As will be apparent from the decision notice itself, this was one of my cases, with the permission to appeal hearing taking place in the days before lockdown restrictions came into force in Scotland and the Upper Tribunal’s hearings were put on hold.
This is only the second reported decision from the Upper Tribunal for Scotland in an appeal from the Health and Education Chamber. It is another decision on the specific question of whether permission to appeal should be granted (this arises as a matter for the Upper Tribunal to consider only where the First-tier Tribunal has refused permission).
The case is that of Aberdeenshire Council v. SS and DS  UT 25, an appeal against a decision of the additional support needs Tribunal to require the authority to place the child in question at an independent special school (i.e. a placing request appeal). The case has already been very well summarised and reported on by clan childlaw here: “Upper Tribunal refuses appeal by Aberdeenshire Council in case concerning placement request for child with additional support needs”. However, I will make one or two observations in terms of the case’s broader significance, and the issues raised.
One of the main grounds of appeal here flowed from a decision of the original Tribunal to refuse a request from the education authority to change the basis of their case at a late stage. The Council wanted to add an extra ground of refusal to their case – that placing the child in the specified school would “be seriously detrimental to the continuity of the child’s education”.
Rule 19(5) of the First-Tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 allow the legal member or Tribunal to give the authority permission for such an amendment, only in “exceptional circumstances”.
In this case, the Council had been represented by their own legally qualified staff throughout, including at the time the original response had been lodged. The fact that a child, well known to the authority, and with an autistic spectrum disorder might well have an issue with transitions was not something which ought to have come as a surprise to those preparing the case.
The Upper Tribunal held that “there is no basis for saying that the FTT erred in law in failing to find that the test of exceptional circumstances had been satisfied”.
This was not to say, however, that the issue of transition was not (or should not have been) considered as relevant by the Tribunal. Issues relating to transition were considered by the First-tier Tribunal, who “regarded it as a matter relevant to whether school B was or was not suitable”.
Such questions, specifically the quality of transition planning and the steps in place to assist pupils or prospective pupils in managing a transition, may well be regarded by the Tribunal as relevant to the overall question of suitability.
The specified school, specifically
Paragraph 3(1)(f)(ii) of Schedule 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 sets out a test of whether the authority have the ability to make provision for the child’s additional support needs “in a school (whether or not a school under their management) other than the specified school.”
In this case, unusually, the child received a mixed package of support, which included attendance (one day per week) at the specified school, School B (i.e. the school the parent had made a request for).
Therefore, following the wording of the Act, the First-tier Tribunal did not take the provision which was being made by School B into account when considering whether the authority were able to make provision for the child. However, the Tribunal did go on to consider the position if that provision did fall to be taken into account – and found that it would not have made a difference to the outcome of the case. The Upper Tribunal accordingly did not offer a view on which interpretation is correct.
It is worth noting that in an earlier Tribunal case (involving the same specified school), the opposite approach was taken, and the provision at the specified school was considered to be part of the overall provision made by the authority. My own view is that, on a plain reading of the statute, this decision (the earlier one) is wrongly decided.
Subparagraphs (iv) all
In considering whether any of the grounds of appeal were material, the Upper Tribunal noted that ground of refusal 3(1)(f) consists of 4 subparagraphs, all four of which must apply for the ground to be relied upon. In this case, subparagraphs (i) and (iv) were, by consensus, applicable. Subparagraphs (ii) (ability to make provision for the child’s needs) and (iii) (respective suitability and cost) were at issue. Therefore, “the authority would have had to have demonstrated arguable material error of law in relation to both in order to succeed in this application”.
While it would be a mistake to try and draw too much from what is a short decision on a limited point, I think we can see how carefully the Upper Tribunal consider requests for permission to appeal and that the threshold of “an arguable material error of law” (Home Secretary v. Nixon  UKUT 368 (IAC)) is a higher one than it might appear at first sight.