ASNTS_D_04_2010_25.08.10

 

 

3. Preliminary Matters:

 

On receipt of the reference I made directions to parties raising the potential issue of lack of jurisdiction and allowed parties 21 days to make written responses.

 

Responses were received from both parties and in view of the legal issues raised I considered it just to enable oral representations from parties by way of a telephone conference call.

 

 

4. Summary of Relevant Facts:

 

1. The child is a 16 year old boy. He is a twin.
2. He has attended the specified School since June 2005 due to his educational needs. From May 2002 his brother has attended the same school.
3. In June 2011 the child will be 17 years and six months old. The appellant is the parent and guardian and her son does not have capacity to bring his own reference.
4. A looked after and accommodated review was held in November 2009. The Minutes of this meeting state that the child is “to remain with the specified school for the next two years.” The appellant’s understanding was that this meant until June 2012.
5. The school is prepared to place the child at the specified school until 2012.
6. In March 2010 a further review meeting took place and the senior social worker present informed the meeting of the official leaving date of June 2011.
7. The respondents intimated at the meeting in March 2010 that the child’s placement will only be funded until June 2011 and, again, this has also been stated in the letter from the Solicitor for the respondents dated July 2010.
8. The appellant then made a formal placing request in April 2010 to the respondents to ensure that the placement endured until June 2012.
9. The respondents have now indicated an intention to continue funding the placement to December 2011 when the child will be 18 but this is not a decision which relates to the placing request application.

 

 

5. Submission for the appellant:

 

On behalf of the appellant it was submitted that support for the competence of the reference could be had with regard to the Code of Practice, Supporting Children’s Learning, page 106 section 8, which states “Parents of children with additional support needs can make a placing request at any stage of a child’s education” and that the legislation should be interpreted having regard to the Code as provided for in Section 27 of the 2004 Act.

 

It was disputed that the Additional Support for Learning (Placing Request and Deemed Decisions) (Scotland) Regulations 2005 paragraph 3 (a) and (b) should be interpreted as applying only to the next school year. It was submitted that the legislation is silent on how far in advance a parent or young person can make a formal placing request.

 

Section 28 of the 2004 Act – Requests under the Act: Further provision states:-

 

Section 28 (2) Where an education authority decide not to comply with any request made to them under this Act, the authority must –

 

(2)(a) inform the person who made the request of that decision,

     (b) in so doing, give reasons for the decision,

 

Section 28 (e) where the request was a placing request, inform the person who made the placing request of (ii) the right under section 18 (1) to refer the decision to a Tribunal.

 

It was submitted that the respondents, the Education Authority, had failed to comply with their duty under the above sections of the Act.

 

Furthermore in respect of Schedule 2 of the 2004 Act it was argued that the placing request falls under:-

 

Paragraph 2 (2) Where the parents of a child having additional support needs makes a placing 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.

In this case the Appellant had made a placing request and had obtained written confirmation that the specified School would be willing to admit her son and therefore this test is satisfied and the placing request is competent.

Paragraph 3 of Schedule 2 sets out the circumstances in which the duty does not apply but the respondents have not chosen to give any of these possible reasons.

 

Under Paragraph 4 of Schedule 2 Placing requests; further provision

 

(1) An education authority must inform a parent in writing of their decision on a placing request made by the parent.

Reliance was thus placed on the absence in the primary legislation of any provision to limit the school year to which the placing request should relate.

The appellant then referred to The Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005.

 

Regulation 3, An education authority shall be deemed to have refused a placing request made in accordance with the provisions of paragraph 2 (1) or (2) or 8 of schedule 2 of the Act –

 

(a) in the case of such a placing request received by the education authority on or before 15^th March in any year with respect to a child, or as the case may be, young person, being placed in the school specified in the placing request at the commencement of the first term of the school year next following the date of making of the request, on 30^th April of the first mentioned year: or

 

(b) in the case of any other such placing request, on the expiry of the period of 2 months immediately following receipt by the authority of the placing request.

The appellant submitted that regulation 3 (a) applied only where a parent had made a placing request before or on the 15 March 2010 for a placement to commence in August 2010 and the Authority would then have an obligation to give a decision by 30 April 2010. However, as the appellant’s placing request was not made until the 22 April 2010 the applicable regulation was Regulation 3(b). The basis on which the reference was lodged was where the respondents were deemed to have refused the placing request as no decision had been made on the expiry of the period of 2 months immediately following receipt by the authority of the placing request.

Accordingly it was argued for the appellant that as the legislation is silent on how far in advance a parent or young person can make a placing request, then it may be an issue of discrimination to say that a parent making a placing request in April 2010 is deemed the right to lodge a reference citing 3 (b) and another parent’s reference would be accepted using 3 (b) if they made a placing request in the middle of August 2010 for the year 2011/2012.

The representative submitted that it was her own experience, over a number of years for parents who are aware of the legislation process in relation to placing requests, to make a placing request for the following year as early as August or September in the previous year, particularly when in a transition period or when the authority has intimated they will be proposing an alternative school or ceasing funding. The Code of Practice at Chapter 5, Transitions, paragraph 4 suggests that relevant advice be sought from other agencies 12 months before a child who has additional support needs is likely to experience a change in their educational provision and this would further support the interpretation sought.

On this interpretation the appellant argued that the reference should not be dismissed in terms of Rule 18 (3) as the reference, at the time of lodgement, was competent and the Tribunal has jurisdiction to hear and make a decision on it.

