ASNTS_D_10_2012_27.04.12

 

DECISION OF THE CONVENER ON A PRELIMINARY MATTER

 

Reference: D/10/2012

 

Gender: Female

 

Aged: 13

 

Type of Reference: Placing Request

 

1. Reference

 

A reference, dated 16 December 2011, was received by the Tribunal’s Secretariat on 21 December 2011, in respect of a deemed refusal of a placing request made by way of the Appellant’s letter, dated 19 August 2011.

 

2. Summary of the Decision

 

The reference is incompetent and is dismissed.

 

3. Procedural History

 

I made directions on 2 February 2011 directing the parties to provide sequential submissions and file and serve any relevant written evidence in relation to the question of the competency of the reference. The parties requested further time to provide their submissions on two occasions. I acceded to the requests.

 

By 11 April 2012 both parties had lodged written submissions on the issue of competency. The education authority was of the view a hearing was not required but the Appellants sought a hearing. I directed a hearing should take place and  one was listed for 27 April 2012. Given the Appellant wanted to provide oral evidence to the Tribunal and given the complexity and importance of the issues, it was necessary in the circumstances of this reference (having due regard to the overriding objective) for a hearing to take place.

 

 

4. Summary of  Facts Found

Annie was born in 1998 (Annie is not the Appellants’ daughter’s real name, but I have used this name to protect her identity). She has additional support needs, global developmental delay and dyspraxia. She was educated in an additional support for learning base at C Primary School and was offered a place at secondary transfer at the additional support needs base at C Academy. This place was offered by the Education Authority (hereafter “EA”) in January 2011, after Annie’s parents made a placing request on 22 November 2010.

 

Annie’s parents had her assessed at N School, a special school in the north of England for pupils with dyslexia. Annie was offered a place at N School by way of a letter dated 17 June 2011. N School is a school in England which makes provision wholly or mainly for children with additional support needs. The managers are willing to admit Annie (and have admitted her).

 

Annie ceased to attend C Primary School on 1 July 2011. Her parents accepted the place at N School on her behalf on 11 July 2011.

 

The new school year began at C Academy on 16 August 2011. Annie did not attend. Her parents made a placing request to the EA by way of a letter dated 19 August 2011. Annie began attending at N School on 5 September 2011. The reference to the Tribunal was received on 21 December 2011.

 

Annie’s parents live in the area of the EA. Annie resides with her grandparents during the week, whilst attending N School and returns home to Scotland, to reside with her parents.

 

 

5. Submissions for the Parties

 

 

Both parties were represented by solicitors and the Appellants had obtained the advice of counsel, which they relied upon when drafting their submissions on competency. A representative of the EA attended as a witness and confirmed the contents of a short witness statement that had been lodged (as did one of the Appellants).

 

I am grateful for the written submissions that both parties lodged. The Appellants argued the reference was competent and the EA the reference was incompetent. I do not set out in this decision the submissions made at the hearing, as the parties followed their written submissions.

 

I should record here the Appellants had sought to argue the placing request was made earlier than the letter of 19 August 2011. This position was withdrawn at the outset of the hearing.

 

Furthermore, the EA conceded at the hearing Annie “belongs to” the authority.

 

I record my thanks to the representatives for the clear and persuasive manner in which they put their arguments, which was of considerable assistance to the Tribunal.

 

6. Reasons for the Decision

 

1. This is the decision on a preliminary matter pursuant to Rule 13, Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (SI 2006/88 as amended).

 

 

2. Section 18 (1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended by the 2009 act of the same name) states:  

 

 

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-
   
   1. where the decision, failure or information related to a child, the parent of the child.
   2. ……

 

3. Subsection 18 (3) states:

 

              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) –

 

1. made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a special school; or
2. made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a school mentioned in paragraph (a) or (b) of that subparagraph.

 

4. Schedule 2, paragraph 2 states:

 

Duty to comply with placing requests

2

(1)     Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.

 

(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,

(b)     a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs, or

(c)     a school at which education is provided in pursuance of arrangements entered into under section 35 of the 2000 Act,

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”.

