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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackay-Ludgate v Lord Advocate [2001] ScotCS 300 (21 December 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/300.html Cite as: 2002 SCLR 109, [2001] ScotCS 300

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[1] The petitioner is Mrs Felicity Louise Mackay-Ludgate who has lodged this petition as legal representative of her son, Jude Edward Harry Mackay-Ludgate ("Jude"), who was born on 28 June 1985. In it she seeks judicial review of a decision of Mr Peter Peacock, Deputy Minister for Children and Education in the Scottish Executive, ("the Deputy Minister") which was intimated by letter dated 27 July 2000, in which he refused to allow Jude to continue to hold an assisted place under the Education (Scotland) Act 1980, after the end of the 1997-98 school year. The remedies which the petitioner seeks are (i) reduction of the decision; (ii) declarator that Jude should have been entitled to an assisted place to the completion of his secondary education; (iii) declarator that he suffers from a disability in terms of section 20 of the Disability Discrimination Act 1995 and (iv) declarator that the decision was discriminatory in terms of that Act and therefore unlawful. The respondent is the Lord Advocate, who represents the interests of the Deputy Minister, who exercised the functions in relation to the assisted places scheme formerly exercised by the Minister for Education and Industry in the Scottish Office, ("the Minister") on behalf of the Secretary of State for Scotland.

[2] In 1996 Jude was awarded an assisted place at Loretto Junior School, Musselburgh, and took up the place in September 1996. At that time he suffered from certain learning difficulties which were thought to be due to an unusual eye condition. As a consequence he was placed in the year immediately below his chronological peers. That meant that he was placed, aged 10 years and 10 months in the D Form, the equivalent of Primary 5, rather than the C Form, which was the equivalent of Primary 6. At the commencement of the academic year 1997/98 he progressed to the C Form, still a year below his chronological peers, where he continued to require learning support. The petitioner was anxious that Jude should be moved to join his chronological peers in the B Form, the equivalent of Primary 7, as soon as possible, but the Headmaster of the Junior School did not judge the time right at that stage. For ease of general understanding, I shall refer to the classes as Primary 6 and Primary 7.

[3] On 7 January 1998 a psychological assessment of Jude was carried out by a consulting psychologist, Dr Catherine Saunders, who prepared a report. Dr Saunders' report was considered by the Headmaster of Loretto Junior School and in the light of it a decision was made on 19 February 1998 to move Jude from Primary 6 to Primary 7. At Loretto School pupils commence the secondary phase of their education in Primary 7. Under normal circumstances they then continue after that year for a further five years in the Upper School to age 18.

[4] The assisted places scheme was introduced in Scotland by section 75A of the Education (Scotland) Act 1980, and was subsequently brought to an end by the Education (Schools) Act 1997, which came into force on 31 July 1997. The 1997 Act incorporated certain transitional provisions for children who were already holding assisted places at the time of the passing of the Act. These transitional provisions were contained in Section 5 of the 1997 Act and took the form of amendments to section 75A of the 1980 Act. They were intended to allow the assisted places scheme to remain operative for children already receiving financial support, provided that those children fell within the provisions of the new subsections (1A) or (1B) of section 75A. Section 75A, subsections (1A) and (1B) are in the following terms:-

The effect of these provisions was that children who had been awarded assisted places before the passing of the 1997 Act, and were receiving secondary education throughout the 1997-98 school year, retained their assisted places until the end of their secondary education, while holders of assisted places who were receiving primary education during that year ceased to hold their assisted places at the end of their last year of primary education. The Secretary of State for Scotland recognised, for the purposes of the Act, that certain independent schools, including Loretto, started their secondary education in Primary 7. Accordingly had Jude been in Primary 7 (i.e. the class comprising his chronological peers) at the beginning of the 1997-98 school year, he would have been entitled to an assisted place to complete his secondary education in terms of subsection (1A).

[5] Representations were made on behalf of Jude by the petitioner and her member of Parliament requesting the Secretary of State to exercise his discretion under subsection 1B(b) to allow Jude to continue to hold his assisted place until the expiry of his secondary education. By letter dated 14 January 1998 to the petitioner's member of Parliament, the Minister for Education and Industry in the Scottish Office, Mr Brian Wilson, intimated his refusal to allow Jude to retain his assisted place to the end of his secondary education, and confirmed that he would cease to be eligible to receive assistance at the end of the 1997-98 school session. The terms of that letter are central to the petitioner's argument and I shall set them out in full.

[6] Subsequently, on 6 March 1998, after Jude had been placed in Primary 7, representations were made to the Minister by the Bursar of the school who sent a copy of Dr Saunders's report and intimated that Jude had been moved up a year. The petitioner herself also made further representations. The Minister's refusal to continue Jude's assisted place was reaffirmed in letters, to the school dated 28 April 1998, and to the petitioner dated 15 May 1998, from the Education and Industry Department of the Scottish Office. After acknowledging receipt of the further information and representations both letters continued in these terms:

A letter in substantially the same terms dated 29 June 1998 was sent by the Minister to the petitioner's member of Parliament. In it the Minister again stated that he had concluded that there were no grounds for altering his previous decision that Jude's assisted place should not be continued, and added the following paragraphs.

