Upper Tribunal rules First-tier Tribunal has jurisdiction in cross-district school placing dispute

About this case:

• Citation:
  2024UT27
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Lady Carmichael

The appellant, JC, was the father of a child, L, diagnosed with autism spectrum disorder, ADHD, Tourette’s Syndrome, OCD, and bowel and bladder dysfunction. South Lanarkshire Council, the respondent, withdrew opposition over the course of the appeal.

The appeal was heard by Lady Carmichael. Representation for the appellant was provided by Govan Law Centre, and for the respondent by Themis Advocates.

Intention of Parliament

During 2021, the appellant and L moved from England to live in Falkirk. Falkirk Council placed L in school B on 8 December 2021, where L has continued to attend. The family later moved to South Lanarkshire on 27 May 2022. A placing request was for L to continue to attend school B, but the respondent refused that request. A place was offered for L at school A, which the appellant initially indicated that he and his wife would refuse.

A reference was brought to the FTS under section 18 of the Education (Additional Support for Learning) (Scotland) Act 2004. Parties agreed there was a preliminary issue as to the jurisdiction of the FTS, based on whether the respondent was responsible for providing school education to L at the relevant date.

The FTS decided that, as L was neither in a school under the management of the respondent nor in pursuance of arrangements made or entered into by the respondent, per section 29(3) of the 2004 Act, the respondent was not responsible for L’s education. It therefore dismissed the application on the basis that the FTS did not have jurisdiction.

During the course of the appeal, a question arose as to how to read section 18(1) of the 2004 Act with section 18(3)(da), and whether the intention of Parliament was for refusals of placing requests for children with additional support needs to be referred to the tribunal even when the refusing authority was not responsible for their school education.

It was noted that the Minister in charge of introducing the 2009 Act in March 2009 had said while giving evidence to the relevant parliamentary committee that the amendment would enable all appeals about placing to be heard by the tribunals. In light of this, the respondent withdrew its opposition to the appeal.

Result of oversight

In her decision, Lady Carmichael began: “The appellant submitted section 18(1) and section 18(3)(da) imposed different tests. The former would apply where the education authority was responsible for the school education of the child, and the latter when it was not. If there were a factual determination that L was about to be educated by the respondent, then the tribunal would have jurisdiction by virtue of section 18(1). If there were a factual determination that he was not, then the tribunal would have jurisdiction by virtue of section 18(3)(da). The provisions could be read together in that way.”

She continued: “I do not accept that there are two ‘tests’, as proposed by the appellant. That involves unnecessary complication. The result of the analysis proposed by the appellant is that, one way or another, the tribunal would have jurisdiction. That would render otiose the consideration of whether the child was, on the facts, about to be educated by the authority.”

Lady Carmichael said of the statutory rules: “Read alone, section 18(3)(da) clearly indicates a legislative intention that the FTS should have jurisdiction in relation to references in respect of requests to place a child in a special school, including cases in which the requested education authority was not responsible for the school education of the child. The amendment of section 18 by the insertion of section 18(3)(da), however, produced ambiguity because of the terms of section 18(1), which were not changed or qualified in the course of the amendment.”

She concluded: “The circumstances in which it is legitimate to have regard to extra-statutory materials include circumstances where the statute is ambiguous. The ministerial statements produced by the respondent were made by the promoter of the legislation, and are entirely clear in their terms. They may properly be used to assist in construing section 18. They are consistent with the plain words of section 18(3)(da), and strongly suggest that the lack of amendment or qualification to section 18(1) arose as a result of oversight.”

The appeal was therefore allowed, and the matter remitted to the FTS.