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..”
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.
In my earlier post on the Ashdown House School Case, I mentioned in passing, the enforcement powers of the Tribunal in Scotland:
Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions. In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.
These powers have now been used for the first time since the Additional Support Needs Tribunals for Scotland were first set up (back in 2005). In a recent disability discrimination case, the child (who was the litigant in that case) complained that the education authority in question had not complied with the orders made by the Tribunal within their decision.
Rule 12 of the First-tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 state:
Power to monitor implementation of First-tier Tribunal decisions
12. The Chamber President may, in any case where a decision of the First-tier Tribunal required an authority to do anything, keep under review the authority’s compliance with the decision and, in particular, may—
(a) require the authority to provide information about the authority’s implementation of the First-tier Tribunal decision;
(b) where the Chamber President is not satisfied that the authority is complying with the decision, refer the matter to the Scottish Ministers.
So, while it is true that the Scottish Ministers do have enforcement powers in relation to both public and independent schools, the powers of the President do seem to be limited to decisions affecting education authorities. They would not be available where the responsible body was the proprietor of an independent school. Apologies. I will amend the original article to reflect this.
In this case, however, the orders were made in relation to an education authority and the President, having first considered the authority’s information provided, and thereafter allowed a short period in which to further progress compliance with the decision, considered that the authority had not complied with the decision. She therefore took the unprecedented step of referring the matter to the Scottish Ministers.
So, what will the Scottish Ministers do now? Section 70 of the Education (Scotland) Act 1980 and Section 27(9) to (11) of the Education (Additional Support for Learning) (Scotland) Act 2004 both give the Scottish Ministers powers to require education authorities to take certain action in relation to their functions under the 2004 Act (in the latter case) and in relation to the 1980 Act or “any other enactment relating to education” (in the former).
Given that this case was a claim (under the Equality Act 2010) and not a reference (under the 2004 Act) it seems likely that the Scottish Government will use the Section 70 route. This now has a statutory procedure, set out in the Section 70 (Procedure) (Scotland) Regulations 2017, and would ultimately allow Scottish Ministers to declare the authority to be in default of their duties, and to require them to take specified action to remedy that default.
Given that there is the possibility for this process to be used in relation to most Tribunal decisions, those drafting orders should bear in mind the need for any requirements to be clear and specific – it should be obvious whether a decision has been complied with or not. Orders should also, in appropriate cases, come with time limits. Otherwise it can be difficult to know when a delay (or even an ongoing process) might be viewed as a failure to comply.
This is a significant development, and a reminder to claimants and appellants with a decision in their favour that there is a way in which the implementation of the decision can be monitored and – if necessary – enforced.