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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 144

P1293/06

OPINION OF LORD GLENNIE

 

in the cause

 

JOHANNE SIM

Petitioner;

for

Judicial Review of a decision of ARGYLL & BUTE COUNCIL

 

Respondents

 

Petitioner: Scott; Mowat Hall Dick for Govan Law Centre

Respondents: Duncan; Balfour & Manson for Argyll & Bute Council

13 September 2006

 

[1] This petition came before me for a first hearing on 30 June 2006. Having heard argument on part of the relief claimed in the petition, I pronounced an interlocutor granting the prayer of the petition to the extent of paragraphs 3(b) and (c) thereof, reducing the refusal by the respondents, the Argyll & Bute Council, to provide Joshua with transport to and from Tarbert Academy and declaring that the respondents were failing to comply with their duty to provide Joshua with transport to and from Tarbert Academy in terms of section 30(4) of the Education (Additional Support Learning) (Scotland) Act 2004 ("the 2004 Act"). I gave brief reasons for my decision but was asked to provide a written Opinion. This Opinion sets out more fully the reasons for my decision.

[2] The petition was brought by Mrs Johanne Sim as the mother and the representative of Joshua Sim. The petition was brought on behalf of Joshua. Joshua was 12 years old at the time of the hearing before me, and was due to commence secondary education at Tarbert Academy in August 2006. The complaint was that the respondents had refused to provide transport to and from that school.

[3] Ms Scott, on behalf of the petitioner, addressed me on the question of the title and interest. Although that issue was not raised by the respondents in their answers to the petition, she quite properly referred me to the remarks of Lady Smith in Crossan v South Lanarkshire Council 2006 SLT 441, particularly at para [36]. In that case a father acting as the legal representative of his 13 year old son who suffered from Down's Syndrome petitioned for judicial review of the decision of a local authority not to pay the child's fees for aftercare and out of school care. Lady Smith considered that although the petition was presented in this way, the real question was not whether or not the child should receive the services but who should pay for them. Accordingly, the proceedings were, in truth, for the sole benefit of child's parents; and the petition should have been brought in their names rather than in the name of the child. In the course of her Opinion, Lady Smith referred to various English authorities. I was referred to one of them, namely the decision of Scott Baker J in R (on the application of WB and KA) v. Leeds School  Committee [2003] ELR 67. The English cases tend to characterise this problem in terms of abuse of process - the abuse being that by bringing the proceedings in the name of the child the parent can obtain public funding for his action as well as protect himself from an adverse award of expenses - which the court may address in considering how to exercise its discretion as to the grant of permission to apply for judicial review. Although I understand the reasoning in these cases, I am not convinced that those concerns translate readily into the procedure for judicial review in Scotland, there being in that procedure no stage at which the petitioner needs to seek leave to apply. Nor am I wholly persuaded that the reasoning in those cases translates easily into the question of title and interest. In the event, however, I did not have to decide this point since Mr Duncan, for the respondents, simply wished to reserve argument on it; and Ms Scott pointed out that the decision as to which school the child should attend was still open and might be influenced by the result of these proceedings. I was therefore content to proceed upon a provisional view that the petitioner had made good her case on title and interest.

[4] There was little dispute about the basic facts underlying these proceedings and I can take them from paragraphs 5-7 of the petition. This recites that on 14 November 2002 the respondents opened a Record of Needs for Joshua in terms of section 60(2) of the Education (Scotland) Act 1980 ("the 1980 Act"). The Record provides an assessment of Joshua's needs. He suffers from a combination of difficulties including dyspraxia, developmental language delay and epilepsy. He is aware of and distressed by his difficulties. A school day leaves him very tired. Part V of the Record of Needs specifies the measures proposed by the respondents to meet Joshua's special education needs. One of the measures was transport to and from home. This was, and is, important for Joshua that it would be impracticable for him to walk to and from school. The petitioner contends that the respondents were under a statutory duty in terms of section 62(3) of the 1980 Act to make the provision they had identified in Joshua's Record of Needs, including provision of transport.

