EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Menzies Lord Bracadale Lord McEwan	[2012] CSIH 77 XA3/12 OPINION OF THE COURT delivered by LORD BRACADALE APPEAL TO THE COURT OF SESSION UNDER THE EQUALITY ACT 2010, SCHEDULE 17, PART 3, SECTION 11 by JC (As Legal Guardian of AM) Appellant; against A Decision by the Additional Support Needs Tribunal for Scotland Dated 1 December 2011 in a Reference claiming disability discrimination by Midlothian Council Respondents: _______

Appellant: Party

Respondents: MacNeill QC; Anderson Strathern LLP

9 October 2012

Introduction

[1] JC is the mother and legal guardian of AM who was born on 8 March 1997. They live together as a family with SC who is the stepfather of AM. AM has autistic spectrum disorder, dyslexia and working memory difficulties, both auditory and visual. The family moved to Midlothian in 2008. AM was enrolled in Kaimes School in Edinburgh which makes provision for pupils with additional support needs. Between October 2008 and November 2009 AM was excluded from Kaimes School on eight occasions. He did not attend school between November 2009 and February 2010. On 24 February 2010 he entered the Autistic Spectrum Disorder Base at Dalkeith High School. This is a specialist base for a maximum of eight pupils. It is the only specialist autistic spectrum disorder base in Midlothian. On 10 March 2010, because of his behaviour, AM was excluded from school in terms of a temporary (category 1) exclusion. He did not return to school until 30 August 2010 when he commenced classes at Dalkeith High School as a mainstream pupil.

[2] As a result of a series of events which took place on 6 October 2010, AM was made the subject of a temporary (category 2) exclusion. On 18 January 2011 he was made the subject of a category 3 exclusion /removal from the register.

[3] Under paragraph 8 of Schedule 17 of the Equality Act 2010 ("the 2010 Act") JC made a reference to the Additional Support Needs ("ASN") Tribunal alleging that AM had been the subject of disability discrimination by the respondents who are the relevant education authority. The reference was considered in two stages before a tribunal made up of the same members. In a decision dated 5 July 2011 ("the 5 July decision") the tribunal held that the respondents did not discriminate against AM under section 15 of the 2010 Act in respect of the following claims: the failure to re‑admit AM to Dalkeith High School between 6 October 2010 and 18 January 2011; the issuing of the category 3 exclusion on 18 January 2011; and the refusal to readmit him following the category 3 exclusion. The appellant did not challenge the decision of that tribunal.

[4] The decision on the remaining part of the reference was issued on 1 December 2011 ("the 1 December decision") after a hearing over a number of days between 14 November 2011 and 29 November 2011. This part of the reference related to the duty on the respondents under section 20 of the 2010 Act, where a provision, criterion or practice of the respondents would put him at a substantial disadvantage, to make reasonable adjustments to avoid the disadvantage to AM. The tribunal held that the respondents did not discriminate against AM and had complied with the duty under section 20 of the 2010 Act. The appellant challenges that decision in this appeal brought in terms of paragraph 11 of Schedule 17 of the 2010 Act.

Relevant Statutory Provisions

The Education (Additional Support for Learning) (Scotland) Act 2004

[5] Before considering the 2010 Act it is necessary to note relevant provisions of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act") which imposes certain requirements on education authorities such as the respondents in respect of children with additional support needs. Section 1(1) provides that a child has additional support needs for the purposes of the Act where the child is or is likely to be unable without the provision of additional support to benefit from school education provided for him. Additional support is defined as meaning provision which is additional to, or otherwise different from, the educational provision made generally for children of the same age in schools under the management of the education authority for the area. Section 4 imposes on the education authority a duty to make adequate and efficient provision for such additional needs support as is required by a child who requires support.

[6] Sections 2 and 9 to 11 make provision for the preparation of a co-ordinated support plan ("CSP") in respect of a child who has additional support needs arising from one or more complex factors or multiple factors and certain further conditions are met. The CSP must contain the following: a statement of the education authority's conclusions as to the factor or factors from which the additional support needs of the child arise; the educational objectives sought to be achieved taking account of the factor or factors; the additional support required by the child to achieve those objectives; and the persons by whom the support should be provided (section 9(2)). Section 10 makes provision for review of a CSP. In the Code of Practice issued by the Scottish Government "Supporting Children's Learning" the CSP is described at para 90 as "a strategic planning document".

