SHERIFFDOM OF GRAMPIAN HIGHLAND AND
B748/07
APPEAL UNDER
SECTION 22 AND SCHEDULE 2 OF THE EDUCATION (ADDITIONAL SUPPORT FOR LEARNING)(
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DECISION
by SHERIFF J K TIERNEY |
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in the cause |
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LYNNE MACAULAY, as parent of Rory Macaulay. |
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Pursuer |
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against |
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ABERDEENSHIRE COUNCIL. |
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Defenders |
The
sheriff, having resumed consideration of the cause, allows the appeal; Refuses to confirm the education authority's
decision not to meet the fees and other necessary costs of the child, Rory
Macaulay, attending Camphill Rudolph Steiner school, Aberdeen; Requires the defenders as the relevant
education authority to meet the fees and other necessary costs of Rory
Macaulay's attendance at Camphill Rudolph Steiner school; Appoints parties to be heard on all questions
of expenses and fixes 25 September 2008 at 10 o'clock within Aberdeen Sheriff
Court as a diet for a hearing thereon.
NOTE
Introduction
[1] This is an appeal by way of summary
application against the decision of the defenders' education appeal committee
dated
[2] The child, Rory Macaulay, was born on
The statutory provisions
[3] Section 4(1) of the Act provides:-
"Every education authority must (a) in relation to each child
and young person having additional support needs for whose school education the
authority are responsible, make adequate and efficient provision for such
additional support as is required by that child or young person."
It was not
disputed that Rory had additional support needs.
[4] Section 5(2) of the Act provides that every
education authority must, subject to the provisions of subsection 3, provide
such additional support as is appropriate for each child - (a) under school age
(other than a prescribed pre-school child), (b) belonging to the authority's
area and (c) who has additional support needs arising from a disability within
the meaning of the Disability Discrimination Act 1995. It was not disputed that
Rory fell within those categories.
[5] Section 22 and Schedule 2 of the Act make
provision about placing requests in relation to children and young persons who
have additional support needs.
[6] Paragraph 2(2) of the Schedule provides:-
"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 (a) a special school, the managers of which are willing
to admit the child; (b) ..... ; (c) ....., it is the duty of the authority,
subject to paragraph 3, to meet the fees and other necessary costs of the
child's attendance at the specified school".
It was not disputed that Camphill Rudolph Steiner is not a
public school and is a special school for the purposes of the Act
[7] Paragraph
3(1) of the Schedule provides that the duty imposed by paragraph 2(2) does not
apply in certain circumstances of which the only one relevant for the purposes
of this case is sub-paragraph (f). This provides:-
"If all of the following conditions apply namely - (i)
the specified school is not a public school, (ii) the authority are able to
make provision for the additional support needs of the child in a school
(whether or not a school under their management) other than the specified
school, (iii) it is not reasonable, having regard both to the respective
suitability and to the respective cost (including necessary incidental
expenses) of the provision for the additional support needs of the child in the
specified school and in the school referred to in paragraph (ii), to place the
child in the specified school, and (iv) the authority have offered to place the
child in the school referred to in paragraph (ii).
[8] Paragraphs
4 to 6 of the Schedule deal with applications to the local authority and references
of the local authority's decision to an appeal committee. Paragraph 6(1) provides
that on such a reference an appeal committee may "confirm the education
authority's decision if satisfied that - (a) in relation to the placing request
one or more of the grounds of refusal specified in paragraph 3(1) or (3) exist
or exists and (b) in all the circumstances it is appropriate to do so, but
otherwise must refuse to confirm the authority's decision".
Paragraph 7(1) of the schedule provides a parent with
a right of appeal to a sheriff against the decision of the appeal committee.
[9] Paragraph
7(6) provides:-
"The sheriff may on an appeal made under this
paragraph confirm the education authority's decision if satisfied that - (a) in
relation to the placing request one or more of the grounds of refusal specified
in paragraph 3(1) or (3) exist or exists and (b) in all the circumstances it is
appropriate to do so, but otherwise must refuse to confirm the authority's
decision".