[5] The petitioner goes on to state that Joshua has received primary education at Tighnabruaich Primary School. There are 41 children at this school. In June 2006 Joshua will cease to be illegible for primary education. He is due to commence secondary education in August 2006. A meeting was held at Tighnabruaich Primary School in 2005 to make plans for Joshua's transition to secondary education. Two schools were discussed. The designated mainstream secondary school for the area in which he lives is Dunoon Grammar School, which has a school roll of about 1,000 children. There is a school bus service from Tighnabruaich to Dunoon which leaves Tighnabruaich before 8.00 a.m. and returns after 5 p.m. Joshua would not be able to cope with his school day of this length. The route taken by the bus is over a single track road notorious for causing travel sickness. Joshua suffers from travel sickness and is likely to be ill on the journey. A hostel is provided at Dunoon for pupils from Tighnabruaich, to allow them to board in Dunoon, and to avoid them making the journey from Tighnabruaich and Dunoon every day. Joshua's needs are such that he would be unable to make use of the hostel. There is an alternative secondary school for Joshua at Tarbert Academy. Tarbert Academy has a school roll of 150 children. It is geographically closer to Tighnabruaich than Dunoon Grammar school. There was agreement at the 2005 review that a place should be sought for Joshua at Tarbert Academy The petitioner accordingly applied for a place for Joshua at Tarbert Academy. Joshua's 2006 review was attended by three representatives from Tarbert Academy. The respondents have put into place arrangements for Joshua to attend TarbertAcademy as from August 2006.

[6] The petitioner complains that the respondents have refused to provide Joshua with transport to Tarbert Academy. He said that the ground upon which transport has been refused is that the respondents provide transport to DunoonGrammar School and do not provide transport to Tarbert Academy.

[7] Although, as I have said, much of the background was a matter for agreement, it is right to say that the respondents do not accept that the Record of Needs has any application to Joshua's position after he ceases to be of primary school age. In particular, they say that as provision for secondary education is not made by the Record of Needs, the provision for transport identified in that Record cannot relate to Joshua's secondary education. Further, they point out that the respondents proposed that Joshua be placed at DunoonGrammar School. It was the petitioner who made a placing request on behalf of Joshua in terms of which it was requested that Joshua be placed at Tarbert Academy. The placing request was successful.

[8] In the petition, two alternative grounds are put forward for the relief sought. The first is that, in terms of the 2004 Act, the respondents were under a duty to provide Joshua with transport to Tarbert Academy. The second was that, if the respondents were not under a duty to provide transport, they had a discretion to do so in terms of section 51(1) of the 1980 Act and had failed properly to exercise that discretion. At the hearing before me I heard argument only on the first of these two grounds.

[9] The 2004 Act came into force on 14 November 2005. Section 1(1) of that Act provides that a child or young person has "additional support needs" for the purposes of the Act were "for whatever reason" he or she is, or is likely to be, "unable without the provision of additional support to benefit from school education provided or to be provided" by the education authority. The term "additional support" is defined in section 1(3), so far as is relevant here, as being

"provision which is additional to, or otherwise different from, the education provision made generally for children ... in schools (other than special schools) under the management of the education authority ...".

Section 2(1) provides that a child requires a plan, referred to in the Act as "co-ordinated support plan", for the provision of additional support if (a) the education authority are responsible for the school education of that child, (b) the child has additional support needs arising from one or more "complex factors" or "multiple factors" (as defined in the Act), (c) those needs are likely to continue for more than a year and (d) those needs require significant additional support to be provided by the education authority "in the exercise of any of their other functions as well in the exercise of their functions relating to education" or by one or more other appropriate agencies within the meaning of the Act. Section 4(1) of the Act imposes a duty on every such education authority, in relation to each child having additional support needs, to "make adequate and sufficient provision for such additional support as is required by that child or young person" and to make appropriate arrangements for keeping under consideration both the additional support needs of that child and the adequacy of the additional support provided to him. Section 6 of the Act places an obligation on the education authority to make arrangements for identifying children (a) who have additional support needs and (b) who have additional supports needs and require a co-ordinated support plan; and section 9 requires the education authority to prepare a co-ordinated support plan where it is established that one is required. Such a co-ordinated support plan must inter alia identify the additional support required by the child to achieve "educational objectives", i.e. to secure that the child benefits from a school education provided for the child. Section 10 requires the education authority to keep under consideration the adequacy of a co-ordinated support plan and to carry out regular reviews of such plans.
[10] It is not necessary to analyse in detail all the provisions of the 2004 Act since, as I have already indicated, the 2004 Act only came into force in November 2005 and there has not yet been an assessment carried out in relation to Joshua in terms of the Act. The Record of Needs to which I have referred was carried out under the 1980 Act. In these proceedings the petitioner places reliance not on the detailed provisions of the 2004 Act to which I have referred but on the transitional provisions contained in section 30.

