ASNTS_D_02_2011_17.02.11

 

 

 

 

 

DECISION OF THE CONVENER ON A PRELIMINARY MATTER

 

Reference:

 

Gender: Male

 

Aged: 5

 

Type of Reference: Placing Request

 

1. Reference

 

A reference, dated 22 November 2010, was received by the Tribunal’s Secretariat, on 24 November 2010, in respect of a deemed refusal of a placing request made by way of the Appellant’s letter, dated 8 September 2010.

 

2. Summary of the Decision

 

The reference is competent. The hearing provisionally listed for 29 and 30 March 2010 is confirmed.

 

3. Procedural History

 

Following registration of the reference a Convener made directions, dated 2 December 2010, requiring the Respondent to specify the grounds for refusing the placing request; and requiring the Appellant to provide a copy of a letter offering a place for the child at the specified school.

 

Upon receipt of the latter, the Convener noted it had been arranged for the child to begin at the specified school on 10 January 2011, attending 4 days per week. As a result a further direction, dated 23 December 2010, was issued, which stated:

 

This arrangement [placing the child at the specified school] gives rise to a preliminary issue as to whether a placing request reference is competent where the child is already attending the specified school on a private funding basis. 

 

The Convener proposed there should be a preliminary hearing, by way of a conference call, on 11 January 2011.

 

Following receipt of the above direction, the respondent, by way of an email, dated 30 December 2010, clarified the education authority’ view and argued that the reference would become incompetent should the child begin at the specified school.

The Convener issued further directions on 31 December 2010.

 

A conference call took place on 8 February 2011. Following the call the Convener issued further directions, dated 8 February 2011, arranging a preliminary hearing to take place as soon as possible before a Convener who had not previously been involved (because the Convener had expressed, correctly, a preliminary view as to the possibility the reference may be incompetent).

 

The education authority’s case statement confirmed its opposition to the reference on the grounds of incompetency.

 

The hearing was set down for 18 February 2011 before me. On 17 February the education authority informed the tribunal and the appellant it had taken further legal advice and no longer pursued its submission that the reference was incompetent. 

 

In circumstances where there was no longer a dispute between the parties, I directed the preliminary hearing (listed for two hours in xxxx) was not to take place and issued further directions by way of a conference call on the same date. At the conference call the appellant in person and a representative of the respondent, both confirmed they believed the reference to be competent.

 

Even in circumstances where both parties wish a reference to be heard, the Tribunal itself must be content to consider the reference competent. Agreement cannot confer jurisdiction. As a result I directed both parties to lodge and exchange written submissions and further evidence on the issue of competency. I also gave permission for both parties to file any further evidence and submissions in response and to make submissions as to the necessity for an oral hearing to determine the competency of the reference.

 

Both parties produced submissions. The education authority produced a short ‘e’ mail response to the appellant’s submissions. Neither party sought an oral hearing.

 

4. Brief Summary of Relevant Facts

 

The child was born on 12 April 2005. The reference form states he has Dyskinetic/Athetoid Quadraplegic Cerebral Palsy, moderate cerebral visual impairment and developmental delay. He lives with his mother within the area of the education authority’s responsibility.

 

In August 2010 the appellant had the child assessed at the specified school. Professionals there considered he had the potential to achieve continence and independent walking.

 

I am unclear exactly when the child began attending at x School but this was at least by the time the reference was made. x School is an education authority school.

In January 2011 the child began attending the specified school for four days per week. The education authority confirmed the child could attend x school each Friday should he attend the specified school four days per week. I am unclear whether the child does or does not attend x School on Fridays.

 

The specified school is a grant aided special school.

 

5. Submissions for the Parties

 

I am grateful for the submissions both parties lodged. They both argued, in different ways and for different reasons, the reference was competent. Because there is no dispute between the parties and because this decision is dependent upon the Tribunal’s view as to whether or not the reference is competent I have not laid out the helpful submissions received from the parties.

 

6. Reasons for the Decision

 

1. This is the decision on a preliminary matter pursuant to Rule 13, Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (SI 2006/88 as amended).

 

2. The reasons laid out below reflect the fact both parties agreed the reference was competent and as such there was no dispute for the Tribunal to resolve, rather the Tribunal itself was required to be satisfied of the competency of the reference.

 

3. Section 18 (1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended by the 2009 act of the same name) states:  

 

 

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.
2. The persons referred to in subsection (1) are-
   
   1. where the decision, failure or information related to a child, the parent of the child.
   2. ……

 

4. Subsection 18 (3) states:

 

              The decisions, failures and information referred to in subsection (1) are

……

(da) a 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) –

 

1. made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a special school; or
2. made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a school mentioned in paragraph (a) or (b) of that subparagraph.

