Upper Tribunal for Scotland clarifies definition of “special school” in the context of ASN placing requests

Local authorities deal with numerous placing requests for pupils with additional support needs. Whilst many pupils will be placed in their chosen school, the recent decision of the Upper Tribunal for Scotland in the case of A Scottish Council and LM 2025UT21 reminds us that only those applications that fall within the terms of the statutory framework governing such requests are capable of being granted.

The Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”) establishes a duty requiring education authorities to place pupils with additional support needs at a school requested by them (or by their parents on their behalf), provided that the school falls within one of the relevant definitions and unless one of a number of statutory exceptions apply. The issue under consideration in the Upper Tribunal decision in question was the correct interpretation and application of the term “special school” in Scotland.

The case involved a pupil, known as CM, with a diagnosis of ADHD and autism and associated needs amounting to ‘additional support needs’ within the meaning of the 2004 Act. CM was initially placed in a mainstream school but faced challenges in that environment due to those additional support needs. CM’s mother removed CM from the mainstream school and enrolled her instead in a small independent school in the same area, referred to as School B.

CM’s mother then made a formal request for the Council to place CM at School B and to meet the costs of doing so. This request was refused by the Council as incompetent, on the basis that School B did not fall within the definition of a “special school” and was therefore not a school to which a placing request could competently be made under the 2004 Act. The refusal of the placing request was appealed to the First-tier Tribunal for Scotland (FTS).  The Council maintained its position that the School B was not a “special school”, meaning the placing request was incompetent and the FTS accordingly had no jurisdiction to hear the appeal. By majority decision, the FTS determined that School B was a “special school” and that the placing request had been competently made. It therefore overturned the Council’s original decision and required CM’s immediate placement at School B.

The Council appealed to the Upper Tribunal on the basis that the FTS had erred in its interpretation and application of the term “special school” and that, properly interpreted and applied, School B could not be classed as a “special school”. The central issue for the Upper Tribunal was whether School B fell within the definition of a “special school” in terms of the 2004 Act, when that term was correctly interpreted and applied.

The Council argued that for a school to be considered a “special school”, it had to meet both a “purpose” test (its sole or main purpose must be to provide education specifically suited to additional support needs of the pupils in attendance) and a “selection” test (pupils must be selected for attendance at the school by reason of those additional support needs). The FTS majority had found School B met both of these criteria, while the Council and the FTS minority disagreed.

The Respondent agreed that the FTS had erred in its approach to statutory interpretation but argued that the finding of the FTS that School B was a “special school” was, nonetheless, correct. It was said that regard had to be had to the 2004 Act’s Explanatory Notes and relevant statutory guidance and that there had been sufficient evidence before the FTS for it to find that School B did fall within the meaning of a “special school”.

The Upper Tribunal concluded that the FTS had erred in its statutory interpretation of “special school” as it had taken the incorrect approach to the task of statutory construction. The Upper Tribunal confirmed that the correct approach was to ascertain the natural and ordinary meaning of the words used in the light of their context and the purpose of the statutory provision. Applying this approach, the Upper Tribunal determined that School B did not meet the “purpose” test, as the school was not established solely or mainly to provide education suited to the additional support needs of its pupils. Additionally, the “selection” test was not satisfied as, on the facts accepted by the FTS, it could not be said that School B selected pupils for attendance based on those additional support needs.

The FTS does not have jurisdiction to determine a reference unless the placing request relates to a “special school”. Accordingly, the FTS did not have jurisdiction in this case. Ultimately, the Upper Tribunal quashed the FTS decision, ruling that School B did not fall within the statutory definition of a “special school” and there was, accordingly, no duty requiring the education authority to place CM at School B in terms of the 2004 Act.

Views of the child

Before reaching a decision in this case, the Upper Tribunal considered CM’s views about the placing request. Although it was not explicitly referred to, the Upper Tribunal’s approach in directly referencing the views of the child may be taken as a recognition of the need to ensure compliance with Article 12 of the UN Convention on the Rights of the Child (UNCRC), which provides that every child has the right to express their views, feelings and wishes in all matters affecting them and to have those views considered and taken seriously. The importance of this has been brought into sharp focus by the recent incorporation of the UNCRC into Scots law.

Harper Macleod’s solicitors have particular expertise in dealing with placing requests. Please contact a member of the team for advice or representation on any of these issues.