 

 

6. Submission for the respondent:

 

For the respondents it was submitted that the sole issue in dispute is whether the appellant has a legal right to receive a decision in respect of a placing request made for the period August 2011 to June 2012.  

 

The parent’s capacity to act for her son is not in dispute. It is also indisputable that the child is already attending the school of his parent’s choice and will continue to be funded to do so for at least the further school year 2010/2011. Additionally it was indicated that there was an intention to fund the placement until the young person’s 18^th birthday in December 2011 but that this decision was in no way linked to the placing request application made in respect of the school year 2011/12 as there was no statutory obligation on the respondents to make any placing request application decision in respect of that school year at this time.

 

The respondents submitted that the appellant’s interpretation of the Code of Practice, Supporting Children’s Learning, page 106 section 8, which states “Parents of children with additional support needs can make a placing request at any stage of a child’s education” had been taken out of context. A parent may make the placing request at any stage of the child’s education but it is the proximity of the school year in respect of which the request is made which is at issue in this reference. There is nothing to prevent a parent making the request at any time but there are statutory limitations on when the authority is obliged to issue a decision.

 

Therefore while it was conceded that Schedule 2 of the 2004 Act, which deals with Placing Requests, is silent on the matter of the time at which an application for a placing request must be determined, paragraph 4(3) provides for the making of regulations in respect of deemed refusals.

 

The Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005, regulation 3 provides for the timescales within which the authority must issue a decision.

 

This regulation provides (bold indicates emphasis placed by respondents)

 

1. 1. in the case of such a placing request received by the education authority on or before 15^th March in any year with respect to a child or, as the case may be, young person, being placed in the school specified in the placing request at the commencement of the first term of the school year next following the date of making the request, on 30^th April of the first mentioned year; or
   2. in the case of any other such placing request, on the expiry of the period of two months immediately following receipt by the authority of the placing request.

 

It was submitted that in the normal course of events, a placing request should be received by the authority before 15^th March in respect of the next school year and should be determined by 30 April at the latest. Where the placing request is received either later than 15 March in respect of the next school year following or where it is received in the middle of a school year seeking an immediate change of school, the time limit imposed on the authority is a period of two months following receipt of the request. The period of two months would not apply to application received substantially in advance of the 15^th March deadline for the next school year as this would potentially result in “queue jumping” the normal timetable for the decision making process.

 

In support of this interpretation the respondents referred to the Executive Note applying to the Placing Request and Deemed Decisions Regulations issued in October 2005.  The penultimate paragraph of page 2 states “ If a parent wants their child to start at the school of their choice at the beginning of the school year in August and their placing request reaches the education authority by 15 March that year, the parent must be given an answer by 30 April.

The last paragraph on page 2 states “If a parent makes a placing request for their child to attend a different school during the school year, the education authority must reach a decision within 2 months.”

 

The respondents also submitted an alternative argument which was that it was not competent to consider a placing request application where the child was already attending the school in respect of which the placing request was made since the terms of Schedule 2, paragraph 2 (2)(a) state “a special school the managers of which are willing to admit the child”.

 

It was argued that the word “admit” should be given its normal meaning inferring that the child was not already attending the specified school.

 

 

7. Reasons for the decision:

 

I was assisted by the parties’ submissions in determining this preliminary issue on competence. I am directing that this decision be placed on the decisions database on the website for reference purposes.

 

I have set out the parties’ arguments in detail in view of the importance of clarifying the statutory provisions applying to placing request applications.

 

I am persuaded by the respondents that their interpretation of the provisions of the applicable Regulations is correct but only as regards their primary argument in terms of Regulation 3 and I adopt the reasoning set out above.

 

It would be absurd to interpret these regulations, which apply a date by which a decision should be made for the next school year, in such a way that a parent could subvert the applicability of Regulation 3(a) by making an school placing request early in respect of any given year in order to get a decision ahead of other parents who also wish to make placing requests. If that were the case any application for a placing request made early in the given year would have to be decided potentially well in advance of 30 April and this cannot reasonably be the ordinary meaning of this provision. If there was any dubiety then reference to the Executive Note which sets out the policy intention is sufficient to support the proper interpretation of the provisions.

 

It is appreciated that parents may wish to have more certainty in respect of the longer term destinations of their children especially during any transition period but the Tribunal cannot consider what is desirable but only what is provided for under the statutory provisions. In this case the authority has indicated an intention to provide for the placement to continue beyond the 2010/2011 school year but they are not obliged to do so although may do so in terms of good practice.

 

With regard to the alternative argument submitted for the respondents on the wording of paragraph 2 (2)(a) of Schedule 2 of the 2004 Act, since the respondents’ primary argument succeeds,  it is not necessary for me to reach any decision on the interpretation of the word “admit” in relation to the competence of this reference.

 

The reference is therefore dismissed in terms of Rule 18(2)(b) of the Additional Support Needs Tribunals for Scotland (Practice and Procedure ) Rules 2006 (“the Rules”) in that it is not within the jurisdiction of the Tribunal as there is no decision capable of appeal in terms of Section 18(3)(e) of the 2004 Act, “ a decision of the education authority refusing a placing request made in respect of the child or young person”.  A convener has power to determine this preliminary matter without convening a Tribunal in terms of Rule 13(1) of the Rules.