Lord President

Lady Paton

Lady Cosgrove

[2011] CSIH 13




in Appeal under Section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004








Act: J.J. Mitchell, Q.C., Stirling; City of Edinburgh Council

Alt: O'Neill, Q.C.; Balfour + Manson LLP (for Taylor Kelly & Co., Solicitors)

18 February 2011

The basic facts
[1] The respondent is the mother of O, a boy who is now 10 years of age. O lives with his parents and younger siblings in a flat in Edinburgh. The appellant ("the authority") is the local education authority responsible for the school education of children within its area, including O.

[2] O suffers from autism spectrum disorder, as a result of which he has considerable difficulty in the areas of social communication and interaction. He has marked sensory sensitivity. Unlike many children and other people with autism spectrum disorder, he has no special interests, although he does show a clear preference for the outdoors and for outdoor activities. He has difficulty with transitions. He appears often to be anxious and frustrated.

[3] O has demonstrated challenging behaviour from a comparatively early age. This behaviour has become more of a problem as he has grown older. It has caused major difficulties for his family, particularly in the home, and in school. His challenging behaviour is linked to his autism and is aggravated by environmental and situational factors. His learning difficulties are pronounced. He is unlikely ever to achieve Level A, the lowest of the attainment outcomes for each of the curriculum areas in the 5-14 curriculum.

The legislation
[4] The Education (Additional Support for Learning) (Scotland) Act 2004 makes provision for additional support in connection with the school education of children and young persons having additional support needs. Section 1 of the Act provides:

"(1) A child ... has additional support needs for the purposes of this Act where, for whatever reason, the child ... 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 ...

(2) In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child ... to their fullest potential.

(3) In this Act, 'additional support' means -

(a) in relation to ... a child of school age ..., provision which is additional to, or otherwise different from, the educational provision made generally for children ... of the same age in schools (other than special schools) under the management of the Education Authority for the area to which the child ... belongs,


"School education" is defined, by cross-reference to the Education (Scotland) Act 1980 (as amended) as meaning "progressive education appropriate to the requirements of pupils, regard being had to the age, ability and aptitude of such pupils". Section 1(3) of the 2004 Act was amended by the Education (Additional Support for Learning) (Scotland) Act 2009 by inserting in section 1(3)(a) the words "(whether or not educational provision)" after the word "provision" where it first occurs in that sub-paragraph. Although that amended section was not in force when the present case was heard before the Additional Support Needs Tribunal for Scotland ("the Tribunal") the appellant is content that for present purposes the paragraph should be read as so amended.

[5] Section 2 of the 2004 Act makes provision for co-ordinated support plans. Such a plan exists for O. Section 9 makes further provision for co-ordinated support plans. It imposes an obligation on the education authority in specified circumstances to prepare a co-ordinated support plan for a relevant child, which plan must contain a statement of its conclusions as to, among other things, the educational objectives sought to be achieved in respect of the child and the additional support required by the child to achieve these objectives. The plan must also include a nomination of a school to be attended by the child. Section 9(3) provides that reference to educational objectives are objectives set to secure that the child benefits from school education provided or to be provided for the child.

[6] Section 4 of the 2004 Act (which appears in a group of sections headed "General Powers and Duties") provides:

"(1) Every education authority must -

(a) in relation to each child ... 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 ...

(2) Subsection (1)(a) does not require an education authority to do anything which -


(b) would result in unreasonable public expenditure being incurred."

[7] Section 17, as read with schedule 1, makes provision for the constitution and procedure of Additional Support Needs Tribunals for Scotland. The jurisdiction of the Tribunal extends to the reference to it at the instance of a relevant parent of a decision of an education authority refusing a placing request made in respect of a child. Section 22 and schedule 2 make provision in respect of placing requests. Paragraph 2(2) of schedule 2 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,


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."