 

(4)     Where a placing request relates to 2 or more schools being—

(a)     schools under the management of the education authority to whom it is made, or

(b)     schools mentioned in sub-paragraph (2)(a), (b) or (c) the managers of which are willing to admit the child in respect of whom the request is made,

the duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) applies in relation to the first mentioned such school, which is to be treated for the purposes of this schedule as the specified school.

 

(5)     In sub-paragraph (1), the reference to an education authority includes an education authority which are not responsible for the school education of the child.

 

5. Section 29 (3) of the 2004  Act states:

 

In this Act and subject to subsection (3A) references to a child or young person for whose school education an education authority are responsible are to any child or young person being, or about to be, provided with school education-

1. in a school under the management of the education authority, or
2. in pursuance of arrangements made or entered into by the authority.

 

 

6. The EA has a qualified duty to meets the fees and other necessary costs of Annie’s placement at N School if:
   
   1. Annie has additional support needs;
   2. her parents make a request to an education authority to place her at N School;
   3. Annie ‘belongs to the education authority’s area’;
   4. N School is not a public school, but falls with one of the three categories set out in paragraph 2 (2) of Schedule 2 (which I am satisfied it does – see paragraph 2 (2) (b)).

 

7. There is a qualified duty, because the duty on the education authority does not apply, if one or more of the circumstances set out in paragraph 3 of Schedule 2 applies. The extent to which paragraph 3 does or does not apply is the common place argument before this Tribunal.

 

8. Pursuant to section 23 (4), 135 and 1 (5) of the Education (Scotland) Act 1980 I am satisfied that Annie belongs to the area of the EA because her parents are ordinarily resident in this area and she receives school education. This was not disputed by either party.

 

9. Therefore, subject to paragraph 3, Schedule 2 of the 1994 Act, the EA is under a qualified duty to accede to the Appellants’ placing request. The EA has not acceded because it says the circumstances set out at sub-paragraph 3 (1) (f) of Schedule 2 apply and therefore the EA is not under a duty to accede to the placing request and meets the fees and other necessary expenses of Annie’s attendance at N School.

 

10. It is against this (deemed) decision that the Appellants make their reference to this Tribunal.

 

11. Sub-section 18 (1) of the 2004 Act describes who may make a reference to the Tribunal. A person may refer a reference to the Tribunal if they satisfy the following criteria:

 

1. they are a person specified in subsection 18 (2); and
2. they are making the reference in relation to a decision, failure or information specified in sub-section 18 (3); and
3. (b) above relates to a child or young person for whose school education an education authority are responsible.

 

12. Should these three criteria not be met, a reference will be incompetent, that is to say, the Tribunal will not have been granted jurisdiction by the 2004 Act to determine the reference.

 

13. In this matter, it is clear the criteria laid out above at paragraph 11 (a) and (b) are met: the appellants are the parents of the child; and the decision by the EA refusing the placing request is a decision that falls within the terms of sub-section 18 (3) (da) (ii). The issue in dispute is whether the EA is responsible for Annie’s school education and if it is not, what are the effects of this conclusion on the Appellants’ reference to the Tribunal.

 

14. When making directions at the outset of these proceedings I referred the parties to a previous decision of the Tribunal in relation to the interpretation of s. 18 (1) of the 2004 Act. This was simply to assist the parties to understand the possible issues. One Tribunal decision cannot bind another: the doctrine of precedent does not apply.

 

15. Is the EA authority responsible for Annie’s education? As set out above this is defined by section 29 (3) of the 2004 Act. In my opinion the EA ceased to be responsible for Annie’s education on 11 July 2011. The 1 July 2011 was the last date she attended a school under the management of the EA. Annie may have remained a child for whose school education an education authority (whether this EA or another) was about to be responsible for providing school education in a school under the management of the education authority. Sub-section 29 (3) (b) does not apply.

 

16. After 11 July 2011 it cannot be said Annie was about to be provided with school education by an education authority in a school under its management, because her parents had accepted the offer of a place at N School on this date. Having accepted such an offer Annie was not about to be provided with school education in a school under the management of an education authority. It is correct to say her parents could have changed their minds (despite, I was told, having signed and sent an acceptance of school place form and thereby entered into a contract with the governing body of N School) and sought a place at C Academy any time up until 16 August 2011. However, they did not do so and I understood it was accepted at the hearing that C Academy was informed on 16 August 2011 Annie would not be taking up her place.

