ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/05/2009

 

Gender:                   Male

 

Age:                        15

 

Type of Reference: Review of Co-ordinated Support Plan

 

 

­­­­­­­­ Decision on expenses under Rule 39 determined on the papers consequent to the decision of the Tribunal issued following the hearing held on 15/05/2009

 

 

1. Decision of the Tribunal

 

The conduct of the respondent in resisting the reference was wholly unreasonable in terms of Rule 39 (1)(a) and the Tribunal finds the respondent liable to the appellant in the expenses of the reference in the sum agreed by the parties or expenses on a party and party basis as taxed.

 

In the event that the sum accounted for by the appellant is disputed by the respondent, said accounting shall be subject to taxation by the Auditor of the Court of Session in terms of Rule 39 (5).

 

2.  Preliminary

 

At the close of the hearing on the reference, Solicitor for the appellant sought an order for expenses under the terms of Rule 39 (1)(d) of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006. Under Rule 39 (1)(d), the Tribunal may make an order for expenses against an authority “where the Tribunal considers the disputed decision, failure or information was wholly unreasonable.”

 

Accordingly the decision issued after the hearing stated:

 

The Tribunal has reserved this matter to allow the appellant to consider whether the terms of the decision above might support a submission consistent with this test for expenses; to lodge a written submission to give the respondent due notice of the grounds of the application and enable the respondents to produce answers to this motion. In the event of parties indicating that they wish to be heard on the matter, a date for a hearing purely on the issue of expenses will be arranged as soon as possible.

 

3. Submission for the Appellant

 

The written submission was as follows:

 

Rule 39 (1)(d) of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 provides that the Tribunal may make an order for expenses against an authority “where the Tribunal considers the disputed decision, failure or information was wholly unreasonable.”

 

The decision of the Tribunal was to overturn the decision of the authority to refuse the Appellants request to review the child’s CSP early.  The  request was held by the Tribunal to be a reasonable one.  The decision of the authority to refuse to comply with a reasonable request where they have a statutory duty to do so was, almost by definition, unreasonable.  The factors which make it “wholly unreasonable” are as follows:

 

1. The Education Authority’s failure to provide a response to the Appellant request for a period of 15 weeks.  As the Tribunal notes, this excessive delay was “never satisfactorily explained in evidence”.  As was noted in the original reference form, in the time it took the authority to respond to the appellant’s request, a complete review of the child’s CSP could have been completed.

 

2. The decision letter of 17 February 2009 is deficient in several respects, as set out by the Tribunal in their decision:

 

• • It does not refer to the date or nature of the request made by the appellant’s Solicitor but just refers to “recent correspondence”.
  • It does not bear to be a decision made in exercise of the authority’s statutory duties under the Act.
  • However it purports to be a decision since it states “[The} Co-ordinated Support Plan will be reviewed when his placement has been finalized” but does not give any reasons for this course of action or state why the request to review was unreasonable.
  • It does not indicate any appeal rights or offer mediation or any meeting to discuss the issue with the parent.
  • It does not give any explanation of the delay in responding to the initial request made on 03/11/08.

 

3. The Education Authority’s failure to produce or provide guidance to staff on early reviews.  The Tribunal considered that “matters such as a request to review can reasonably be anticipated and guidelines could be provided.”  Indeed, the Code of Practice, at Chapter 4, para. 67 states:  “.. a child’s parents … may request a review before 12 months have elapsed and authorities must meet this request unless the request is unreasonable.  Education authorities should give clear guidance to schools and their staff in this regard.”  The Education Authority’s guidance handbook clearly did not cover early requests for reviews and the Tribunal found that “There appeared to be no guidance relating to reviewing a co-ordinated support plan before the expiry of 12 months or even guidance on what the annual review should comprise.”

 

For the reasons above it is submitted that the decision of the authority was “wholly unreasonable” and it is therefore appropriate that an award of expenses be made against the authority.

 

4. Answers for the Respondent

 

The written submission was as follows:

 

Reference is made to Rule 39(1) of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 and in particular where it is stated that a Tribunal shall not normally make an order as to expenses but may do so where it considers that the disputed decision, failure or information was wholly unreasonable. I would submit that the test for this is therefore a very high one.

