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NOTE: PARENTS OF CHILD J AGAINST DUMFRIES AND GALLOWAY COUNCIL

2015SCDUM69

Court Reference number: B186/15

 

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY
AT DUMFRIES

 

NOTE

By

SHERIFF GEORGE JAMIESON

in causa

PARENTS OF CHILD J

PURSUERS

against

DUMFRIES AND GALLOWAY COUNCIL

DEFENDERS

____________________________________________________________________________

Dumfries                                7 October 2015

The Sheriff, having given Judgment orally after the hearing on 15 July 2015, now provides, at the request of the defenders’ solicitor, the following Note in relation to his interlocutor of 15 July 2015 allowing the pursuers’ appeal against the defenders’ refusal of their placing request in respect of their son J born 8 April 2010.

Sheriff George Jamieson

NOTE

Background

  • [1]The pursuers made a placing request for their son J to start school in P1 of their specified PS (“SPS”). He had been attending nursery classes there. His older brother attends the school. His sister attends local high school. The defenders refused the placing request. The pursuers appealed to the appeal committee set up under section 28D of the Education (Scotland) Act 1980 (hereafter “the 1980 Act”) against the defenders’ decision to refuse their placing request, but it refused that first stage appeal. The pursuers then appealed to the sheriff. That appeal was initially made under section 28F of the 1980 Act. The pursuers later sought leave to amend the appeal to the sheriff to one under schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) (hereafter “the 2004 Act”).
  • [2]After hearing submissions from the parties’ solicitors, I found that the appeal might competently proceed before the sheriff under schedule 2 to the 2004 Act in accordance with the pursuers’ minute of amendment; accordingly, I granted the pursuers leave to amend their initial writ and for the amended initial writ to be received in process; and I found that there was in law and in fact good cause to hear it out of time in accordance with paragraph 7(5) of schedule 2 to the 2004 Act. I thereafter allowed the appeal, refused to confirm the defenders’ decision to refuse the pursuers’ placing request and made an order requiring the defenders to give effect to the placing request made by the pursuers.

     

    Documentary Evidence

  • [3]The placing appeal report at 6/1 of process reveals that SPS has a capacity for 323 pupils. The projected school roll for 2015/16 is 306, with 34 P1 pupils, accommodated in two classes: Class 1- 25 P1; Class 2- 25 composite P1/P2 (9/16).
  • [4]The defenders’ Enrolling in Schools Placement Policy at 6/2 of process reveals priority is given to pupils from the catchment area. Placing requests are then considered in order of priority – (i) pupils with additional support needs (“ASN”); (ii) siblings already in the school; (iii) proximity of children from other schools within DG; (iv) children from other councils. The policy emphasises attendance at a particular nursery does not give a child an automatic right to attend that school if the child does not live within the catchment area. Children with ASN will normally opt for their catchment school “unless there are particular grounds in relation to the child’s specific support needs which suggest enrolment at a certain school”. Priority will be given to pupils “who have significant Educational Visitor or Psychological Service involvement such that transition arrangements require planning prior to the enrolment date”.

     