Paragraph 3 provides:

"(1) The duty imposed by ... subparagraph (2) of paragraph 2 does not apply -


(d) if, where the specified school is a school mentioned in paragraph 2(2)(a) ..., the child does not have additional support needs requiring the education or special facilities normally provided at that school,


(f) if all 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] Section 19 makes provision for the powers of the Tribunal on a reference to it under section 18. Where the decision relates to a decision to refuse a placing request

"the Tribunal may -

(a) confirm the decision if satisfied that -

(i) one or more of the grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exist or exists, and

(ii) in all the circumstances it is appropriate to do so."

(section 19(5)).

[9] Under section 21 the person who made the reference, or the education authority concerned, may appeal on a point of law to the Court of Session against a decision of a tribunal relating to a reference made under section 18.

Redhall School
[10] In accordance with the nomination in his co-ordinated support plan O is at present a pupil at Redhall School, a day school in Edinburgh. It is a primary school which was opened in April 2008. It has some 64 pupils, all of whom have learning difficulties. The school is well staffed with appropriately qualified teachers, nursery nurses, learning assistants and ancillary or administrative staff. In addition, there is a multi-agency team of visiting staff comprising health professionals and educational psychologists. Each child has an individualised educational programme. There are two "pod" areas in the school, with four classes in each. Two of the classrooms in each pod have quiet rooms off them, so that a child can work in a distraction-free environment and still be close to the teacher. The quiet rooms are integral to the class and have a window into the class. All classrooms have access to the outside. Redhall also has a soft play area and a sensory room. Children with autism spectrum disorder tend to use the sensory room more frequently. It is available to all on a daily basis. O requires and is provided with at least one-to-one support at school. He spends much of his time at school in one of the quiet rooms. He does not generally join in activities with other pupils.

The placing request
[11] By letter dated 20 November 2009 O's parents made a request to the authority to place O at Camphill Rudolph Steiner School, Aberdeen. Camphill is a residential school. It is not a public school but is a special school, the managers of which are willing to admit O. It is a school for children with additional support needs, including additional support needs to which autism spectrum disorder gives rise. It follows the Waldorf Curriculum, also known as the Steiner Method. The curriculum is consistent with and encompasses the principles and guidance associated with the 5-14 curriculum and the Curriculum for Excellence. A principal feature of the school is its holistic approach, which incorporates the integration of school education and community life. It attaches importance to continuity of staff having contact with the children, both in terms of the child's day, in and out of the classroom, and from year to year as pupils progress through the school. It makes use of various therapies, of which equine assistance therapy may be particularly suited to O. Each child has his or her own individualised educational programme. The school endeavours to meet the needs not just of the particular pupil, but also of his family as a whole. Camphill is accredited by the National Autistic Society and was reported on in favourable terms by Her Majesty's Inspectorate of Education in 2007. The education normally provided at Camphill is suited to O's age, ability and aptitude. The provision at Camphill for his additional support needs is suitable. In particular, it offers a structure which can enable him to learn to communicate and interact appropriately with others as a springboard to further progress. The provision for O's additional support needs at Redhall is, the Tribunal found, considerably less suitable than the provision therefor at Camphill.

Proceedings before the Tribunal
[12] The authority refused the parents' placing request. The respondent thereafter referred that decision to the Tribunal. Evidence was led before it on 21, 23 and 24 June with a hearing on the evidence on 19 July 2010. Oral testimony was given, on behalf of the authority, by Mrs Susan Shipway, the head teacher at Redhall, and by Mr Douglas Fisher, educational psychologist. The respondent gave evidence on her own behalf. The Tribunal also had before it a report by Professor Thomas MacKay of Ardoch, an educational and child psychologist, and a statement from Ms Carol Chalmers, service manager of disability and health with the authority. In addition it had before it, and considered, numerous records relating to O, some of which had been recovered by the respondent under Freedom of Information legislation.