[10] Paragraph
7(7) provides that where the sheriff so refuses to confirm the authority's
decision the sheriff "must require the education authority (a)....., (b) in the
case of a placing request made under paragraph 2(2) to meet the fees and other
necessary costs of the child's attendance at the specified school, and the
authority must comply with that requirement".
[11] The case
called for a hearing on the 13th, 14th and
[12] The
pursuer seeks to have Rory placed at the nursery unit at
[13] It is
clear from the provisions of paragraph 7 of the second schedule of the Act that
the appeal described therein is effectively a re-hearing of the issues in the
case and in particular in this case those referred to in paragraphs 3(3)(f) of
the schedule.
[14] The
defenders consider that Rory's additional support needs can be met at a special
nursery and primary school which the run namely
[15] The first condition
clearly does apply namely that the specified school, Camphill Rudolph Steiner,
is not a public school. The second
condition is that the authority are able to make provision for the additional
support needs of Rory at another school,.
The defenders say they can meet Rory's additional needs at
[16] The third
condition is that it is not reasonable having regard to the respective
suitability and the respective cost of the provision for the additional support
needs in the two schools to place the child in the specified school i.e. the
private Camphill Rudolph Steiner School.
[17] Given that
all of the four conditions must apply that third condition, namely the
balancing of respective suitability and respective cost for the purposes of
determining whether it is reasonable to place the child at the specified school
only comes into play if the second condition is met, namely that the authority
are able to make provision for Rory's additional support needs at St.
Andrews. If they are not able to do that
then the issue of the reasonableness of the placement having regard to
respective suitability and respective cost simply does not arise. Looked at another way, the ability of the
specified school to meet the child's needs only requires to be looked at if the
other school, in this case St. Andrews, meets Rory's additional support
needs.
[18] The first
requirement therefore is to assess whether the defenders are able to make
provision for Rory's additional support needs at
[19] I have set
out at paragraph [2] above the immediate consequences for Rory of the dreadful
illness he suffered some two and a half years ago at the age of 17 months.
These have given rise to what will be very severe long term disabilities.
[20] Mr Fry deals
with Rory's current situation, and the problems he faces and will continue to
face, in paragraphs 42 to 64 of his report.
In paragraph 42, he narrates that, "from having well established
mobility, co-ordination and manipulation skills, Rory has effectively lost most
of the control of his limbs, torso and head.
He is largely immobile and needs to be lifted and positioned. Some gross body movement and gross
directional arm movement has emerged, but fine control and general motor
co-ordination is absence.
[21] In
paragraph 43, dealing with Rory's social development he states that Rory has
developed a responsiveness to people and to social approach, can orientate
visually and react emotionally to touch and to voice. He is not able to initiate social approaches
of his own from visual orientation and facial expression". Paragraphs 44 to 46 narrate his minimal
language and vocalisation skills, the consequences of his profound deafness and
cochlear implants and the fact that despite his hearing and language problems
Rory is a responsive and expressive youngster who has developed a skill in
expressing his feelings by visual and facial expression. Paragraphs 53 to 58 narrate Mr Fry's
understanding of the pursuer's views on her son. She describes him as being extremely
responsive to his environment and to familiar experiences, as being sensitive
to subtle visual and auditory stimulation and clues and as being intuitive,
picking up on people's emotional approach and response to him, of his speedier
reaction to emotional stimuli rather than language, his ability to read the
emotional content of what was said to him, of his negative responses to being
talked over or talked to in baby language, or being talked about
adversely. She considered that Rory in
this respect needed to be treated with respect. Despite all his problems Mrs
Macaulay commented that Rory smiled readily, focussed on people visually and
orally, despite his deafness, that he had a high pain threshold but might not
be able to communicate acute discomfort.
[22] In
paragraph 61 of his report, Mr Fry assesses Rory as being "a youngster with
profound physical, communication, sensory and cognitive needs".
[23] In
paragraphs 63 to 65 he deals with Rory's curiosity about his environment, his
ability to make limited choices and his impression that Rory has more cognitive
skills than he is able to express, that he is able to assimilate environmental
information but needs repetition and routine.
[24] In
paragraphs 66 to 68 he deals with Rory's ability to communicate through body language,
facial and visual expression and by hand movements, he was informed by the
pursuer that Rory is learning basic Makaton signs, that he can understand
simple language and that when he can look directly at people he can process
social information and clues.