    Oral evidence

  • [5]GB, Head of Service Strategic Support (Responsible for Placing Requests) explained that there are only 11 classes in the school. These are fully occupied for all P years.
  • [6]The Class Size Regulations allowed her to admit only a maximum of 25 pupils to a P1 classroom. This had been achieved for the 34 P1 pupils in classes 1 and 2. She had had eight appeals. There was a waiting list of 25 pupils. J was third. If he were admitted the authority would need to employ an additional teacher at a cost of up to £43,900. There was a national shortage of teachers and recruitment could not be guaranteed before August.
  • [7]The school has a learning centre. J receives SALT in a clinic, but his needs can be met by any school in DG. DGC has anti-bullying policies, applicable therefore in relation to his catchment school (“CPS”). It also has a breakfast club at 8:15 am. There is no after school care there but parents can make private provision. There are spaces available for him at two other local PS. Adding an additional pupil to a class reduced the space available to other children for active learning in the soft play, sand and water areas. Creating an additional classroom, such as via a Portacabin, would reduce the outdoor play area for all 306 children in the school. J’s ASN of which she was aware had not featured in the placing request.
  • [8]In cross-examination, she did not know J, but was aware he had been assessed for and was receiving SALT. Had he been a learning centre child, he would “have been straight in”. She had spoken to the Head Teacher and this had not been “flagged up”. There were 33 catchment children and 34 places. Team teaching was possible but not recommended. In re-examination she explained some families refused a PR had decided to move siblings from SPS to allow them to go to school together.
  • [9]KC, SAL Therapist said J had had six blocks of SALT. He was making slow but steady progress. He was very shy and timid. There was no reason why he could not access mainstream education. In cross-examination she opined it would be detrimental to his wellbeing to be moved to a different PS. However it was not felt necessary to refer him to an educational visitor. See 5/7 of process for her report.
  • [10]In her evidence, J’s mother explained that she and her husband have three children: their daughter, E, 13, who attends local high school; JL, J’s older brother, who is going into P5 at SPS. Both E and JL attended SPS from the beginning. This was to allow the maternal grandparents to help as both parents were then working. J’s mother no longer works and her parents are in their 80s. JL finishes school at 3pm; E at 3:35pm; and J would finish at 3:25pm at CPS. It was logistically difficult for her to collect all three children by car within this timescale. If J attended SPS she could collect both boys at the same time. Otherwise, J would have to be picked up first, leaving JL waiting 25 minutes; neither she nor the school would be happy with that. If both boys were at SPS these difficulties would be avoided. The boys were not allowed out and about in their local area. JL had been bullied. He would not be available for J if anything happened to J in CPS. JL helped J to vocalise and would support him during their three years of PS together. Placing J in another school would not remove the logistical difficulties and she would have to consider removing JL from SPS so the two of them were together.
  • [11]She also explained that J had taken 18 months to settle in to nursery; other children going from nursery into school classes at SPS had already made allowances for him and his speech difficulties.
  • [12]In cross-examination, she said she was worried for J because he still had difficulty forming words; he still could not pronounce his own name. She accepted the map at 6/2/1 of process showed CPS was within walking distance of her home. She and her husband had moved from another area. She did not want the boys to go to CPS. JL did not want to move. He had been bullied locally by boys in the park. He was a lot more sensitive than J. E did not want to make her own way to high school, such as by getting the bus.

     

    Primary Legislation

  • [13]Section 1 of the 2004 Act defines ASN so far as school children are concerned:
    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 (whether or not educational 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 responsible for the school education of the child.
  • [14]Schedule 2 to the 2004 Act (introduced by section 22) provides that sections 28A, 28C, 28E, 28F and 28G of the 1980 Act (which make provision as to the making of placing requests and appeals in relation to the refusal of such requests) do not apply in relation to children having ASN and instead the provisions of that schedule apply in relation to such children (paragraph 1)[1]. Paragraph 2(1) of schedule 2 to the 2004 Act provides that where the parent of a child having ASN makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly[2].

  • Paragraph 3: Circumstances in which duty does not apply

    1. The duty imposed by sub-paragraph (1) does not apply, [so far as relevant to this appeal] – (a) if placing the child in the specified school would– (i) make it necessary for the authority to take an additional teacher into employment, (ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school, […] (v) be likely to be seriously detrimental to the educational well-being of pupils attending the school.

       

  • [16]Paragraphs 2 and 3 (1) (a) (i), (ii) and (v) of schedule 2 to the 2004 Act are for all material purposes in this appeal identical to sections 28A (1) and 28A (3) (a) (i), (ii) and (v) of the 1980 Act respectively[3].
  • [17]Both the 2004 and 1980 Acts provide for an appeal from the appeal committee to the sheriff:

    2004 Act: Paragraph 7: Appeal to sheriff from appeal committee

    1. A parent who has made a reference to an appeal committee under paragraph 5 may appeal to the sheriff against the decision of the appeal committee on that reference.
    2. Omitted.
    3. An appeal under this paragraph– (a) is to be made by way of summary application, (b) must be lodged with the sheriff clerk within 28 days from the date of receipt of the decision of the appeal committee, and (c) is to be heard in chambers.
    4. Omitted.
    5. On good cause being shown, the sheriff may hear an appeal under this paragraph notwithstanding that it was not lodged within the time mentioned in sub-paragraph (3)(b).
    6. 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) exists or exist, and (b) in all the circumstances, it is appropriate to do [so], but otherwise must refuse to confirm the authority's decision.
    7. Where the sheriff so refuses, the sheriff must require the education authority– (a) …. to place the child in the specified school…and the authority must comply with that requirement.
    8. Omitted.
    9. Omitted.
    10. The sheriff may make such order as to the expenses of an appeal under this paragraph as the sheriff thinks fit.
    11. (11)The judgment of the sheriff on an appeal under this paragraph is final.