[13] Before the Tribunal the authority relied on two of the paragraphs of subparagraph 3(1) of schedule 2, namely, (d) and (f). It also contended that in the event of one or more of the conditions there specified being shown to exist, it was in all the circumstances appropriate to confirm the decision (section 19(5)(a)(ii)). The Tribunal rejected the authority's contention that condition 3(1)(d) was satisfied. That decision is not challenged in this court. As regards condition 3(1)(f), it was not in dispute that conditions (i) and (iv) were satisfied. The Tribunal found, contrary to the respondent's contention, that condition (ii) was satisfied. That finding is not challenged in this court. It found, however, that condition (iii) was not satisfied. Accordingly, it found that not all the conditions of subparagraph 3(1)(f) were satisfied, overturned the authority's decision, required the authority to place O at Camphill and required certain consequential amendments to be made in O's co-ordinated support plan. In the event it did not require to address section 19(5)(a)(ii).

[14] The authority has appealed to this court against the Tribunal's decision, contending that on various grounds it erred in law.

The Tribunal's findings and analysis
[15] The Tribunal in its decision, which was issued on 2 September 2010, made a number of detailed findings-in-fact, followed by a statement of the reasons for its decision. These reasons include a number of factual conclusions and inferences. The critical issue before it was whether it had been demonstrated by the authority that it was "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 O in Camphill and in Redhall "to place [O] in [Camphill]": paragraph 3(1)(f)(iii) of schedule 2 to the 2004 Act.

[16] There was no substantial dispute before the Tribunal as to the respective cost of the alternative schools. The Tribunal found that the annual costs of a 40-week place for O at Camphill would be a minimum of £105,960 and could be appreciably greater, up to £156,360, if O required a night attendant or a share of a night attendant. O's parents were willing to meet all transport costs between O's home and Camphill. Additional costs that the authority required to meet while O is a pupil at Redhall were £9,119 per annum (the cost of an individual learning assistant) and £10,640 per annum transport costs, a total of £19,759 per annum. The Tribunal further found that the authority, in the exercise of functions not necessarily related to education, provided or had arranged for the provision of various other services (carers, respite and the like). The respondent also employed carers from her own resources, particularly during school holidays. She had some family support.

[17] The factual issues before the Tribunal, in so far as relevant for present purposes, were essentially the extent of the behavioural difficulties presented by O and whether the additional support provision made for him at Redhall in fact ensured that he benefited from school education. It considered both the written and the oral evidence, taking into account, where it seemed appropriate to do so, the background and qualifications of those who provided it. Mrs Shipway testified that O at Redhall "has made slow, steady progress with small steps", a position which she doggedly maintained. The Tribunal, however, found it difficult to assess her evidence. It observed:

"She certainly gave the impression of being a capable, thoughtful and conscientious head teacher, and an honest witness, but her answers to many questions appeared hesitant, laconic and subdued, to the extent that the Tribunal wondered at times just how much she really believed all that she eventually said."

Mr Fisher gave the Tribunal the impression of being a well-informed and competent professional. It added:

"It was very clear that he wished the very best for [O] and no doubt the other children whose cases he required to consider. He seemed, though, just a little difficult to pin down. When he was asked to explain various things that he had written in various documents, his explanations tended to attach meanings to what he had written which were not immediately obvious on a first reading of the documents themselves. This may be because he prefers euphemism to other forms of expression and to leave his readers to 'read between the lines'. He appeared to have been supportive of the parents' position in the latter part of 2009 but to have retreated somewhat in 2010, after the placing request had gone in."

The Tribunal suspected that each of these witnesses, for whatever reason, felt inhibited to some extent in expressing their true views on certain matters.

[18] These witnesses were subjected to cross-examination under reference to documentary material, including material recovered under Freedom of Information legislation, which suggested that O's challenging behaviour, particularly in the latter part of 2009, had been more serious and alarming than some issued reports may have suggested. That behaviour included frequent assaults, by kicking, biting, slapping, hair pulling or nipping other children or members of staff. At home his behaviour had worsened. He was violent towards his parents and siblings by hitting and kicking them, pulling hair and pushing. He urinated and defecated around the house, on family members' beds and on his siblings' toys. On occasions, when he got out of the house, he ran about the neighbourhood, entered peoples' houses, threw objects and urinated and defecated in public places and neighbours' gardens. His extremely challenging behaviour was also evident on respite visits and when attending Action for Children, a specialist unit concerned with addressing that behaviour. His parents have had to take steps, by installation of locks, to contain O within the home and to parts of it. A "Safe Space" had been installed in which he can be confined when showing particularly challenging behaviour. Professor MacKay indicated in his report that O was "in a high risk category" for challenging behaviour and expressed the view that the pressure on the family caused by that behaviour was a most concerning feature of the case.

