Since the beginning of 2018, further appeals in additional support needs cases go from the Tribunal to the Upper Tribunal for Scotland.  It has taken until now, however, for a case to actually get as far as that and yield a decision for us to look at.  Let us set aside for the moment my own personal disappointment that it was not one of my cases, and the fact that it is only a determination of the question of permission to appeal, and see what the case actually says.

The case in question is Midlothian Council v. PD [2019] UT 52 (PDF) and it is an appeal against a decision of the First-tier Tribunal for Scotland (Health and Education Chamber) to grant a placing request appeal in favour of the appellant (the parent of a child with additional support needs).

This decision does not tell us much about the facts of the original case, and it is an appeal which is much concerned with how the decision was written, rather than any contentious legal interpretation points, so the following may be quite technical in nature – bear with me!

Interesting  points to note from the decision

1. In this case, one of the grounds of refusal relied upon was ground (g) – which is the presumption of mainstreaming ground.  The Upper Tribunal set out some useful points in terms of how a Tribunal should approach this ground.  The Tribunal require to consider whether any of the exceptions to the presumption apply or not.  Section 15 of the Standards in Scotland’s Schools etc Act 2000 refers to “a school other than a special school”.  The Upper Tribunal makes it clear that, in the context of a placing request appeal, that is to be taken as a reference to a particular mainstream school proposed by the education authority.
2. The consideration of whether any of the exceptions to the presumption of mainstreaming applies is not a comparative test.  The Tribunal are to consider the position in relation to the specified mainstream school proposed by the education authority, without engaging in a comparison with the specified school (the one requested by the parent(s)).  This is distinct from ground (f) which explicitly requires a comparison to be undertaken.
3. The Upper Tribunal notes (albeit in passing) that the “availability or otherwise of outdoor education” is legitimately regarded as a factor which the Tribunal may consider when thinking about the extent to which a school is suited to the “age, aptitude and ability” of the child or young person in question.

Ultimately, permission to appeal was granted and I understand that the Upper Tribunal has now heard the appeal, with the decision currently pending.

Observations on how to write a Tribunal decision

Following the formal decision of the Upper Tribunal, Lady Carmichael goes on to make some observations “intended to be of assistance to the First-tier Tribunal” (or FTT).  There is something of an irony here, as a previous edition of the Health and Education Chamber’s Bulletin (PDF at p13) cautioned legal members on the use of “observations or concluding remarks when they do not relate directly to the tribunal’s findings”.  In any event, the comments can be summarised thus:

• Written decisions of the Tribunal should “(a) state clearly what facts the FTT has found, (b) the evidence on which those findings in fact are based, and, (c) [where necessary] an explanation of why the FTT has reached the conclusion that it has on the matter.”
• A finding in fact is not just a case of restating the evidence.  It is a conclusion as to the facts, based on that evidence.  A fine distinction in some cases, but a distinction nonetheless.
• Where there is competing evidence on an important issue, the Tribunal should summarise what the evidence was and clearly state why one side was accepted and the other rejected.  “This need not be a lengthy exercise”.
• “Where a Tribunal is addressing legal tests it should structure its reasoning by reference to those tests and the language in those tests.”
• It is important to remember the purpose of written reasons, as set out in the case of Chief Constable , Lothian and Borders Police v. Lothian and Borders Police Board 2005 SLT 315 (per Lord Reed): they strengthen the decision-making process; they increase public confidence in that process; they will disclose any errors which arise; they allow the parties to a case to know the strength (or otherwise) of their cases and facilitate an appeal (if appropriate).  The need to give reasons will concentrate the Tribunal’s mind on the correct questions and demonstrate to the parties that this is the case.  As the late, great Lord Denning put it: “the giving of reasons is one of the fundamentals of good administration.”

What next?

This was just the consideration of permission to appeal.  The decision of the Upper Tribunal on the appeal itself will follow, and will likely be the feature of a future blog.  Other decisions from the Upper Tribunal in additional support needs cases will also follow (and be considered here).