[25] Paragraphs
69 to 71 deal with Rory's physical abilities, the fact that he has no
independent mobility, that his head control is a significant problem, and that
his head control and arm movements are deteriorating because of increasing
spinal curvature.
[26] Paragraphs
72 to 75 deal with Rory's social skills which Mr Fry describes as being well
established for a youngster who is profoundly deaf. He is responsive to approach and is able to
isolate and discriminate familiar people, and can "talk" to family
members. Mrs Macaulay was of the view
that Rory is certainly aware of being different, will be on his best behaviour
when out with the family, will eat better when out. He no longer smiles at other children but is
more disposed to study them. He recalls
and recognises people whom he has met.
[27] Paragraphs
76 to 78 deal with Rory's potential for learning. Mr Fry is of the opinion that the curiosity
which Rory shows, the attention that he pays to other people and their
communication with him, and his quick emotional response to people and to
animals suggest that he has a potential that he is not yet able to
express. His mother believes that he
will learn to communicate at some level.
Mr Fry reports that so far he has learned to use some signs, has
developed his swallowing reflex (which he lost when ill) can turn off lights
using an adapted switch and understands a number of Makaton signs. He responds to specific speech including
direction or questioning and can copy sounds.
[28] In paragraph
78 Mr Fry states that Rory "is certainly able to acquire skills and responses
when they are repeated and when he is allowed time to respond".
[29] Paragraph
79 and 80 deal with Rory's visual and hearing impairment. His visual acuity is, however, normal when he
wears his glasses. He is profoundly deaf
but with his implants he can register loudness of conversation. Mr Fry could not comment on his ability to
identify and to discriminate speech sounds.
[30] Paragraphs
82 and 83 deal with self care. Rory is
not able to engage in any self care behaviour and requires an adult to take
care of him. He is trying to co-operate
in a number of ways including co-operation when being lifted, dressed and fed,
is trying to use his own fork, his ability to co-ordinate hand and mouth is
improving. He does, however, need to be
bathed and washed. He has no independent
skills at the toilet and requires full-time help. Although the pursuer recognised that Rory was
totally dependent for self care she knows that he nevertheless likes to be as
independent as he can.
[31] Summarising
these matters at paragraph 84, Mr Fry states "Rory is a youngster with complex
and highly significant additional learning, communication, sensory and physical
needs as the result of the damage to his central nervous system from a
Pneumococcal Meningitis infection." Mr
Fry continues at paragraph 85 "Whatever his educational placement he will
require a high level of learning, communication and physical support throughout
his school life and in all probability beyond."
[32] These
matters which I have related in paragraphs [20] to [31] were not contested and
I find them to be established as fact. Given that catalogue of disabilities,
given the summary contained in paragraphs 84 and 85 which I have quoted above,
and given the statutory requirement for the local authority to demonstrate that
they are able to make provision for the additional support needs of the child
in the school which the local authority proposes, it is to my mind surprising
that from the evidence which I heard it did not appear that any formal
professional assessment of Rory's needs had been carried out by the defenders.
It is difficult to see how a local authority can plan to make provision for the
additional support needs of a child such as Rory when they have not acquainted
themselves with just what these needs are.
That is not to say they would have been wholly ignorant of his needs as
many of them would have been apparent from the information provided by other
agencies and in Mrs Patrone's and Mrs Hughes' discussions and correspondence
with the pursuer. Nonetheless, given the
statutory obligation incumbent upon the defenders in terms of paragraph 2(2) of
the schedule to the Act to meet the fees and other necessary costs of the
child's attendance at Camphill unless all of the conditions in paragraph
3(1)(f) apply, I would have expected that a formal assessment of Rory's needs
would have been carried out in order that the ability of St. Andrews to meet
these needs could be properly and systematically addressed.
[33] At
paragraph 88 of his report, which was dated
[34] Among the
needs listed by Mr Fry are (1) a high level of continuous physical care,
communication and learning support, often needing more than one person to be
responsible for Rory; (2) the placing of
a high priority on the development of all of his receptive and expressive
capabilities through as many modalities as is possible; (3) focussed, cognitive, sensory language and
emotional stimulation, (4) stimulation of his capacity for creative self
expression; (5) developing language
understanding; (6) time and help to
process information, language and thought;
(7) acquired environment with reduced background noise and low signal to
noise ratio.