 

17. In the decision of the Outer House of the Court of Session in RB [2007] CSOH 126 at paragraph 7 Lord Brailsford held:

 

In my view the correct approach to section 29 (3) depends on the issue of control. In the end of the day I think this was the approach adopted by the Tribunal and advanced, albeit in slightly different ways, by both the appellant and the respondent. Put shortly if, as a matter of fact, the respondents control the education of C then in terms of the statutory provision they are responsible therefore. On the other hand if there is no control of C’s education then responsibility under section 29 (3) does not arise.

 

18. The opinion of Lord Brailsford sitting in the Outer House was given on 12 July 2007, and therefore pre-dated the amendments made by the 2009 Act.

 

19. Neither party sought to persuade me the EA exercised control either on 19 August 2011 or 21 December 2011, and in my opinion were right not to do so.

 

20. I conclude therefore that when the placing request was made on 19 August 2011 and when the reference to the Tribunal was made shortly before 21 December 2011, the EA was not responsible for Annie’s school education.

 

21. The Appellants argued that the timing of the test set out in section 18 (1) applied at the time the placing request was made and not when the reference was made to the Tribunal. This submission, on the facts I have found, does not assist the Appellants.

 

22. In my opinion it is also an incorrect interpretation of s. 18 (1) because:

 

1. 1. s. 18 (1) states that [the person] may refer to a Tribunal a [specified decision] for whose school education an education authority are responsible – the tense of the verb makes clear the responsibility of the education authority should be contemporaneous with the reference being made (and this is supported by the wording of sub-paragraph 2 (2) (b) of Schedule 2 to the 2004 Act (“the managers of which are willing to admit the child);
   2. secondly, in the circumstances of these proceedings, it is sub-paragraph 2 (2) of Schedule 2 which sets out the requirement that must be met for an education authority to accede to a placing request, paragraph 2 (2) of Schedule 2 does not make reference to an education authority being responsible for the school education of the child, rather the test set out is of the child belonging to the education authority’s area.

 

23. I note sub-paragraph 2 (5) of Schedule 2 makes clear sub-paragraph 2 (1) of Schedule 2 includes an education authority which are not responsible for the school education of the child. I do not consider this can require me to read into the otherwise clear words of sub-paragraph 2 (2) an additional test of the education authority being responsible for the school education of the pupil.

 

24. Furthermore, I am assisted in reaching a conclusion on the timing of the application of the test set out in s. 18 (1) of the 2004 Act by the opinion of Lord Macphail at paragraph 64 of WD v Glasgow:

 

“We begin by observing that, the jurisdiction of the Tribunal having been defined in section 18, it would be at least unusual if it were extended by the terms of a Schedule related to another section. Schedule 2 is introduced by section 22…..”

 

25. Therefore, in my opinion, the three stage test set out in section 18 (1) applies at the time the reference is made to the Tribunal and not when a parent makes a placing request to an education authority.

 

26. The Appellant argues that an interpretation of s. 18 (1) requiring there to be an education authority responsible for the school education of the child for there to be a competent reference ‘produces injustice and absurdity’. It is submitted that I should react the 2004 Act in a purposive manner to give effect to the intention of Parliament to provide a right of appeal to the Appellants to this Tribunal. The Appellant argues:

 

1. 1. section 18 (1) should be read with section 18 (3) (da) and if they are read together it is not necessary for there to be an education authority who is responsible for Annie’s school education; and
   2. it was the intention of Parliament that appeal placing requests for independent special schools should come before this Tribunal (being a specialist tribunal) and not the former regime of the appeals committee and sheriff – I am referred to the Explanatory Notes of the Education (Additional Support for Learning) (Scotland) Act 2009 and the debates of the Scottish Parliament.