[7] Sections 17 to 21 and Schedule 1 provide for the establishment and operation of the ASN Tribunal for Scotland.

[8] Provision is made for transfer of the CSP from one education authority to another when a child moves from a school in the area of an education authority to a school in the area of another. Regulations made under section 9(8) include the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 (SSI 2005/518). In terms of regulation 9(3) the plan prepared by the original authority must be treated by the new authority as if it had been prepared by the new authority on the date on which it was prepared.

The Equality Act 2010

[9] The 2010 Act is a wide ranging anti-discrimination measure. Section 4 identifies a number of protected characteristics, one of which is disability. Section 6 defines the particular protected characteristic of disability. So far as relevant for present purposes, it provides:

"(1) A person (P) has a disability if-

(a)   P has a physical or mental impairment, and

(b)  the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability."

There is no dispute that AM is a disabled person within the meaning of section 6.

Section 15, which defines discrimination arising from disability, provides:

"(1) A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know that B had the disability."

[10] Part 6 of the Act makes provision for the application of certain protected characteristics in schools. Disability is included in terms of section 84. Section 85 makes provision for the admission and treatment of pupils. Subsection 85(8) provides that the section applies to a school managed by an education authority. Dalkeith High School is a school managed by the respondents who are the education authority. Section 85 places certain obligations on the education authority. The 2010 Act imposes a duty in certain circumstances to make reasonable adjustments for disabled persons. Subsection 85(6) imposes a duty on the responsible body to make reasonable adjustments in a school. Section 98 provides that Schedule 13 has effect in relation to reasonable adjustments. Paragraph 2 of Schedule 13 provides:

"(1) This paragraph applies where A is the responsible body of a school to which section 85 applies.

(2) A must comply with the first and third requirements."

The reference in sub-paragraph (2) to the first and third requirements is a reference to the requirements set out in section 20 of the 2010 Act. Only the first requirement is relevant in the circumstances of this case. Section 20, so far as relevant for present purposes, provides:

"(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements,

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage"

Section 21 provides:

"(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise."

Sub-paragraphs 2(3) and (4) of Schedule 13 provide:

(3) For the purposes of this paragraph -

(a) the reference in section 20(3) to a provision, criterion or practice is a reference to a provision, criterion or practice applied by or on behalf of A;

(b) the reference in section 20(3) or (5) to a disabled person is -

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b), a reference to disabled pupils generally.

(4) In relation to each requirement, the relevant matters are -

(a) deciding who is offered admission as a pupil;

(b) provision of education or access to a benefit, facility or service."

[11] The respondents as the education authority are the body responsible for Dalkeith High School. That responsibility includes the provision of education to pupils. That brings into play the requirement, where a provision, criterion or practice applied by the respondents as education authority puts a disabled person such as AM at a substantial disadvantage in relation to the provision of education in comparison with persons who are not disabled, for the education authority to take such steps as it is reasonable to have to take to avoid the disadvantage.

The Reference

[12] In her statement of claim in support of her reference to the tribunal the appellant set out in a number of heads the steps which she averred the respondents should reasonably have taken to avoid AM suffering substantial disadvantage. These were as follows:

1.     To implement the CSP which was transferred from the City of Edinburgh Council when AM joined Dalkeith High School, including the involvement of appropriate multi-agency support and the provision of a laptop.

2.     To review the CSP better to suit the facilities and staff available to the respondents within the prescribed timescales.

3.     To adopt an appropriate behaviour management plan adopting principles outlined by AM's parents, occupational therapy reports and Dr Cannon.

4.     To implement strategies outlined by Dr Nadia Northway in regard to supporting AM's difficulties in relation to visual and auditory working memory.

5.     To consider the ABC (antecedents, behaviour and consequences) of incidents arising in order to inform future practice.

6.     To follow the "plan, do, review" process in routinely and systematically analysing AM's needs and the provision made to meet those needs in a coherent, reasoned and meaningful manner.

