ASNTS_D_20_2008_13.05.08

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/20/2008

 

Gender:                   Male

 

Age:                        14

 

Type of Reference: Competence

 

 

 

 

 

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1. Reference:

This matter comes before me, as a convener sitting alone, to consider the preliminary issue of the competence of a reference in terms of Rule 13 (1) where a convener may consider and determine any preliminary or incidental issue arising from a reference which must be determined prior to the substantive hearing of the reference, and which cannot be determined by the giving of directions under Rule 15.

The preliminary issue concerns the competence and powers of the Tribunal with regard to an appeal remitted from the sheriff court.

 

2. Decision of the Tribunal:

 

1. A reference on the placing request is competent since Paragraph 9 of Schedule 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 provides that the Secretary is bound to have remitted any appeal pending before the sheriff against a decision of the Education Appeal Committee in respect of refusal of a placing request application.
2. This matter must then form a separate reference to be consolidated at hearing with the existing reference, concerning whether or not the child meets the statutory criteria for the opening of a co-ordinated support plan in terms of Rule 20(1).
3. The case statement period for both references will be shortened in terms of Rule 8(6)(b) and will end on 11 June with the hearing to proceed on 23, 25, 26 and 27 June.  The issue of the co-ordinated support plan will be considered first.
4. The jurisdiction in respect of the placing request having been remitted to the Tribunal from the sheriff court as an appeal may be decided by the Tribunal whether or not the child satisfies the criteria for a co-ordinated support plan

 

3. Submissions by Parties

 

I heard brief oral submission by parties by way of a telephone conference call, proportionate to the preliminary issue to be determined and for the convenience of parties, conform to the overriding objective set out in Rule 3 of the Tribunal Rules.

It was agreed by both parties that the policy intention of paragraph 9 of Schedule 2 to the Act was to ensure that any appeal from an Education Appeal Committee to the sheriff be remitted to the Tribunal in circumstances where there was a pending reference on the applicability of a co-ordinated support plan, but moreover, that regardless of the outcome of the decision on the co-ordinated support plan, that the placing request remain for a decision with the Tribunal and that any onward appeal rights from the Tribunal decision would then be to the Court of Session. 

 

Following the telephone conference call I drafted a provisional decision which I then directed be issued to parties for further written submissions since this decision did not give effect to their joint oral submission. I am grateful to the respondents for submitting a detailed written response and to the Appellant’s solicitor for confirming his agreement to this submission. It is therefore appropriate that the written submission be incorporated into this preliminary decision in full.

 

4. Submission by the Respondents

 

The education authority’s position is not that it is seeking to persuade the Tribunal to give effect to a jurisdiction of choice but rather that the Act can be read so as to give the Tribunal discretion to decide the placing request reference even were it to refuse the CSP reference.

In terms of Paragraph 7(9) of Schedule 2, it is provided that an appeal of the type in question on being transferred to the Tribunal “is to be treated as if it were reference made to the Tribunal under Section 18(1)”. The question then arises as to how the appeal is to be treated by the Tribunal.

Section 18 deals with a number of matters in relation to references to the Tribunal.  Only the first two are of relevance here.  The first concerns who may make the reference.  In this respect to transfer provision deems that the transfer is a reference.  This provision causes no difficulty.  The second matter dealt with by Section 18 is the subject matter of the reference (sub-sections (3) and (4)).  Only sub-section (3)(e) deals with placing requests.  It is provided that a right of reference to the Tribunal arises “where sub-section (4) applies, a decision of the education authority refusing a placing request made in respect of [the pupil]”.  Accordingly, the Tribunal has jurisdiction over placing requests but only if one of the three circumstances set out in sub-section (4) applies.

 

Section 18(4) provides as follows:

 

            (4) This sub-section applies where, at the time the placing request is refused

(a) a co-ordinated support plan has been prepared (and not discontinued) for the child or young person,

(b) no such plan has been prepared, but it has been established by the education authority that the child or young person requires such a plan, or

(c) the education authority have decided that the child or young person does not require such a plan and that decision has been referred to a Tribunal under subsection (1).

