Back in October 2019, I blogged on a decision on permission to appeal in this case (cf. Case summary – Midlothian Council v. PD). As you’ll remember, permission to appeal was granted and the decision on the appeal has now been published on the Scottish Courts and Tribunals Service website.

The appeal was granted, and the case has been sent back to a new First-tier Tribunal (Health and Education Chamber) to hear the case afresh.

Many of the same issues canvassed at the permission to appeal hearing are covered again in this decision (unsurprisingly). As before, I’ll attempt to cover the main points which might be of more general application.

The decision is reported as Midlothian Council v. PD [2021] UT 17, although the decision itself dates from November 2019.

Reasons

The main error in law which led to the Tribunal’s decision being quashed, was a failure to provide adequate reasons for its decision. The law on this point is well established, but the Upper Tribunal reiterated that:

• the Tribunal’s decision “must leave the informed reader in no real and substantial doubt as to what the reasons were and what were the material considerations which were taken into account in reaching it”;
• the Tribunal’s decision “must identify what the decision maker decided to be the material considerations; must clearly and concisely set out his evaluation of them; and must set out the essence of the reasoning that has led him to his decision”; and
• in determining these matters, it is “necessary to read the reasons as a whole”.

In this case the Council had relied on two grounds of refusal to the placing request – grounds 3(1)(b) and 3(1)(g). Neither ground required a comparison of the two schools in question, yet the First-tier Tribunal evidently spent much time engaging in such an exercise. Since ground 3(1)(b) requires a consideration of the suitability of the specified school to the child’s ability and aptitude and ground 3(1)(f) (the presumption of mainstreaming) requires – among other things – a consideration of the suitability of the proposed mainstream school to the child’s ability and aptitude, I can understand how a comparison between the two schools might have arisen in the thinking of the Tribunal. However, it seems that the Upper Tribunal concluded that this focus was to the detriment of the proper statutory considerations in these grounds – and to the facts and evidence which would therefore be relevant, too.

The Tribunal were also criticised for failing to explain why evidence had been disregarded, or why one witness’s evidence had been preferred to another’s. In particular, the Head Teacher of the specified school had given evidence that the education normally provided at that school was not suitable for the child. The Tribunal’s decision (to grant a place at the school) was obviously contrary to that opinion, but the Tribunal had not explained why it had rejected the Head Teacher’s evidence and opinion.

As it did in the earlier permission to appeal decision, there are a series of concluding observations on the question of how to write Tribunal decisions, noting the need to avoid “a mechanistic recital of all of the evidence” while setting out “intelligibly the findings in fact relevant to [the] matter”; making “clear what evidence those findings were based on”; and, where there is a conflict in the evidence, articulating “why the competing bodies of evidence have, respectively, been accepted and rejected” – and do so “as concisely as is consistent with the nature and extent of the evidence in question.”

Mainstreaming

As noted above, one of the grounds relied on by the authority was 3(1)(g) – the presumption of mainstreaming. The Upper Tribunal notes that the effect of Section 15 of the Standards in Scotland’s Schools etc Act 2000 is to create “a fairly strong presumption in favour of educating a child in a school other than a special school.” The Upper Tribunal also notes that there is no legal definition of “mainstream” and that therefore the case went on the basis that “the expression was used to describe a school which was not a special school”. That is indeed how the section expresses itself. Interestingly, the crossheading in the Act refers to “mainstream education” while the section heading refers to education in a mainstream school. It is not clear to me whether a difference in meaning is intended and, if so, what that difference might be.

The focus in such cases is on the exceptions to the requirement found in s.15(3). The wording here is about the effect of providing education to a child ^fn1 “in a school other than a special school”. This is phrased in a very general way. However, the Upper Tribunal takes a much more specific approach, effectively requiring the First-tier Tribunal to consider the “education actually proposed to be provided to the child” at the mainstream school in question – noting that in this case what was proposed “was very far removed from a traditional mainstream high school teaching and learning environment” – at least in the short term.

