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

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.

Continue reading “Case summary – Midlothian Council v PD and PD v Midlothian Council (Upper Tribunal for Scotland)”

Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021

You may remember back in April last year, when the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force, the Scottish Government indicated that the changes were intended to be temporary and should be reversed by March 2021.

Well, it is now March 2021, and (as of 27 February 2021) the changes have been at least partially reversed, with the coming into force of the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021. Let’s recap:

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) was extended from 30 April to 31 May. It has now been revised to a mid-way point of 15 May. This is effectively the deadline for decisions in such placing requests for this year.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused was extended to 3 months following the receipt of the placing request by the education authority. This has been restored to the original 2 months period.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within a certain period following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This period was increased from 2 months to 4 months, and has now been revised to 3 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within a certain period following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This period was increased from 14 days to 28 days, and has now been returned to 14 days.
  • An appeal committee must now acknowledge receipt of an appeal reference within 5 working days once more (this had been increased to 28 days).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 2 months following receipt of the reference (this had been increased from 28 days to 3 months). If this is not possible “owing to circumstances beyond their control”, the hearing should be held “as soon as reasonably practicable” (changed from “as soon as possible”). The same applies to combined hearings.
  • The education appeal committee must now give notification of the date and other details of a hearing not later than 14 days after receipt of the reference (changed from 14 days to “as soon as reasonably practicable” previously).
  • The format of hearings may change, as the regulations allow for a hearing to be conducted in whole or in part by video link, telephone or “other means of instantaneous multi-party electronic communication”. This provision remains in place – which is a very good thing.
  • The appeal committee may also (if all parties agree) decide an appeal reference without a hearing, based on consideration of written submissions and evidence alone. This provision remains in place – which is a very good thing.
  • Education appeal committees now, as before, have 14 days to notify parties of their decision, and the reasons for it (it was changed to 28 days).

The regulations don’t include any transitional provisions, it’s not easy to be 100% certain, but to the best of my understanding, the new time limits etc. take effect as of now, even in the case of placing requests or appeal processes which are already under way. The regs don’t explain what happens to cases that are, for example, 2.5 months after a request when the deeming provisions change!  My best guess is that it’s deemed on the date of the change (i.e. 27 Feb 2021) in those circumstances.

For the sake of completeness, reg 5 also amends the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2020 to clarify that certain requirements re: oily fish, deep fried food, chips and pastry products apply separately to evening meals for secondary pupils in education authority hostels.

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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.

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Educational Continuity (Nos. 6 & 7) Directions

First of all, apologies for the lack of blogging over the last month or so. A much needed Christmas break has been followed by a hectic start to the year. Thanks for your patience.

So, we are back into a period of educational continuity directions to consider. Educational Continuity (No.6) Direction was issued on 22 December 2020, and took effect as of 28 December 2020. At that point, the plan was for a brief extension to the Christmas holidays followed by a week of remote learning, and the direction would run until 19 January 2021.

Specifically, the direction required education authorities to restrict access to their schools until 18 January 2021. Significant exemptions to this rule were:

  • early learning and childcare, which would run from 28 December 2020;
  • school age education and childcare for the children of key workers and vulnerable children and young people, which would run from 5 January 2021; and
  • remote learning for “pupils who normally attend schools” from 11 to 15 January 2021.

The “in-person provision of education” in schools was to resume from 18 January 2021.

However, the No.6 continuity direction was then revoked and replaced by the No.7 continuity direction as of 9 January 2021. This provided for education authority schools to remain closed, with the following exceptions:

  • early learning and childcare;
  • school age education and childcare for the children of key workers and vulnerable children and young people; and
  • remote learning for pupils from 11 to 29 January 2021 (but see below).

The No.7 direction expires on 1 February 2021, but is likely to be replaced by a very similar (No.8) direction before then. Education authorities are required to plan and prepare for children to resume attendance at schools “at the earliest time it is safe to do so, having regard to any guidance issued by the Scottish Ministers”.

Education authorities are also required to secure the provision of free school meals or “reasonable alternatives” e.g. food / vouchers or cash, for those eligible.