 

With regard to the points made by the appellant’s solicitor in his submission I would make the following observations:-

 

While it is accepted that the respondent has been criticised by the Tribunal with regard to the delay in responding to the appellant’s solicitor, the Tribunal did note that there are no statutory provisions requiring an authority to respond to requests for a review of the co-ordinated support plan within any given timescale. This delay in responding does not, it is submitted, amount to a failure which was wholly unreasonable in circumstances where those who were considering the request for a review had corresponded with the appellant’s solicitor in order to clarify the position.

 

Deficiencies in the decision letter of 17 February 2009 are not in themselves enough, in my submission, to amount to a failure which was wholly unreasonable. The letter was addressed to the appellant’s solicitor who advised the Tribunal that he was at that time aware of his client’s right to appeal.

 

The Tribunal recognised that there is a lack of explicit guidance available to authorities on when it might be unreasonable to embark on a review, and, in particular, noted that the Code of Practice contains no guidance which might assist in the interpretation of section 10 of the Education (Additional Support for Learning) (Scotland) Act 2004, and that this might be addressed in any review of the Code of Practice in order to try and achieve consistency across authorities. A failure by the respondent to provide guidelines is not wholly unreasonable in circumstances where the Code of Practice itself does not elaborate on the statutory provisions. That being said it is proposed by the respondent that the current guidelines for employees, which are referred to in the Decision, will be revised to provide more information in this area.

 

The refusal of the respondent to commence a review of the co-ordinated support plan when requested by the appellant’s solicitor was based on its interpretation of the statutory provisions. The respondent understood that it was obliged to carry out the review unless the request was unreasonable. It was the respondent’s position that the request was unreasonable and that was the basis for its refusal to commence the review. A misunderstanding, or misinterpretation, of statutory provisions is not in itself wholly unreasonable.

 

In any event the respondent did write to the appellant’s solicitor on 9 April 2009 advising that the review process would be commenced on 20 April. The process thereafter commenced on that date and the appellant was advised of this at that time.

 

At the conference call on 24 April 2009 the respondent indicated that it was their hope that the reference would settle owing to the commencement of the review process, and at the conference call on 13 May 2009 the respondent indicated that it intended to ensure that the process would be completed by the date proposed by the appellant or at least by the end of the school term.

 

While it is recognised by the respondent that, notwithstanding the statements made on its behalf during the conference calls, the appellant wished to proceed to a hearing on the reference, it is submitted that the review of the Co-ordinated Support Plan had already been commenced by the respondent and that the outcome of the proceedings made no difference in a practical sense to that process save for the date by which the process must be concluded. The criticisms of the respondent’s procedures, in relation to dealing with an early review request, made by the Tribunal in its Decision have been recognised by the respondent and steps are being taken to address the deficiencies which have been highlighted.

 

It is the respondent’s position that the process followed by it in this case was undertaken in good faith and with regard to the statutory provisions and the available guidance, and that through its actions or omissions it could not be regarded as having acted in any way wholly unreasonably. Accordingly no award of expenses should be made against it.

 

5. Further Directions from the Convener

 

Following receipt of these submissions the convener issued a further direction as follows:

 

1. Parties are advised that the Tribunal will convene to determine the matter of expenses on 16 July 2009.
2. The appellant is directed to produce before this date a note of the expenses which will be claimed since the order, if made, must specify under Rule 39 (5) the basis on which the order is made.
3. The appellant has specifically sought expenses under Rule 39 (1)(d). No submission has been made under Rule 39 (1)(a) although this provision appears to be at least as equally relevant to any motion for expenses against the authority in that it applies where the “resisting of a reference was wholly unreasonable” whereas Rule 39 (1)(d) applies only to the “disputed decision, failure or information”.
4. Since it is incumbent on the Tribunal to exercise an enabling role and may consider this provision even though not raised by the appellant, parties are directed to submit any further comments in writing in respect of this provision not later than 15 July.
5. In the event of no further submissions on this provision being received, the Tribunal will proceed to consider the applicability of both Rules 39 (1)(a) and 39 (1)(d).

 

The appellant merely confirmed that he was alternatively seeking expenses under Rule 39 (1)(a) and the expenses sought should be on  a party and party basis although no account of expenses was produced. It was submitted that the Auditor of Glasgow Sheriff Court tax the account in the event of dispute but the Rules do not provide for any discretion being exercised by the Tribunal in relation to the Auditor. It is possible that parties could themselves agree an alternative Auditor but this would be a matter between them and could not form part of any Tribunal decision.