[19] The Tribunal asked itself the question - "So what are [O's] additional support needs?" In answering that question it stated that it seemed to it to be clear that these needs required to be stated in a more general, all encompassing and indeed "holistic" way rather than by endeavouring to separate out "educational support" on the one hand and "social work support" on the other. It thought that in one document Mr Fisher had come close to the heart of the matter when he stated:

"Traditional measures of progress within the curriculum are to a major extent irrelevant for [O]. The key elements are to establish and develop basic communication skills and to allow him to make some sense and to be more settled in his daily routine."

The Tribunal's view was that the structure that O needed, to benefit from school education, was not confined to what could be provided in school or by the authority as an education authority; the structure he needed encompassed all aspects of his day-to-day life, in and out of the classroom.

[20] The Tribunal was of the view that part of the problem caused by O's challenging behaviour was that there were aspects of the structure at Redhall which did not meet his additional support needs. One such aspect was the use of a "quiet room" (a room off a classroom) to isolate O when his behaviour became challenging; to the extent that it enabled O to retreat from a situation which was causing him anxiety, it effectively reinforced or rewarded his challenging behaviour. O in fact spent much of his time in one of the quiet rooms and did not generally join in activities with other pupils. The Tribunal was not persuaded that it was enough for the authority simply to say that O's behaviour was being "managed". It concluded that the current provision for O's additional support consisted of (1) Redhall and (2) certain additional support in the form of respite and other care out of school. In its judgment -

"... the suitability of that provision, looked at as a whole, in relation to [O's] needs, cannot be rated highly. In this connection, the most obvious shortcoming is the failure of the school to do more than 'manage' [O's] continuing challenging behaviour. As far as learning is concerned, he has made minimal progress to meet very modest targets. [O] is less involved with his peers, both communicatively and socially, than he was in his earlier years at school. So, with respect to the people involved, the school has failed to take him beyond the stage he was at when he first went to school, and his behaviour (his autistic behaviours as Mr Fisher called them) have got appreciably worse. Conditions in the home are far from satisfactory. [O's] parents need a lot of help to cope on a day to day basis. The home circumstances for the whole family, including the younger brother and sister, are far from desirable, with doors having to be kept locked and [O] having to be confined in his Safe Space for the protection of himself and others."

The Tribunal regarded the out of school provision as "additional support" within the meaning of the Act. Challenging behaviour continued to be a serious problem. The picture at the end of 2009 was of a family in crisis. Although there might have been some "lessening" since, the challenging behaviour was by no means a thing of the past and was likely to continue, at least for so long as things went on in the way they had been doing.

[21] In paragraph 62 of its reasons the Tribunal said:

"In the Tribunal's judgment, the suitability of [comprehensive and consistent care throughout each 24 hours] for [O's] additional support needs that he would have in Camphill School is considerably greater than that of the provision in Redhall School. As a child with autism and learning difficulties, [O] is the kind of child for whom Camphill School makes provision. The teaching methods are suitable for children such as [O]. The school has recognised strengths in these areas. The philosophy of meeting the needs not just of the individual pupil but of the family as a whole is likely to be particularly conducive to good progress in a case such as this, when the home placement has proved problematic. Support for the parents, in particular, is support for [O's] learning. The school's holistic approach, integrating school and community life, is also likely to prove beneficial. There would not be the same coming and going of a changing cadre of carers and helpers that happens at the moment. The parents would see [O] at least once a month during term time and continue to enjoy family holidays as at present. The Tribunal considered that there was an appreciably better prospect of [O's] additional support needs, as identified by the Tribunal, being met at Camphill than at Redhall."

