Case summary – Aberdeen City Council v. LS (Upper Tribunal for Scotland)

There are a number of differences between the systems of education in Scotland and England. One of those is the existence of specialist colleges for young people with learning difficulties and/or disabilities. Another is the tradition of Sixth Form Colleges. The question which arose in this case was whether pupils with additional support needs in Scotland could access this kind of provision elsewhere in the UK.

As you may know, the system of making placing requests includes, for pupils with additional support needs, the ability to make a request for “a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs”.

In this case, the First-tier Tribunal for Scotland (Health and Education Chamber), had determined – as a preliminary issue – that the specialist college in question did count as a “school” under the above definition. This meant that LS, the young person, could make a placing request to the specialist college in question. It also means that a refusal (or deemed refusal) of that placing request could be appealed to the Tribunal.

The Council appealed against this decision. There is quite a lot in the detail of the Upper Tribunal decision (Aberdeen City Council v. LS [2021] UT 1) here, but to provide the broad sweep, I will try to simplify.

  • The Upper Tribunal rejected the appeal points raised by the Council and upheld the original Tribunal’s decision. That is, the UT confirmed that the specialist college in this case could be counted as a school for the purposes of a placing request. The Council argued that it should not be because of the age of the students (16+) and the nature of the institution. That argument was rejected.
  • Lady Poole went on to make a number of observations, aimed at ensuring that Tribunal cases were not subject to unnecessary delays. These observations are just that, but they are likely to be taken seriously by the Health and Education Chamber.

So, what does this mean?

First, senior pupils in Scotland with additional support needs will be able to access a wider range of schools than was previously thought to be the case – including specialist colleges. Whether a particular institution and course do qualify will depend on the facts of the individual case, with the focus being on the nature of the provision being offered (can it be regarded as secondary education?) rather than on the age of their students or how they are regarded within the English system.

It follows that I refuse the appeal on grounds 1 and 2 advanced by ACC. Both are predicated on the argument that placing requests can only be to schools which provide education for pupils of school age (essentially 5-15 year olds). I do not consider this is a requirement of para 2(2)(b) of Schedule 2 when properly interpreted, for reasons set out above. I consider the approach of the FtT, in reading para 2(2)(b) in the way it did and determining whether that test was met on the evidence, was correct.

Lady Poole, Aberdeen City Council v. ACC [2021] UT 1

Second, we can look forward to potential changes in some Tribunal procedures. For example, it may well be that treating matters as a separate preliminary matter becomes less common. It is also likely that where a review and a request for permission to appeal are lodged at the same time (which is quite common) they should be considered at the same time, rather than one after the other. This should be quite helpful in reducing delays within the Tribunal process.

Image by StockSnap from Pixabay

Case summary – Aberdeenshire Council v. SS and DS (Upper Tribunal for Scotland)

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 [2020] 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.

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Case summary – Drexler v. Leicestershire County Council (Court of Appeal)

This case was an appeal to the Court of Appeal against a decision of the High Court, rejecting a human rights challenge brought against a change in the SEN transport to school policy of the local authority.  The case was Drexler v. Leicestershire County Council [2020] EWCA Civ 502 and while the appeal was unsuccessful and concerning provisions in English law, it has some useful and interesting points for us to consider.

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Case summary – AD v. London Borough of Hackney (Court of Appeal)

The case of AD v. London Borough of Hackney [2020] EWCA Civ 518 was recently heard by the culinary trio of Lords Justice Bean and Baker, and Mr Justice Cobb at the Court of Appeal.  It is the latest in a series of unsuccessful legal challenges to local authority budget cuts affecting (or potentially affecting) special educational needs provision in England and Wales.

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Case summary – Midlothian Council v. PD (Upper Tribunal for Scotland)

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).

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