 

The respondent submitted a brief additional response arguing that since Rule 39 states that the Tribunal “shall not normally make an order as to expenses”, expenses should only be awarded in exceptional circumstances. The rule does not explicitly import the test of “exceptional circumstances”.

 

6. Reasons for Decision

 

Neither party sought an oral hearing in connection with this matter which has been decided purely on the basis of written submissions. Since this is the first time that such a motion has been made under Rule 39 it may have been helpful for the Tribunal to have heard oral debate on the issue but we are mindful that this would, in turn, have incurred additional expense. It is observed that Rule 39 does not specifically empower the Tribunal to order an oral hearing on this matter where parties are content to rely on written submissions. Indeed Rule 15 in respect of directions only refers to directions made by the convener “before the hearing”.

 

The Tribunal accept that the tests imposed by Rules 39 (1)(a) and 39 (1)(d) both apply the high test in respect of the respondent’s conduct of “wholly unreasonable”. The former applies the test purely to the “resisting of the reference” and the latter to the “disputed decision, failure or information”. If the Tribunal finds that the respondent’s actings in respect of the latter were wholly unreasonable then the respondent is liable in expenses without the need for the other test to be applied. However, it is possible that both Rule 39 (1)(a) and 39 (1)(d) could both be satisfied. Indeed it is likely if the decision, failure or information is wholly unreasonable then resisting a reference to argue otherwise would be equally wholly unreasonable.

 

If the Tribunal finds that those actings prior to the reference being submitted were not “wholly unreasonable” then it is necessary to proceed to consider whether, even though the decision was not wholly unreasonable, the resisting of the reference was in itself wholly unreasonable. We did not consider in any detail whether the respondent acted “frivolously or vexatiously”. It appears that this test may be more applicable to an appellant and there was insufficient evidence to indicate that the respondent’s conduct could be described in this way.

 

Circumstances in which a decision may be not unreasonable but resisting the reference may be wholly unreasonable would, in all probability, relate to the production of further evidence which may cast such doubt on the validity of the decision reached that it would have been different or where there is a significant change in the child’s circumstances between the date of the decision and the hearing which would lead to another decision being reached.

 

It is evident in this reference that the respondent anticipated that the reference would be withdrawn following the decision of the authority to commence its own review of the Co-ordinated Support Plan in April 2009, six months after the request for review but three months prior to the time for the annual review.  However the appellant sought a decision to find the respondent’s decision not to review to be wrong in law. This may not appear consistent with the ethos of the legislation to try, where possible, to settle matters without proceeding to hearing but the appellant was entitled to maintain her reference on this issue. The respondent was then at liberty to decide whether the reference should be resisted. Regardless of whether the decision on the authority was wholly unreasonable, it is difficult to understand why the authority insisted on maintaining their resistance to the reference.

 

Their position at the hearing was that at the time they intimated the decision on 17 February it was not reasonable to review the Co-ordinated Support Plan but shortly after the reference was made on 04/03/2009 they thought it appropriate to do so on the basis that the child had been placed in the school on a residential basis.

 

Turning to the respondent’s arguments, the Tribunal accept that in the absence of any legislative provisions requiring an authority to respond to a request for review within a given timescale, it is not possible to hold that the delay of 15 weeks breached any statutory requirement. It is still possible to observe that the delay was unreasonable on the evidence considered by the Tribunal having regard to the respondent’s duties in respect of the 2004 Act.  In the absence of a statutory provision we are unable to find, however that this fact alone could support a conclusion of “wholly unreasonable”.

 

The second argument was that the terms of the decision letter of 17 February could not be regarded as “wholly unreasonable” as it was addressed to the appellant’s solicitors who were aware of any appeal rights even if these were not stated. The letter, however, is not merely deficient in failing to state any onwards rights of appeal or other possible remedies. It also fails to apply the correct statutory test to the decision in that it does not state that the request to review was “unreasonable” in terms of Section 10(4) of the 2004 Act. It merely states why the authority chose not to commence the review. The decision reached did not demonstrate that the correct statutory test had been applied. Failure to demonstrate even implicitly that the correct test had been applied is, arguably, wholly unreasonable.

