EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 77
Lord Menzies Lord Drummond Young Lord Philip	XA153/12 OPINION OF THE COURT delivered by LORD MENZIES in the Appeal to the Court of Session under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 by JB (AP) (PARENT OF THE CHILD CB) Appellant; against a Decision of the Additional Support Needs Tribunal of 27 September 2012 confirming the refusal of a placing request GLASGOW CITY COUNCIL Respondents: _______________

Act: MacFarlane; Drummond Miller LLP

Alt: Stirling; Glasgow City Council (Corporate Services)

13 September 2013

Introduction

[1] The appellant is the mother of CB, a child now aged 15 who suffers from disabilities including autism and epilepsy. The child has "additional support needs" in terms of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the Act"). The respondents are Glasgow City Council, who are the responsible education authority for the child.

[2] By letter dated 31 January 2012 the appellant made a school placing request to the respondents, requesting that the child attend D school (which was an independent school outwith the respondents' area). By letter dated 15 February 2012 the respondents refused the placing request and offered to place the child at one of their own schools, namely A school. The appellant appealed the respondents' decision to the Additional Support Needs Tribunal ("the Tribunal") which, after a hearing lasting some four days in June and August 2012, on 27 September 2012 issued its written decision, refusing the appellant's appeal and confirming the decision of the respondents. Against this decision the appellant has appealed to the Court of Session.

The relevant statutory provisions

[3] The relevant provisions of the Act (as amended by the Education (Additional Support for Learning) (Scotland) Act 2009) are as follows:

"References to Tribunal

18.- (1) Any of the persons specified in subsection (2) may refer to a Tribunal any decision, failure or information specified in subsection (3) relating to any child or young person for whose school education an education authority are responsible.

(2) The persons referred to in subsection (1) are -

(a) where the decision, failure or information relates to a child, the parent of the child, ...

(3) The decisions, failures and information referred to in subsection (1) are - ...

(da) a decision of an education authority refusing a placing request made in respect of a child or young person (including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible) ...

(ii) made under sub-paragraph (2) of paragraph 2 of Schedule 2 in relation to a school mentioned in paragraph (a) or (b) of that sub-paragraph."

"Powers of Tribunal in relation to reference

19.- (1) This section specifies the powers of a Tribunal in relation to a reference made under section 18.

(4A) Where the reference relates to a decision referred to in subsection (3)(da) of that section the Tribunal may -

(a) confirm the decision if satisfied that -

(i) one or more grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exists or exist, and

(ii) in all the circumstances it is appropriate to do so,

(b) overturn the decision and require the education authority to -

(i) place the child or young person in the school specified in the placing request to which the decision related by such time as the Tribunal may require, and

(ii) make such amendments to any co-ordinated support plan prepared for the child or young person as the Tribunal considers appropriate by such time as the Tribunal may require."

"

SCHEDULE 2

2.- ...

(2) Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being -

(a) a special school the managers of which are willing to admit the child, ...

it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school.

(3) A request made under sub-paragraph (1) or (2) is referred to in this Act as a 'placing request' and the school specified in it is referred to in this schedule as the 'specified school'.

3. Circumstances in which duty does not apply

(1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply - ...

(f) if all of the following conditions apply, namely -

(i) the specified school is not a public school,

(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,

(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school, and

(iv) the authority have offered to place the child in the school referred to in paragraph (ii)."

Submissions for the appellant

[4] Counsel for the appellant submitted that the terms of paragraph 2(2) of Schedule 2 to the Act made it clear that the "default" position was that it was the duty of the education authority to grant a placing request, unless the authority can bring themselves within an exception. In the present case, it was accepted that the only exception which might apply was to be found in paragraph 3(1)(f) of Schedule 2. No issue arose with sub-paragraphs (i), (ii), or (iv); this appeal was concerned only with sub-paragraph 3(1)(f)(iii). However, the grounds were cumulative - all four sub-paragraphs of paragraph 3(1)(f) required to be satisfied before a placing request could be legitimately refused. Section 19(4A) of the Act made it clear that the Tribunal was only entitled to confirm the respondents' decision if it was satisfied that one or more grounds of refusal exists, and that in all the circumstances it was appropriate to do so. It was for the education authority to satisfy the Tribunal of these matters.