 

In the present case the difficulty that arises is that at the time that the placing request was refused the education authority had not made a decision on whether the pupil required a plan.  The decision to refuse a CSP was made on 27 March 2008, well after the placing request was refused.  If the Parents had made a reference directly to the tribunal in respect of placing request refusal, then the tribunal would have had to reject the reference at the outset since no decision had been made on the CSP at the time of the placing request refusal. This is because the phrase “at the time the placing request was refused” is to be given its literal meaning as per the decision in the case of the Petition of Deborah Gordon [2007] CSOH 45.

 

The position is such that the Act provides for the mandatory transfer to the Tribunal from the Sheriff (if there has been a subsequent refusal to prepare a CSP) and that transfer is to be treated as a reference under Section 18 (1) even when the Tribunal would not itself have had the power to deal with a reference had it been made directly.  (This situation is different from that in the Gordon case where the new circumstance was the preparation of a CSP, not a refusal to prepare a CSP as in this case).  Notwithstanding this, the transfer provision is clear and has to be given effect unless manifest absurdity would result.  In this respect reference is made to the propositions of statutory construction as advanced at paragraph (9) in Gordon.

 

The powers of the Tribunal in relation to a reference under Section 18 are set out in Section 19.  Given that a transfer from a Sheriff is a deemed reference under Section 18(1) these powers apply equally to transfers.  The position in respect of the CSP dispute does not cause any difficulties.  The difficulty arises as regards the placing request matter.  Placing request references are dealt with in Section 19(5) which provides that “where the reference relates to a decision referred to in sub-section (3)(e) of [Section 18], the Tribunal may [take one of three course]”.  Consideration of sub-section (3)(e) brings one back to considerations of the above mentioned Section 18(4).  The question is then as to how it can be said that sub-section (3)(e) applies given the date of the decision of the placing request refusal. The answer lies in a narrow construction of Section 19(5). If Section 19(5) is construed as a reference simply to the type of decision referred to there (that is, a placing request refusal) rather than incorporating the qualification of the timing of the placing request in Section 18(4), then Section 19(5) can easily be read as being applicable to the situation where the reference before the Tribunal originated by way of transfer from the Sheriff (even where a direct reference would not have been competent).  It is not disputed that the transfer provisions must be given effect.  If one accepts that the Tribunal is competently seized of jurisdiction, then in order to make the provisions work and in doing so give effect to Parliamentary intention, an attempt must be made to read the provisions regarding powers compliantly.  It would make little sense if the Tribunal having been given jurisdiction was then deprived of any powers to deal with the reference.

 

It is also arguable that the looseness of the opening words to Section 19(5), namely “In relation to” also assist in a flexible interpretation.  This would allow Section 19(5) to be read as providing the Tribunal with power to deal with transfers from the Sheriff even where the timing test referred to in Section 18(4) is not met.

 

Section 19(5) provides as follows:

 

(5) Where the reference relates to a decision referred to in subsection (3)(e), the Tribunal may –

 

                  (a) confirm the decision if satisfied that –

(i) one or more of the 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, and

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

 

(c) where –

(i) the decision was referred to the Tribunal by virtue of the application of subsection (4)(c) of that section, and

(ii) the Tribunal has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,

 

                  refer the decision to an appeal committee set up under Section 28 of the 1980 Act.               

 

The question is then what would happen if the Tribunal were to decide to confirm the decision of the education authority that the pupil does not require a CSP?  Section 19(5)(c) may seem to deal with the situation.  This, however, would lead to an extremely odd result, namely, that the placing request appeal would be referred to the forum – the appeal committee - where it had already been decided.   It is also the case that the Parents would then be back at an earlier stage in the appeal process without having made any progress.  Not only would this result in a considerable amount of wasted time and expense for all parties but, importantly, the welfare of the pupil would not be advanced by such a course of action.

 

In the event that the CSP decision is up held, would the Tribunal be compelled by the terms of Section 19(5) to refer the placing request appeal to the appeal committee?  There are sound arguments that it would not.