The Decision of the Tribunal

[13] In the 1 December decision the tribunal incorporated the findings in fact contained in the 5 July decision. It is necessary, therefore, to have regard to those. In the 5 July decision the tribunal made certain findings in fact in relation to the behaviour of AM. It found that his behaviour at Dalkeith High School within the Autistic Disorder Base and the mainstream school was problematic. This included him ignoring instructions, sneering at peers, teachers and support staff and engaging in dangerous behaviour. On 10 March 2010 this behaviour was outwith the control of staff and the school, including senior management. As a result he was excluded from school in terms of a category 1 exclusion. As noted above, AM commenced mainstream classes on 30 August 2010. The tribunal found that a series of events took place on 6 October 2010 as a result of which AM was made the subject of a category 2 exclusion. The tribunal set out in detail an account of the behaviour of AM on this occasion. It was very disruptive to the whole running of the school. The health and safety of AM, pupils and staff were in jeopardy. AM was beyond the control of anyone within the school and the police were required to bring the situation under control. AM was made the subject of a category 2 exclusion on that day. It was considered by the respondents that to allow AM to continue attendance at Dalkeith High School would be likely to be seriously detrimental to order and discipline in the school or the educational wellbeing of the pupils there.

[14] The tribunal found that the appellant and SC requested the education authority to issue a category 3 exclusion in terms of an email sent on their behalf by their agent on 10 December 2010. On 18 January 2011 the respondents wrote to the appellant confirming the category 3 exclusion.

[15] In addition to incorporating in the 1 December decision the findings in fact contained in the 5 July decision, the tribunal went on to make a number of additional findings in fact in the 1 December decision. These set out in detail various steps which were taken by the respondents prior to and after AM commenced as a pupil on 24 February 2010.

Grounds of Appeal

[16] There are four grounds of appeal. In the first ground it is asserted that many of the findings in fact in the 1 December decision do not stand scrutiny against what is referred to as the "written evidence" and have been largely drawn from the oral evidence of the witnesses presented by the respondents. It is averred that these errors in fact led to unfairness in the drawing of inferences from the findings in fact which in turn led to errors in law. The second ground of appeal attacks the rejection by the tribunal of the evidence of Dr Stephanie James, the expert witness instructed by the appellant. The third ground of appeal challenges the adequacy of the reasons given for the decision. The fourth ground of appeal is critical of the approach of the tribunal which is said to be of a general nature and inconsistent with the requirements of section 20 of the 2010 Act.

Representation

[17] At the tribunal the appellant was initially represented by a solicitor and subsequently by SC. Before us the appellant represented herself with assistance from SC. Written submissions were lodged by JC and the respondents, who were represented by Mr C MacNeill QC. By an agreement entered into at an earlier procedural hearing we heard no oral submissions and proceeded on the basis of the written submissions.

Discussion

[18] There was no dispute that AM was a child in respect of whom a CSP was required. A CSP was prepared by City of Edinburgh Council in respect of AM. It contained a profile of AM and a list of the factors giving rise to his additional support needs. It set out a number of educational objectives and associated additional support required to achieve these. It identified the appropriate persons to provide that support. The CSP was transferred to the respondents.

[19] In the statement of claim in support of the reference to the tribunal, in the grounds of appeal and in her written submissions the appellant placed considerable reliance on criticisms of the approach of the respondents to the implementation and review of the CSP. The respondents accepted that they had failed timeously to review the CSP. That failure was the subject of an earlier reference to the tribunal by the appellant under the 2004 Act. In a decision dated 13 December 2010 that tribunal found that there had been a failure and ordered the respondents to carry out the review by 23 December 2010. It is, however, important to understand from the outset that the question before the tribunal whose decision is the subject of the appeal was a broader question than an examination of the steps taken to implement and review the CSP. The question for the tribunal was whether the respondents had met the first requirement of section 20 of the 2010 Act.

Fourth ground of appeal

[20] With that in mind it is convenient to deal first with the fourth ground of appeal. At page 6 of the 1 December decision the tribunal stated that it had avoided a narrow, rigid or clinical interpretation of section 20(3) and had looked at the general provisions, criteria and practices of the respondents in respect of their planning to assume a new pupil and subsequent support and management of pupils. The tribunal noted that it was not greatly assisted by the claimant's statement of claim which had failed to focus matters adequately. In the view of the tribunal even if everything which had been narrated in the statement had been proved the claimant could not have been successful. The tribunal made it clear to the appellant that this would not prejudice the interests of the appellant and that the tribunal would discharge its own responsibility to determine the matter on the basis of all the evidence available. Against that background the tribunal approached the matter by seeking to identify what adjustments were, as a matter of fact, made in order to avoid AM being put at a substantial disadvantage and thereafter identifying whether or not there were any other adjustments which reasonably ought to have been made to avoid AM being put at a substantial disadvantage. At pages 9ff the tribunal set out the evidence before it as to the adjustments which had been made by the respondents. Having reviewed that evidence the tribunal indicated that it was satisfied that the education authority had made a number of adjustments in order to accommodate, support and manage AM. They summarised a number of these in a list of bullet points as follows:

