Tag: Upper Tribunal

Case Summary: Aberdeenshire Council v. CD (Upper Tribunal for Scotland)

On By Iain NisbetIn Additional Support Needs, Case summaryLeave a comment

This is an interesting case concerning the criteria for determining which children or young persons require a Co-ordinated Support Plan (CSP).

Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 sets out the criteria as follows:

For the purposes of this Act, a child or young person requires a plan (referred to in this Act as a “co-ordinated support plan”) for the provision of additional support if-

(a) an education authority are responsible for the school education of the child or young person,

(b) the child or young person has additional support needs arising from-

(i) one or more complex factors, or

(ii) multiple factors,

(c) those needs are likely to continue for more than a year, and

(d) those needs require significant additional support to be provided-

(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or

(ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.

Section 2(1), Education (Additional Support for Learning) (Scotland) Act 2004

The meaning of this provision, and of its four criteria, has already been the subject of much discussion. Some of the criteria are more straightforward than others.

The criterion set out in Section 2(1)(d) tends to be the one which is the hardest to pin down, and has needed the most in the way of judicial interpretation. Of particular note is the case of JT v. Stirling Council [2007] CSIH 52, which more or less settled the correct approach to deciding whether particular support(s) can be considered as “significant” or not.

This case considered the question of what the modifier “significant” applies to in the first place.

CD’s request for a CSP

CD is a pupil in a mainstream secondary school. With the assistance of an advocacy worker from the national children’s support service, My Rights, My Say, he made a formal request to his education authority (Aberdeenshire Council) to determine whether he required a CSP. The education authority decided that he did not.

There was no dispute over subsections 2(1)(a) to (c). It was accepted that these criteria were met. However, the education authority decided that 2(1)(d) did not apply. It was (more or less) accepted that the child required significant additional support from the education authority in the exercise of their education functions. The education authority, however, found that the additional support the child required from social work and health services was not significant.

This then, was at the heart of the matter. Should the Tribunal be considering whether the additional support required (across education and the other agencies) was significant? Or should it consider separately whether the additional support from education was significant and – in addition – whether the additional support from the other agency or agencies was significant. At the First-tier Tribunal (Health and Education Chamber), the first was described as being a “cumulative approach” and the latter as being a “non-cumulative approach” (although the Upper Tribunal did not adopt these terms).

At the First-tier Tribunal, a cumulative approach was adopted, and the education authority were ordered to prepare a CSP for the child. In fact, the Tribunal decided that he would be eligible for a CSP under either approach in any event. This means that the Upper Tribunal appeal which was lodged by the education authority would not have an effect of whether or not CD should have a CSP, but it would certainly have an impact on whether other children and young persons will receive such plans.

As Lady Poole (the Upper Tribunal Judge) notes: “CSPs benefit pupils for whom they are necessary, but they also place burdens on education authorities with finite resources” (pg 2, para 2).

It therefore matters, both for children and young people with additional support needs, but also for education authority finance officers, which approach is correct.

The correct approach

In the end, the decision for the Upper Tribunal was a relatively easy one.

My decision is that the FTS ought to have concluded that in order to meet the criterion in section 2(1)(d), as well as the pupil requiring significant additional support from the education authority, the pupil also had to require significant additional support either from the local authority exercising functions other than education or from one or more appropriate agencies.

Aberdeenshire Council v. CD [2023] UT 28, per Lady Poole at para 10

You can read the full decision here: Aberdeenshire Council v. CD [2023] UT 28

The Upper Tribunal was satisfied that the ordinary meaning of the words “as well as” as used in subsections 2(1)(d)(i) and (ii) was that both sets of additional support had to be significant.

This was held to be consistent with intention of the Scottish Parliament. While it was conceded that “It may be that co-ordination of services would be of assistance, even if services provided by a body external to the education authority are not ‘significant’ ..” it was held that the formal, statutory document of a CSP was intended only “for those with the most extensive co-ordination and support needs”. It was held that this approach “is likely to channel CSPs to cases where there is an increased need to co-ordinate services from different services.”

While the specific issue in this case had not been considered before, the approach adopted by the Upper Tribunal was consistent with statements made by the Inner House of the Court of Session in other cases considering questions of eligibility for a CSP. Even though the point may not have been argued, there was “a consistent assumption common to all of [the cases] which has endured since shortly after the 2004 Act came into force .. It is appropriate that this clear and consistent body of caselaw is followed, rather than the FTS taking a different approach.”

Finally, the preferred approach was consistent with the Code of Practice which, while not binding on the Upper Tribunal, would need a good reason to depart from its provisions. In the view of the Upper Tribunal “insufficient reasons are available in this particular case to depart from the relevant parts of the Code of Practice.”

