Petitioner: MacFarlane; Wright, Johnston & Mackenzie LLP

Respondents: Brabender; Lindsays, Solicitors

9 December 2011

Introduction

[1] The petitioner is the mother and legal representative of M, who was born on 29 May 1997. M has autism and accordingly has additional support needs as defined by section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act"). The petitioner resides with M and another child within the area in respect of which the respondents, North Ayrshire Council, are the education authority. Prior to December 2009 they resided in the area in respect of which Renfrewshire Council are the education authority. At the time of the family's move to North Ayrshire, M was attending the R School, a special school managed by Renfrewshire Council in terms of the 2004 Act. After the move, M continued to attend the R School. The petitioner considers that he is happy and settled there. The family's current home is some 20 miles from the R School. In August 2010 the petitioner wrote to the respondents requesting that they provide transport for M to and from the R School. The respondents' refusal of that request is the subject of this application for judicial review.

Legislation

[2] The legislative starting point is the respondents' duty as education authority, under section 1 of the Education (Scotland) Act 1980 ("the 1980 Act"), to secure that there is made for their area adequate and efficient provision of school education. There is a corresponding right, contained in section 1 of the Standards in Scotland's Schools Act 2000, of every child of school age to be provided with school education by, or by virtue of arrangements made, or entered into, by, an education authority.

[3] Section 28 of the 1980 Act requires education authorities, when exercising and performing their powers and duties under the Act, to have regard to the "general principle" that

"...so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents".

A duty is then imposed by section 30 of the 1980 Act upon the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means. These last four words acknowledge that it is not necessarily the case that a child will receive education in a public school provided by an education authority. A child may, for example, receive education in an independent school not under the management of any education authority or, indeed, may receive home education.

[4] A definition of the word "school" is provided in section 135 of the 1980 Act. Where used without qualification, the word means "an institution for the provision of primary or secondary education or both primary and secondary education being a public school, a grant‑aided school or an independent school, and includes a nursery and a special school".

[5] As regards children educated in a public school, the education authority have a duty under section 28B(1) of the 1980 Act to publish their arrangements for the placing of children in schools under their management and to formulate guidelines to be followed by them as respects placing pupils in schools. Such guidelines may specify a "catchment area" for a school, i.e. the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the authority's guidelines (section 28A(3D)). A parent may, however, make a written request to an education authority to place his or her child in a school specified in the request under the management of that education authority. This is known as a placing request. Schedule 2 to the 2004 Act contains detailed provisions regarding placing requests in respect of children with additional support needs. For present purposes it suffices to note that a placing request is made by a parent to an education authority (Sch.2, para.2(1)) and must be in writing or other permanent form (2004 Act, section 28(1)).

[6] The legislation also makes provision for circumstances in which a pupil receiving school education who "belongs to" (i.e. whose parent is ordinarily resident in) the area of one education authority may receive education in a public school provided by another education authority. Section 23(1) of the 1980 Act empowers an education authority to provide school education or additional support for a pupil belonging to the area of some other education authority. Section 23(1A) then empowers an education authority

"...to make arrangements with another education authority (in this subsection referred to as a 'provider authority') for the provision of school education or further education or additional support within the meaning of the 2004 Act for any pupils belonging to the area of the authority in a school or educational establishment under the management of the provider authority".

In order fully to understand the submissions in this case it is necessary also to refer at this stage to

• section 23(1B), which provides that arrangements made under the 1980 Act or the 2004 Act for the placing of children in schools may include provision to give effect to any arrangements made under section 23(1A); and
• section 23(1C), which permits arrangements for the placing of children in schools which subsisted at the time of establishment of new local government areas in 1994 to continue until changed, in circumstances where they lead to pupils belonging in the area of one education authority attending a school in the area of another such authority.

It is also necessary to note recent developments of the law in relation to the making of placing requests for children with additional support needs. In WD v Glasgow City Council 2008 SC 117, it was held that paragraph 2(1) of Schedule 2 to the 2004 Act, which I have already mentioned, did not authorise a parent to make an "out‑of‑area" placing request, i.e. a placing request to an education authority other than that for the area to which the child belonged. That decision has now effectively been reversed by the insertion, with effect from 14 November 2010, of a new sub‑paragraph (5) into paragraph 2 by the Education (Additional Support for Learning) (Scotland) Act 2009, extending the meaning of "education authority" in paragraph 2(1). For present purposes, however, the point is that according to the law prior to 14 November 2010, as interpreted by the court in WD, a parent of a child with additional support needs who belonged in the area of one education authority could not competently have made a placing request to another education authority.