    1980 Act: Section 28 F of the 1980 Act — Appeal to sheriff from appeal committee.

    1. A parent who has made a reference under section 28C of this Act may appeal to the sheriff having jurisdiction where the specified school is situated against the decision of an appeal committee on that reference.
    2. Omitted.
    3. An appeal under this section- (a) shall be made by way of summary application; (b) shall be lodged with the sheriff clerk within 28 days from the date of receipt of the decision of the appeal committee; and(c) shall be heard in chambers.
    4. On good cause being shown, the sheriff may hear an appeal under this section notwithstanding that it was not lodged within the time mentioned in subsection (3) above.
    5. The sheriff may on an appeal under this section confirm the education authority's decision if he is satisfied—(a) that one or more of the grounds of refusal specified in section 28A (3) of this Act exists or exist; and (b) that, in all the circumstances, it is appropriate to do so but shall otherwise refuse to confirm their decision and shall, where he so refuses, require the authority to give effect to the placing request to which the appeal relates.
    6. Where the judgment of the sheriff on an appeal under this section is inconsistent with any decision of the education authority (whether confirmed by the appeal committee or not) refusing a placing request to place another child at the same time and at the same stage of education and in the same school as that at and in which the child to whom the judgment relates is to be placed, the education authority shall review their decision so to refuse and shall inform the parent of the other child of their decision upon that review and the reasons for it.
    7. The decision of an education authority upon a review under subsection (6) above not to reverse their decision to refuse the placing request in respect of the other child may be referred to an appeal committee by the parent of the other child as if the decision upon the review were a decision refusing his placing request and the provisions of this Act relating to references of decisions upon placing requests and appeals therefrom (including those relating to appeal committees) shall apply accordingly.
    8. The sheriff may make such order as to the expenses of an appeal under this section as he thinks proper.
    9. The judgment of the sheriff on an appeal under this section shall be final.
  • [18]These appeal provisions are for all material purposes identical, save sections 28F (6) and (7), highlighted in bold above, which have no counterpart in schedule 2 to the 2004 Act. Previously section 65 of the 1980 Act governed placing request appeals if the child was recorded as having special educational needs.
  • [19]Section 65 (2) provided that subsections (2), (3), (4), (8) and (9) of section 28F of the 1980 Act applied to an appeal under section 65. Therefore subsections (6) and (7) did not apply. This seems to be carried forward to the 2004 Act but with this difference - the child has additional support needs given the 2004 Act has replaced the concept of “special educational needs” with that of ASN.
  • [20]The appeal to the sheriff under schedule 2 of the 2004 Act applies inter alia where the child has ASN but has not applied for a co-ordinated support plan and is to be educated in a mainstream school. If such plan existed, then appeal would be to an Additional Support Needs Tribunal (“ASNT”) (see Gordon, Appellant 2007 Fam. L. R 76[4]).

     

    The Education (Lower Primary Class Sizes) (Scotland) Regulations 1999[5]

  • [21]A P1 class may not contain more than 25 pupils “while an ordinary teaching session is conducted by a single qualified teacher” (regulations 3(1) and (5)). However, an “excepted pupil” is not included in the P1 class numbers (regulation 3(3)).
  • [22]For the purposes of this appeal, J would be an “excepted pupil” if his parents’ appeal under section 28F of the 1980 Act were allowed (regulation 4(1); paragraph 4 of the schedule to the Regulations).
  • [23]While there is, in terms, no similar exception in the Regulations where an appeal is allowed under paragraph 7(6) of schedule 2 to the 2004 Act[6], the same result would follow because where the sheriff allows an appeal under schedule 2 to the 2004 Act, the sheriff must require the education authority to give effect to the placing request and the education authority must comply with that requirement (paragraph 7(7) of schedule 2 to the 2004 Act[7]). As this is primary legislation, it takes precedence over the subordinate regulations. The practical effect of the regulations therefore is that an education authority can, as in this case, rely on the P1 maximum of 25 pupils in the context of establishing exceptions to its duty to accede to a placing request under the 1980 Act or schedule 2 to the 2004 Act. But neither the appeal committee nor the sheriff are precluded from allowing an appeal solely because of these Regulations.

