a duty, to provide pupils being educated at independent schools or at home by their parents with certain advice and assistance in relation to their additional support needs, but makes it clear that even where the education authority choose to do so, the responsibility remains with the parents. This ethos was supported in terms of comments made in the Minutes of the Meeting of the Parliament Education Committee on 05/11/03(T152) and Minutes of the Meeting of the Parliament Education Committee on 17/12/03 (T154) (Stage 1)
Even at this stage in the life of the Act it was noted that there were possible ambiguities: (T159)- (Education Committee 2nd Report)-
“Another major area of concern is the ambiguity in the Bill to the position of children outwith the public education system. We fully endorse the view as stated in the policy memorandum that “it is not considered reasonable to expect education authorities to be responsible for children and young persons with additional support needs in independent schools (unless placed here by the authority, in the case of independent special schools). In our view the Education Authority’s role should be restricted to children or young persons for whom education authorities provide or are likely to provide school education, either directly or indirectly.”
In looking at the intention of Parliament in bringing in the 2009 Act, which amended the 2004 Act, I was referred to the Policy Memorandum (T165-T169) and the Explanatory Notes (T170-T172). I accept the submissions of the Respondents that the intention of the 2009 Act was to specifically address certain issues, including the issue raised in GW v Glasgow City Council.
The case of WD v Glasgow City Council highlighted an anomaly in the Act in its original terms in that it held that the terms of the Act did not make any provision, in respect of a child with additional support needs who required a CSP, for the making of a placing request school to any education authority who are not responsible for the child’s education, (an out of area placing request) or for a reference to the tribunal of a refusal by such an authority of such a request. It is helpful to consider the Discussion in the judgment that led to this decision (T99-T100).
“[57] In order to resolve that issue (of jurisdiction of the Tribunal) we shall consider first the categories of children in relation to whom an education authority has statutory powers and duties. We shall then examine the nature of an education authority's responsibilities in relation to a co-ordinated support plan (CSP) for a child with additional support needs. Against that background we shall analyse the relevant provisions of the 2004 Act and in particular section 18 and Schedule 2. We shall also notice the legislative antecedents of the 2004 Act and consider whether the Lord Ordinary's construction of the provisions would lead to an anomalous result.
[58] First, we note that each local authority in
This would appear to make clear that where a child falls into the third category, there is no duty upon the education authority, and logically, no appeal to the Tribunal of any refusal.
The amendments make provision for parents of children with additional support needs, including those with CSPs, to make out of area placing requests, and to appeal a decision to refuse an out of area placing request to the Tribunal. It also extended the Act to allow the Tribunal to have jurisdiction to consider any placing request appeal where a CSP is being prepared or is being considered. [section 18(3)(e) and section 18(4).] In the present case there is no CSP and no suggestion that one is being considered.
In response, the Appellants referred me to the Minutes to the 2nd stage of considering the 2009 Act per Adam Ingram (T118)-
“ one suggestion was that the Tribunal should be able to consider all placing request appeals in respect of a place at a special school. The collective purpose of amendments 1 to 4 is to allow all placing request appeals in respect of a place in a special school to be heard by the Tribunal.
Amendments 1 to 4 will enable parties to have their special school placing request appeals determined by a specialist decision making body that has expertise in additional support needs rather than by the appeal committee or the sheriff. To date all placing request appeals with which the Tribunal has dealt have related to special schools. I share the opinion of the president of the Tribunal that the complex routes of appeal for parents could be clarified by the establishment of a single, clear appeal route whereby if a placing request to a special school is refused the decision is referred to the Tribunal, which is composed of members who have expertise in dealing with such issues.”
The amendment by way of insertion of s18(3)(da) was made at Stage 2, as detailed in the 1st Marshalled List of Amendments for Stage 2 (T124).
The submission was that this imputed that ALL placing requests should be dealt with by the Tribunal. The appellants did concede that the paragraph referred to did not explicitly seek to include placing requests from parents whose children were not under the responsibility of the education authority.
I do not accept that the Act can be interpreted in such a way that the Tribunal has exclusive jurisdiction over placing requests to special schools, regardless of circumstances. There are a couple of reasons for this, as follows
I noted that the 2009 Act had taken the opportunity to insert into Schedule 2 section 2 an additional subsection (5) as follows:-
“s2(5) In sub-paragraph (1), the reference to an education authority includes an education authority which are not responsible for the school education of the child”
S2(1) relates to a placing request to a school under the management of an education authority. If it had been the intention that placing requests to a special school outwith the management of the education authority for children who were not under the responsibility of an education authority should also go to a Tribunal, then the draftsman of the 2009 Act had the opportunity, in terms of this subsection to make that intention clear. The Appellants conceded that they had not done so but sought to persuade me that this was an oversight. However, I am not persuaded by this, particularly having regard to the following passage to be found per Ken MacIntosh (T118)-
“I am sure that the minister is aware that the approach is a compromise and that to some extent we are making much more complex a process that is already complex. The avenues that are available to a parent of a child with additional support needs are many, and there are many ways to appeal a decision: appeals committees, a Tribunal or a sheriff court. We should bear in mind the fact that it is a complex matter and, although we have reached the best compromise, we may need to put more effort into the successful implementation of the 2004 Act and the reforms to it. Even then, we may still need to review the bill again in a couple of years.”