[7] Having set out the foregoing statutory provisions by way of context, it is possible to turn now to the statutory duty of an education authority as regards the provision of transport for pupils to and from school. Section 51(1) of the 1980 Act (as amended) provides as follows:

"An education authority, in a case to which subsection (2A) below applies, may and, in any other case, subject to subsection (2B) below shall make such arrangements as they consider necessary for the provision of any of the following facilities in respect of pupils attending schools or other educational establishments-

(a) for their conveyance without charge for the whole or part of the journey between their homes and the schools or other educational establishments which they are attending;

(b) for making bicycles or other suitable means of transport available to the pupils, or to their parents for the use of the pupils, upon such terms and conditions as may be arranged, or for paying money allowances in lieu thereof;

(c) for paying the whole or any part, as the authority think fit, of their reasonable travelling expenses,

and any such arrangement may in respect of any pupil make provision for more than one of the facilities specified in the foregoing paragraphs of this subsection."

It will be noted that the subsection imposes an obligation on an education authority to make arrangements for the provision of transport facilities for pupils except in the circumstances set out in subsection (2A), where the authority are afforded a discretion. Those circumstances are that, in consequence of a placing request, the pupil has been placed in a particular school which is not within walking distance (three miles, for present purposes) from his home.

[8] Subsection (2B) provides that the duty imposed by subsection (1) does not apply where the pupil belongs to (i.e. where the pupil's parent is ordinarily resident in) another education authority area.

[9] Subsection (2AD) then provides as follows:

"Without prejudice to the generality of subsection (1) above, the duty imposed by that subsection applies in cases where a pupil attends a school or educational establishment under the management of another education authority-

(a) in accordance with any arrangements made by them under section 23(1A) of this Act;

(b) in accordance with the arrangements subsisting before the establishment of new local government areas under Part I of the Local Government etc. (Scotland) Act 1994 and continuing by virtue of section 23(1C) of this Act; or

(c) if at the time when the pupil was placed in that school or educational establishment it was under the management of the education authority for the area to which the pupil belonged, and is under the management of another education authority as a consequence of the establishment of such new local government areas."

This subsection was inserted into section 51 by the Local Government (Scotland) Act 1994, which Act reorganised the structure of local government in Scotland.

[10] Applying the legislative scheme to the facts of the present proceedings, it is common ground between the parties that no relevant arrangements exist between the respondents and Renfrewshire Council for the provision by Renfrewshire Council of education to pupils with additional support needs who belong to North Ayrshire. It is also common ground that the petitioner has not at any time made a placing request to the respondents with regard to M.

The petitioner's request for provision of transport

[11] On 10 August 2010, the petitioner wrote to the respondents' Head of Service, Education and Skills, advising that she had moved to North Ayrshire and that her son had autism and was attending a special needs school in Renfrewshire. She stated:

"The reason I am writing this letter is to ask for transport, from M's home to his school in [location] and back again after school has completed for the day. This is not a letter asking for a placement request but for transport to be provided. As I am aware of the fact if I was to ask for a placement request it would withdraw my son's right to transport.

As North Ayrshire Council are now responsible for his education, they are also responsible for transport under section 51 of the Education (Scotland) Act 1980, as amended. Under that law they have a duty to provide transport to the establishment.

I am also knowledgeable in the fact I can pursue further with a Judicial Review if the matter is not resolved.

I know you will be thinking North Ayrshire Council have school's that my son could attend but as M's parent I have the parental right to say I want him to continuing his attendance at the school he currently attends."

M is now entering into S2 of his school and moving him at this stage would not be beneficial to his school work or his emotional needs. The school has been working with my son for the past year, getting to know him and M has built up a strong relationship not only with his teachers but also his peers which doesn't come easily to him.

I would appreciate your help in this matter and look forward to your reply."

