EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Hardie Lord Abernethy	[2009] CSIH 46 XA207/08 OPINION OF THE COURT delivered by LORD HARDIE in the Appeal to the Court of Session under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 by THE CITY OF EDINBURGH COUNCIL Appellants; against A decision of the Additional Support Needs Tribunal for Scotland dated 3 November 2008 and communicated to the appellants on 4 November 2008

Act: Stirling; Legal Services Division, City of Edinburgh Council

Alt: Logan; Campbell Smith W.S.

9 June 2009

Background

[1] During the school year 2007/2008 AW was a pupil at a mainstream primary school. His guardian was Mrs K. In November 2007 the appellants, as education authority, were considering whether a Co-ordinated Support Plan (hereinafter referred to as a "CSP") was required for AW. Before taking an informed decision on this matter the appellants required to obtain reports from various agencies, to review AW's progress, to consider future alternatives in AW's educational provision and to collate all of the information and submit it to an official responsible for additional support for learning. By letter dated 29 January 2008 and received by the appellants on 18 February 2008 Mrs K wrote to the appellants making a placing request for AW to attend a special educational needs school commencing in primary 7 after the summer 2008. She also enquired about progress in relation to the CSP. AW's assessment continued thereafter and there was correspondence with Mrs K regarding progress. On 13 May 2008 at a meeting a representative of the appellants advised Mrs K that the placing request would be refused and an offer of a place at one of two other schools would be made. Prior to that decision being confirmed in writing, additional places became available at the school requested by Mrs K and by letter dated 26 May 2008 the appellants granted Mrs K's placing request. On 27 June 2008 AW left the mainstream school at the end of the summer session. By letter dated 7 July 2008 the appellants informed Mrs K that they had decided that AW did not require a CSP. On 16 July 2008 Mrs K appealed against that decision to the Additional Support Needs Tribunals for Scotland (hereinafter referred to as "the Tribunal"). After the summer holidays AW was a pupil at the requested school for special educational needs, although he was absent for the first two weeks of term because of an accident. On 9 October 2008 the Tribunal heard evidence and on 3 November 2008 it issued the decision which is the subject of this appeal.

Statutory provisions
[2] The relevant legislation is the Education (Additional Support for Learning) (Scotland) Act 2004 (hereinafter referred to as "the Act"). Section 1 of the Act relates to additional support needs and provides as follows:

"1(1) A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.

(2) In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.

(3) In this Act, 'additional support' means -

(a) in relation to ... a child of school age or a young person receiving school education, provision which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the same age in schools (other than special schools) under the management of the education authority for the area to which the child or young person belongs.

...".

Section 2 of the Act makes provisions for CSPs as follows:

"2(1) For the purposes of this Act, a child or young person requires a 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 23(2) defines an appropriate agency as each of the following:

"(a) any other local authority,

(b) any Health Board, and

(c) any person, or a person of any description, specified for the purposes of this subsection in an order made by the Scottish Ministers."

[3] The general powers and duties of education authorities in relation to children for whom they are responsible and their additional support needs are set out in sections 4 and 5 of the Act. Section 4 provides:

"4-(1) Every education authority must -

(a) in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person, and

(b) make appropriate arrangements for keeping under consideration -

(i) the additional support needs of, and

(ii) the adequacy of the additional support provided for,

each such child and young person.

(2) Subsection (1)(a) does not require an education authority to do anything which -

(a) they do not otherwise have power to do, or

(b) would result in unreasonable public expenditure being incurred."

Section 5 imposes inter alia a general duty on the education authority to consider the needs of children with additional support needs when exercising any of their functions in relation to school education.

[4] Section 9 of the Act imposes upon an education authority a duty to prepare CSPs in appropriate circumstances. Section 18 of the Act provides inter alia that the parent of a child may refer to the Tribunal a decision of the education authority that the child does not require a CSP. In terms of section 19 the Tribunal may confirm the decision of the education authority or overturn it and require the education authority to take such action as the Tribunal considers appropriate. Paragraph 14 of Schedule 1 to the Act provides inter alia:

"14(1) A decision of a Tribunal -

...

(b) must be recorded in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision."

Section 21(1) entitles an aggrieved party to appeal to the Court of Session on a point of law against the decision of the Tribunal. Section 21(3) empowers the Court of Session where it allows an appeal to remit the reference back to the Tribunal or to a differently constituted Tribunal to be considered again and to give the Tribunal such directions as the court considers appropriate.