 

27. The Appellants argued s. 18 (3) (da) permitted an interpretation of s. 18 (1) such that a reference could be made to this Tribunal ‘regardless of whether an education authority is or has been responsible for the school education of the child in terms of s 29 (3)’. I cannot accept this submission. Sub-section 18 (3) (da) describes a decision that can be referred to a Tribunal, subject to the conditions of s. 18 (1) and states:

 

(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) –

 

3. made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a special school; or

made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a school mentioned in paragraph (a) or (b) of that subparagraph

 

28. There is of course a superficial attraction to the Appellants’ argument as subsection 18 (3) (da) states “including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible” however I am satisfied this does not permit an interpretation that no education authority is responsible, rather this is clearly directed at the difficulty which arose in the case of WD v Glasgow City Council [2007] CSIH 72 (out of area placing requests) and which the 2009 Act sought to amend. Subsection 18 (3) (da) cannot be read with the result the Appellants contend for, namely a reference is competent if the refusing authority is not responsible for the school education of the child and no other education authority is responsible for the child’s education. Section 18 is the gateway to the Tribunal and it requires an education authority to be responsible for the child’s school education when the reference is made to the Tribunal.

 

29. I note there can be no out of area placing request in relation to a school in England, such as N School. The Appellants argued therefore that the language used in sub-section 18 (3) (da): ‘including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible’ must apply to sub-section 18 (3) (da) (ii) and given this sub-section does not refer to out of area placing requests, the placing request for N School could therefore be referred to the Tribunal, even if there were no education authority responsible. Such an argument ignores the context of the 2004 Act and fails to place sub-section 18 (3) (da) in the context of s. 18 as a whole and is therefore an erroneous interpretation.

 

30. The proper construction of s. 18 (1) of the 2004 Act was considered by the Inner House in WD v Glasgow. The Inner House concluded that where the term “an education authority” was used it meant the education authority responsible for the child’s education and rejected the submission it meant any education authority in Scotland. The reasoning for this interpretation is set out at paragraphs 62 and 63 of the opinion of Lord Macphail. Given the amendments made to the 2004 Act by the 2009 Act, I am no longer bound by the interpretation of the Inner House: the interpretation of s. 18 (1) was considered against section 18 as a whole, and section 18 has now been significantly amended. I adopt a different interpretation of s. 18 (1) and conclude it means any education authority in Scotland.

 

31. The effect of the interpretation I have adopted is that the Appellants are denied their right of appeal of the EA’s decision, pursuant to paragraph 3 of Schedule 2 of the 2004 Act not to accede to their placing request, to this Tribunal. The Appellants argue this causes absurdity and injustice and urge the Tribunal to adopt a purposive approach.

 

32. The Appellants rely upon various interpretative aids which they say should inform the Tribunal in its task of  interpreting section 18 (1). I raised with the parties whether it was appropriate to make such extensive references to extra statutory material (other than the Code of Practice) before this Tribunal, but neither party suggested I should not have regard to the interpretative aids relied on by the Appellants. The Appellants rely in particular on the Explanatory Notes to the 2009 Act at paragraphs 10 (sixth bullet point) 17 and 20 in particular, which state:

 

it [the 2009 Act] enables the decision of an education authority refusing a placing request in respect of a place in a Scottish special school to be referred to the Tribunal and also allows the decision of an education authority refusing a placing request in respect of a place in a school in England, Wales and Northern Ireland which is a school making provision mainly or wholly for children or young people with additional support needs to be referred to the Tribunal whether or not a co-ordinated support plan is involved.

 

Section 18(3) of the 2004 Act lists the matters that can be referred to the Tribunal. Subsection 7(a) inserts a new paragraph (da) into section 18(3) to enable the decision of an education authority refusing a placing request in respect of a place in a Scottish special school to be referred to the Tribunal. It also allows the decision of an education authority refusing a placing request in respect of a place in a school in England, Wales and Northern Ireland which is a school making provision mainly or wholly for children or young people with additional support needs to be referred to the Tribunal

 

Section 19 of the 2004 Act specifies the powers that a Tribunal has in relation to references. Subsection (8)(a) inserts new subsection (4A) into section 19 of the 2004 Act to give the Tribunal powers in relation to the new decisions referable under section 18(3)(da). It provides that when hearing a placing request appeal in respect of a place in a special school, the Tribunal has the power to confirm the decision of the authority or overturn the decision of the authority and specify when the placing request should commence and make any amendments to a co-ordinated support plan

 

33. The Appellants also rely on the Official Report of the Debate of the Education, Lifelong learning and Culture Committee of 25 March 2009 and in particular paragraph 52 in relation to amendments 1 to 4. The Appellants rely upon the fact the minister proposing the legislation, Mr Adam Ingram MSP, said:

 

“The collective purpose of amendments 1 to 4 is therefore to allow all placing request appeals in respect of a place in a special school to be heard by the tribunal. This will include….places in special schools in England, Wales and Northern Ireland.