[12] The respondents' Head of Service, Education and Skills replied as follows on 25 August 2010:

"Thank you for your letter of 10 August 2010. I regret that you have been misinformed with regard to present legislation.

Since your move to North Ayrshire, M no longer has a statutory right to a school place with Renfrewshire Council. For M to stay at his present school, you have in effect established a parental placing request to Renfrewshire. This is the only legal basis on which such an agreement can be based as North Ayrshire Council has not requested such a place from your old council.

On agreeing to accept your placing request, Renfrewshire has in fact accepted the funding obligations that relate to a parental request.

It only remains for me to wish M well in his educational placement. You should address any funding concerns through the school in [location] which accepted your placing request."

[13] Since this exchange M has continued to attend the R School in Renfrewshire. The respondents have not provided nor funded his transportation to and from school. The present proceedings for judicial review of the respondents' decision were commenced in February 2011. The petitioner seeks (i) interim suspension of the respondents' refusal to provide M with transport to and from the R School; (ii) reduction of their said refusal; and (iii) an order for specific performance requiring them to provide the necessary transport. An alternative crave for declarator that the respondents had failed to exercise, or to reasonably exercise, their discretion under section 51 was not insisted upon.

Argument for the petitioner

[14] Counsel for the petitioner submitted that the reasons given by the respondents for refusing to accede to the petitioner's request for transport were unfounded in law. The terms of the letter were open to serious criticism. It referred to a parental placing request having been "established" to Renfrewshire Council at a time when such a request would, standing the decision in WD, have been incompetent. To make matters worse it referred to a parental placing request having "in effect" been established. Placing requests were a creature of statute. As a matter of fact, the petitioner had made no request in terms of the statute and had made clear in her letter that it was not to be regarded as a placing request. There was no such thing as a non‑statutory placing request. Moreover the respondents had misunderstood their obligations in law regarding provision of transport. Section 51(1) was general in its terms. This was not a case falling within subsection (2A) and the respondents accordingly had a duty and not a discretion to provide transport. The circumstances set out in subsection (2AD) were expressly stated to be without prejudice to the generality of subsection (1). The respondents' argument, that the duty of an education authority under section 51(1) was to provide transport to public schools within their area, required a qualification to be read into subsection (1) which did not appear in the statute. In that regard the respondents had fallen into an error similar to that in the defenders' unsuccessful argument in East Renfrewshire District Council v Glasgow City Council 2009 SC 197. It was a matter for the respondents to consider whether they had a right of relief against Renfrewshire Council for the cost of transporting M, but the duty was imposed in the first instance on the respondents.

Argument for the respondents

[15] Counsel for the respondents noted that the basis upon which M was continuing to attend a school in the area of Renfrewshire Council, in the absence of either an arrangement between the two councils or a successful placing request by the petitioner, could only be an agreement entered into directly between Renfrewshire Council and the petitioner. This, she explained, was competent and not uncommon. Counsel drew attention to the broad definition of the word "school" in section 135, which I have quoted above. This was the context in which the duty imposed by section 51 had to be read. On a purposive construction of section 51(1), the "generality" mentioned in subsection (2AD) was the provision by an education authority of transport to public schools within their area. This was consistent with the basic general duty in section 1 of the Act to secure for their area adequate and efficient provision of school education. By virtue of subsection (2AD), an education authority's duty to provide transport extended to children who were attending school in the area of another authority for one of a number of reasons other than parental choice: i.e. where the "home" authority had made arrangements under section 23(1A) with a providing authority, or where a pre-local government reorganisation arrangement was continuing, or where as a consequence of local government reorganisation a pupil had come to attend a school in an area other than that of his "home" authority. Where, on the other hand, a pupil was attending a school in an area other than that of his "home" authority as a consequence of parental choice exercised by means of a placing request, the "home" authority had a discretion rather than a duty to provide transport. But, it was submitted, that exhausted the education authority's duty and its discretion. If the petitioner was correct, standing the definition of a "school", the respondents would be under a duty to provide transport to a public school which a pupil was attending under an agreement made with the parent, regardless of where the school might be located, or indeed to provide transport to an independent school wherever situated, or even to a school located in England and Wales. A purposive construction of section 51, read in the context of the Act as a whole, indicated that this was not the correct interpretation. There was no need to read in words to give the section its proper construction. As regards the terms of the letter of 25 August 2010, counsel accepted that it was not well expressed. However it was sufficiently clear that what was referred to in the letter was an exercise of parental choice by the petitioner outwith the statutory placing request process. The letter correctly explained that this was not one of the circumstances in which the respondents had a duty to provide transport. It was not suggested that in assessing the adequacy of the reasons given by the respondents for their decision I should have regard to any subsequent correspondence in which the respondents' position had been more clearly expressed.

