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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 126

XA23/07

OPINION OF LORD BRAILSFORD

in Appeal

under

Education (Additional Support for Learning) (Scotland) Act 2004, section 1

by

R B

Appellant;

against

A decision of an Additional Support Needs Tribunal dated 5 January 2007

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Appellant: Williamson; Pagan Osborne

Respondent: Macfarlane; Biggart Baillie

12 July 2007

[1] This is an appeal against a decision of the Additional Support Needs Tribunal dated 5 January 2007 in terms of which decision the Tribunal determined that the relevant Education Authority was not responsible for a child's (hereinafter referred to as "C") education in terms of section 2(1)(a) of the Education (Additional Support for Learning) (Scotland) Act 2004 (hereinafter referred to as "the 2004 Act"). Answers to the appeal were lodged on behalf of The Highland Council (hereinafter referred to as "the respondents") who are the Education Authority responsible for the area in which C resides. Miss Williamson appeared on behalf of the appellant and Mr Macfarlane appeared on behalf of the respondents.

[2] On behalf of the appellant it was submitted that the Tribunal erred in law in finding in their said decision that the respondent's were not responsible for C's school education. The argument advanced was that the Tribunal erred in its approach to construction of section 29(3) of the 2004 Act. In particular it was submitted that the Tribunal erred in finding as a matter of fact that the Education Authority did not control and were therefore as a matter of law not responsible for the education of C. On behalf of the respondents it was submitted that the Tribunal had both posed the correct questions in approaching construction to section 29(3) of the 2004 Act and, further, had been entitled on their findings in fact to reach the decision arrived at.

[3] There was no dispute between the parties to this appeal as to the relevant statutory background. Section 1(1) of the 2004 Act provides that:

"A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person".

Section 1(3) of the 2004 Act provides that "additional support" means "....provision which is additional to, or otherwise different from, the educational provision made generally for children...". Section 2(1) of the 2004 Act provides

"For the purposes of this Act, a child or young person requires a plan (referred to in this Act as a 'co-ordinated support plan') for the provision of additional support if -

(a) an education authority are responsible for the school education of the child or young person ....".

The issue of responsibility for the education of a child is addressed by section 29(3) of the 2004 Act which provides that:

"...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".

There is one further provision of the 2004 Act that must be mentioned. That is section 5(4) which gives an education authority discretionary power to provide additional support for children with additional support needs but for whose school education the authority are not responsible.

[4] It was common ground before the Tribunal that C was a child who had additional support needs within the meaning of section 1 of the 2004 Act. C, who was born in 1994, and who was 12 at the time of the Tribunal hearing, was exceptionally gifted in music. She had sat the SQA Higher Music Examination in June 2006 and obtained an "A" pass. I was informed that she was the youngest person in Scotland ever to have obtained a Higher in music. She was also particularly talented in languages especially Italian and Mandarin. It was anticipated that she would be able to complete her school education by around the age of 14 and thereafter be both qualified and intellectually equipped to commence Higher Education in music. On the basis of the findings in fact by the Tribunal considerable assistance to facilitate C's education and further her exceptional gifts has already been provided by the respondents. I was impressed, as it would seem were the Tribunal, by the extent to which the respondents had co-operated in furthering C's education and nurturing her talents.

[5] On behalf of the appellant Miss Williamson submitted that on the basis of the findings in fact the Tribunal should, in construing section 29(3) of the 2004 Act, have concluded that the respondents controlled the education of C. If this were correct, she submitted, then in terms of the Act the respondents were responsible for the education of C and were consequently obliged in terms of section 2(1) of the 2004 Act to prepare and adhere to a plan for her education referred to in the Act as a "co-ordinated support plan" for the provision of additional support for her. Miss Williamson submitted that the very act of paying for part of C's education, which it was admitted that the respondents had done, was sufficient to give them control over her education and bring them within the ambit of responsibility under section 29(3). She further submitted that even if she were incorrect in that first argument responsibility was established by virtue of the circumstances of C's education as outlined in the Tribunal's findings in fact. In particular she pointed to finding in fact (11) which determined that C's name appeared on the roll of a high school for which the respondents were responsible.

[6] For the respondents Mr Macfarlane accepted that the question of construction of section 29(3) of the 2004 Act depended on the issue of control. As I understood his argument Mr Macfarlane's position was that if it could be shown that as a matter of fact the respondents controlled the education of C, then they would qualify as being responsible for it in terms of the 2004 Act. By contrast if, as a matter of fact, they did not exercise control over C's education, then they were not responsible for it. Mr Macfarlane submitted, in support of the Tribunal's decision, that on the facts the respondents exercised no control over C's education. It followed that they were not responsible in the terms of the said Act for C's education. It was Mr Macfarlane's submission that the extent of the respondents' involvement in C's education was to provide financial support for an education plan essentially devised by C's parents. He characterised this as discretionary support provided by the respondents in terms of the powers granted to them by section 5(4) of the 2004 Act.

[7] I reject Miss Williamson's argument that the mere fact of payment for C's education, or part thereof, by the respondents renders them responsible within the terms of section 29(3) for that education. In my opinion payment for C's education is equally consistent with, as was submitted by Mr Macfarlane, exercise by the respondents of a discretionary power under section 5(4) of the 2004 Act. In my view the correct approach to the application of 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] On the approach that I favour and outline above, the essential question of control is a matter of fact. If that be correct then this Court only has powers to intervene if it can be shown that the Tribunal erred in law in their approach to their findings in fact. Having heard full argument I have come to the view that the Tribunal did so err. Findings in fact (8) and (9) show that in the main C's parents were responsible for devising her educational programme. It seems however in terms of findings in fact (10) and (11) that C was enrolled in the local high school, albeit her attendance was only part-time and may, I stress that word, have been very limited. The findings in fact state, rather cryptically in my view, that "[T]he school considers that she appears on the role solely for safety and insurance purposes" (finding in fact (11)). I find this element of the findings in fact less complete than would be necessary to make a determinative conclusion on the issue of control of C's education. In my view it is impossible to determine the issue of control without fuller knowledge about this aspect of matters. For this reason I conclude that the Tribunal have erred in law in reaching the decision they did based on findings in fact which are, in my view, incomplete and inadequate.

[9] For the foregoing reasons I determine that the Tribunal has erred in law and in terms of section 21(3)(a) of the 2004 Act remit this reference back to the Tribunal to consider this matter again.