From a legal point of view there is a similar impact on legal duties as in previous directions. Specifically, any failure to comply with a duty or time limit under the following provisions is to be disregarded “to the extent that the failure would be attributable to this Direction”:

  • Section 53(2) of the Education (Scotland) Act 1980 (free school lunches) – but see the alternative measures above;
  • Section 30(1) of the Education (Scotland) Act 1980 (duty for parents to provide education for their children) insofar as the duty is discharged by sending the child to a public (i.e. local authority) school;
  • Section 4(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (duty to make provision for additional support needs);
  • any time limits imposed by the 2004 Act or its regulations (except for the placing request deadlines – which have been extended in specific regulations); and
  • Section 47(1) of the Children and Young People (Scotland) Act 2014 (duty to provide early learning and childcare) – but see the alternative requirements set out above.

As before, the disregard is limited to failures caused by the direction being in place. As the guidance states:

any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty.

Educational Continuity (No.7) Direction, 8 January 2021: Guidance note

A further educational continuity direction, coming into force on or before 1 February 2021 is expected soon, and I will update once it has been published.

Mainstreaming, I presume? (Part 9)

And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty.  As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”

Continue reading “Mainstreaming, I presume? (Part 9)”

Additional Support Needs Update (Issue 7)

The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.

This edition looks at changes to the law brought about as part of the Scottish Government’s response to the Covid-19 pandemic, explaining changes to legislation and the new guidance applying to education.  There is a separate “how to” section with some tips in relation to placing requests, given the revised timescales which now apply.
The support spotlight this edition looks at different organisations across the country providing innovative responses to assist families at this difficult time.

Do let me know what you think about the newsletter in the comments.

Additional Support Needs Update (Issue 7) – PDF

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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.

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

Placing request timescales amended

The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force on 23 April 2020, having been laid before the Scottish Parliament at 4.30pm the day before.

In short, they give the education authority more time in which to take a decision on placing requests, and education appeal committees more time in which to hear appeals.

Changes to the Education (Placing in Schools) (Scotland) Regulations 1982

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days

Changes to the Education (Appeal Committee Procedures) (Scotland) Regulations 1982

  • An appeal committee must now acknowledge receipt of an appeal reference within 28 days (an increase from 5 “working days”).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 3 months following receipt of the reference (an increase from within 28 days). If this is not possible “owing to circumstances beyond their control”, the hearing should be held “as soon as reasonably practicable” (changed from “as soon as possible”). The same applies to combined hearings.
  • The education appeal committee must now give notification of the date and other details of a hearing as soon as reasonably practicable (changed from 14 days after receipt of the reference in most cases).
  • The format of hearings may change, as the regulations allow for a hearing to be conducted in whole or in part by video link, telephone or “other means of instantaneous multi-party electronic communication”.
  • The appeal committee may also (if all parties agree) decide an appeal reference without a hearing, based on consideration of written submissions and evidence alone.
  • Education appeal committees have 28 days to notify parties of their decision, and the reasons for it (changed from 14 days).

Changes to the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005

These are the equivalent regulations to the Education (Placing in Schools) (Scotland) Regulations 1982, in relation to children and young people with additional support needs.

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days.
  • The deadline for the authority making known to the appellant and the committee all of the information relevant to their decision is now “as soon as reasonably practicable” (changed from “immediately”).

Observations

The changes to the education appeal committee regulations will impact on exclusion cases as well as placing request cases.

The deadline for a parental appeal to the education appeal committee remains the same at 28 days.

The deadlines applicable to appeals to the First-tier Tribunal for Scotland (Health and Education Chamber) remain the same. However, these were never as stringent in the first place, and are currently subject to the Guidance to Tribunal Members No 01/2020 “Hearings and the Covid-19 Outbreak” – which means that only time critical cases can currently proceed to a hearing (with a fairly strict definition of “time critical”).

As you know, most placing requests (including for children or young people with additional support needs) are heard by the education appeal committee. Appeals on placing requests for special schools (or special units), or for children and young people with a Co-ordinated Support Plan are heard by the Tribunal instead.

The implication of this is, of course, that if placing request decisions are not being taken until 31 May, and the appeal committee has up to four months to hear an appeal, in all likelihood that leads to significant numbers of appeals on placing requests not being heard until well into the next academic year. Apart from anything else, this makes transition planning for such cases challenging, to say the least.

The final point to make is that these regulations are not made under the new powers conferred by the Coronavirus Act 2020 or the Coronavirus (Scotland) Act 2020. They are made using existing regulation making powers. As such, there is no expiry date on these changes, and no scheduled review date. These changes will remain in force until further regulations are passed to amend them.

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Mainstreaming, I presume? (Part 8)

The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.

Continue reading “Mainstreaming, I presume? (Part 8)”

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).

Continue reading “Case summary – Midlothian Council v. PD (Upper Tribunal for Scotland)”