Code of Practice
[5] Section 27 of the Act provides inter alia:

"27(1) The Scottish Ministers must publish, and may from time to time revise and re-publish, a code of practice providing guidance as to the exercise by education authorities and appropriate agencies of the functions conferred on them by virtue of this Act.

(2) Such a code of practice may, in particular, include provision as to -

...

(c) the nature of the additional support referred to in section 2(1)(d),

...

(8) Education authorities and appropriate agencies must, in exercising their functions under this Act, have regard to a code of practice published under this section."

Section 19(7) requires the Tribunal when exercising its powers under section 19 to take account of any code of practice published by the Scottish Ministers under section 27(1), so far as it is relevant. In August 2005 the Scottish Ministers published a code of practice entitled "Supporting Children's Learning" by virtue of section 27 of the Act. Chapter 4 of the code relates to CSPs. Paragraph 15 states that one purpose of a CSP is "to ensure that support is co-ordinated effectively when at least one service is provided from outwith what the education authority provides as part of its educational functions."

Paragraph 16 is in the following terms:

"16 The Act does not define what 'significant additional support' means. The use of the term 'significant' signals that the scale of the support, whether it is in terms of approaches to learning and teaching (e.g. adaptation or elaboration of the curriculum) or personnel or resources, or a combination of these, stands out from the continuum of possible additional support. Judgments about significance have to be made taking account of the frequency, nature and intensity of the support, and the extent to which that support is necessary for the achievement of the educational objectives which will be included in the plan. Full-time placement in a special school or unit would count as significant additional support, as would provision of personnel full-time to support a child or young person in a mainstream school, and provision of specialist aids to communication."

Paragraph 17 provides examples of what may be significant support but recognises that it is not possible to generalise and consideration has to be given to circumstances in individual cases.

Paragraph 18 states:

"The diagram overleaf provides a decision tree to help authorities to decide whether children and young people require a co-ordinated support plan. It should be read in conjunction with the Education (Co-ordinated Support Plan) Regulations. This chart should be read as relevant to all appropriate agencies."

The decision tree poses the question whether a child's needs require significant additional support to be provided by the education authority exercising their education functions as well as by one or more appropriate agencies and/or the authority in discharging their functions other than education. If the answer is that: "there is a continuing requirement for a high level of adaptation or elaboration of the curriculum and learning environment," and that "the child/young person requires substantial, direct and continuing intervention from another agency/agencies in order to benefit from school education," then the child/young person requires a CSP.

Facts found by the Tribunal
[6] This appeal is confined to a point of law arising from the decision of the Tribunal (section 21 of the Act). Accordingly we propose to set out the Tribunal's findings in fact. The first finding in fact deals with AW's personal and family circumstances. Thereafter the Tribunal found as a fact that AW was a pupil at a school designated by the education authority as a school for children on the autistic spectrum. AW has only attended that school since September 2008 having previously attended a mainstream primary school. The school that he now attends has both a primary and secondary section and AW's class contains seven children with additional support needs. In addition to the teacher there are one nursery nurse and two learning support assistants within the class. The school day is based in one classroom, but there are special teachers for PE, art, computing, drama and outdoor education who visit the school.

[7] AW has a diagnosis of autism with moderate learning difficulties and otitis media (causing a difficulty with his hearing). He previously had a Record of Needs. He has learning difficulties in the area of verbal comprehension, perceptual reasoning, working memory and processing. His IQ places him at the 0.1 percentile of the population. He responds to visual cues and strategies such as social stories are used to help his comprehension. (Finding in fact 6).

[8] Finding in fact 7 is in the following terms:

"AW has the involvement of the following agencies, outwith education: a/Community Learning Disability Nurse, Janette Matheson. She attends the family home once per week for about two hours. She has had involvement with AW for some time.

b/Physiotherapy. A physiotherapy review was done by Norma Gibb, physiotherapist on 1 November 2007. The physiotherapist wished to observe AW to offer further advice but considered that input would be standard and would not continue for more than one year.

c/Speech and Language Therapy (SALT), Clare Macaulay was AW's therapist until recently. AW is currently being assessed by SALT at (his) school.

d/Social Work Department. A section 23 report was completed by the Social Work Department dated 27 May 2007.

e/Befriender. A befriender takes AW out once per fortnight for up to three hours.

f/Occupational Therapy (OT). Barbara Henry was AW's therapist but responsibility for his case has recently transferred to the OT at (his) school. AW has had input from occupational therapy over several years to develop his motor and functioning skills and to support the development of his self-care skills and life skills."