Accordingly, if the Act is defective in its terms, then it was anticipated that it would be for Parliament to review and amend rather than the courts or the Tribunal to attempt to do this by way of interpretation.
Authority that statutory amendment is the most appropriate route to address anomalies can be found per Viscount Dilhorne when he stated in the case of Stock v Frank Jones (Tipton) Ltd –
“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’. 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.”
I also note the comments by Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 repeated in paragraph 10 of Quintavalle (T131)-
“In any event there is one course which the courts cannot take, under law of this country; they cannot fill gaps; they cannot by asking the question “What would Parliament have done in this current case – not being one in contemplation – if the facts had been before it?” attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”
Further, the insertion of s2 (5) explicitly states that the reference to an education authority includes an education authority which are not responsible for the school education of the child. It could be said, by implication that such a condition does not apply to s5 (3) of the Act and so the reference, on that section, to an education authority must apply only to education authorities which are responsible for the school education of the child.
In the explanatory notes for the 2009 Act (T177, and T181) paragraph 17 it states that section 18(3)(da) is inserted to enable the decision of an education authority refusing a placing request in respect of a Scottish special school to be referred to a Tribunal-
“- it enables the decision of an education authority refusing a placing request in respect of a place in a Scottish special school to be referred to the Tribunal and also allows the decision of an education authority refusing a placing request in respect of a place in a school in England, Wales and Northern Ireland which is a school making provision mainly or wholly for children or young people with additional support needs to be referred the Tribunal whether or not a co-ordinated support plan is involved”
However, I take the view that this should be read in light of paragraph 8 highlighting 2 Court of Session judgements, one being GW v Glasgow City Council, and paragraph 9, which states that the 2009 Act amends the 2004 Act in light of [my italics] the ...recent Court of Session rulings. There is no suggestion in these notes that the intention of Parliament was to extend the jurisdiction of the Tribunal beyond what was required to remedy the difficulty identified by that case, and in particular, to allow section 18(3)(da) to open the floodgates for all appeals in relation to refusals of placing requests to a special school.
It may also be helpful to consider the following amendments made to the Act –
“18(3)(e) where subsection (4) applies¸ (where there is a CSP, a CSP is to be prepared, or there is no CSP and this decision is being appealed) a decision of an education authority refusing the placing request, other than a placing request mentioned in paragraph (da), made in respect of a child or young person including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible.
When reading this paragraph together with paragraph 18(3)(da), it would appear that the purpose of s18(3)(da) and s18(3)(e) is to extend the Act to allow out of area placing requests where there is no CSP as well as where a CSP is either in place or being considered or the lack of one is being challenged. The reference in brackets “(including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible)” can more properly be read as allowing placing requests to the out of area authority rather than the home authority, and not, as suggested by the Appellants, allowing appeals where the child is not under the responsibility of an education authority. To allow the latter interpretation would appear to put s18(3)(da)(ii) at odds with the rest of the section.
Parents of children not under the responsibility of an education authority do have a mechanism to appeal, in terms of s 5 of Schedule 2 of the Act they are entitled to appeal to an Appeal Committee. The section is as follows-
“5. References to appeal committee of refusal of placing request
- 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.
- Sub-paragraph (1) does not apply where the decision of the education authority refusing the request may be referred to a Tribunal under section 18(1)”
Reading this section it would appear that the intention is for the Appeal Committee, in fact, to be the first line of appeal and only if the reference comes under the terms of section 18(1) would it be foreseen that it would be dealt with by the Tribunal. The Appellants suggested that an appeal to an Appeal Committee would somehow be a less effective method of appeal. However, section 6 of Schedule 2 gives the Appeal Committee similar powers as the Tribunal; namely, they can uphold the refusal of the placing request, or refuse it and make orders to place the child in the specified school and to meet the costs of attending at that school.
Esto the Act is to be interpreted that at the time of the reference an education authority must be responsible, the Appellants argue that do so would lead to a grave injustice and absurdity in that parents such as the Appellants find themselves without recourse in the event that they move their child from a public school to a private school after submitting a placing request and before a decision is reached. However, it is clear from the Policy Documents referred to that it was intended that parents making such a decision should not be afforded the same protection as those who choose to have their child remain in the public education system. Parents who choose to move their child pending resolution of their application must fully consider the implications.
Further support for this position can be found in WD v Glasgow City Council (T104) when refusing the appeal-
“We appreciate that the reclaimer does not consider that these arrangements afford her an effective remedy, but before we would be justified in departing from the words of the Act, a strict test would have to be met. It is discussed in Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231. Viscount Dilhorne, with whom Lord Fraser of Tullybelton agreed, said at page 235E-F:
"The existence of anomalies, if they exist, cannot limit the meaning to be attached to the clear language of a statute."
Lord Simon of Glaisdale said (at page 237F-G):
"[A] court would only be justified in departing from the plain words of the statute were it satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such an anomaly, could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly."