 

Firstly, Section 19(5)(c) only applies where “the decision was referred to the Tribunal by virtue of the application of subsection (4)(c) of that  Section”.  In the instant case, the decision was not so referred, rather it was referred by virtue of the application of paragraphs 7(8) and (9) of Schedule 2 to the Act.  The circumstances in Section 18(4)(c) are those of the instant case, but they were not cause of the referral to the Tribunal.    Secondly, Section 19(5) provides for three routes on a reference in respect of a placing request.  These are, broadly, confirmation of the decision, over turning the decision and referral of the decision to the appeal committee.  The Tribunal “may” do anyone of these.  The use of the word “may” gives the Tribunal a discretion; the Tribunal is not required to refer the decision to the appeal committee in cases where it confirms the decision of an education authority on a CSP reference.  As such, it is arguable that Section 19(5)(c) exists to provide the Tribunal with the possibility of having the appeal decided by an appeal committee where the Tribunal decided that would be the more suitable course and also, where the appeal committee has not already made a decision on the placing request appeal.

 

It is appreciated that the Tribunal may be concerned that in dealing with a placing request in a case where it has decided that a CSP is not required this would create an anomaly in its jurisdiction. Arguably, it would not in that as far as the parent and pupil are concerned the CSP reference and placing request appeal are connected matters and from the Tribunal’s point of view there will usually be an overlap in the issues that it has to consider.

 

In conclusion, there is no doubt that the transfer provisions must apply and that they then must be applied within the terms of sections 18 and 19 of the Act in such a way that is consistent with the terms of the legislation.  The above sets out a workable solution that (a) gives content to all the legislation; (b) does not produce an absurd result; (c) enables the appeal to be dealt with by suitable authoritative forum; (d) enables all matters to be dealt with expeditiously, efficiently and at reasonable cost; (e) does not involve inventing a non-statutory reference route to the Sheriff and (f) is consistent with the overriding objective of the Tribunal in terms of Rule 3. 

 

The Rules cannot, of course, take precedence over or qualify the terms of the statute.  However, if the Tribunal is faced with two or more equally possible and lawful ways of proceeding, the overriding objective suggests that the Tribunal should choose the route which can best meet the terms of the same.

 

5. Reasons for the Decision

 

This is the first occasion on which it has been necessary for a convener or Tribunal to address the terms of Paragraph 7(8) of Schedule 2 to the Education (Additional Support for Learning) (Scotland) Act.  The issue is complex as indicated in the respondent’s submission.

 

The relevant provisions in paragraphs 8 and 9 of Schedule 2 provide:

 

(8) Sub-paragraph (9) applies where—

(a) after an appeal is made to the sheriff under this paragraph, but

(b) before the sheriff has disposed of the appeal,

there is referred to a Tribunal under section 18(1) a decision of the education authority that the child to whom the appeal relates does not require a co-ordinated support plan.

(9) Where this sub-paragraph applies—

(a) the sheriff must transfer the appeal to the Tribunal, and

(b) on being so transferred, the appeal is to be treated as if it were a reference made to the Tribunal under section 18(1).

 

The crucial wording is in paragraph 7(9)(b). Since the appeal then remitted to the Tribunal is treated as a reference, the question arises as to the applicable powers of the Tribunal in dealing with a remitted appeal from the sheriff as a reference. The Tribunal’s powers are set out in Section 19. The submission argues that the Tribunal’s powers set out in section 19 (5) (c) of the Act only apply to a reference under Section 18(3)(e) i.e. “a decision of the education authority refusing a placing request made in respect of a child or young person” and not to a decision which is then subject to an appeal to the sheriff.

The provisions state:

(c) where—

(i) the decision was referred to the Tribunal by virtue of the application of subsection (4)(c) of that section, [refusal to prepare a co-ordinated support plan] and

(ii) the Tribunal has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,

refer the decision to an appeal committee set up under section 28D of the 1980 Act.

 

However the wording of subsection (5) is enabling rather than mandatory - “the Tribunal may” – and it is argued that the Tribunal is not bound to remit the matter back to the education appeal committee in the circumstances of the present reference.

