ASNTS_D_10_2011_02.06.11

DECISION OF THE TRIBUNAL

Reference:      D_10_2011                

Gender:           Male

Aged:               5                     

Type of Reference:     Placing Request Competence           

1. Reference

The reference is in respect of an alleged refusal of a placing request.

2. Decision of the Tribunal

The reference is dismissed as it is not competent due to lack of jurisdiction.

3. Preliminary Issues

On receiving the reference a Convener made directions to parties raising the potential issue of lack of jurisdiction and allowed parties 14 days to make written responses. Responses were received from both parties and in view of the legal issues raised I considered it just to enable oral representations from parties by way of a telephone conference call on the issue of jurisdiction.

4. Summary of Relevant Facts

The child is 5 years old. The child has a co-ordinated support plan. The child has additional support needs. The child is currently in primary 1. The child attends a mainstream primary school, his school placement being split between the mainstream primary school and a specialist facility in another primary school. Following an assessment meeting and by letter dated 25 January 2011 the Head Teacher of the child’s mainstream secondary school made a request that the child continue to have a “split placement” between the two facilities for the school year commencing August 2011. The Appellants submitted that this request amounted to a placing request. By letter dated 7 April 2011 the Authority responded that the Child’s needs could be met at mainstream school with outreach support. The Appellants founded upon this letter as the refusal of placing request that gave rise to the reference. The child’s mother submitted a placing request to the authority in April 2011, which the Authority still has time to respond to.

5. Submissions

In so far as relevant to the issue of jurisdiction the Solicitor for the Respondents Submitted that the letter from the Head Teacher was not and could not have been a placing request. Schedule 2 of the Education (Additional Support for Learning (Scotland) Act 2004 (“the act”) provides that a placing request may be made by the parent of a child having additional support needs. Parent is defined in section 135 of the Education (Scotland) Act 1980 (“the 1980 act”) as including “guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1985) in relation to or has care of a child or young person. The Head Teacher does not fall within this definition and accordingly could not competently make a placing request on behalf of the Child. The letter from the Head Teacher was a reference to the Authority’s Senior Officer Review Group in accordance with the Authority’s procedures for determining allocation of provision and support to children with additional support needs. It was not and could not have been a placing request. Similarly the Tribunal cannot consider “anticipatory referrals.” Similarly the letter of 7 April 2011 was not a response to a placing request. The Tribunal can only consider matters that by law it is entitled to consider by virtue of section 18 of the act.

In relation to the issue of jurisdiction the Appellant’s representative submitted that the request dated 25 January 2011 was submitted in the belief that it was the normal procedure to submit placing requests in that way.  The Senior Officer Review Group considers placing requests on behalf of the authority. The normal procedure and protocol in the Authority’s area for making placing requests had been followed and other requests had been considered following the same procedure.

It was agreed by both representatives that the Authority still had time to respond to the placing request made in April 2011.

6. Reasons for Decision

I accepted the submissions of the Authority on jurisdiction. The tribunal’s jurisdiction is governed by legislation and it cannot consider matters outwith its jurisdiction. To consider a placing request appeal there has to have been a valid placing request. The letter from the Head Teacher which was founded on by the Appellants as the basis for the placing request is not and could not be a valid placing request as a placing request for a child with additional support needs must be submitted by the parent of a child (schedule 2 of the act). The Head Teacher does not fall within the definition of parent prescribed by s135 of the 1980 act.

Similarly, a refusal of placing request or a deemed refusal is required before the Tribunal has jurisdiction to consider a placing request. Given the period of 2 months for the Authority to consider the April placing request has not expired the tribunal cannot consider that request.

Accordingly the reference is dismissed due to it not being within the jurisdiction of the Tribunal.