[35] In his
evidence, Mr Fry expanded on these needs.
In particular he considered that the provision of a single designated
teacher for Rory was very important.
This would develop a feeling of familiarity in Rory which would help him
feel more comfortable and therefore more able to build on his communication
skills, and ability to understand what people are trying to communicate to him.
He considered the one to one relationship with the teacher as being crucial and
described this as "very, very important".
Specifically, Mr Fry said in his evidence that he "Rory needs one
teacher" and "he needs to establish a primary relationship with one teacher
because of his nature and his needs".
[36] A second
need which Mr Fry developed in his evidence was Rory's need for quietness. He needed this because of his tendency to
sensory overload (the consequence of which Rory's mother described as him
"shutting down"), and the fact that Rory found intense stimuli intimidating.
[37] Mr Fry
spoke to the need for Rory to meet non-disabled children and his need for
continuity and planning in such encounters, and the need for such contact to be
provided without the sensory overload he had referred to.
[38] Mr Fry
gave evidence that Rory's need to develop his social and communication skills
were, in his opinion, paramount. Rory
needed to learn these skills now in order to be able to build on them
later. This was a critical period for
Rory. The pre-school years were critical
in respect of the development of language, cognitive and social skills.
[39] Mr Fry
felt confident that he had enough information to be able to get a good picture
of Rory's needs.
[40] I accept
all of Mr Fry's evidence in respect of Rory's needs both in respect of his
written report and the additional evidence which he gave.
Does
[41]
[42] Miss
Patrone had last seen Rory when he was two years old and he was now four. She accepted that she did not have an
up-to-date picture of him. She had never
carried out a professional assessment of him.
She said she would need more time with him to do that
[43] Mrs
Josephine Hughes was the education officer responsible for children below the
age of six in Aberdeenshire Council's Education Department. She is the budget holder for the education of
such children, and that includes the provision of the facilities at
[44] Mrs Hughes
explained that the school was registered for ten children with a staff of four,
and that the staffing ratio was generous. She explained that if a child needed additional
dedicated staff the education authority would fund this. The decision as to whether such a key worker
was needed would be taken after discussion within the school and thereafter
discussion between the school and herself as the budget holder. There was no evidence as to how long this
process would take or, once the need for additional staff was identified, how
long it would take to recruit such a person or of the cost of provision of such
additional staff, be it teacher or support.
[45] I consider
that the proper time for assessing whether the conditions contained in
paragraph 3(1)(f) are met or are not met is, for the purposes of an appeal to
the sheriff, the date on which the hearing proceeds. The wording of the statutory provision is
that "the authority are able to make provision for the additional support needs
of the child in the school". The defenders
are the "authority" and their position as spoken to by Mrs Hughes is that the
local authority will be able to meet these needs if the child is admitted to
[46] I consider
that that does not meet the statutory requirement. I can understand that the local authority will
not be able to determine whether or not they can or will meet a particular need
until they have determined what these needs are. That determination should, in my opinion,
have been made by the time Mrs Hughes as education officer had to take the
first decision on the application for a placement and thereafter should have
been available for consideration by the appeal committee referred to in
paragraph 5(1) of the schedule. In the absence of such an assessment the
procedures giving rise to each of those decisions might be seen as flawed.
[47] As I have
indicated, however, this process is not truly an appeal as to how either the
education officer or the appeal committee reached their decisions, but is effectively
a re-hearing of the case. Standing the concession by the defenders' counsel, a
concession which was in my opinion rightly given, that the onus was on the
defenders to satisfy the court as to the 4 conditions contained in para.