 

5. Schedule Two, paragraph 2 states:

 

Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being –

1. a special school the managers of which are willing to admit the child,

………

 

6. Section 29 (3) of the 2004  Act states:

 

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-

1. in a school under the management of the education authority, or
2. in pursuance of arrangements made or entered into by the authority.

 

7. I also note the decision of the Outer House of the Court of Session in RB [2007] CSOH 126 at paragraph 7 where Lord Brailsford held:

 

In my view the correct approach to section 29 (3) depends on the issue of control. In the end of the day I think this was the approach adopted by the Tribunal and advanced, albeit in slightly different ways, by both the appellant and the respondent. Put shortly if, as a matter of fact, the respondents control the education of C then in terms of the statutory provision they are responsible therefore. On the other hand if there is no control of C’s education then responsibility under section 29 (3) does not arise.

 

8. The decision of the Outer House was 12 July 2007, and therefore pre-dated the amendments made by the 2009 Act.

 

9. Sub-section 18 (1) of the 2004 Act is the gateway to the Tribunal: it describes who may make a reference. A person may refer a reference to the Tribunal if they satisfy the following criteria:

 

1. they are a person specified in subsection 18 (2); and
2. they are making the reference in relation to a decision, failure or information specified in sub-section 18 (3); and
3. (b) above relates to a child or young person for whose school education an education authority are responsible.

 

10. Should these three criteria not be met a reference will be incompetent, that is to say, the Tribunal will not have been granted jurisdiction by the 2004 Act to determine the reference.

 

11. In this matter, it is clear the criteria laid out above at paragraph 7 (a) and (b) are met: the appellant is the parent of the child; and the decision by the respondent refusing the placing request is a decision that falls within the terms of sub-section 18 (3) (da) (i).

 

12. It is further important to note a decision under this same sub-section does not require the education authority to be the education authority responsible for the child’s school education. This is clear from the amendments made to the 2004 Act by the 2009 Act.

 

13. Sub-section 18 ( 3) (da) specifies ‘the decision of an education authority’ which is different from sub-sections 18 (3) (a) to (d) which in each case specify ‘the education authority’.  Sub-section 18 (1) also uses the term ‘an education authority’ rather than ‘the education authority. Subsection 19 (4A) gives the Tribunal power to overturn the decision and require the education authority to place the child in the specified school. It is not clear if Parliament intended any particular consequence by using ‘an’ and at different times ‘the’.

 

 

14. At the time this reference was made the child was one for whom there was an education authority responsible for his education. That is because he attended a school (B School) which was under the management of an education authority (the respondent to this reference) at least on or before 22 November 2010. At the stage the reference was made (and received) the three conditions set out in paragraph seven above were satisfied.

 

15. At the date of this decision, however, only the first two criteria are met, the third may not be. I say ‘may’ because it is not clear whether the respondent has any or some control over the child’s education in relation to the Fridays when he may or may not attend x School. Does it matter if the third criteria imposed by ss. 18 (1) is not met?

 

16. I am of the view it does not. Essential to the competency of the reference is that at the time the reference is made an education authority is responsible for the school education of the child, the subject of the reference. The reference does not become incompetent should that change.

 

17. This is the literal interpretation of the wording of ss. 18 (1) when it states ‘may refer to a Tribunal any decision…..’ The appellant in this case did refer the decision to the Tribunal and when she did so, the respondent was responsible for the child’s school education. There is nothing I can read into the terms of ss. 18 (1) (or elsewhere in the Act) which states an education authority must remain responsible for the child’s education.

 

 

18. I am supported in this view by the fact that ss. 18 (3) (da) – the decision which the Tribunal must now adjudicate in relation to – does not require the respondent to be responsible for the child’s school education.

 

19. Furthermore there is nothing in the language of sub-section 19 (4A) which inhibits the Tribunal from confirming or overturning the decision the subject of this reference. 

 

20. The out come of this preliminary decision on competency is based on the fact the child was educated in an educational authority school when the reference was made. If this had not been the case and he had been placed at the specified school earlier, a different view may have been reached regarding the competency of the reference.

 

21. I should also add a number of other minor points.

 

22. The over-riding objective contained within the Tribunal’s procedural rules (SI/2006/88 as amended) cannot be used to grant jurisdiction upon the Tribunal in relation to an incompetent reference. Nor can any ‘best interests of the child’ test. The Tribunal must be guided by the language of the 2004 Act.

 

23. It was also a feature of this preliminary matter that the Appellant advanced an argument that fairness required her reference to be heard because she was of the view an official at the respondent education authority and an official at the Tribunal secretariat had provided certain advice regarding the child’s attendance at the specified school and how this related to the competency of the reference. This is disputed by the respondent. I have formed no view as to the truth or otherwise of what advice was given and by whom (an oral hearing would have been required to determine any such issues). I am clear, however, this could not have formed the basis for making an incompetent reference competent.

 

24. The hearing which I provisionally listed for 29 and 30 March in my earlier directions is now confirmed.