 

The third argument was that the lack of explicit guidance in the Code of Practice was at least mitigation for the respondent’s failure to have any guidance of their own in respect of what might amount to an unreasonable request for review. Had the respondent demonstrated or even asserted at hearing that they had sought for assistance from the Code of Practice in determining whether the request to review was “unreasonable” but the search was in vain then this argument might have carried more weight. Where the correct statutory test never seems to have been considered then the absence of any guidance in the Code to supplement the provision in the Act is not a compelling one.

 

In applying Rule 39 (1)(d) the first issue is whether the failure to apply the correct statutory test in reaching a decision on whether to review can support a finding that the decision reached is “wholly unreasonable”.  The second issue is whether the reasons given for the decision reached also support this finding.  The reason given that no review could take place until the child had a settled place of residence would seem to strike at the very function of the CSP which is to facilitate an interactive assessment of the child’s needs involving the child, the parent and all other relevant professionals. The decision to await a settled residence appears, although the evidence on this was equivocal, to have been taken by the co-ordinator, an educational psychologist with very little experience in managing Co-ordinated Support Plans and in the absence of appropriate guidance from education officers. 

 

The term “wholly unreasonable” is not defined and this was not subject to oral argument but it could be said to amount to a decision which no reasonable person could have reached in the same circumstances; a decision which is entirely inappropriate; one which is totally lacking in judgement or reason; one in which there has been a reckless, negligent, blatant, wilful or deliberate disregard of the test to be applied. The Tribunal, albeit with some hesitation, finds that the decision of the respondent was not so grossly inappropriate that it can meet the test of “wholly unreasonable” in respect of the decision issued on 17 February. In so doing it is appreciated that, for the most part, those making decisions in this field are not legally trained, they are applying new provisions which are sometimes complex, they are required to work in a multi-disciplinary way, they may carry heavy case loads and the existing Code of Practice is far from comprehensive in providing accessible guidance. 

 

We then turn to the second test as to whether the respondent’s maintained resistance to the reference itself was “wholly unreasonable” in terms of Rule 39 (1)(a). In this regard we find that the resistance to the reference was “wholly unreasonable” having regard to the following:

 

 

 

1. By the time the appellant submitted the reference the authority had the benefit of a cogent argument submitted by the appellant’s solicitor as to why the authority had erred in not acceding to the request for the review.
2. The respondent had the benefit of then reviewing this decision, referring the matter for legal guidance and duly did so.
3. The respondent’s decision to decide two months after the reference was lodged to then institute its own review does not cure the deficiencies with regard to the request made in November 2008.
4. The respondent is likely to have far greater access to resources than the appellant in seeking legal opinion on such matters and is bound to act responsibly and reasonably with regard to their statutory duties.
5. It should have been immediately apparent to the respondent that it had failed to apply the correct statutory test and that the decision of 17 February was deficient in several regards. The fact that decision is being sent to a solicitor acting for a parent does not absolve the authority of the duty to indicate appeal rights as set out in Section 11 (2)(b)(ii) of the 2004 Act.
6. The respondent had the opportunity to withdraw their opposition to the reference at any stage prior to the hearing but chose not to do so. The resistance of a reference is a continuous act over a significant period of time sufficient to allow serious consideration of the decision to oppose.
7. The appellant had, quite properly, indicated in the case statement at A1 that they would be seeking an order for expenses against the authority in terms of Rule 39 (1)(d) thereby giving them ample notice of their intention in this regard.
8. In such matters it is appropriate for the authority to act responsibly in conceding matters to ensure that parents do not find themselves having to proceed to an oral hearing.

 

It is observed that active case management of this reference, where there were four oral witnesses together with the use of witness statements, meant that the case was concluded within one day, thereby restricting parties’ expenses.

 

It is accepted that the making of an order of expenses against a party should not inappropriately inhibit parties from bringing references or seeking to resist them where there are arguable grounds for so doing. It is, nevertheless important that where a reference is before the Tribunal that the parties and those advising them should consider very carefully the arguable legal issues. There will, undoubtedly, be a heavier onus on parties who are legally represented to satisfy themselves that their actions do not potentially bring them within the ambit of Rule 39.

 

For all the above reasons we find for an award of expenses against the respondents.

 

In view of the issues raised this decision will be placed on the decisions database on the website for the interest of Tribunal users.