·        "A draft risk assessment was prepared in advance of AM's commencement at Dalkeith High School;

·        A transition plan was prepared covering AM's first two weeks at Dalkeith High School;

·        A personal profile of AM and his needs was prepared and circulated to all staff;

·        A lengthy planning meeting took place on 18 February 2010 in which AM's mother and stepfather participated;

·        A full‑time learning assistant was employed prior to AM's enrolment to specifically support him;

·        The learning assistant employed to support AM and other members of staff both within the Autistic Spectrum Base and within Dalkeith High School were provided with training, including training in behaviour management;

·        Substantial staff training was provided both from existing staff within Dalkeith High School and other professionals employed by Midlothian Council;

·        AM was provided with a "sanctuary" space for his own use;

·        A daily diary enabling factual information to be exchanged between home and school was provided;

·        At the parents' request daily email correspondence was entered into between Dalkeith High School and AM's mother and stepfather;

·        A very high level of communication and correspondence was entered into with AM's mother and stepfather;

·        Significant recognition of AM's mother's and stepfather's views were taken on board and planning and procedures were adapted accordingly;

·        There was an ongoing flexible approach to adapt the approach taken to AM's education and better inform staff with regards to understanding AM's needs and providing strategies."

The tribunal then went on to deal more particularly with a number of specific steps identified in the appellant's statement of claim. These included the implementation and review of AM's CSP; whether the respondents had applied the "ABC" approach in which the antecedents, behaviour and consequences of incidents and events which had occurred were analysed in order to inform future practice; whether they had followed the "plan, do, review" approach; whether a timeous fully detailed IT assessment was carried out; and whether an appropriate behaviour management plan had been adopted.

[21] In our opinion the tribunal was entitled to take the approach that it did. It took as generous an approach as possible to the appellant in exploring whether the respondents had taken such steps as it was reasonable to have to take to avoid a substantial disadvantage to AM. It seems to us that having regard to the general analysis of the steps that were taken by the education authority, together with the references to the specific matters raised in the statement of claim, the tribunal did cover all the issues that were raised in the appellant's statement of claim. Accordingly, we do not consider that the fourth ground of appeal is well founded.

Second ground of appeal

[22] We turn next to the second ground of appeal which attacks the rejection by the tribunal of the expert witness evidence of Dr Stephanie James. Dr James was an educational psychologist instructed by the appellant and SC to prepare a report on AM's additional support needs and what arrangements would be necessary in the school to provide the appropriate level of management and support. At the hearing before the tribunal she gave expert evidence in support of the appellant's reference. The respondents called as their expert witness Donald Ewing, an educational psychologist employed by the respondents as their acting principal educational psychologist. At page 3 of the 1 December decision the tribunal records that it was agreed with the parties that ultimately the tribunal's judgment would come down to a careful assessment of the evidence of Dr James and Mr Ewing. While the appellant disputes this, it is difficult to see how else the tribunal could proceed. The tribunal would require to be informed in its assessment of the facts by the expert evidence.

[23] The assessment of the credibility and reliability of a witness is primarily one for the tribunal of fact. In Thompson v Kvaerner Govan Ltd 2004 SC(HL) 1 Lord Hope of Craighead said at para [16]:

"In Clarke v Edinburgh and District Tramways Co, Lord Shaw of Dunfermline said that the duty of an appellate court, not having the privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case, was to ask itself whether it was in a position to come to a clear conclusion that the judge who had these privileges was plainly wrong."

[24] An appeal against a decision of the ASN Tribunal is confined to points of law. Such an appeal does not allow this court to examine the evidence with a view to forming its own view about the substantial merits of the case. Nor can the court proceed on its own preferred view of the evidence. (Reid v Secretary of State for Scotland 1999 SC (HL) 17 per Lord Clyde at 41H; HA v the Secretary of State for the Home Department 2008 SC 58 per Lord Macfadyen at paras [15] - [17]).