 

The legislation is silent on the powers of the Tribunal where an appeal to the sheriff has been remitted and indeed the submission makes no argument in this regard as the powers appear limited to references made under section 18. If one accepts the submission, Sections 18 and 19 do not incorporate any references to a jurisdiction created by virtue of the application of Schedule 2  paragraph 7 (9). This may be a lacuna in the legislation but in order to give proper effect to the provisions the Tribunal must be able to dispose of the reference in respect of the remitted placing request appeal in terms identical to a placing request being heard at first instance. This would seem to avoid a situation where a parent may be seeking to appeal to the Court of Session in relation to a Tribunal decision about the opening of a co-ordinated support plan whilst at the same time pursuing an appeal to the sheriff from an education appeal committee in relation to a placing request.

 

As required by the legislation, the Tribunal must pay regard to the Code of Practice and the relevant section is reproduced below with the relevant portions highlighted and the disapplied section italicised:

 

Appeals to the Sheriff from an appeal committee
	23. A parent who has made a reference to an appeal committee may appeal to the Sheriff against the decision of the appeal committee on that reference. In such a case, the education authority may be a party to the appeal to the Sheriff, not the appeal committee. An appeal must be made by way of summary application and lodged within 28 days from the date of receipt of the appeal committee's decision. The Sheriff may hear an appeal, in the event of a late application, if the parents can show good cause for the delay in submitting the appeal.
	25. When a Sheriff has not yet disposed of a placing request appeal and is made aware by the tribunal that a reference has been made to the tribunal about a decision that the child to whom the appeal to the sheriff relates does not require a co-ordinated support plan, the Sheriff must transfer the placing request appeal to the tribunal for consideration. On being transferred to the tribunal the appeal is to be treated as if it were a reference made to the tribunal under section 18(1) of the Act.
	26. If the tribunal upholds the education authority's decision that the child or young person does not require a co-ordinated support plan then the placing request appeal is referred to the appeal committee.
	27. Further information and guidance on placing requests, including the various appeal routes described above, can be found at Annex D, in the Placing Requests Regulations and in the resources section.

 

 

annex d Placing request routes

 

 

 

 

 

Under Rule 5 all matters must come before the Tribunal as a reference since no prescribed form requires to be used and the terms of any appeal from an Education Appeal Committee to the Sheriff should be conform to the requirements stated in Rules 5 and where these are not duly compliant then the Secretary may refer to Rule 6 in seeking any further particulars.

 

Once the remitted appeal is treated as a reference then all the related provisions may be applied such as a shortening of the case statement period as indicated in the above decision.

 

The second aspect to consider is what route the placing request reference must take in respect of the decision in respect of the reference on the co-ordinated support plan and it is this aspect which is addressed in the above submission.

 

The implication of the flow chart indicated in the Code of Practice appears to be that if the Tribunal does not find that the criteria for a co-ordinated support plan are met then the issue of the refusal of the placing request would require be reheard by the Education Appeal Committee although the matter had already been considered by them and the placing request refused. It appears perverse and contrary to principles of natural justice if the parent has then to pursue their appeal afresh before the same Education Appeal Committee which had previously refused the placing request but this seems to be the consequence of the provisions.  It is noted that there is no procedure to remit back to the sheriff court even where there had previously been a pending appeal and it is accepted that the Tribunal, as a forum of statute, cannot adopt such a procedure. If some support for the respondents’ submission can be gleaned from the flow chart, then it may be that the dotted line rather than the solid line indicating the other routes can be read as consistent with the Tribunal retaining jurisdiction over the placing request. Paragraph 26 of the Code must therefore be disregarded as indicating a procedure which is absurd and inconsistent with a closer reading of the primary legislation. Furthermore it is accepted that the Code is a sub-statutory document to which the Tribunal requires to have regard when interpreting legislative provisions but it does not have force of law and should not be read in such a way as to give a perverse result.

 

I am unable to identify a policy intention in relation to these provisions and it is difficult to determine what was in the mind of those drafting this aspect of the legislation. Accordingly I find myself, albeit with serious concern regarding the drafting of the legislation on this aspect, persuaded that I should give effect to the joint submission of parties and adopt the reasoning set out in the above submission. I do so since this result is consistent with the overriding objective of the Tribunal to avoid delay and deal with matters in a way which is proportionate to the complexity of the issues and to the resources of the parties. It is certainly in the interests of the parent and child that the Tribunal is able to address both matters at hearing in order to reach a final decision at one hearing.

 

27 May 2008