Dispute before the Tribunal
[9] There was no dispute that the conditions set out in paragraphs (a), (b) and (c) of section 2(1) of the Act were satisfied, namely that the education authority are responsible for AW's school education, that he has additional support needs arising from one or more complex factors and that those additional support needs are likely to continue for more than one year. The issue before the Tribunal was whether AW required significant additional support by the education authority in the exercise of their other functions as well as in the exercise of their functions relating to education or by one or more appropriate agencies as well as by the education authority in the exercise of their education functions.

Decision of the Tribunal
[10] The Tribunal decided this issue against the appellants and concluded that AW did require significant additional support from a function of the education authority other than education and other appropriate agencies as well as from the education function of the education authority. Its reasons appear from the following passages under the heading "Reasons":

"The Tribunal was not impressed with document R96-105. It was not clear as to how the document was to be applied or how it had been applied by Clare Macaulay. We were not told what aspects of the criteria she felt did not apply to AW. The witness felt six out of ten of the criteria applied to AW but was adamant that his SALT input was not 'significant'. ... In any event, even leaving that document to one side, the Tribunal felt AW's SALT input was significant. At the time of Clare Macaulay's assessment it involved blocks of direct therapy; the provision of appropriate visual cues; ongoing input and was directed towards his significant language difficulties. Furthermore, at (his) school it involved weekly direct therapy aimed specifically at accessing the school curriculum and which was based on close collaboration between the SALT and teacher. That was considered a requirement irrespective of the assessment currently underway to determine possible additional SALT input.

In addition the Tribunal was aware of the many other agencies involved with AW. The Tribunal therefore found that section 1(d)(i) and (ii) (sic) was satisfied in that the child's needs did require significant additional support from a function of the authority other than education, and from other appropriate agencies. ...

In relation to the involvement of the Social Work Department guidance is to be found in Chapter 2 of the Code of Conduct, paragraph 13. This acknowledges that family circumstances may give rise to additional support needs and concludes: 'In these circumstances, support from social work services may be needed to ensure that the child or young person is able to benefit from education'. We formed the view that this was the case for AW ...

... It seems clear to us that AW is obtaining support at (his) school that would be additional to and different from a child in mainstream. Therefore we were not attracted to the argument advanced both by the witness Mallinson and the Respondent in submissions (that (his) school provides the same high level of SALT to all pupils so its SALT provision cannot therefore be viewed as 'significant'.)"

In short the Tribunal concluded that AW required significant additional support to be provided by the education authority in the exercise of their education functions and this significant additional support was recognised by his attending a school for children with special educational needs. The Tribunal also concluded that AW satisfied the requirements of section 2(1)(d)(i) and (ii), wrongly referred to as section 1(d)(i) and (ii), in respect that AW's needs required significant additional support to be provided by the education authority in the exercise of their other functions apart from education and by one or more appropriate agencies as well as by the education authority exercising their education functions. The other appropriate agencies included NHS Lothian which is a Health Board. The Social Work Department of the appellants was the department of the education authority (the appellants) exercising functions other than education in respect of AW. Both of these organisations provided him with the professional services specified in finding in fact 7. Accordingly the Tribunal concluded that the statutory requirements for a CSP were met.