[25] In applying these principles to the 1 December decision we note that the tribunal was able to assess the way in which the witness gave evidence and her demeanour while giving evidence. In addition, the tribunal could assess whether particular parts of the witness's evidence were consistent or inconsistent with other evidence before it which the tribunal did accept.

[26] At pages 6 - 8 of the decision the tribunal set out in detail the reasons why it rejected the evidence of Dr James. It is appropriate to quote these in full:

"Dr James had not received all relevant documents and papers pertaining to the subject matter at the time of her instruction. She had not had the opportunity of speaking with staff of Dalkeith High School prior to the preparations of her reports.

The tribunal was left in no doubt that these factors had been a real and relevant impediment to providing a full professional opinion upon matters. In particular this hindrance led to Dr James declaring boldly in respect of a number of areas that things had, as a matter of fact, not happened, where the reality of the situation was simply that she did not know whether or not they had happened. The best example of this was her reluctance to be shifted at all from an opinion expressed at one point in her evidence that she did not accept that staff training had been given. She was prepared to exclude the possibility of such training ever having taken place simply because she had not seen evidence of it. There were other examples in her evidence of such an approach but for the sake of brevity the tribunal does not find it necessary to set those out at length.

There was an initial matter which the tribunal concluded amounted to a substantial flaw in Dr James' analysis of the situation. She was very critical of the fact that, in her view, from AM's commencement at Dalkeith High School the understanding of his needs had been misinterpreted and that accordingly all planning and indeed everything which flowed from that was flawed. This was with particular reference to the fact that AM's profile refers to him having 'challenging behaviour difficulties beyond those typical of Autistic Spectrum Disorder'. She referred to the fact that she had had a conversation with Dr Nicky Cannon, consultant psychiatrist, who advised that this was not in fact the case. There are two issues which arise from this.

Firstly, at the time the pupil profile had been prepared for the purposes of use at Dalkeith High School it was based upon recent accurate factual information which, very importantly, AMs mother and stepfather agreed with at the time. The tribunal was referred to other documents which had been prepared by AM's mother and stepfather at that time confirming that it was being offered by them as a suggestion that AM suffered from Oppositional Defiance Disorder. Although over more recent times it appears to be agreed that that is unlikely, it was a relevant factor at the time. Accordingly the tribunal rejects Dr James' criticism in this regard.

Secondly, it does not in fact appear that Dr Nicky Cannon was as clear as Dr James suggested in her evidence. Dr James was ultimately referred to the tribunal's earlier judgment issued 5 July 2011 and in particular to page 9 thereof where Dr Cannon's evidence which she had given to the tribunal earlier is replicated. Dr James agreed that this was consistent with what Dr Cannon had in fact discussed with her. This would not in fact be inconsistent with AM displaying challenging behaviour difficulties beyond those typical of Autistic Spectrum Disorder.

There was an additional matter which Dr James persisted in returning to which she used to demonstrate an apparent lack of commitment on the part of Midlothian Council to ensure that all staff were adequately trained to meet AM's needs. This was with reference to training which had been offered to staff at Dalkeith High School by health professionals including Dr Cannon, consultant psychiatrist and the occupational therapist and speech and language therapist. In actual fact however it was subsequently clear that such criticism was entirely unfounded and that such offers to provide training had only been made in or about May 2011.

Dr James was extremely defensive when being probed or challenged in respect of professional opinions. She ultimately accepted on occasions that she was making assumptions in coming to certain conclusions as she had not been in receipt of all the relevant facts.

Dr James avoided answering certain hypotheses and scenarios which were put to her by the tribunal and sought to justify this by advising that she did not in fact know enough about the context within which AM had been placed at Dalkeith High School and that she did not know enough about a range of factors to provide an opinion upon matters which the tribunal had put to her.

Dr James on occasions sought to try to avoid answering questions by the insinuation that the person asking the question, including the tribunal members, wanted her to say a specific thing as opposed to simply concentrating on the questions asked and answering accordingly. At one point she refused to answer a question which was put to her by the representative of the education authority and referred to him as 'filibustering'. The tribunal however formed the impression that she was behaving in such a manner as she regularly sought to adopt a practice of making lengthy speeches about matters as opposed to answering questions which had been put to her. Dr James also answered flippantly on occasions.