[22] The Tribunal further noted that O had a clear preference for active and outdoor activities and had prowess in physical education. The most positive reports concerning O's social relationships occurred within the context of outdoor education, including horse riding, one of the "therapies" available at Camphill. At paragraph 64 it added:

"The fact that Camphill School is a residential school seems to the Tribunal, in [O's] case, to be an advantage rather than a disadvantage. It is, of course, generally preferable that children should live with their parents, but it is equally obvious that there are cases where it is in a child's best interest to live away from home, eg for the purposes of education. In this case, the advantage of Camphill School being a residential school is that it enables it to provide a much better structure than Redhall can provide to enable [O] to learn to exist and function as a social being, and to learn to communicate and interact appropriately with others."

[23] The Tribunal then addressed the respective cost of education at the two schools. It referred to its findings that the annual cost of a 40-week place for O at Camphill would be a minimum of £105,960 and could be appreciably greater up to £156,360. By contrast the cost to the authority while O was a pupil at Redhall amounted in total to £19,759, excluding the funding for respite and other provision. The Tribunal observed that it was evident that the cost to the authority of the provision for O's additional support needs in Camphill was likely to be appreciably greater than any savings in the form of the additional cost to the authority of that provision at Redhall.

At paragraph 70 the Tribunal said:

"It therefore appeared to the Tribunal that a comparison of the respective suitability of the provision for [O's] additional support needs in the two schools was markedly in favour of Camphill School. A comparison of the respective costs thereof was markedly in favour of Redhall. The Tribunal were reminded that the authority has to make provision for children other than [O] and no doubt this is so, but the Tribunal was concerned only with [O] and his parents' placing request, not other children or other placing requests. The Tribunal's view was that the development of [O's] personality, talents and abilities to their fullest potential, was much more likely at Camphill School than at Redhall. Accordingly it did not seem unreasonable (or did not seem 'not reasonable') to place [O] there, notwithstanding the considerable cost that the authority would have to meet. In the Tribunal's judgment, the condition set forth in paragraph 3(f)(iii) did not apply."

The appeal - grounds 1 and 2
[24] The authority has presented four grounds of appeal on the basis of which it contends that the Tribunal erred in law. The first two, which are related, were argued together. In substance they amount to a contention that the Tribunal gave no, or in any event inadequate, reasons for its decision that under paragraph 3(1)(f)(iii) of schedule 2, it did not seem "not reasonable" to place O in Camphill.

[25] Before addressing that contention we should mention a related issue, not mentioned in the grounds of appeal, which is however adverted to in the authority's note of argument and was pursued orally before us. That was that the Tribunal had erred in law when it said in paragraph 70 that "the Tribunal was concerned only with [O] and his parents' placing request, not other children or other placing requests". Reference was made in this connection to section 4(2)(b) of the Act (the restriction of the general duties of an education authority, such that it was not required to do anything which would result in unreasonable public expenditure being incurred). It was, it was submitted, an affront to common sense to ignore what might be the consequences in relation to other children, including other children with autism spectrum disorder, for whom the authority was responsible. The matter had been addressed in the statement by Ms Carol Chalmers and was relevant.

[26] In our view the approach of the Tribunal on this matter was clearly correct. Paragraph 3(1)(f)(iii) identifies the matters, and the only matters, to which the authority (and the Tribunal) have to have regard when deciding whether it is not reasonable to place the child in question in the requested school. These are the respective suitability and the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the two schools under consideration. Both those matters relate to, and relate only to, the child in question and the provision of additional support needs for him or her. The position, and any consequential expenditure by the authority, in respect of any other child or children is irrelevant to this exercise. It might be a relevant consideration where it was necessary for the Tribunal under section 19(5) to decide whether in all the circumstances it was appropriate to confirm the authority's decision; but such an assessment does not require to be made where, as here, the Tribunal is not satisfied that one or more of the grounds of refusal in paragraph 3(1) of schedule 2 exists or exist. The Tribunal did not, in our view, err in law in this respect.