    Defenders’ reasons for refusing the placing request

  • [24]The defenders refused the pursuers’ placing request because there were “insufficient class bases” to accommodate it (see 5/2 of process). Article 6 of their Answers explained that the 1999 Regulations permitted a maximum of 25 pupils per P1 class.
  • [25]They averred in Answer 6 that if J were placed in P1-
    1. it would make it necessary for the authority to take an additional teacher into employment;
    2. it would give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school; and
    3. be likely to be seriously detrimental to the educational well-being of pupils attending the school.
  • [26]These objections therefore corresponded to the exceptions to the duty to grant a placing request in both sections 28A (3) (a) (i), (ii) and (v) of the 1980 Act and paragraphs 3(1) (a) (i), (ii) and (v) of schedule 2 to the 2004 Act.

     

    Sheriffs’ different approaches to appeals under section 28F of the 1980 Act

  • [27]Sheriffs have historically taken either the “single child” or “whole school” approach in appeals to them under section 28F of the 1980 Act. Under the single child approach, the sheriff considers the appeal only on the basis of the effect of granting the appeal in relation to the child who is the subject of the appeal (East Lothian Council, Petitioner 2008 SLT 921). Under the “whole school” approach, the sheriff has regard to sections 28F (6) and (7), and the effect of granting the appeal on all children whose parents made a placing request and not just the intrepid few who go as far as appealing to the sheriff (H v City of Edinburgh Council 2011 SLT (Sh. Ct.) 181; H, Petitioner [2012] CSOH 008). As was said in H v City of Edinburgh Council “the whole school approach meant that the sheriff could look at the consequences including the consequences of the review procedure in reaching a decision” (paragraph [17] at page 183L).

     

    My Findings in the appeal

  • [28]I accepted the evidence of GB, that there were only 11 classes in the school. These were fully occupied for all P years. The Class Size Regulations allowed her to admit a maximum of only 25 pupils to a P1 classroom. This has been achieved for 34 P1 pupils in classes 1 and 2. If J were admitted the authority would need to employ an additional teacher at a cost of up to £43,900. There was a national shortage of teachers and recruitment could not be guaranteed before August. Creating an additional classroom, such as via a Portacabin, would reduce the outdoor play area for all 306 children in the school. There were 24 other children whose cases the education authority would come under a duty to review if I allowed the appeal.
  • [29]Taking into account the impact of the review procedure, and notwithstanding J would be an “excepted pupil” if the appeal were allowed, I was therefore satisfied that the exceptions to the duty to place J put forward by the education authority applied because, adopting the numbering in section 28A(3)(a) of the 1980 Act, granting the placing request would - (i) make it necessary for the authority to take an additional teacher into employment, (ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school (the Portacabin), and (v) be likely to be seriously detrimental to the educational well-being of pupils attending the school. As to (v), this was because, having regard to the impact of the review procedures, and the position of the other 24 children on the review list, the school would likely be overloaded. A Portacabin would reduce the play area available for all 306 children in the school.
  • [30]While it was still open to me to allow the appeal under section 28F of the 1980 Act notwithstanding these exceptions had been established, there would in my opinion need to be compelling or exceptional circumstances to justify such a course being taken (M v City of Edinburgh Council 2012 SLT (Sh Ct) 38).
  • [31]I was not satisfied that was the case. I agreed with the defenders’ solicitor that, set against the cost to the education authority of employing an additional teacher, or the detriment to the educational wellbeing of the other children if a Portacabin were erected:
    1. There were places available for J in other schools in the area.
    2. The logistical argument put forward by J’s parents was not sufficiently compelling. Their daughter could get a bus to high school.
    3. CPS was only 0.1 mile from the family home.
    4. If J attended there, he could be dropped off at the breakfast club before school started at 8.45 am.
  • [32]However, if the appeal were allowed under schedule 2 to the 2004 Act, the review procedure in sections 28F (6) and (7) of the 1980 Act would not apply. In those circumstances, I considered the exceptions in paragraphs 3(1) (a) (i), (ii) and (v) had not been established because only J would require to be admitted to the school. This did not make it likely that the education authority would need to employ an additional teacher or build a Portacabin. In any event, I accepted the submission of the pursuers’ solicitor that it would not be appropriate to confirm the defenders’ decision because of J’s SALT difficulties. In this regard:
    1. I accepted the evidence of KC that it would be detrimental for him to move from SPS.
    2. I accepted his mother’s evidence that his older brother would be able to provide significant support for J in SPS.
  • [33]Further, article 3(1) of the UNCRC 1989 provides that in making this decision J’s interests were a primary consideration for me. Thus while his best interests were not paramount or even the primary consideration for me, they were nevertheless a primary consideration which I had to take into account as part of “all the circumstances” in deciding whether to confirm the decision under paragraph 7(6) (b) of schedule 2 to the 2004 Act.
  • [34]Considering that issue, it was in my opinion in J’s interests to attend SPS compared to CPS because although there is a breakfast club at CPS, and he could be left there by his mother in the mornings, he is reserved and has difficulty communicating with other children. In those circumstances, as confirmed by the opinion of KC, SAL Therapist at 5/7 of process, the transition from nursery to PS was likely to be easier for him at SPS than at CPS. SPS has the advantages of familiarity for him and the presence of JL, his older brother, who can give him support. In addition, KC, SAL Therapist was of the opinion that moving J to another school for P1 “may be detrimental to a successful transition from nursery to primary education”.