[5] One of the issues raised on behalf of the appellant before the Tribunal was the practice of the respondents of "selling on" places at A school to other local authorities. In a letter to the Tribunal dated 24 May 2012 the agent for the appellant sought information on several matters, including the "unit cost" of a place at A school. Counsel maintained that this request was repeated on behalf of the appellant at the outset of the hearing on 11 June 2012, when the agent for the appellant sought a direction from the Tribunal that the respondents should provide the sum which they charged other education authorities for sending a child to A school, and in addition, confirmation that if there was an empty place at A school, the respondents would sell that place on to other education authorities. The respondents argued against that request, maintaining that the information was irrelevant. The Tribunal refused to issue such a direction.

[6] In the course of the hearing before the Tribunal, evidence was led from the head teacher of A school. Counsel for the appellant referred us to an excerpt from the recording of the cross-examination of this witness on behalf of the appellant, in the course of which the witness confirmed that the capacity of the building at A school was 130 pupils, that there were 70 pupils at the school, and that of these there were currently 16 who were not from the respondents' area but came from other authority areas.

[7] This issue was touched on again in the closing written submissions to the Tribunal on behalf of the appellant, which contained the following passage:

"While the building at A has a capacity of 130 pupils, Mr M confirmed that this was not the capacity that current staff could accommodate. We were not told what that capacity was.

We were told that there are 16 out of area pupils, placed by way of inter-authority placement. These places are sold by Glasgow City Council to other authorities. No evidence was led as to what cost the placements were sold at. Nor was evidence led as to the number of available places or the anticipated demand. At the very least, placing CB at A represents a lost opportunity cost - in that this place can no longer sold (sic) on to another authority."

[8] What, asked counsel, was meant by the words "respective cost" in paragraph 3(1)(f)(iii) of Schedule 2 to the 2004 Act? This was a question which was considered by Lord Glennie in SM, Appellant 2007 Fam LR 2. At paragraph [21] of his opinion Lord Glennie took the view that "cost" in this context is the cost to the education authority rather than to the public purse generally. Counsel agreed with this proposition. However, he maintained that it was necessary, when considering the cost to the local authority, to take into account the loss of the opportunity to charge another authority for the space occupied by CB at A school, when such a charge might have been made if the placing request had been granted and the child had been transferred to D school.

[9] The Tribunal did not consider the question of selling on the child's place at A school to another authority. There was no consideration of whether a sale of the child's place at A school was guaranteed or not, nor what the market was for a place at A school. The Tribunal's assessment of the respective suitability and respective cost of the two schools was contained in findings in fact [17] and [18]; the Tribunal's reasoning in support of these findings in fact is to be found in the passage from page 38 to the middle of page 40, and the reasoning in support of its decision that it was appropriate to confirm the respondents' decision is to be found at pages 41 and 42. Counsel maintained that this reasoning displayed a lack of clarity sufficient to create a difficulty in the mind of the reader as to what was meant. It was submitted that the reasoning was not intelligible.

[10] Counsel submitted that the respondents have construed the dicta in SM, Appellant too narrowly, so as to exclude factors such as the "selling on" value of school places in cases as this. In the event that the respondents' construction of the decision in SM, Appellant was correct, counsel submitted that that case was wrongly decided and defined too narrowly the ambit of the issue of "respective costs" in terms of a placing request.

[11] For these reasons, counsel for the appellant invited the court to remit the case to the same Tribunal to explain its reasoning more clearly, and to consider the value of selling on the child's place at A school.

Submissions for the respondents

[12] Counsel for the respondents submitted that the Tribunal had not erred in law. It reached the correct decision in this matter, and she invited the court to refuse the appeal. The Tribunal is a specialist Tribunal with a legally qualified chairman, specialist knowledge and exclusive jurisdiction of questions of fact. The court should not analyse the decision of the Tribunal in an unduly critical way, and should approach the appeal with an appropriate degree of caution - City of Edinburgh Council v K 2009 SC 625, particularly under reference to paragraph [16] thereof and the authorities cited therein.

[13] The appellant did not seek to challenge the Tribunal's findings in fact about the suitability of the two schools. The Tribunal found that the education provision at A school was suitable for the child's additional support needs, and that the education provision at D school may be suitable for the child's additional support needs. It found that the local provision within A school was more suitable having regard to a number of factors including curriculum, peer group and transition planning. The Tribunal was entitled to make these findings in fact, and set out in detail the evidential basis on which it did so. It gave reasons for why it was satisfied that the child's additional support needs would be best met at A school with reference to curriculum, peer group and post-school transition at pages 41-42 of its decision letter, and found that A school was more suitable for the child.