[27] In submitting that the Tribunal had given no or inadequate reasons for its decision, emphasis was placed by counsel on the penultimate sentence of paragraph 70 and, in particular, on the introductory word "Accordingly". This formulation was to be construed, so ran the argument, to the effect that the Tribunal had decided that suitability always trumps cost (which was plainly an error in law) or that the Tribunal had simply failed to make at all the "cost/benefit analysis" required of it under paragraph 3(1)(f)(iii). We were reminded of the observations of Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 348 (endorsed by the First Division in Somerville v Scottish Ministers 2007 SC 140, at para 152) that a statutory obligation to give reasons requires the reasons given to be proper, adequate and intelligible and that the decision must "leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were". The decision by the Tribunal did not, it was argued, meet those tests.

[28] In our view the reasons given by the Tribunal satisfy the tests laid down in Wordie Property. The reasons have to be looked at as a whole. Concentration on a single paragraph, and even more so on a single sentence or word, is likely to distort a proper appreciation of the reasoning process. It is quite clear that the Tribunal gave careful consideration not only to the respective suitability of Redhall and Camphill to meet O's additional support needs, but also to the respective cost of provision at each school. It concluded that there was an appreciably better prospect of O's additional support needs being met at Camphill than at Redhall (para 62) but that the cost to the authority of provision at Camphill was likely to be appreciably greater than any savings in the provision at Redhall (para 69). It again made the comparison in the opening sentences of paragraph 70, noting that a comparison of the respective suitability was markedly in favour of Camphill, but that a comparison of the respective costs was markedly in favour of Redhall. It then proceeded in the ante-penultimate and penultimate sentences to relate these comparisons to each other, expressing the view that the development of O's personality, talents and abilities, to their fullest potential, was much more likely at Camphill than at Redhall and that, notwithstanding the considerable cost that the authority would have to meet on such placement, it did not seem not reasonable to place O at Camphill. Although the syntax of these sentences might have been differently ordered, on any reasonable construction the Tribunal made the judgment or evaluation of suitability against cost required of it and decided that, in this instance, the suitability of Camphill was such as to justify the cost of placing O there. An evaluative exercise of this kind will always, to some extent at least, be a matter of impression not readily capable of further elaboration. The Tribunal, in our view, gave adequate reasons for its decision.

[29] Further, on a fair reading of the Tribunal's reasons, it cannot be said that it proceeded on the basis that suitability always trumps cost. These two matters were compared and a judgment made, as required by paragraph 3(1)(f)(iii), as to which, in the particular circumstances of O, was to prevail. These grounds of appeal are rejected.

[30] We should add that we heard some argument on whether in a case of this kind, inadequacy of reasons of itself constitutes an error of law or whether it is necessary for the aggrieved party additionally to show prejudice of some kind. That issue does not, in the event, arise for decision and we reserve our opinion on it.

Ground 3
[31] By its third ground of appeal the authority contends that the Tribunal erred in law in failing to determine the additional support needs for O. It is suggested in the written grounds of appeal that the Tribunal never answered the question which it posed for itself: "So what are [O's] additional support needs?" In oral argument, however, counsel accepted that, there being no suggestion that O did not have additional support needs, it was in a general way clear from the Tribunal's judgment what these needs were. What was missing, however, was some reasonably precise account as to why Redhall was significantly less suitable than Camphill. It was accepted that the Tribunal had criticised the provision at Redhall, but it was left to speculation as to what the future would hold for O either there or at Camphill. What required to be addressed was the prospective benefit for O from school education at the alternative schools - not, for example, what benefit his parents or his siblings might have if he was away at a residential school.