…

Amendments 1 to 4 will enable parties to have their special school placing request appeals determined by a specialist decision-making body that has the expertise in additional support needs rather than by the educational appeals committee or sheriff. ….”

 

 

34. Section 27 (1) of the 2004 Act requires the Scottish Ministers to publish a Code of Practice ‘providing guidance as to the exercise by education authorities and appropriate agencies of the functions conferred on them by virtue of the Act’. By way of section 27 (4) the Code of Practice (or any revised and re-published  Code of Practice) must be placed before the Scottish Parliament, whereby a statutory procedure applies, which requires the Scottish Ministers to ‘take account of any comments on the draft expressed by the Parliament’  within the forty day period.

 

35. I am unaware whether any ‘comments’ were made by members of the Scottish Parliament within the prescribed forty day period. I must proceed, however, on the basis that the published Code of Practice has complied with the procedure set out in section 27 of the 2004 Act and no party has attempted to persuade me otherwise.

 

36. The current Code of Practice is entitled “Supporting Children’s learning Code of Practice, Revised Edition, 2010” (hereafter “the Code”). Mr Adam Ingram MSP co-wrote the forward to the Code.

 

37. Both parties have taken me to various sections of the Code, which I have taken into account. The particularly relevant sections are Chapter 4, paragraph 6 and Chapter 8, paragraph 35 which state respectively, inter alia:

 

………Most parents discharge this duty [to provide education to their child] by sending their child to a school managed by the local authority for the area in which they live. However, they may discharge their duties under the 1980 Act by educating their child at home or by making arrangements for him/her to attend an independent or grant-aided school. In those circumstances, the home education authority are not responsible for the child’s education….

 

A reference can only be made in relation to a child or young person for whom an education authority are responsible. So, for example, parents who have placed their child in an independent school, and where the education authority have no responsibilities for the child’s education, are not liable to make a reference to a Tribunal.

 

38. Section 19 (7) of the 2004 Act states:

 

In exercising its powers under this section, a Tribunal must take into account, so far as relevant, of any code of practice published by the Scottish Ministers under section 27 (1).

 

39. The Code is guidance and not instruction, but should not be departed from absent cogent reasons, see in a similar context R v Ashworth Hospital Authority ex parte Munjaz [2005] UKHL 58.

 

40. I have therefore taken into account the Explanatory Notes, the minutes of the Debate and the Code. When adjudicating on a matter in this Tribunal, which includes interpreting the 2004 Act, I am required to take into account the Code. The Code is a document which has been placed before Parliament and subject to consultation by Parliament. In as much therefore as there is a contradiction between the Explanatory Notes and the minutes of the debate and the contents of the Code, I place greater reliance on the Code than other materials. I do so because I am required to take into account the Code.

 

41. The Appellants submitted, however, that the Tribunal should go further and interpret section 18 (1) of the 2004 Act in a purposive fashion to give effect to the intention of the Scottish Parliament and/or the proposed of the legislation, as purportedly set out in the debates of the Committee and the Explanatory Notes. I cannot accept it was the intention of Parliament or Mr Adam Ingram MSP that a parent could make a reference to the Tribunal in circumstances where no education authority was responsible for the child’s school education. I have not been provided with material that supports the statement that this was Parliament’s intention or the intention of the proposer of the 2009 Act. On the contrary, the proposer of the Act and the Scottish Parliament approved a Code which provides that parents who have chosen to educate their children in the independent sector and therefore in relation to whom no education authority are responsible, do not have a right to make a reference to the Tribunal.