[11] Section 30 applies to any child for whose school education the education authority is responsible and who, immediately before the commencement of the 2004 Act, was a "recorded child" within the meaning of the 1980 Act, that is to say a child who was the subject of a Record of Needs. There is no dispute but that Joshua was a recorded child. Section 30(2) provides that such a child "is, for the purposes of this Act, to be taken to have additional support needs." Sub-section (3) places an obligation on the education authority to establish, within 2 years from the commencement of the 2004 Act, whether the child requires a co-ordinated support plan. Section 40(4) then places an obligation on the education authority, until "the appropriate date", to ensure that the provision made by them pursuant to section 4(1)(a) of the 2004 Act for the additional support required by the child "is no less than the provision which was, immediately before the commencement date, made for the child" under section 62(3) of the 1980 Act. The "appropriate date" is the date on which the education authority establish that the child requires a co-ordinated support plan or a date 2 years after the time they establish that the child does not require such a plan.

[12] It is accepted on behalf of the respondents that "the appropriate date" has not yet come; and that, therefore, they are presently subject to the obligation in terms of section 30(4) of the 2004 Act to provide additional support for Joshua which is "no less than" that which was previously made for him under section 62(3) of the 1980 Act. The petitioner says that the additional support in place as at November 2005, when the 2004 Act came into force, included the provision of transport to and from school. The respondents, on the other hand, say that whilst that may be so in connection with Joshua's attendance at primary school, the Record of Needs says nothing about transport to and from secondary school. There was, they say, no obligation on them as the education authority to provide transport for Joshua to attend the secondary school; and, therefore, there is nothing in terms of transport provision upon which the transitional provisions of section 30(4) of the 2004 Act can bite. Further, they say that in so far as they provided transport for Joshua in the past, this was not part of their provision for his special educational needs under section 62(3) of the 1980 Act but was provided in their discretion under s.51 of that Act and so is not caught by the transitional provisions of the 2004 Act.

[13] To examine these arguments, it is necessary to consider certain provisions (now repealed) of the 1980 Act and the Record of Needs made pursuant thereto.

[14] Section 60(2)(b) of the 1980 Act placed the education authority under a duty inter alia to establish which children of school age belonging to their area

"have pronounced, specific or complex special educational needs which are such as require continuing review and to open and keep a Record of Needs of each such child ...".

Section 62(3) required an educational authority to ensure that the provision made by them under that Act for a recorded child included provision for his special educational needs. Section 60-65G contained provisions relative to that matter, including a system of appeals. It is necessary only to note section 65A which required the education authority to keep under consideration the cases of all recorded children belonging to their area. The process of assessment and the process of review were detailed and, no doubt, time consuming.

[15] The expression "special educational needs" was defined in section 1(5)(d) of the 1980 Act as meaning "needs caused by a learning difficulty which [the child] has which calls for provision for special educational needs to be made for him". That paragraph went on to provide that a child

"has a learning difficulty for the purposes of this paragraph if (i) he has significantly greater difficulty in learning than a majority of children ... of his age; or (ii) he suffers from a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children ...[in the local authority schools]". (emphasis added)

[16] The Record of Needs opened for Joshua in terms of section 60(2) of the 1980 Act was in a form prescribed by regulations made by the Secretary of State under section 65D of that Act. Parts I and II of the Record were largely formal. Part III gave an assessment of the child. The "Assessment Profile" identified Joshua's difficulties to which I have already referred. It identified, in addition to a number of learning difficulties, the fact that Joshua had poor muscle tone which made him tire easily and affected his balance and co-ordination. It pointed out that he could get very tired at the end of a school day and needed space and time to relax. Part IV set out a "Statement of Special Educational Needs" dealing, as Mr Duncan pointed out, with Joshua's needs at school rather than on the way to school. Part V was headed "Measures Proposed by the Authority to Meet Special Educational Needs". Under the heading "Education Authority Services", it provided that Joshua would continue to attend his local mainstream primary school. In relation thereto it stipulated that "the education service will provide transportation to and from home as appropriate". There was mention also of "Other Services" to be provided, including speech and language therapy and occupational therapy. The respondents provided transportation for Joshua between his home and his primary school. The Record of Needs was made in November 2002, when Joshua was 8. It has not, so far as I am aware, been subject to any review.

[17] For the respondents, Mr Duncan addressed me first on the argument that the provision of transport to and from home was not, properly understood, to be regarded as part of the "special educational needs" identified for Joshua in the Record of Needs. He submitted that the definition of "special educational needs" in section 1 of the 1980 Act placed the emphasis on "educational". In other words, the requirement to make provision for "special educational needs" was a requirement which would encompass such matters as learning support and an individualised educational programme, both of which are specifically mentioned in Part V of the Record of Needs. Transport, he submitted, fell to be provided, if at all, as a matter of discretion under section 51 of the 1980 Act. The transitional provisions in section 30 of the 2004 Act did not extend to place an obligation of the education authority to continue providing transport, since transport was not provided under section 62(3) of the 1980 Act.