[32] In our view the Tribunal did answer the question posed by it and fell into no error of law in doing so. It was accepted before us that, for the purposes of these proceedings, section 1(3)(a) should be read as if, when the case was before the Tribunal, it had already been amended by the 2009 Act, that is, that additional support (to benefit from school education) included provision which was non-educational as well as that which was educational. Inevitably in any placing dispute of this kind there will be a measure of uncertainty as to what will be the result of placing the child in one school or the other. An assessment has to be made on the information available. Redhall had been shown to be wanting. While the Tribunal found that the authority was able to make provision for O's additional support needs at Redhall (finding 17), it also noted that in one key document (the findings of a multi-disciplinary meeting in October 2009) it had been recorded that O "has made little progress since 2 years old" and that it had been commented in the same document "[O] is not receptive to the nurturing he receives from family or school ... Considering these areas it was clear that in many areas of [O's] life his needs are not being met". By contrast, Camphill offered the prospect of a holistic approach, incorporating the integration of school education and community life. It offered a structure which would enable O to learn to communicate and interact appropriately with others as a springboard to further progress. That, with other factual conclusions to a like effect, was a sufficient answer to the question posed and a sound basis for concluding that the development of O's personality, talents and abilities, to their fullest potential, was much more likely at Camphill than at Redhall. This ground of appeal is also rejected.

Ground 4
[33] The fourth ground of appeal is essentially procedural in nature. The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006, as they stood in June 2010, provided:

"3(1) These Rules are a procedural code with the overriding objective of enabling a Tribunal with the assistance of the parties to deal with references fairly and justly.

(2) Dealing with references fairly and justly includes -

(a) dealing with a reference in ways which are proportionate to the complexity of the issues and to the resources of the parties;

(b) seeking informality and flexibility in the proceedings under these Rules;

(c) ensuring, so far as practicable, that the parties are on an equal footing procedurally and are able to participate fully in the proceedings, including assisting any party in the presentation of his or her case without advocating the course he or she should take;

(d) using a Tribunal's special expertise effectively; and

(e) avoiding delay, so far as compatible with the proper consideration of the issues.

4(1) A Tribunal must seek to give effect to the overriding objective when it -

(a) exercises any power under these Rules; or

(b) interprets any rule.

(2) In particular a Tribunal must manage references actively in accordance with the overriding objective.


28(2) At the hearing of a reference, the parties shall, subject to the provision of these Rules, be entitled to be present and be heard, to give evidence, to call witnesses, to question witnesses and to address the Tribunal both on the evidence and generally on the subject-matter of the reference, provided that neither party shall be entitled unless permitted to do so by a convenor, or the Tribunal at a hearing, to call more than two witnesses to give evidence in person in addition to the child ...".

[Sub-rule 28(2) has since been revoked but re-enacted as sub-rule 22(7)].

[34] At a procedural hearing held on 17 June 2010 the convenor of the Tribunal heard motions from each of the parties to allow documents to be lodged late. The solicitor for the respondent did not object to the late lodging of the authority's documents, except for the report from Professor MacKay. The convenor was, however, satisfied that neither party would be unfairly prejudiced by the late lodging of any of these documents.

[35] The authority also moved the convenor to allow oral testimony from two witnesses, Ms Chalmers and Professor MacKay, additional to their primary witnesses (Mrs Shipway and Mr Fisher). The main reasons advanced in support of the motion were that the witnesses spoke to matters that were disputed and that, if they did not give oral testimony, the Tribunal would be less likely to accept their evidence. The convenor decided to refuse the motion at that stage of the proceedings, clearly leaving it open to the authority, if so advised, to renew the motion before the Tribunal. The convenor had regard to the circumstance that it was the "norm" in Tribunal cases that no more than two witnesses may give oral evidence on either side; the reasons put forward did not seem to him to justify the exceptional course of allowing additional witnesses. He assured parties that the Tribunal would consider all the evidence on its merits and would not give any of it less weight simply on the basis that it had not been given orally. In deciding these matters he had regard to the Rules, in particular Rules 3 and 4.

[36] In the event no motion was made by the authority before the Tribunal to allow either Professor MacKay or Ms Chalmers to give evidence in person.