[14] With regard to respective cost, the Tribunal correctly addressed the test set out in SM, Appellant, particularly at paragraph [23] of the opinion in that case. Before the Tribunal, the respondents answered the issue of the possible "selling on" of a place at A school. In their written submissions to the Tribunal (at pages 26/27) the respondents made the following submission:

"It would not be appropriate for the Tribunal to speculate as to whether there might be a child whose ASN could not be provided for by his own education authority but which could be met in A school and whose education authority would be willing to pay for a place there. Lord Glennie rejected a similar argument in SM appellant, albeit in that case the argument was not about selling a place to another education authority but about whether the place would remain free. The place at D school is significantly more expensive than the place at A school. It is not reasonable for C to be placed at D school. The Tribunal ought to have little hesitation in holding that the ground set out in paragraph 3(1)(f) has also been established."

[15] Counsel submitted that the Tribunal was correct not to take into account, when calculating the cost of the provision at A school, the possibility that a place there might be purchased by another education authority. It found that there was no identified long term additional cost to the education authority if the child were to attend A school. It heard evidence from the Head of Inclusion Services at Glasgow City Council, who stated that the child can be placed in A school at no additional cost to the education authority. There was a place for the child and no additional staff would require to be employed. The Tribunal was entitled to make finding in fact [17]. It was also entitled to find that a five day non-residential placement at D school costs £25,801.50 and that a comparison of the respective costs was appreciably in favour of A school. On the evidence before it, that was a finding that the Tribunal was bound to make. The Tribunal went on to find (at finding in fact [22]) that it was not reasonable, having regard to the respective suitability and the respective costs (including necessary incidental expenses) of provision for the additional support needs of the child at D school and at A school to place the child at D school. The Tribunal was bound to make that finding, having found that A school was more suitable and less expensive than D school.

Reply on behalf of the appellant

[16] Counsel for the appellant observed that the Tribunal did not suggest that D school was not suitable for the child. The observations in City of Edinburgh Council v K are no more than a statement of what appeals are about; what is required from this court is a duly critical analysis. Counsel confirmed that a place remained available for the child at D School; he was in possession of a letter dated 13 June 2013 to this effect.

Discussion

[17] The proper approach of a court in an appeal from a specialist tribunal was considered by the Inner House in City of Edinburgh Council v K. The context of the court's consideration in that case was the same as the present case, namely the Education (Additional Support for Learning) (Scotland) Act 2004. The court reviewed the authorities and adopted the approach of Baroness Hale in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678 and of Lord Phillips of Worth Matravers and Lord Hope of Craighead in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; [2009] 2 WLR 512. We are in complete agreement with the observations of the court in City of Edinburgh Council v K, particularly at paragraph [16]. This appeal is directed against a decision of a specialist tribunal with specialist knowledge. We should not subject its reasoning to an unduly critical analysis. We can of course only interfere with the decision of the Tribunal if it is based on a mistake of law.

[18] There were two separate arguments about costs raised in SM, Appellant. The first of these related to the effect of the costs of treatment or therapy under the National Health Service; this argument is not relevant for present purposes. The second argument related to the treatment by the Tribunal of how to assess the "respective cost" to the education authority of alternative schools. Although this argument did not raise the issue of a "selling on" price for a place vacated at a school operated by the education authority, the issues discussed are of some relevance to the arguments advanced before us in the present appeal. Lord Glennie dealt with the arguments in SM, Appellant on this point at paragraphs [23] and [28] as follows:

"[23] I also consider that the 'additional cost' submissions made on behalf of the education authority are to be preferred. Simply on the wording of para 3(1)(f)(iii) of Sch 2, it seems to me that the only meaningful assessment of the 'cost' of providing the additional support at each school is by reference to what amounts the education authority will have to spend to secure that provision. The assessment of the cost of each option is a tool to enable the education authority to judge whether the suitability of the specified school - if such is established - is justified by the greater extra cost to the education authority. The question is: how much more will we have to spend to give the child that extra benefit rather than place her in our own school? That inevitably involves identifying the costs which will actually be incurred if one or other option is chosen. This points clearly to looking for the 'additional costs' involved with each option. If J is placed in a fee paying school, the school fees (and other necessary incidental expenses) to be paid by the education authority will be the measure of the cost to the education authority of making that provision; whereas if J is placed in a state school under its management, the cost to the local authority of making that provision will be measured only in terms of what further expenditure is necessary to enable it to meet J's needs. Any other approach seems to me to be highly artificial.