Lord Scarman said (at page 239C-E):
"If the words used by Parliament are plain, there is no room for the 'anomalies' test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. ... If a study of the statute as a whole leads inexorably to the conclusion that Parliament has erred in its choice of words, e.g. used 'and' when 'or' was clearly intended, the courts can, and must, eliminate the error by interpretation. But mere 'manifest absurdity' is not enough: it must be an error (of commission or omission) which in its context defeats the intention of the Act."
[71] In the present case, although the words of section 18(1) and of paragraph 2(1) of Schedule 2 are open to more than one construction when read literally and in isolation, the language of the Act appears to us to be sufficiently clear. In any event, while we acknowledge that the reclaimer considers herself to be aggrieved, we are unable to find a clear and gross balance of anomaly which Parliament could not have envisaged, nor can we say that Parliament has made a drafting mistake which in its context defeats the intention of the Act.”
The court was not prepared to interpret the Act to allow an out of area placing request, although to do so clearly denied the reclaimer access to a Tribunal. I believe that the present situation is similar and where the terms of section 18(1) are clear it is not appropriate to delete or disregard the words in question simply to make the Act provide the desired outcome.
Even if I had been persuaded that the intention of the Act had been to restrict the decision regarding refusal of placing requests in respect of special schools to the Tribunal, and that it was appropriate to “ignore the last 9 words of s18(1) ” to achieve this, I believe it still would not have assisted the Appellants. They sought to persuade that what was required was that the education authority was responsible as at the date of the placing request or the date of the decision to refuse the placing request, rather than the date of making the reference.
S 18(1) allows for any decision to be referred to the Tribunal and to suggest that the date that the education authority should be responsible should be extended back to the date of the placing request being made would require this to be explicitly stated, rather than an attempt to read into plain words a meaning that simply isn’t there. Accordingly, the only date which could be relevant is the date at which the decision was made. The question then becomes whether the education authority could be said to be responsible as at that date.
In this particular case, the facts were that on 22 August 2011 at a meeting between the Appellants and Academy, the Appellants indicated that they had already reached the decision that child was not going to return to Academy. She had not commenced there when term had began 4 days earlier. The fees for the first terms at School had already been paid. It could be said that, having been left with little choice, Academy consented to child being removed from school. Her name was formally removed from the school roll on 25th August 2011. The acceptance form for School was signed by the Appellants on 22nd August.
The decision to refuse the placing request was dated 12th October 2011. The Appellants submitted that the letter (T60) purporting the extend the time for making the decision was incompetent in terms of the Code of Practice, as revised, and I accept their submission in this regard. Accordingly, by failing to make a decision within the statutory time limit of two months, the Respondents were deemed to have made a refusal as at 28th August 2011.
The Appellants referred me to the terms of the Minutes of the meeting on 22nd August and in particular (T59) the use of the words “ongoing” in the action plan. They submitted that this indicated that, despite child being removed from the roll at Academy, the Respondents accepted that they had an ongoing responsibility for her education. I do not accept that this was the case. In the case of RB v ASNTS, (T106-T111) the question of whether an education authority were responsible came down to the question of control. In the present case it cannot be said that the Respondents retained any control over child’s education. It is more likely that the reference to “ongoing” related to the outstanding placing request. It may also have reflected that the education authority were considering whether to exercise their powers, in terms of s.5 (4) of the Act, to offer assistance, rather than accept they had a duty.
In their oral submissions, the Appellants referred me to section 28 of the Act, and submitted that it placed upon the education authority a duty to inform parents of their right of appeal to a Tribunal in respect of a refusal of a placing request. They submitted that this placed an ongoing responsibility upon the education authority as, how could they have a duty to advise about right of appeal if the appeal rests on the date of the reference and not the date of the decision. The terms of that section are as follows:-
“28. Requests under this Act: further provision
...
(e) where the request was a placing request, inform the person who made the request of-
(i) the right under paragraph 5 of schedule 2 to refer the decision to an appeal committee, or
(ii) the right under section 18(1) to refer the decision to a Tribunal, (as appropriate).
The letter of refusal (T13) does advise the Appellants that they have a right of appeal to a Tribunal. The Respondent’s position is that this advice was, put simply, wrong advice and should not be deemed to be binding upon the Tribunal in any way or to impute that the Respondents, by giving this advice, accepted that a reference to the Tribunal was competent. Wrong advice cannot confer jurisdiction upon the Tribunal where it has none. I accept their submissions in this regard.
In a witness statement of the Appellants I note (T114) that they state that they sought advice from xxxxxx after receiving the letter of refusal from the Respondents. The advice given to them there was that the correct route of appeal may be to the Education Appeals Committee. In all of the circumstances I endorse this advice.
When the placing request was made to the Respondents, the child was a child for whose education the Respondents were responsible. When the Appellants removed child from the school and from the school roll, the responsibility of the Respondents came to an end. The terms of Section 18 (1) requires that a reference can only be made to a Tribunal, rather than an Appeal Committee, where an education authority are responsible and accordingly, I find that the reference is incompetent and dismiss the same.