This is, I think, a very helpful approach. It is right to consider the education which is actually being proposed or provided for a child, rather than some idealised or standardised picture of mainstream education. It makes sense to take this approach. I think it does lead into questions as to when providing education in a mainstream school which is “very far removed” from the mainstream becomes, in practice and in law, something which is not mainstream education at all. But that is not a question which was addressed in this case.

Appropriateness

As well as determining whether a ground for refusal exists, a Tribunal considering a placing request appeal must also decide whether it is appropriate, in all the circumstances, to confirm the Council’s decision to refuse the placing request. Sometimes described as a discretionary test, the onus lies with the authority to satisfy the Tribunal as to the appropriateness question (as it does with the grounds of refusal).

In this case, the Tribunal indicated that it was not satisfied that it was appropriate to confirm the Council’s decision. This was – strictly speaking – an unnecessary exercise. Having determined that there were no grounds for refusal, the outcome of the case was clear – the appeal must succeed. The Upper Tribunal therefore noted that “a tribunal would not normally be embarking on a consideration of whether it was appropriate in all the circumstances to confirm a decision unless it had concluded that one or more of the grounds of refusal existed.” That is not true in my experience. In most cases, the First-tier Tribunal does indeed go on to consider (albeit sometimes in brief terms) the appropriateness test, for the sake of completeness.

The Upper Tribunal goes on to state that the consideration of appropriateness would only be undertaken (or, at least, relevantly or necessarily undertaken) against a background of having concluded that one or more grounds for refusal did apply. It was therefore not possible to say that a different approach to the grounds of refusal would have had no impact on the outcome of the case.

Transcripts

There were concerns raised about whether key parts of the evidence given had been properly recorded / considered but the First-tier Tribunal. In support of that, transcripts of the evidence had been produced by the education authority. The Upper Tribunal largely declined to consider these, noting “The production of transcripts of evidence in tribunal appeals of this sort is unusual and is undesirable. It is a time consuming and expensive process.” I would agree wholeheartedly with that sentiment.

Conclusion

The case turned on the failure to give adequate reasons by the First-tier Tribunal. The decision was issued in 2019, along with lengthy notes on the correct approach to be taken by tribunals. One would hope that this reduces the chances of similar cases arising in future. The case also has some useful and interesting points on other legal matters – including the presumption of mainstreaming.

Postscript

The case was remitted to a new First-tier Tribunal, which heard the case afresh and refused the placing request appeal on 21 May 2020. Along the way, the parents seem to have ceased being legally represented and represented themselves. They sought and were refused permission to appeal from the First-tier Tribunal, and thereafter requested permission to appeal directly from the Upper Tribunal. The Upper Tribunal’s decision on permission to appeal is reported as PD v. Midlothian Council [2021] UT 18.

The parents claimed that the Tribunal was not accessible and fair. They complained that a conference call took place which they were unable to attend. They complained that the Tribunal went ahead without an up-to-date educational psychology report. They complained that they should have been allowed time to obtain an independent psychological report. They complained that the Tribunal considered a full-time permanent placement at the specified school, when all they wanted was a short term assessment period there. They complained that they wished to bring a discrimination claim against the education authority.

These complaints were all found to be be not arguable, and permission to appeal was refused. It is worth noting that the placing request mechanism is fairly inflexible and is designed to deal with a “traditional” school placement. It does not operate well for parents who are looking for part-time placements, split placements, or – as here – for a child to go to a school “for a short time to allow for a period of assessment to find out where he was with his level of learning abilities.”

Image by congerdesign from Pixabay

Footnotes:

1 – The section only refers to a child (never to “young person”), which we know by reference to the interpretation section at s.58(2) has the same meaning as in the Education (Scotland) Act 1980, i.e. someone under school leaving age. The plain meaning of this (unless I have missed something) is that the presumption of mainstreaming does not apply to pupils aged 16 and over!