Additional comments

As sometimes happens, having made the decision, the Upper Tribunal went on to make some more general comments – in this case about Co-ordinated Support Plans. The comments are extremely helpful, and so I am taking the time to summarise them here for you. As the Upper Tribunal notes: “CSPs can be of great benefit to a person with additional support needs and their families, so it is important the statutory criteria are applied properly.”

The Upper Tribunal first noted that just over 241,000 pupils in Scotland have additional support needs (approx. one third of the total pupil population). Of those pupils, only 1,401 have CSPs (i.e. around 0.2% of all pupils). It has been noted elsewhere that while the numbers of pupils with additional support need has been increasing year on year, the numbers of co-ordinated support plans, paradoxically, have been dropping year on year. (cf. “Vital support plans for pupils ‘disappearing'” The Herald, 2019)

  1. The Upper Tribunal notes that the wording of section 2(1)(d) is “those needs require significant additional support to be provided”. That is, what does the child or young person require – not what are they being provided with, or what has been offered. The answers to these questions may differ. As the UT notes “an approach that analyses only support that has in fact been provided, rather than what needs ‘require’, may in some cases be too narrow”. In my experience, all too often an education authority’s pro forma enquiry to appropriate agencies asks only what is being provided. This needs to change.
  2. The Upper Tribunal reiterates the well established approach to determining whether support is “significant” or not – it “is to be judged by reference to the need for co-ordination, with attention being paid to frequency, nature, intensity and duration of the provision of support, and the extent to which the support is necessary for achievement of educational objectives”. This is a useful restatement of the test, underlining the centrality of the need for co-ordination, and the multi-factorial nature of the test. The Upper Tribunal goes on to observe that the term significant “is not intended as an impossibly high standard”.
  3. The decision is clear that there should be no “cumulative approach” or summing-up of support across education and other services. However, the Upper Tribunal confirms the Code of Practice’s approach, which is to take a cumulative approach in determining whether there is significant additional support from sources external to the education authority. “The totality of support required from providers external to the education authority exercising education functions should be considered, in order to determine if it amounts to significant additional support.”

Conclusion

From a pupils’ rights point of view, the decision is a disappointing one, as the opposite decision would likely have led to a substantial increase in the numbers of pupils receiving a CSP. However, I think it is the correct decision, given the wording of the section, the Inner House authority and Code of Practice. And, in its concluding comments, the Upper Tribunal has provided some useful guidance for education authorities which, if followed, should avoid some children with additional support needs being incorrectly refused a CSP.

Photo credit: sweetlouise via Pixabay

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

On By Iain NisbetIn Additional Support Needs, Case summary, Placing Requests, School EducationLeave a comment

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)” →

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

On By Iain NisbetIn Additional Support Needs, Case summary, Placing RequestsLeave a comment

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)

On By Iain NisbetIn Additional Support Needs, Case summary, Placing RequestsLeave a comment

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)” →

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

On By Iain NisbetIn Additional Support Needs, Case summary, Placing Requests3 Comments

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)” →

Ashdown House School case (a summary)

On By Iain NisbetIn Equality Act 2010, Exclusion1 Comment

I bring news of an interesting disability discrimination case involving an independent school in England.  The case was determined by the Upper Tribunal, which is basically the appeal route as exists in Scotland from the Health and Education Chamber (previously known as the Additional Support Needs Tribunals).

The case is that of Ashdown House School v. JKL & MNP (not their real names!) and involved a pupil who was referred to for the purposes of the case as “Bobby”.

The facts of the case

Bobby was ten years old and a pupil at Ashdown House School, who has ADHD, sensory processing difficulties and emotional and social difficulties arising from trauma in his early childhood and in the womb.  He is a disabled person in terms of Section 6 of the Equality Act 2010.

He was permanently excluded from the School on 9 February 2019.  He was excluded for aggressive behaviour, including placing another pupil in a headlock and what the school describes as “37 incidents of unprovoked aggression”.  The school admitted that the exclusion amounted to unfavourable treatment, but maintained that the exclusion was a proportionate means of achieving a legitimate aim.  The aim in this case was to ensure the health and safety of staff and pupils at the school.  For their part, the parents accepted that this was a legitimate aim, but not that the school had acted proportionately.

The Tribunal (at first instance) found that the exclusion was not proportionate, and was therefore unlawful discrimination.  This was for a number of reasons.  The Tribunal found that while the school had made a number of reasonable adjustments, there were other reasonable adjustments which could have been made (including anger management sessions, consulting with the local authority, and allowing parents to seek a review of Bobby’s Education, Health and Care Plan (EHCP), or seeking advice from CAMHS regarding his medication).  The Tribunal also found that the exclusion came “like a bolt out of the blue” in that neither pupil nor parents had been warned it was a possible consequence of the incidents.  There was also evidence that other violent incidents within the school (involving other, non-disabled pupils) had been dealt with less severely.