     

    The questions of law arising for my decision

  • [35]The defenders’ solicitor objected to the proposed amendment, to change the appeal from one under section 28F of the 1980 Act to one under schedule 2 to the 2004 Act.
  • [36]She submitted, first, that schedule 2 only applied if ASN had been formally established under sections 6-9 of the 2004 Act. However, I accepted the submission of the pursuers’ solicitor that this was not necessary. Section 1 of the 2004 Act referred to above at paragraph [13] was in broad terms. It is to the effect that a child has ASN if he is likely to be unable to benefit from the provision of school education in particular directed to the development of his personality, talents, and mental and physical abilities to their fullest potential without additional support. That support need not be educational in nature. It does not have to be provided in a learning centre. There is no requirement under schedule 2 that there has been a formal assessment of ASN[8].
  • [37]In my opinion, on the particular facts of this case, J was likely to be unable to benefit from school education directed to the development of his personality, talents, and mental and physical abilities to their fullest potential without additional support in the form of SALT. Speech and language are important to a child’s education. J still has difficulty in forming words and being understood. I accordingly found that J had ASN arising from his continuing therapy provided by the SAL Therapist KC and therefore his parents’ appeal was properly under schedule 2 to the 2004 Act rather than under section 28F of the 1980 Act.
  • [38]I considered there was considerable attraction in the defenders’ second objection to amendment that, although the appeal provisions under the 1980 Act and schedule 2 to the 2004 Act were for all practical purposes identical in this case, they were still under different Acts and therefore the defenders and the appeal committee would be denied an opportunity first to consider the pursuers’ placing request, based on J having ASN.
  • [39]However, having regard to my duty under article 3(1) of the UNCRC 1989, it would not be in a child’s interests for me to take such a technical approach to the pursuers’ proposed amendment of their initial writ. Although education authorities can set up a number of appeal committees under section 28D of the 1980 Act (as amended by the 2004 Act), those committees consider placing request appeals under both the 1980 Act and schedule 2 to the 2004 Act[9]. Whether the appeal to the sheriff comes through the route of the 1980 or 2004 Act, the sheriff’s decision on the appeal is final. The sheriff is not bound by what went before. I therefore accepted the pursuers’ solicitor’s submission that the amendment was competent.
  • [40]Next, it was objected by the defenders’ solicitor that as the pursuers had in their appeal to the appeal committee only referred to the logistical problems they personally would face in coping with three children at three different schools if J were not placed in SPS (see 5/3 of process), I should exercise discretion to refuse the amendment.
  • [41]While that might well have been reason, in exercise of my discretion, to refuse the otherwise competent amendment, I considered that it would be contrary to J’s interests and not compliant with my duty under article 3(1) of the UNCRC 1989 to take that course. Any prejudice to the defenders in allowing late amendment was in my opinion adequately dealt with by not finding the pursuers entitled to expenses. The pursuers’ solicitor correctly and properly recognised this would follow from his clients not having relied on J’s ASN until late into the appeal process before the sheriff.
  • [42]The final issue was the lateness of the appeal under the 2004 Act. Normally a statutory appeal has to be brought within the appropriate time limit (see section 28F (3) (b) of the 1980 Act and paragraph 7(3) (b) of schedule 2 to the 2004 Act for placing request appeals to the sheriff), but here the court had discretion to allow a late appeal under paragraph 7(5) of schedule 2 to the 2004 Act (cf section 28F (4) of the 1980 Act).
  • [43]I exercised that discretion. The pursuers had not at the beginning understood the significance of J’s ASN to the potential success of their appeal. J’s interests were a primary consideration under article 3(1) of the UNCRC 1989. Further, the legislation in this field appeared to me to be previously untested. It was also overly complicated, with, simplifying matters somewhat, three different appeal routes depending on whether there is a co-ordinated support plan (to an ASNT), ASN but no co-ordinated support plan (the sheriff under schedule 2 to the 2004 Act), or cases not involving ASN (the sheriff under section 28F of the 1980 Act).
  • [44]It seemed to me these were good reasons explaining why it had not emerged until well into the appeal that J’s ASN might mean the pursuers ought to have appealed under schedule 2 to the 2004 Act, especially since the pursuers had apparently not engaged solicitors until appealing to the sheriff. The pursuers appear to have submitted their own appeal to the appeal committee without benefit of prior legal advice. I accordingly found there had been good cause for the appeal under schedule 2 to the 2004 Act having been made late.
  • [45]However, in future cases appellants’ legal representatives ought, if so instructed, to consider whether any question of ASN arises at the outset of their clients making a placing request to the education authority. It is preferable that such issues are put before the education authority and, if necessary, the appeal committee at the earliest opportunity, as this may obviate the need for onward appeal to the sheriff under schedule 2 to the 2004 Act.
  • [46]There may be cases where appeal to the sheriff is necessary and there is doubt or dispute the child concerned has ASN as defined by section 1 of the 2004 Act. This in turn might throw into doubt which appeal route his parents should follow – under the 1980 Act or under schedule 2 to the 2004 Act. In such cases, I can see no reason why a single appeal by summary application cannot be made to the sheriff on alternate bases under section 28F (1) of the 1980 Act and paragraph 7(1) of schedule 2 to the 2004 Act.