Submissions of appellants' counsel
[11] Counsel for the appellants submitted that the Tribunal had erred in law. Although finding in fact 6 identified AW's learning difficulties, the Tribunal had failed to make any factual findings concerning the needs of the child. Moreover, it had failed to assess whether and to what extent AW's needs were being met by the appellants in the exercise of their education functions. The Tribunal had not applied the correct test of determining whether AW required the provision of a substantial direct and continuing intervention such as would require a CSP. (JT v Stirling Council 2007 S.C. 783). Counsel also submitted that the Tribunal had erred in its assessment of the involvement with AW by the "agencies" specified in finding in fact 7. It failed to address the issue of whether the intervention of each "agency" was additional support required for the education of AW. Rather it assumed that because there was or had been intervention by each "agency" that intervention must be related to education. Unless any intervention was related to support required for the education of AW, it was irrelevant to the question of whether a CSP was required. The involvement of the community learning disability nurse was "mainly around carer support and advising on behaviour management strategies for use by his carers in the home setting." It was not seen as "being significant additional support in terms of meeting his educational targets." (Letter dated 29 February 2008 from the community charge nurse - 6/1 of process A61). AW's physiotherapy was not linked to his educational needs. In any event the finding in fact was that the physiotherapy would not continue for more than one year. Furthermore, finding in fact 7 did not quantify the involvement of each of the "agencies" to enable a proper assessment to be made of the extent of the additional support provided by them, even if they were all necessary to ensure that AW benefited from the school education provided to him. Counsel further submitted that even if a generous interpretation were applied to the decision as a whole and the Tribunal's statement of reasons was construed as additional findings in fact, these additional findings were not based upon the evidence. There was no basis for the conclusion in the first paragraph of the reasons that "AW's SALT input was significant" because at the time of the hearing the SALT input was restricted to class work and AW was no different from other pupils in his class. While there were some children who received one to one SALT, AW did not and was not expected to be one of them, although he was still being assessed.

[12] The Tribunal had also erred in the second paragraph of the reasons where it stated that it "was aware of the many other agencies involved with AW." On any view there was only one appropriate agency involved apart from the appellants, namely NHS Lothian. Counsel also submitted that in the third paragraph of the reasons, the Tribunal's quotation from the code of conduct was taken out of context. In any event there was no factual basis for the Tribunal's conclusion that support from social work services was required to ensure that AW was able to benefit from education. The social work provision was essentially directed to the social and environmental needs of AW, his guardian and/or his mother. (C v City of Edinburgh Council 2008 S.L.T. 522).

[13] In summary, counsel submitted that the Tribunal had adopted the wrong approach and had failed to adopt the statutory test. It had also made inadequate findings in fact. Some of the findings in fact were irrelevant and others were not based on the evidence. In the circumstances we were invited to remit the reference to a differently constituted Tribunal to be considered again.

Respondents' submissions
[14] Counsel for the respondents referred to the constitution of the Tribunal being a legally qualified convener with two members who had knowledge and experience of children with additional support needs. This was a specialist tribunal with specialist knowledge. It alone was the judge of the facts and its decision should be respected unless it is quite clear that it had misdirected itself in law (RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512 at 550). The key to the Tribunal's decision was its conclusion that there was a significant SALT contribution. If it had not been for the finding about SALT counsel accepted that he could not defend the decision of the Tribunal. A local authority requires to assess a child's needs quantitatively and qualitatively and the Tribunal must undertake the same exercise in any reference to them. Where, as here, an assessment of the child was being undertaken, the Tribunal was not obliged to wait for the outcome of that assessment and could bring its "specialist knowledge to bear on (the) merits, including on whether a decision ought to be reached on the information made available" (WA's Representative v Highland Council 2009 SC 47). AW's guardian had made a request for an assessment in terms of section 8 of the Act and by letter dated 11 April 2008 the appellants had agreed to the request for a SALT assessment. Thereafter the convener of the Tribunal issued a direction dated 9 June 2008 to provide further information in relation to these matters. The Tribunal was dependent on parties, particularly local authorities, for their co-operation. There was sufficient evidence to entitle the Tribunal to reach the conclusion that AW's SALT input was significant.

[15] In respect of the second paragraph of the Tribunal's reasoning, counsel conceded that there was no material before the Tribunal to entitle it to reach the conclusion that there was significant additional support from other departments of the appellants exercising functions other than those relating to education. The Tribunal was in error in that respect. Despite the failure of the Tribunal to distinguish between the generalised approach and the approach for a particular child requiring SALT and despite the observation by the convener in the course of the hearing before the Tribunal that "unfortunately we are not going to hear from the speech and language therapist who deals with AW, and I am trying to get a grasp of what level of difficulty he actually has with his speech and language", counsel submitted that when one looked at the evidence as a whole there was sufficient for the Tribunal to identify AW's needs and to reach the conclusion that the SALT input was significant.

Discussion
[16] We recognise that by its constitution the Tribunal is a specialist tribunal with specialist knowledge and that it has exclusive jurisdiction over questions of fact. Our jurisdiction is circumscribed by section 21 of the Act and is confined to points of law. In these circumstances it is appropriate, as counsel for the respondents observed, that we adopt the approach of Baroness Hale in relation to an appeal on questions of law from an expert tribunal (AH (Sudan) v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2008] AC 678). In that case at paragraph 30 Baroness Hale observed:

"This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the Tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."