[37] It is plain that the proviso to Rule 28(2) (as it then was) is intended to restrict the entitlement of parties as to the number of witnesses from whom they may lead evidence in person. That proviso has no doubt been framed against experience in Tribunals and other fora where the proceedings have been unduly extended by the leading of oral testimony from multiple witnesses, including expert witnesses, whose testimony can perfectly satisfactorily be put before the Tribunal in written form. The convenor and the Tribunal have a discretion to allow a party to call more than two witnesses to give evidence in person. That discretion must be exercised having regard to the overriding objective of the Rules that references are dealt with fairly and justly (Rules 3 and 4). It is for a party seeking to call more than two witnesses to give evidence in person to satisfy the convenor (or the Tribunal) that the particular circumstances justify that course.

[38] The reasons advanced by the authority in support of its motion were that "the witnesses spoke to matters that were disputed and if they did not give oral evidence the Tribunal will be less likely to accept that evidence". The extent to which what these witnesses spoke to was both relevant and in dispute was perhaps difficult to gauge with precision on 17 June; that would be likely to be much clearer once the authority's other witnesses had been examined and cross-examined before the Tribunal. If, as matters developed before the Tribunal, it became important that either of the additional witnesses be heard orally, the motion could then have been renewed; but it was not. We are unable to accept the suggestion made by counsel for the authority that the Tribunal would be inhibited by the convenor's prior decision. The implication must be that the authority was in the end content that the Tribunal proceed on the basis of the written testimony of the additional witnesses.

[39] On one view Professor MacKay had important testimony to give. He was an acknowledged expert on autism spectrum disorder and was familiar with the provision made, or capable of being made, at each of Redhall and Camphill. In his report he had gone so far as to conclude, among other things, that "[O] is appropriately placed in Redhall School" and "[O] does not require education in a residential school". These conclusions come close to usurping, if they do not usurp, the responsibility of the Tribunal deciding for itself where the respective suitability of the alternative schools lay. Be that as it may, Professor MacKay's discussion was subject to a number of limitations, including the fact that he had not personally carried out any psychological assessment of O. He also had access only to some of the documentation ultimately used before the Tribunal. Among the documentation to which he did not apparently have access was material used in cross-examination of the authority's witnesses which tended to demonstrate that O's challenging behaviour was worse than other reports might suggest and that Redhall was doing no more than managing that behaviour rather than advancing O's education. It is vain to speculate what Professor MacKay's responses might have been in cross-examination in the light of that material; he may or may not have modified his view. It is clear, however, that the Tribunal took his report into account. His testimony is referred to at several places in the Tribunal's reasons, usually accepting his observations. However, the Tribunal notes (at para 59) that Professor MacKay seemed to have proceeded on the basis that Redhall was confident in its ability to address O's needs, while (at para 61) the Tribunal arrives at the judgment that the provision at Redhall (and the additional out of school support) could not, looked at as a whole, be rated highly in terms of suitability. It accordingly appears not that the Tribunal ignored or gave no weight to Professor MacKay's evidence, but that it found that a premise on which he had proceeded (namely, that Redhall was effectually providing for O's needs) was not well-founded and that, in that respect, Professor MacKay's conclusions were undermined.

[40] In our view no error of law has been demonstrated in the convenor's decision to refuse the motion to allow Professor MacKay to give evidence in person. Further, no such error has been demonstrated in the Tribunal's treatment of his written evidence.

[41] The position in relation to Ms Chalmers may be dealt with briefly. In her statement she dealt with the general policy of the authority, including its preference to keep children with their families, with what provision (in particular out of school provision) had been made for O and with the budgetary constraints on the authority. As the Tribunal recognised, there is much to be said for keeping children, including disturbed children, with their families but there will be cases where residential provision, albeit markedly more expensive, will be called for. As to the financial implications in respect of other children, we have already expressed the view that, as a matter of law, the Tribunal was, when considering the application of para 3(1)(f)(iii), rightly concerned only with the position of O. We detect no error of law in the convenor's refusal to allow Ms Chalmers to give evidence in person or in the Tribunal's treatment of her written evidence.

[42] A number of other issues were raised in the parties' notes of argument and in their oral submissions, but we find it unnecessary to deal with these. For the reasons above expressed, this appeal is refused.