3(1)(f), the very latest time at which
the defenders' assessment of Rory's needs should have been made was before the
commencement of the hearing of the appeal and in time for proper consideration
and examination of what they considered to be Rory's needs at the hearing of
the appeal. On the evidence which I have heard I am satisfied that Rory needs a
"one to one" teacher. There was no
suggestion by either of the witnesses for the defenders that the defenders
would meet any need which I held to be established, and standing the evidence
of Mrs Patrone and Mrs Hughes I cannot assume they would do so. Their position
was that if the defenders were successful in opposing the appeal they would only
then themselves assess what they believed Rory's needs to be, and then what
steps should be taken to meet them. In
her submissions for the defenders Mrs Williamson said that the need for 1 to 1
support had not been ruled out by the defenders, that this needed to be the
subject of further assessment, that it was premature to suggest that Rory would
not have 1 to 1 teaching at St. Andrews' and that it would be irresponsible to
decide without further assessment. It
seems to me that what the defenders are saying is not that I should refuse the
appeal and confirm the authorities decision because they have shown that in
terms of para 3(1)(f)(ii) they are able to meet Rory's additional support needs
at St Andrews'. Rather they are saying that if I refuse the appeal then they
will assess Rory's needs and decide how best to meet them. The statutory requirement
is that the sheriff must refuse to confirm the authority's decision unless he
is satisfied that one or more of the statutory grounds of refusal exists, in
this case the four conditions that together make up ground 3(1)(f). If I was to
accede to Miss Williamsons submission I would be deciding that Rory's needs for
special measures would be met at St Andrews' without knowing what those needs
were or what special measures would be taken at St Andrews' to meet them. That
is manifestly not what para 7(6) of the schedule requires of me.
[48] The
defenders have accordingly failed to discharge the onus which their counsel
accepted fell upon them, namely to establish that the authority are able to
make provision for Rory's additional support needs in
[49] That being
so it cannot be said that all of the conditions contained in paragraph 3(1)(f)
of the schedule are met. That was the
only ground which was argued before me.
Accordingly, in terms of paragraph 7(6) of schedule 2 to the Act, I must
refuse to confirm the authority's decision.
[50] The
consequence of that in terms of paragraph 7(7)(b) of the schedule, is that I
must also require the defenders as the education authority to meet the fees and
other necessary costs of Rory's attendance at Rudolph Steiner at Camphill
school.
[51] That is
sufficient to dispose of the appeal but for the sake of completeness I should also deal with the other matters
which were the subject of evidence and argued before me, namely the question of
Rory's need for quiet and the question whether it could be said not to be
reasonable to place Rory at Camphill having regard to comparative suitability
and comparative cost
[52] . I am satisfied
that the other major need referred to by Mr Fry in his report and in great
detail in his evidence, namely the need for quietness, peace and tranquillity
would be met at least to an extent at St. Andrews'. At the recommencement of his evidence on day
three Mr Fry agreed that the nursery setting at
[53] Condition
(iii) requires a decision as to whether "it is not reasonable having regard
both to the respective suitability and to the respective cost" of the provision
of Rory's additional support needs in the two schools, to place Rory in the
specified school, namely Camphill Rudolph Steiner, rather than in this case St
Andrews'.
[54] The matter
in respect of which a decision on reasonableness is required is the placement
of the child in the specified school.
That placement would be made by the defenders' education authority and
accordingly it seems to me that the question is whether it would not be
reasonable for the education authority to place the child in that school, not
whether it would be reasonable for the parent to seek to have him so placed.
The two factors which have to be taken into account are suitability and
cost. It seems to me that suitability
involves an assessment of the respective qualities of the provisions from which
Rory will benefit in each of the two schools.
The respective costs, on the other hand, are the costs in respect of
each of the two schools which the local authority will bear.
[55] Mrs Hughes
made it very clear in her evidence that cost was not an issue in this
case. She said that in those words. In her submissions on behalf of the
defenders, Miss Williamson sought to distance the defenders from the opinion of
Miss Hughes. She said that whatever Mrs Hughes' views were I still needed to
apply the test set out in the statute. I consider that she is right in this
submission, but the difficulty for the defenders in that approach is that the
issue of cost can only be determined by evidence, and the onus of establishing
all of the four conditions lies with the defenders. Mrs Hughes gave some evidence as to the
figures involved as did the pursuer, but the only evidence as to the effect of
these costs on the defenders contention that it is not reasonable to place Rory
at Camphill is that of Mrs Hughes's, and she says that they are not an issue. Given
that Mrs Hughes is responsible for administering the budget that opinion has to
be accorded respect.