These observations were quoted with approval by Lord Phillips of Worth Matravers in RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512 para 118. In that case at paragraph 218 Lord Hope of Craighead referred to the observations of Baroness Hale and added at paragraph 219:

"I think that careful attention needs to be paid to the context in which she made those observations. The decision that was under appeal in that case was one in which the Asylum and Immigration Tribunal had given reasons for its decision in terms that, when read in isolation, might have suggested that it had misdirected itself: see my opinion, at para 19. The point Baroness Hale was making, with which I agreed, was that the reasoning which tended to invite this conclusion should not be subjected to an unduly critical analysis. That, for the reasons she gave, is the proper approach where the ground of complaint is directed to the way in its specialised field the tribunal has expressed itself."

In agreeing with Baroness Hale in the case of A H (Sudan) Lord Hope of Craighead stated at paragraph 19:

"A decision that is clearly based on a mistake of law must, of course, be corrected. Its reasoning must be explained, but it ought not to be subjected to an unduly critical analysis."

From these observations it is clear that we should not analyse the decision of the Tribunal in this case in an unduly critical way. We should approach the appeal with an appropriate degree of caution but of course if we are satisfied that there is a clear misdirection in law in the decision of the Tribunal the appropriate course for us is to exercise our powers under section 21(3) of the Act.

[17] There was no dispute before the Tribunal or before us that AW was a child who had additional support needs in terms of section 1 of the Act. Nor was there any dispute that the conditions in sections 2(1)(a) to (c) inclusive were satisfied. The issue before the Tribunal was whether AW also satisfied the requirements of section 2(1)(d). In terms of that section the first test to be met is that his needs require "significant additional support". That phrase is not defined in the legislation but guidance is provided in the code of conduct. We respectfully agree with the observations at paragraph 9 of the opinion of the court in JT v Stirling Council that by virtue of paragraphs 16 and 18 of the code of practice the Tribunal required to consider the frequency, nature, intensity and duration of the support in making a judgment about its significance. Moreover it is the significance of the support provided that is relevant rather than the significance of the needs (JT v Stirling Council). In the present case we are of the view that the totality of the additional support, including providing AW with education at a school for children with special educational needs, was significant. Indeed paragraph 16 of Chapter 4 of the code of practice recognises that full-time placement in a special school would count as significant additional support. It is not difficult to understand that conclusion because of the resource implications for the education authority responsible for the provision of such schools. Of necessity such schools have a higher staff/pupil ratio involving smaller class sizes and the use of more classroom assistants than in mainstream schools. However, the test to be met in section 2(1)(d) is not confined to the significance of the additional support to be provided by the education authority in the exercise of their education function. It is clear from the terms of sub-clauses (i) and (ii) that in addition to satisfying the requirement that there must be significant additional support by the education authority exercising their education function, there must also be significant additional support from another source. That other source must either be the education authority exercising any of their other functions or one or more of the appropriate agencies defined in section 23(2). Furthermore it is clear from section 1 of the Act that the purpose of the provision of additional support to a child is to enable the child to benefit from school education provided to him or her.

[18] In considering the decision of the Tribunal we have adopted the cautious approach advocated by Baroness Hale. In finding in fact 7 the Tribunal refers to AW having the involvement of a number of "agencies, outwith education". There then follows a list of such involvement. As we observe below this cannot refer to the involvement of the appellants exercising any of their functions other than education. In these circumstances it is clear that if the word "agencies" is intended to reflect 2(1)(d)(ii) the Tribunal has erred because only one such agency is involved, namely NHS Lothian. We do not consider that this is simply a case of the Tribunal expressing itself differently from language that we would have used. In the context of a specialist tribunal expressing its views in a decision by using language which has a technical meaning in the statutory context within the jurisdiction of the tribunal, it is reasonable to assume that the tribunal, chaired by a legally qualified person, is aware of the statutory provisions and is using language in its technical sense. For the purposes of determining whether AW required a CSP it would be irrelevant to consider what other "agencies" were involved with him unless they were either the education authority exercising a function other than education or appropriate agencies as defined in section 23(2). There is a further difficulty with finding in fact 7 because it simply records that AW has the involvement of agencies (sic) that are identified. As we have observed, that is not the test to be applied. It is irrelevant how many agencies are involved with a child unless their involvement is for the purpose of providing additional support to the child to enable him to benefit from school education. A fair interpretation of the remainder of paragraph 7 clearly illustrates that the Tribunal has not applied the correct test and in that regard has clearly misdirected itself. In particular in dealing with each department or individual involved with AW the Tribunal has failed to make any specific finding as to how that particular involvement contributes to the provision of additional support for the purpose of enabling AW to benefit from school education.