The tribunal was alarmed on occasions at the extremity of Dr James' views. Despite the fact that she had not been provided with a copy of the tribunal's earlier decision issued to parties on 5 July 2011 she was adamant that this would have been 'no benefit at all'. Perhaps similarly surprising is the highly critical and indeed controversial and inflammatory statement contained within her supplementary report (paragraph 35) 'That school staff have clearly evidenced that it is their own actions that would likely be seriously detrimental to order and discipline at the school and consequently be detrimental to the educational wellbeing of many of the pupils in the school.' Dr James failed to substantiate such a statement. The tribunal found no evidence to support such a suggestion.

The tribunal also formed the view that much of Dr James' criticisms were unfounded in that her suggested improvements of practice were very much an exemplary philosophical academic ideal aspiration and not what would be considered as a reasonable approach.

The tribunal ultimately unanimously found that Dr James was not credible nor reliable. It would have been unsafe for the tribunal in all the circumstances as described to rely upon her evidence."

[27] We have considered with care the lengthy submissions made by the appellant in support of this ground of appeal. A substantial part of the submissions comprises a series of criticisms of parts of the 5 July decision in order to justify the decision by the appellant not to provide Dr James with a copy of that decision. We consider that that analysis does not assist us. No appeal was taken against the 5 July decision. In any event, as is pointed out by the respondents in their written submissions, the fact that Dr James had not seen the 5 July decision was by no means the only or principal reason for rejecting her evidence. It is clear from the lengthy passage quoted above that the respondents' submission in this respect is well‑founded. In our opinion the tribunal has produced a careful and clear analysis of the basis on which it rejected the evidence of Dr James. By comparison, it found the evidence of Mr Ewing credible and reliable and commented that he had a full working knowledge of all the relevant facts. It is clear that in assessing the evidence of Dr James the tribunal did have regard to her demeanour in giving evidence. The tribunal tested her evidence in the light of a number of other sources of evidence before it.

[28] It is also clear that the contradictory position as set out in the evidence of Mr Ewing was supported by evidence which was accepted by the tribunal. The tribunal did not simply assert that it rejected the evidence of Dr James and preferred the evidence of Mr Ewing; it set out in detail the reasons why it did so. In these circumstances we are unable to find any error in law in the analysis of the facts and the assessment of the evidence of Dr James made by the tribunal.

Third ground of appeal

[29] The third ground of appeal asserts that the tribunal failed to give adequate reasons for its decision in respect of each of the heads of claim in the appellant's statement of claim. The test to be applied where the adequacy of reasons is challenged was recently restated in Uprichard v Scottish Ministers [2011] CSIH 59 per Lord Justice Clerk (Gill) at para [26]:

"In a case where the adequacy of reasons is challenged, the court should consider whether the informed reader would understand the basis for the decision complained of. The reasons must be intelligible and must deal with the substantive points that have been raised; but in my opinion it is important to begin by considering the nature of the decision that is complained against and the context in which it has been made. In a case of this kind it is also important to assess the adequacy of the reasons on the basis that they are addressed to persons who are familiar with the background and the issues. The applicant is clearly familiar with these matters. She objected to the Plan when it was first published as a consultative draft and has maintained her objections ever since."

(See also Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President (Emslie) at p 348).

[30] While these were planning cases the same principles apply to decisions of a tribunal such as the ASN tribunal. The appellant is clearly an informed reader who has been closely involved in the sequence of events which followed AM's admission to Dalkeith High School.

[31] Further, as a general rule the reasons for a decision of a tribunal such as the ASN tribunal can be briefly stated and the extent of particularity will depend on the nature of the issues raised; the reasons need refer only to the main issues in the dispute and not to every material consideration (South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 per Lord Brown of Eaton-Under-Heywood at para 36).

[32] In addition, in our opinion, it is important to read the decision of the tribunal as a whole, including the findings in fact in both the 5 July and 1 December decisions and the reasons set out in the latter. As already noted the tribunal took a broad approach in examining the steps taken by the respondents and the comments on each of the heads of claim must be read in the context of the decision as a whole.