[56] The cost
of the school fees for Rory at
[57] If Rory
attends
,
[58] Were I
having to deal with the question of whether it was reasonable for the local
authority to place the child at Rudolph Steiner at Camphill I would also to
have had regard to the respective
suitability of the two schools. In this
regard, and on the assumption that St Andrew's would also provide a dedicated 1
on 1 teacher for Rory, I would have held that the balance favoured the
placement of the child at Camphill Rudolph Steiner rather than at
[59] I also
consider that in making this judgment on reasonableness it is relevant to take
into account that Rory has already attended Camphill and benefited from that
attendance His mother unquestionably knows him best. She is a highly intelligent, highly articulate
person who has studied deeply the medical conditions from which Rory suffers
and also the educational aspects of his overall condition. She knows her child's moods and
preferences. She told me in very clear
terms that she could tell that Rory had enjoyed his time at Camphill during the
five months or so he was at the school and had benefited from his time there. She said that, since his illness, she had
never seen him happier than during this time.
If Rory felt like this it is possible that he is more likely to do well,
at least in the short-term by returning to a place of which he may have some
happy memories but, even if he has not, where he has been happy before and can
be expected to be happy again. That is
not to say that he would not be happy at
[60] St.
Andrews, in fairness, provided better for some of Rory's physical needs such as
his manual handling and his toileting arrangements and, closely linked to his
physical toileting needs, his emotional needs in that regard and in particular
his entitlement and need for a feeling of personal dignity. . On the question
of Rory's dignity his mother pointed out that although he was now four he had
not achieved that level of maturity. His mental age was lower. She could still
make these matters a bit of a game for him. At this very early stage in Rory's
life, and having regard to the great damage that he has suffered and the
importance ascribed to his need to develop now as best he can his social and
communication skills, I consider that these other undoubtedly important needs
must take second place.
[61] In the
course of the evidence an issue was raised as to whether, if he attended
Camphill Rudolph Steiner, Rory would benefit from the multi-disciplinary team
of support in the areas of physiotherapy,
occupational therapy and speech and language therapy. I was advised that Rory,
as a patient, falls within the territorial boundaries of a particular division
of Grampian NHS . The multi-disciplinary
team providing the three services I have mentioned would visit
[62] That
seemed to me on the face of it to be a potential problem which would have to be
taken into account in the balancing exercise relating to suitability. Arguably it would be better if Rory could
have the benefit of this multi-disciplinary team both at home and at school
although the pursuer, having had the benefit of the provision of those services
both at Raeden School when Rory was there and thereafter at home, said that she
would prefer that the team saw Rory at home.
[63] Mr Nisbet
for the pursuer, however, was able to direct me to Section 23 of the 2004 Act
which provides, by subsection (1):-
"Where it appears to an education authority that an appropriate agency
could, by doing certain things, help in the exercise of any of the education
authority's functions under this act, the authority may, specifying what those
things are, request the help of that agency."
Sub-paragraph (2) provides that an appropriate agency includes any
Health Board. Subsection (3) provides
that an appropriate agency must comply with a request made to it under subsection
(1) unless it considers that the request (a) is incompatible with its own
statutory or other duties or (b) unduly prejudices the discharge of any of its
functions. I am satisfied that the
existence of that statutory provision should mean that the defenders will be
able to make immediate application to Grampian Health Board for the purposes of
seeing that Rory obtains the benefit of the team of therapists at school if
that is what he needs, and that he will obtain this unless the provision of it
unduly prejudiced the discharge of the Board's functions.
[64] I was
also told that Camphill has a GP medical practice on site and the GP would work
in full consultation with Rory's GP, as he had in the past, should Rory require
medical assistance. Further Camphill has its own resident speech and language
therapist. In addition Camphill has facilities for residential respite care
should this be necessary
[65] Even if
the condition contained in para 3(1)(f)(ii) of the Schedule had been met I am
satisfied looking at all the relevant factors and in particular the respective
suitability and the respective cost of
placing Rory at Camphill that it cannot be said that it is not reasonable for
the defenders to place him there. The condition contained in para
3(1)(f)(iii) therefore also does not
apply.
[66] In all the
circumstances therefore the appeal succeeds.