Discussion

[16] In my opinion the submissions on behalf of the respondents are to be preferred. The principal issue before me is the proper interpretation of section 51 of the 1980 Act. I accept that the correct approach is to adopt a purposive construction of the provision read in the context of the Act as a whole. It appears to me that there is a coherent scheme underlying section 51: namely, that the education authority's duty to provide transport free of charge arises wherever a child is placed in a school in accordance with arrangements made by that education authority. Those arrangements may be arrangements in terms of section 28B regarding the placing of children within the authority's own area, or they may be arrangements made under section 23(1A) for a pupil to be provided with school education or additional support by another education authority. The latter arrangements may or may not be a legacy of the 1994 local government reorganisation. In all of the foregoing cases the arrangements may proceed without any accommodation of an exercise of parental choice. Where parental choice is exercised by means of the making of a placing request, whether under section 28A of the 1980 Act or (as regards children requiring additional support) Schedule 2 to the 2004 Act, the authority's duty to provide transport is replaced by a discretion. There remain, however, a variety of circumstances in which a pupil may be educated otherwise than in accordance with arrangements made by the education authority for the area to which he belongs or in accordance with a successful placing request. These would include, for example, attendance by the pupil at an independent school or, as has occurred in the present case, attendance at a public school outwith the area to which he belongs pursuant to an agreement entered into with the school in question. In either of these cases the school could be located anywhere in Scotland or, indeed, outside Scotland. These circumstances do not, in my opinion, fall within section 51. The section 1 duty of the "home" authority is being fulfilled without that authority itself having to provide education. In such circumstances, no duty arises, in my opinion, to provide transportation to and from the chosen school. Taken in their context, I read the words "without prejudice to the generality of subsection (1) above" which appear in subsection (2AD) as simply confirming, for the avoidance of any doubt, that the duty contained in subsection (1) is not restricted to the various circumstances set out in subsection (2AD). I do not read these words as an indication that the duty in subsection (1), in so far as applicable to pupils attending a school under the management of another education authority, has a wider scope than the three sets of circumstances in subsection (2AD). I therefore consider that the view taken by the respondents was correct in law. It has the advantage of avoiding the absurdity which appeared to me to be inherent in the petitioner's argument, if correct, that, even if she had entered into a direct agreement with a school at the other end of the country from North Ayrshire, the respondents would have been under a duty to provide transport.

[17] I turn now to consider the adequacy of the reasons given by the respondents for refusing the petitioner's request for the provision of transport. In this connection I refer to the well-known observation of Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348 that a decision maker

"...must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

More recently, Lord Brown of Eaton‑under‑Heywood put the matter thus in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 (HL) at para. 36:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved... A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

[18] There is much force in the petitioner's criticisms of the wording of the respondents' letter. The references to "your placing request" are most unhelpful given that the respondents were or ought to have been aware that no placing request could competently have been made by the petitioner to Renfrewshire Council. It is also unclear on what basis the author of the letter could have considered that Renfrewshire Council had accepted an obligation to fund M's transportation, whatever might have been the case with regard to other costs of his schooling. Nevertheless it appears to me that the reasons for the respondents' decision to refuse to provide transport are sufficiently intelligible and could have been expressed briefly as follows: You have entered into an agreement directly with Renfrewshire Council for M to stay at his present school; there is no arrangement in operation between the two councils regarding M's education; in these circumstances North Ayrshire Council have no obligation with regard to provision of transport. That, in substance, is what the letter states and, as I have indicated, I consider that such an analysis is correct as a matter of law.

Disposal

[19] For these reasons I consider that the petitioner's application fails. I shall sustain the respondents' first, second and fourth pleas in law, repel the petitioner's pleas in law and dismiss the petition. All questions of expenses are reserved.