The Tribunal ordered Bobby’s immediate readmission, and that the school formally apologise to Bobby.

The school appealed to the Upper Tribunal.

Legal questions arising on appeal

In considering the appeal, the Upper Tribunal had to consider four discrete points:

  1. Does the First-tier Tribunal (SENDIST) have the power to order reinstatement of an excluded pupil to school?
  2. How can decisions of the First-tier Tribunal (SENDIST) be enforced, if not by the Tribunal itself?
  3. In the light of the courts’ traditional reluctance to order specific performance of contracts involving personal service/contact or supervision, is an order to reinstate a pupil at an independent school (in terms of a contract between the parents and the school) appropriate?
  4. Is it appropriate to order an apology in special educational needs and disability (SEND) cases?

The Upper Tribunal’s decision

The Upper Tribunal dismissed the appeal, and Bobby was – ultimately – allowed to return to school.  I understand that he also received his apology.

The school argued, that in the case of an independent school, the Tribunal would be restricted to making a declaration of discrimination, and making recommendations for the school to consider.  The Upper Tribunal rejected this argument. The wording of the Act permits Tribunal to make such order as it thinks fit (excluding an order for payment of compensation).  This wording obviously includes a power to order reinstatement.

At some considerable length, the Upper Tribunal considers how one of its decisions might be enforced, if not complied with.

Although the Tribunal itself does not have the power to enforce its own decisions in that regard, one of the parties to the action can rely on the inherent power of the High Court to commit for contempt of court in the event of non-compliance with the order or the [Equality and Human Rights Commission] may itself take proceeding under s.24 of the 2006 Act to achieve the same end. The School, however, is not amenable to judicial review because it is not a public body and in expelling the pupil it was not exercising public law functions.

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.

Edit – 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 under Rule 12 of the Tribunal’s Procedure Rules 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.  In such cases, a parent or pupil might approach the Scottish Ministers directly (or the Registrar of Independent Schools) to progress their complaint.

The Upper Tribunal determined that while the Tribunals should have regard to the historic reluctance of the courts to impose specific performance of a contract which involves personal service and supervision, and the reasons for that reluctance, this did not preclude the Tribunal from making such an order in appropriate circumstances.

The Upper Tribunal suggested that it would be “sensible for a Tribunal considering a disability discrimination claim in the future to consider matters such as whether it is practicable to make an order for reinstatement and, in cases where the applicant has caused or contributed to the expulsion, whether it would be just to order reinstatement.”

In finding that an order for an apology was appropriate in these circumstances, the Upper Tribunal set out the following guidance for future cases (likely to be relevant in Scottish cases, too) repeated largely verbatim below:

  • The Tribunal does have the power to make an order for an apology.
  • An apology may have a wider purpose than merely preventing further discrimination against the child in question. To the extent that an apology is an assurance as to future conduct, an order that there be an apology gives teeth to a declaration of unlawful discrimination.
  • There can be value in an apology: apologies are very important to many people and may provide solace for the emotional or psychological harm caused by unlawful conduct. An apology might reduce the mental distress, hurt and indignity associated with a permanent exclusion. It might also assist with recovery, forgiveness and reconciliation. An order that there be an apology can be regarded as part of the vindication of the claimant.
  • A tribunal should consider whether the apology should more appropriately be made to the child or to their parents. In the case of very young children the latter may be more appropriate for obvious reasons.
  • An order to make an apology may well be appropriate when there is already an acceptance that there has been discrimination or unlawful conduct.
  • However, the fact that there has been a contested hearing and that the respondent has strenuously disputed that there has been any discrimination or unlawful conduct is not decisive against ordering an apology.
  • Nevertheless, particularly where there has been a dispute or a contested hearing, the tribunal should always consider whether it is appropriate to make an order and bear in mind that it may create resentment on one side and an illusion on the other, do nothing for future relations and may make them even worse.
  • Before ordering an apology, a tribunal should always satisfy itself that it will be of some true value.
  • A tribunal should always be aware that there may be problems of supervision if it accepts responsibility for overseeing the terms of the apology which can result in drawn out arguments over wording.

Conclusion

The decision of the Upper Tribunal in this case is likely to be of interest and use in a number of Scottish cases, especially those involving questions of admission and exclusion to an independent school.  However, the points of guidance on the question of an apology are of broader application and I anticipate will be widely cited within the Health and Education Chamber.