[28] It follows, in my judgment, that the ASNT was wrong to calculate the cost to the education authority of placing J at O School simply by dividing running costs by the number of pupils or places., It ought to have approached the matter on the basis that only relevant costs were the additional costs which would be incurred by them if J went to that school. It is perhaps unfair to criticise the ASNT for adopting this approach since this was how the matter was presented to them by the education authority. Had the correct approach been applied, the result would clearly have been less favourable to the appellant in that the imbalance between the cost of placing J at the schools in question would have been greater. If this had been the only point in issue, therefore, I would not have thought it right to remit the case to the ASNT for reconsideration, since their error could not have affected their decision."

[19] We find this reasoning persuasive, and we adopt it. Paragraph 3(1)(f)(iii) of Schedule 2 to the Act involves an assessment of reasonableness. That assessment must have regard both to the respective suitability of the schools being considered, and also to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the schools being considered. In the present case the Tribunal carried out this assessment in a careful and measured manner. They found in fact that A school is able to make adequate and efficient provision for the additional support needs of the child, and that D school may be able to make adequate and efficient provision for the additional support needs of the child. They considered the local provision within A school more suitable having regard to a number of factors including curriculum, peer group and transition planning. There was ample evidence before the Tribunal to justify it in making this finding, and counsel for the appellant very properly did not seek to attack this aspect of the decision.

[20] With regard to cost, there was ample evidence before the Tribunal to justify it in making the finding that there was no identified long term additional cost to the authority if the child were to attend A school. There was also sufficient evidence to justify the finding that a five day non-residential placement at D school costs £25,801.50. The Tribunal went on to find that the "cost" referred to in paragraph 3(1)(f)(iii) of Schedule 2 of the 2004 Act is the cost to the education authority rather than to the public purse generally. Counsel for the appellant did not quarrel with this proposition. The Tribunal concluded finding in fact [18] with the finding that "a comparison of the respective costs thereof was appreciably in favour of A school."

[21] We are unable to detect any error of law on the part of the Tribunal in this respect. In particular, we do not consider that it is incumbent on an education authority to lead evidence before a Tribunal about the market for places which may become vacant at a school operated by the education authority in the event that a pupil is placed in a school outside the area of the authority, nor is it necessary for there to be evidence as to the "selling on" price of such a place at a given time. We agree with the approach adopted by Lord Glennie in SM, Appellant, which has the attraction of being readily understandable and relatively straightforward to apply. What the Tribunal should be considering, when applying the test of reasonableness to the question of respective cost, is a comparison of what it will cost the education authority to make provision for the additional support needs of the child in a school referred to in paragraph 3(1)(f)(ii) of Schedule 2 to the Act, with the costs to the education authority of making provision for the additional support needs of the child in the specified school. In the present case, the Tribunal found that there was no identified long-term additional cost to the education authority if CB were to attend A school, and that a five day non-residential placement at D school cost £25,801.50 (which may or may not have included necessary incidental expenses). When assessing reasonableness, we consider that this is the correct measure.

[22] We observe that the Act is primarily concerned with securing that an education authority will make proper provision for the additional support needs of children and young persons having such needs. It is clear from the whole structure of the Act (and, not least, from the terms of paragraph 3 of Schedule 2 to the Act) that the cost of making such a provision is a relevant factor. However, if a Tribunal were to be required to consider the issue of the "selling on" price of a place in a school operated by the education authority when considering the respective costs in terms of paragraph 3(1)(f)(iii), this would create a requirement for a body of evidence which might add considerably to the length and expense of Tribunal hearings. Such evidence might tend to be speculative, and result in a deflection of focus from the provision of appropriate additional support needs to the strength of a market among education authorities for the provision of such needs. The evidence about such a market (if it exists) might involve consideration of the total number of children or young persons in Scotland (or beyond) having additional support needs, the number of places available within each education authority at which such provision might be provided, the financial resources of local authorities seeking to buy a place outwith their area, the suitability of each school to meet the particular needs of each child - no doubt other considerations might be envisaged. We do not consider that the provisions of the Act require such an exercise. Instead, we consider that the requirements of paragraph 3(1)(f)(iii) of Schedule 2 to the Act are adequately met by the exercise carried out by the Tribunal in this case.

[23] We are unable to find any mistake of law by the Tribunal in this case. It has applied its expertise to the evidence before it, and it has applied its mind to the two stage test set out in section 19(4A)(a) of the Act. The reasoning which it has given in support of its findings and its conclusions is, in our view, both intelligible and adequate. For these reasons, this appeal must be refused.