[33] In her submissions in support of this ground of appeal the appellant focussed to a large extent on the questions of implementation and review of the CSP for AM. But, as we have noted earlier, the question as to whether the respondents had satisfied the first requirement in section 20(3) of the 2010 Act went beyond an examination of implementation and review of the CSP. The tribunal required to explore what steps were taken by the respondents and whether they failed to take steps which it was reasonable to take to meet the first requirement. It seems to us that as part of that exercise the tribunal did address the issues raised by the appellant in her statement of claim.

[34] There is a specific finding in fact 22 in the 1 December decision relating to the CSP; it is recognised by the tribunal that the review of the CSP was not in accordance with the statutory time limits. The issue of the CSP is further addressed under the heading of "Curriculum Planning" at page 9 and revisited at pages 11 - 12. It is clear from these passages that the tribunal, in accordance with the approach which it had adopted, examined the evidence in relation to the substance of the adoption of the contents of the CSP in the context of whether reasonable adjustments to meet the needs of AM had been made by the respondents. When the references to the CSP are read in the context of the decision as a whole the reasons for the decision in relation to adoption and review of the CSP are adequate.

[35] The tribunal dealt with the specific issue of behavioural management in a paragraph at page 12 of the decision. When that paragraph is read in the context of the whole decision it seems to us that the informed reader, such as the appellant, would be left in no real or substantial doubt as to the reasons why the tribunal rejected these claims.

[36] The complaints that the respondents failed to follow the ABC approach or the "plan, do, review" process are addressed at page 11. Reference is made to the input of Dr Northway under the heading of Multi-agency Support at page 10. Again, these passages require to be read in the context of the decision as a whole.

[37] We are satisfied that test set out in the authorities to which we have referred is met and the challenge to the adequacy of reasons must fail.

The first ground of appeal

[38] In the first ground it is asserted that many of the findings in fact in the 1 December decision do not stand scrutiny against what is referred to as the "written evidence" and have been largely drawn from the oral evidence of the witnesses presented by the respondents. It is averred that these errors in fact led to unfairness in the drawing of inferences from the findings in fact which in turn led to errors in law. In her written submissions the appellant comments on and criticises each of sixteen of the findings in fact made by the tribunal in the 1 December decision. We do not consider it necessary to examine each of these in detail. The assessment of the evidence was very much a matter for the tribunal. It was for the tribunal to make findings in fact based on that evidence. It was for the tribunal to draw inferences from the findings in fact. The circumstances in which an appellate court considering an appeal confined to points of law can interfere with the findings in fact of a tribunal are limited. It is not for the appellate court in these circumstances to review the evidence and substitute its own view of that evidence. Even if it was open to the court to do that, there is no official transcript of evidence. On page 3 of the 1 December decision the tribunal stated that it had regard to the bundle of papers which had grown extensively since the first hearing and recorded the oral evidence it heard. The appellant had every opportunity to draw the attention of the tribunal to the documents in the bundle. The points which are made by the appellant in her written submissions in support of this ground of appeal are points which could have been, and no doubt were, made before the tribunal when she was represented by SC. We have carefully considered these written submissions and are driven to conclude that the appellant is attempting to rehearse before us the evidence heard by, and the submissions advanced before, the tribunal. As we have already noted it is not open to us to substitute our views on the evidence for that of the tribunal. We note what was said by Lord Macfadyen giving the opinion of the court in HA v Secretary of State for the Home Department (supra) at para 11:

"It is salutary to be conscious of the risk of allowing the limitation of the right of appeal to points of law to be circumvented or eroded by characterising in one way or another as points of law matters that are truly mere disagreement with the fact-finder on matters of fact."

[39] In our opinion the appellant has been unable to identify a point of law arising from the treatment of the facts by the tribunal and the first ground of appeal is not well founded.

Conclusion and Decision

[40] It is clear from the care which the appellant has taken in the conduct of her claim before the tribunal and in the preparation of her written submissions to this court that throughout the proceedings both she and SC have had regard first and foremost to the welfare and education of AM. They are to be commended for that. It is to be hoped that some resolution to the difficulties in supporting his needs is found. As we have stated, however, an appeal from the ASN tribunal to the court is restricted to points of law. For the reasons set out above we are satisfied that none of the grounds of appeal is well founded. We are unable to identify any error in law on the part of the tribunal in the 1 December decision and, accordingly, the appeal must be refused.