Challenging the Additional Support Needs Tribunal

Posted On: 06 November 2007

Author: Janys M Scott QC

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This paper was originally delivered on 5 November 2007 at a Conference organised by the Legal Services Agency Ltd, and is reproduced with their kind permission.

A new era has opened in education law.  For many years education law has been the preserve of the sheriffs, whose decisions as to placing requests and exclusions have been "final".  Court of Session cases in education law have been few and far between.  That changed with the passing of the Education (Additional Support for Learning) (Scotland) Act 2004.  The 2004 Act provides for an appeal to the Court of Session from a decision of the Additional Support Needs Tribunal.  The response has been a flurry of statutory appeals.  To my knowledge there have been at least seven appeals over the last year. There has been the opportunity for some interesting analyses of both old and new aspects of the law.  That process is continuing.

The right to appeal against a decision of the Tribunal is found in section 21 of the 2004 Act. Appeals may only be made on a point of law.  Either the person who made the reference to the Tribunal, or the education authority may appeal.  The Act itself does not say a great deal about appeals.  The procedure is found in the rules of the Court of Session. No leave to appeal is required.  Rule 41.20 provides that the appeal should be lodged within 42 days after the date on which the decision appealed against was intimated to the appellant.  Where the tribunal issues a statement of reasons for its decision later than the decision, the appeal may be lodged within 42 days after the date of intimation of that statement of reasons to the appellant.  In education cases 42 days may represent a significant proportion of a school term.  There is may be good reason to lodge an appeal as quickly as possible, rather than waiting for 42 days.  

The court will generally make an order for service of the appeal on the respondent, and on any other person it thinks fit, and for answers to the appeal.  Within 14 days after the expiry of the period allowed for lodging answers to an appeal the appellant must apply to the Inner House of the Court of Session for orders for further procedure.  The appeal may be heard by the Inner House, but there is also provision for remit to an Outer House judge in terms of rule 41.44.  Thus far most appeals under the 2004 Act have been remitted to the Outer House.  The chief benefit of a remit is that there is more chance of the appeal being heard earlier by one judge in the Outer House than by three in the Inner House.  The decision of the Outer House judge can be reclaimed (ie appealed, see rule 41.45).  This means that difficult matters receive very full consideration in both Houses.  Appeal to the Inner House may however introduce material delay.  Thus far two decisions have been taken from the Outer House to the Inner House.  Appeals to the House of Lords are pending in both.

The 2004 Act is silent on the effect on the decision of the Tribunal of a pending appeal.  The general rule is that an appeal suspends the effect of the decision appealed against, so that the decision need not be implemented until the appeal had been disposed of.  This rule has been applied in the context of the children's hearing (Kennedy v M, 1995 SLT 717; Stirling v D, 1995 SLT 1089).  It is a logical rule to apply in the present context as it would be unfortunate for a pupil for a decision relating to his or her education to be put into effect, and then potentially reversed.  This does however mean that it is important to try and progress appeals quickly.  Expedition can be difficult, but the Court administration have done their best to respond speedily in these cases.

Where the Court of Session allows an appeal under section 21 it may remit the matter to the Tribunal, or to a differently constituted Tribunal to be considered again.  The Court may give the Tribunal directions about the consideration of the case.  It may also make such ancillary orders as it considers necessary or appropriate.  It is important to note that the Court of Session cannot substitute its own decision for that of the Tribunal.  Decisions on the merits of the reference remain the province of the Tribunal, albeit they may have the benefit of the Court's directions on matters of law or procedure.  The power to make ancillary orders has not been explored, but given the limitations on the powers of the Court in relation to the merits, it is likely that such orders will be restricted to the sort of orders that could be made in judicial review, ie orders for reduction, declarator, suspension, interdict and implement. 

A word about legal aid.  The person who made the reference to the Tribunal has the right to appeal.  Section 18(2) specifies the persons who may make a reference.  In the case of a child, the parent may make a reference.  Once a pupil is over the school leaving age, he or she counts as a "young person" and as such may make a reference.  If the young person lacks capacity then the parent may make the reference.  There is no legal aid for a Tribunal hearing, but there may be legal aid for an appeal under section 21.  The case of NS and FS v Scottish Legal Aid Board 2007 SLT 711, 2007 FamLR 98 indicates that parents who are exercising their own right to appeal are not acting in a representative capacity, and cannot apply for legal aid in the name of the child, on the basis of the child's resources rather than their own.  A child has no right to make a reference, and so no right to appeal to the Court of Session.  There may be scope for argument when a parent is exercising the right of appeal in place of a young person who lacks capacity that the litigation is brought on behalf of the child. Appeals to the Court of Session involve significant expense and may be confined to those who are eligible for legal aid or whose means are great enough to bear the cost involved.  Any potential appellant, or respondent, must also be advised that an appeal carries a material risk of being found liable for the expenses of the opponent.

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