 

42. Lord Macphail in WD v Glasgow supra states at paragraphs 59:

 

First, we note that each local authority in Scotland is an education authority (1980 Act, section 35(1), applied by the 2004 Act, section 29(2)). A child in respect of whom an education authority has explicit statutory powers or duties under the 2004 Act must fall into one of three categories. The first two are: a child provided with school education in a school under the management of the education authority; and a child provided with school education in pursuance of arrangements made or entered into by the authority. The authority is responsible for the school education of a child in either of those categories (2004 Act, section 29(3)). In particular, where a child in either category has additional support needs, the 2004 Act imposes specific duties upon the authority (e g sections 4, 6, 9). The third category is a child not within either of the first two categories but belonging to the area of the authority, that is, a child whose parent is ordinarily resident in the area of the authority, or a child who is deemed to belong to that area by virtue of regulations (1980 Act, section 23(3), applied by the 2004 Act, section 29(4)). The authority is not responsible for the school education of such a child: the child may, for example, be being educated at an independent school, or at home. In relation to certain children in this category the authority is obliged to provide additional support (section 5(2), (4)) and certain information and advice (section 7(6), (7), (8)), and has a discretion to provide certain types of assistance (section 7(1) to (5)). However, there is no express provision to the effect that an education authority owes any statutory duties to a child who does not fall within any of those categories. In particular, it is not provided that an authority is obliged to entertain a placing request made in respect of such a child.

 

43. The force of these observations assists me to conclude that the question of the responsibility for a child’s school education is central, and remains central, to the obligations placed on education  authorities. When enacting the 2009 Act, the Scottish Parliament had the intention to amend the 2004 Act to overcome the interpretation of the legislation set out in the decision in  WD v Glasgow. The Scottish Parliament has not sought to amend the requirement for an education authority to be responsible for a child’s education to permit a reference to be made to the Tribunal and did not seek to amend s. 18 (1) (I note the minor deletion in the headnote to s. 18).

 

44. The Appellants in this case did have a right of appeal: sub-paragraph 5 (1) of Schedule 2 of the 2004 Act provides a right of appeal to a statutory appeal committee. This was envisaged by the Code and is discussed in paragraph 20 on page 155. It could be considered this is inconsistent with the commentary provided in the Explanatory Notes to the 2009 Act and the comments of Mr Adam Ingram MSP in the debates. However, as explained above, the regime for pupils for whom an education authority is responsible for their school education and those for whom there is no responsible education authority are different. The Scottish Parliament was aware of this, and I must assume considered paragraph 20 on page 155 during the statutory forty day procedure described above.

 

45. I cannot conclude therefore that the 2004 Act as amended by the 2009 Act and the interpretation of s. 18 (1) I have adopted in this decision, leads to injustice or absurdity. The various formulations of the test that would be required to be satisfied for me to depart from the literal interpretation of the 2004 or 2009 Acts, as set out in paragraph 70 of WD v Glasgow have not been met. I do not consider my interpretation of s. 18 (1) of the 2004 Act as anomalous; the language of section 18 does not permit the interpretation the Appellants ask me to apply; the words used by the Scottish Parliament are plain; and I am clear there has been no drafting mistake.  

 

46. Furthermore, I am not satisfied for the reasons explained above that even if I were to adopt a purposive approach,  the interpretative aids relied upon by the Appellants, suggest the intention of the Scottish Parliament has not been given effect to in the 2004 and 2009 Acts.

 

47. The clear conclusion I reach is that this reference is incompetent: when the reference was made no education authority was responsible for Annie’s school education. The necessary three stage test set out in s.  18 (1) was not met when the reference was made and the Tribunal does not have jurisdiction. The reference must be dismissed and that is my order.

 

48. The Appellants may wish to consider whether an appeal can be made out of time to the statutory appeals committee. This decision demonstrates the complexity of the overall statutory scheme.

 

49. I am informed there are two further appeals before the Tribunal which raise this same issue and the parties’ representatives told me this issue has led to widespread confusion and uncertainty. I have produced a decision in which the names and identities of both parties have been protected. Given the ongoing uncertainty, I consider this decision should be published on the Tribunal’s database of decisions soon (see Rule 45 (3)). I shall consult with the President of the Tribunal in this regard. Both parties agreed an anonymised decision could be published. This decision cannot bind any other Tribunal (and this is a decision based upon the facts and submissions advanced in these proceedings) but its publication may assist to raise with parents and education authorities the difficulties of making references to the Tribunal in relation to children placed in the independent schools sector.

 

50. I apologise to the parties for the late production of this decision. This has been caused by a significant number of professional commitments since the hearing.

 

Convener

26 May 2012