[7] Following the intimation of this decision Jude left Loretto School at the end of the school year 1997-98. After a year at another school he was admitted to St Bede's School, an independent school in Sussex which has experience and expertise in the education of children with dyslexia, where he remains. That school has not participated in the assisted places scheme.

[8] More than eighteen months later, on 25 February 2000, following the coming into force of the Scotland Act 1998, solicitors acting for the petitioner wrote to the Minister for Education in the Scottish Executive requesting that Jude's application for an assisted place be reconsidered in the light of Article 2 of the First Protocol to the European Convention on Human Rights, "No person shall be denied the right to education". They also contended that Jude's dyslexia was a disability in terms of the Disability Discrimination Act 1995, and that the refusal of an assisted place was discrimination under section 20 of that Act. They argued that, but for his dyslexia, Jude would have been in Primary 7 throughout the 1997-98 school year, and would therefore have been automatically entitled to an assisted place until the end of his secondary education by virtue of the provisions of section 75A(1A) of the Education (Scotland) Act 1980.

[9] In a letter dated 27 July 2000 the Education Department of the Scottish Executive intimated that the full background to the case and the information supplied in the solicitor's letter of 25 February 2000 had been placed before the Deputy Minister , but that he had decided that there were insufficient grounds for him to alter the previous decision not to continue Jude's assisted place. It is this decision which forms the subject matter of this petition.

[10] In April 2001 Jude was offered places at Rannoch School and Strathallan School, Perthshire, commencing in September 2001. Both of these schools would accept a transfer of an assisted place if Jude had one. In the petition the petitioner avers that Jude was removed from Loretto because she was initially unable to pay the fees after the withdrawal of the assisted place. She now receives family and charitable assistance to meet the fees of his present school. The continuation of this funding is uncertain. She further avers that had Jude's assisted place not been withdrawn he would have completed his education at Loretto and would have been eligible to apply for a transfer to another participating school. In the event of the success of this petition it would be her intention to apply for a transfer to Rannoch or Strathallan.

[11] For the petitioner, Mr Logan argued that the terms of the letter of 14 January 1998, and in particular the fifth and sixth paragraphs, made it clear that the Minister had failed to apply his mind to section 75A(1B)(b). These paragraphs read together could only be interpreted as asserting that the provisions of subsection (1B)(a) of section 75A precluded the exercise of the Ministers' discretion under subsection (1B)(b). The sixth paragraph stated, in effect, that since Jude was in the last year of primary education he could not be eligible for a continuation of his assisted place, and that in that situation, his age and circumstances were of no relevance. That was clearly wrong. If Jude had commenced the school year 1997-98 in Primary 7, he would have been automatically eligible for continued assistance. Accordingly Jude's age and circumstances had to be taken into account if the Minister was to exercise his discretion. In the subsequent letter of 15 May 1998 the fourth paragraph gave no indication that a different approach from that adopted in the letter of 14 January 1998 had been adopted. There was no evidence in either letter that the Minister had applied his mind to subsection (1B)(b) at all.

[12] Counsel argued further that the decisions intimated in subsequent letters from the Department, culminating in the letter of 27 July 2000, were equally flawed because they all referred back to the original decision intimated on 14 January 1998 and asserted that there were no grounds for altering it. There was no indication that the error on which that decision was based had been recognised or departed from. Indeed, the two paragraphs quoted above from the Minister's letter of 29 June 1998 compounded the error since they implied that the Minister would never exercise a discretion under subsection (1B)(b). They indicated that to do so would be generally unacceptable, since it would undermine the Government's policy to use funds released by the abolition of the scheme for the reduction of class sizes. In these circumstances all the decisions were tainted by the initial error in law.

[13] In a subsidiary argument Mr Logan argued that the decision not to continue Jude's assisted place was irrational and one to which no reasonable Minister could have come. The facts pointed overwhelmingly to a decision in Jude's favour. If he had been in a class with his chronological peers his assisted place would have automatically continued until the end of his secondary schooling. He had been held back because of a disability and was benefiting from the stable environment at Loretto where his special needs were being catered for. He was placed among his chronological peers before the end of school year 1997-98. There was very little to put on the other side of the scale apart from the cost of the provision of the assisted place.