[19] Moreover the Tribunal in some instances has failed to address the frequency, nature, intensity and duration of the support provided and in other cases it is clear from its findings that on no view would the additional support justify a CSP. The extent of its misdirection is evident when we consider the factual position relating to the involvement of each individual or department, apart from SALT. The Tribunal found as a fact that the community learning disability nurse attended the family home once per week for about two hours and has had involvement with AW for some time. That is based upon the evidence of AW's guardian, but the Tribunal has ignored the written evidence submitted by the nurse to the effect that her involvement with AW is mainly around carer support and advising on behaviour management strategies for use by his carers in the home setting. In terms she stated that she did not see this as being significant additional support to meet his educational targets. The finding in fact relating to physiotherapy records that "input would be standard and would not continue for more than one year." Apart from the failure of the Tribunal to link any physiotherapy being required to enable AW to benefit from school education, we observe that the Tribunal has found as a fact that the input from the physiotherapist would not continue for more than one year. The duration of the need for physiotherapy is significant in the context of the need for a CSP. Paragraph 14 of Chapter 4 of the code of practice is in the following terms:

"In addition to deciding on whether the criteria of complex or multiple factors are met, professionals involved with the children and young people must determine how long those additional support needs are likely to last. For a co-ordinated support plan to be required the judgment must be that these needs are likely to continue for more than a year."

We respectfully agree with the observations of the court in JT v Stirling Council at paragraph [25] that it is pointless to commit resources to the preparation of a plan for the co-ordination of services which are unlikely to require co-ordination by the time that the plan is ready. Although it is acknowledged that AW's needs are likely to last for more than a year we consider it to be of doubtful relevance to his requirement for a CSP that incidentally he would require standard input from a physiotherapist for no more than a year.

[20] In relation to the involvement of the social work department the finding in fact simply notes that on 27 May 2007 the social work department prepared a report upon AW in terms of section 23(3) of the Children (Scotland) Act 1995. There is no finding in fact that AW receives support from the social work department. Moreover even if he does receive any such support, it is clear from a memorandum dated 29 February 2008, which was within the documents available to the Tribunal, that at that time AW required support from the social work department to meet his educational targets but these targets would be met fully by AW transferring to the school where he is now a pupil or to another school for pupils with special educational needs. Thus while historically there may have been evidence that AW required additional support from the social work department to enable him to benefit from school education, that was no longer the case at the date of the hearing before the Tribunal because he had by then moved to his present school for pupils with special educational needs. As regards the befriender, no finding is made other than that the befriender takes AW out once per fortnight for up to three hours. The findings relating to the occupational therapist record that responsibility for AW's case has been transferred to the occupational therapist at his present school. In short it appears that the information before the Tribunal about the involvement of others with AW apart from SALT was either not relevant or was historical and did not relate to his present circumstances.

[21] When consideration is given to the reasons of the Tribunal as regards the involvement of other agencies, it is apparent that the Tribunal was in error. The reasons refer to the "many other agencies involved with AW" whereas in fact, as we have already observed, there was only one such agency, namely NHS Lothian. It is clear from the next sentence of its reasoning, in which the Tribunal erroneously refers to section 1(d)(i) and (ii), that it misdirected itself about the tests to be applied in assessing the involvement of others with AW and in determining whether the others involved were "agencies" for the purposes of assessing whether AW required a CSP. The Tribunal misdirected itself when it concluded that AW required significant additional support from a function of the appellants other than education. The mere fact that a social worker completed a section 23 report about AW in 2007 could not amount to additional support for AW, far less significant additional support. Counsel for the respondents accepted that the Tribunal erred in this respect. He conceded that there was no material before the Tribunal that even approached the requirement of satisfying the test of significant additional support from other departments of the appellants other than education.