[1] Sections 28A and 28F are considered below. Section 28C provides for references to the appeal committee. Sections 28D and 28E make provision about appeal committees. Section 28G deals with the position of young persons and is not relevant to this appeal. Accordingly of these provisions, only sections 28A and 28F are directly relevant to this appeal. Section 28B makes provision about information in connection with placing requests. It is not relevant to this appeal.

[2] A request made under sub-paragraph (1) is referred to in the Act as a “placing request” and the school specified in it is referred to in schedule 2 as the “specified school”: paragraph 2(3).

[3] As with sections 28A – 28G of the 1980 Act, only paragraphs 2, 3 and 7 of schedule 2 to the 2004 Act, which make provision corresponding to sections 28A and 28F of the 1980 Act, are directly relevant to this appeal.

[4] That case confirms that appeals are to the sheriff under schedule 2 to the 2004 Act where the child has ASN - unless the Act confers jurisdiction on the Tribunals. The Act was subsequently amended by the Education (Additional Support for Learning) (Scotland) Act 2009 asp 7 to rectify the jurisdictional problems identified in the Gordon case and also in  D v Glasgow City Council 2007 SLT 881.

[5] SI 1999, No. 1080 as amended by the Education (Lower Primary Class Sizes) (Scotland) Amendment Regulations 2010, SSI, No. 326

[6] This was either a drafting omission in the Education (Lower Primary Class Sizes) (Scotland) Amendment Regulations 2010, SSI, No. 326, or amendment was unnecessary standing paragraph 7(7) of schedule 2 to the 2004 Act obliging the education authority to comply with the sheriff’s decision allowing an appeal under schedule 2 to the 2004 Act.

[7] While under section 28F (5) of the 1980 Act the sheriff, on allowing an appeal against refusal of a placing, must require the education authority to give effect to the placing request, there is no equivalent provision requiring the education authority to comply with that requirement.

[8] Paragraph 1 of schedule 2 provides that the schedule applies to children having additional support needs. This contrasts with appeals under now repealed section 65 of the 1980 Act, which only applied where the child had a record of needs.

[9] Thus the functions of appeal committees under both the 1980 and 2004 Acts are to be transferred to the new Scottish Tribunals to be established under the Tribunals (Scotland) Act 2014 asp 10 (see sections 27 and 28; paragraphs 4 and 13(4), Schedule 1).