[18] I do not think that argument is correct. The obligation on the education authority under section 62(3) of the 1980 Act was to ensure that the provision made by them for a recorded child includes provision for his special educational needs. The way in which those special educational needs are identified is by drawing up and keeping a Record of Needs for that child. In terms of section 65D of the 1980 Act, that Record of Needs requires to set out both the special educational needs of the child arising from his difficulties, and a statement of the measures proposed by the education authority to be taken to meet those needs. Reading those sections together, as one must, it seems to me that the obligation on the education authority under section 62(3) must be to make such provision for the child's special educational needs as have been identified in the Record of Needs as being necessary. Were it otherwise, it would be open to the education authority simply to ignore its own assessment to what was required.

[19] Further, it seems to me that the wording of section 1(5)(d)(ii) of the 1980 Act, to which I have referred earlier, is wide enough to include, within the definition of "special educational needs", any need resulting from a disability which "either prevents or hinders [the child] from making use of [the] educational facilities". The expression "making use of" is very wide. It will extend, as Mr Duncan rightly accepted, to questions of access, for example wheelchair access. If that is right I do not see why it should also extend to questions of transport to and from school.

[20] In the course of argument I was referred by both counsel to Circular No. 4/96 dated 25 March 1996 issued by the Scottish Office Education Department, entitled "Children and Young Persons with Special Educational Needs - Assessment and Recording". It elaborates inter alia on what must be set out in the Record of Needs. In paragraph 133, in relation to Part V of the Record of Needs, it states that the strategic framework for provision set out in Part V may specify various matters. It goes on to say: "Where relevant, arrangement for physical assess to the school ... and if necessary, for transport to the school, should also be specified." This assumes that it is appropriate that necessary transport arrangements can, indeed should, be comprised within the provision for special educational needs set out in the Record of Needs. Although the circular is not, strictly, relevant material for the purpose of construing the 1980 Act, it provides some comfort to me in respect of the conclusion which I have reached.

[21] I have considered the argument that transport is provided as a matter of discretion under section 51 of the 1980 Act. That section is in very general terms. It seems to me that it is dealing with transport arrangements on a much broader basis and is not concerned with transport that may be required as part of a programme providing for the special educational needs of a particular child. The fact that the discretion exists under section 51 does not mean that the provision of transport cannot be made as part of the arrangements made to meet the special educational needs of the child under section 62(3).

[22] In my opinion that the provision of transport to and from school whilst Joshua was at primary school was part of the provision made by the respondents for Joshua's special educational needs in terms of section 62(3) of the 1980 Act.

[23] The other argument for the respondents, which Mr. Duncan developed in his submissions, was that, whatever may have been the position whilst Joshua was still at primary school, that changed when he moved on to secondary school. The Record of Needs specified the primary school which he was to attend and stipulated for the provision of transport to and from home only in connection with that primary school. He submitted that it could not be said that under the 1980 Act there was any requirement in terms of the Record of Needs for the education authority to provide Joshua with transport to and from his new secondary school. He pointed out that the reference to provision of transport in Part V of the Record of Needs was qualified by the words "as appropriate".

[24] I have to recognise that on a narrow construction of the Record of Needs there is some force in that argument. However, the consequence of that argument being correct appears to me to be unacceptable. In terms of the 1980 Act the education authority were required to keep the cases of all recorded children under review. It cannot, surely, be said that the Record of Needs becomes "spent" once the child reaches an age where he must change schools. That child has been assessed as having special educational needs and the education authority is under an obligation to assess those needs and make provision for them. In the absence of review, it seems to me that the obligation of the education authority is to continue to make such provision as best they can in the changed circumstances. The assessment made in the Record of Needs was that transportation to and from school was necessary. If that was correct as regards the short journey to the local primary school, then the position must be a fortiori as regards the longer journey to the chosen secondary school. The qualification "as appropriate" cannot lessen the obligation - if anything, it increases it, to take account of the longer journey. This is not the time to question the choice of secondary school. A decision has been made and, so far as I understand it, the respondents do not complain about it. But it must follow that, once a secondary school has been identified, the recognised obligation to provide transport between home and school must apply to the new school as it did to the old. If the position was to be changed, this should have been done by a review under section 65A of the 1980 Act and can be done now in the context of the preparation of a co-ordinated support plan under the 2004 Act. I do not know what will be the result of that process when it is carried out. Until then, however, it seems to be clear that the transitional provisions in section 30(4) require the education authority to continue to provide additional support to Joshua to an extent and of a quality no less than he received under the 1980 Act. That includes transport to and from school.

[25] For those reasons, which I expressed rather more shortly at the end of the hearing, I made the order to which I have referred in paragraph [1] above.