[22] We have considered whether despite these manifest errors of law by the Tribunal we should nevertheless refuse the appeal on the basis submitted by counsel for the respondents that AW's SALT input was significant. The finding in fact by the Tribunal simply identified the person who was AW's therapist until recently and observed that AW was currently being assessed by SALT at his new school. The reasoning of the Tribunal relies at least in part upon AW's SALT needs at the time of Clare Macaulay's assessment. That assessment was undertaken when AW attended a mainstream primary school and his needs for SALT reflected that situation. A major difficulty in this case is that the request for a CSP was made at or about the same time as the request that AW be moved from a mainstream primary school to his present school. Most of the reports and assessments available to the Tribunal related to the period when AW was attending the mainstream school. Following the summer holidays when he was due to start at his present school he had an accident and was absent from school for the first fortnight. Accordingly at the date of the Tribunal he had only been in attendance at his new school for about four weeks. Although there was some evidence of SALT input at his new school, it was in the context of class work and while some pupils received individual therapy AW did not and it was considered unlikely that he would require individual therapy. The assessment process was still underway at the date of the Tribunal. In the course of the hearing the convener of the Tribunal is recorded as saying to the lead speech and language therapist for paediatric services in Edinburgh: "... Just before you go, unfortunately we are not going to hear from the speech and language therapist who works with AW, and I am trying to get a grasp of what level of difficulty he actually has with his speech and language." Counsel for the respondent explained to us that the practice of the Tribunal was to restrict the number of witnesses appearing before it. Be that as it may, if the convener felt that it would assist to hear from the speech and language therapist who worked with AW the Tribunal should have adjourned to a later date to enable that witness to be heard. In any event, in the circumstances of this case, we have reached the conclusion that the Tribunal, even allowing for its expertise, did not have sufficient evidence before it to enable it to reach the conclusion that AW's SALT input was significant. The circumstances to which we are referring are that AW attended a mainstream school until the summer 2008. All of the assessments upon which the Tribunal relied had been completed while he was still attending the mainstream school. At that time the nature of his requirements of additional support to ensure that he benefited from school education were quite different from his requirements after he commenced the school for children with special education needs. An illustration of this can be found in the support provided by the social work department. In 2008 the view of the social workers was that AW required support from the social work department to meet his educational targets. However they also considered that the educational targets would be met fully by transferring AW to his new school or another specialist educational resource. At the date of the Tribunal AW had only attended his new school for four weeks and was still being assessed as to his SALT requirements. At that stage he was not receiving any individual SALT input.

[23] In reaching our views about the insufficiency of evidence about SALT before the Tribunal to enable it to reach the conclusion that it did we have had regard to the observations of the court in WA's Representative v Highland Council 2009 SC 47 at paragraph 20 to the effect that the Tribunal are entitled "to reassess the merits of a particular issue and to reach their own conclusion on a child's needs. As such, the Tribunal will bring their specialist knowledge to bear on these merits, including on whether a decision ought to be reached on the information made available to them." We do not demur from those observations but consider that they can only have application in cases where the Tribunal has current information about the provision required for the child, particularly where there has been a material change in circumstances since his assessment, and where the Tribunal makes appropriate findings in fact to justify the reasons for its decision. In the present case the Tribunal merely recorded that AW was currently being assessed. It did not find as a fact the extent of SALT required by him to enable him to benefit from school education. Nor did it find as a fact the extent to which SALT was provided by another agency. In assessing AW's need for a CSP where the only relevant additional support is SALT, the Tribunal should have distinguished between therapy provided directly to AW by SALT and indirect therapy provided as part of the curriculum i.e. through the guidance of SALT by the teacher or classroom assistant to the class of whom AW is a member. In our view it is only if the former can be said to amount to significant additional support that the test in section 2(1)(d)(ii) can be satisfied. In the latter case SALT is being provided to AW by the appellants in the exercise of their education function, albeit the teachers and classroom assistants at the school receive guidance and training from an appropriate agency. In all the circumstances we consider that the Tribunal's conclusion that AW's SALT input was significant cannot be supported at a time when his circumstances had changed materially shortly before the hearing and when the Tribunal acknowledged that he was currently being assessed by SALT.

Decision
[24] For these reasons we have concluded that the Tribunal misdirected itself about the construction of the Act and its application to the information before it. We shall accordingly allow the appeal. In all the circumstances we do not think that it would be appropriate to remit the reference back to the same Tribunal. We shall therefore remit the reference to a differently constituted Tribunal to be considered again.