[14] No argument based on the European Convention of Human Rights was advanced but, an argument based on the provisions of the Disability Discrimination Act 1995 was presented on behalf of the petitioner. Mr Logan argued that by refusing a continuation of Jude's assisted place the Minister had failed to comply with section 21 of the 1995 Act in that he had failed to adjust his policy as regards the exercise of his discretion under section 75A(1B)(b) of the 1980 Act so as to ensure that Jude was not disadvantaged by his disability. His failure to do so made his decision illegal. In advancing this argument Mr Logan accepted that the question as to whether dyslexia was a disability under the 1995 Act could only be determined after proof. He argued that the Minister was a provider of services in terms of section 19(2)(b) of the 1995 Act and the provision of an assisted place was a service encompassed by section 19(3)(e). In terms of section 20, a provider of services discriminates against a disabled person if, for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment was justified. Section 21 imposes upon a provider of services a duty to change his practice policy or procedure where the practice policy or procedure makes it unreasonably difficult for disabled persons to make use of a service which he provides. Mr Logan submitted that an able boy of Jude's age in Primary 7 would have had an automatic right to an assisted place to the end of his secondary education. Because Jude was not in Primary 7 at the beginning of the school year 1997-98 he did not have that automatic right. The Minister ought to have removed the disadvantage from which Jude suffered by changing his policy in order to allow Jude's assisted place to continue.

[15] For the respondent Miss Wilson argued that the petitioner's principal attack was truly directed at the initial decision intimated on 14 January 1998 rather than at the decision of 27 July 2000 which was the subject of the petition. She submitted that the petitioner could only succeed if the various letters were given a contrived construction and the paragraphs which I have highlighted were read out of context. If the petitioner was right the Minister would not be permitted to have regard to the statutory purpose of the 1997 Act, or he would at least be obliged to give greater weight to the individual circumstances of the child than to the fulfilment of the statutory purpose. Properly construed, the sixth paragraph of the letter of 14 January 1998 dealt with both subparagraphs (a) and (b) of section 75A(1B). The first sentence related to subparagraph (a) and should be read as referring to automatic continued eligibility without the need for the exercise of discretion. In the second sentence the Minister dealt with subparagraph (b). The letter of 15 May 1998 was the real decision letter since only then was the Minister in possession of all the relevant facts. The paragraphs from the letter of 29 June 1998 quoted above, which were criticised by the petitioner, were only intended to record the statutory purpose of the 1997 Act. If the correspondence was looked at as a whole, a consistent approach could be discerned. In each letter the statutory scheme was set out, and subparagraph (a) and subparagraph (b) were then considered separately. The correspondence made it clear that the Minister was aware of the discretion vested in him by subparagraph (b). His duty was to carry out a weighing exercise as to whether Jude's circumstances justified a departure from the statutory scheme.

[16] In response to the irrationality argument Miss Wilson submitted that the Minister was entitled to place greater weight on the policy behind the 1997 Act than on Jude's particular circumstances. It could not be said that the facts pointed only to one decision.

[17] In relation to the argument based on the provisions of the Disability Discrimination Act, Miss Wilson argued that the Minister was not a provider of services to Jude. The funding provided by the Minister went to the school and not to the pupil so the necessary connection between provider and recipient did not exist. The fact that the Minister had a discretion meant that the Act and the policy did make allowance for the elimination of discrimination. In the present case the alleged discrimination was not brought to the attention of the Minister. The appropriate remedy was not judicial review but damages. In any event, section 21 of the 1995 Act did not come into force until October 1999 after the operative decision had been made in the summer of 1998.

[18] The respondents tabled a plea to the effect that the petitioner was barred by mora or delay from insisting in these proceedings. In support of that plea Miss Wilson argued that the effective decision was made in the summer of 1998, and it was as a result of that decision that Jude left Loretto. The petition had been lodged almost three years later. There had been no satisfactory explanation of the delay.

To allow the petition to proceed after such a delay would cause substantial detriment to the good administration of government. Between December 1997 and July 1998 the Minister exercised his discretion to reject 47 applications for continuation of assisted places out of 144 received. Following upon those decisions, budgets and levels of funding to individual schools were altered and fixed. If the present petition were to be successful many other petitions for review might arise retrospectively and the administrative system and budgets which had operated for three years would be thrown into confusion and uncertainty.

[19] In 1998 the application for a continuation of Jude's assisted place at Loretto was based on the benefits to him of the education he received there. The petitioner was fearful that he would have to go to a state school which would not have the resources to deal with his dyslexia. The reasons on which the application was originally based had now flown off. Jude had not gone to a state school, and the petitioner now sought reinstatement of the assisted place for the sole purpose of transferring it to another school. Such a transfer would not be automatic but would be dependent on the discretion of the Minister. In any event assisted places were offered and granted by the school and Loretto would not now offer a place to Jude. The petitioner was seeking the continuation of a place which no longer existed.

[20] In resisting the plea of mora Mr Logan said that after Jude left Loretto the petitioner, in August 1998, consulted solicitors who made representations to the Scottish Office. Those solicitors did not carry out legal aid work and a second firm of solicitors was instructed. They applied for legal aid in September 1998. The application papers were lost and the petitioner and those solicitors parted company. A third firm of solicitors were instructed and lodged an application for legal aid in December 1998. Thereafter the petitioner was in hospital for a considerable time. A third legal aid application was lodged in July 1999 and was refused in September 1999. A request for a review of that refusal was unsuccessful in January 2000, but a subsequent application was made and granted in April 2000. In November 2000 the petitioner's solicitors wrote to the Education Department of the Scottish Executive asking for details of the criteria or guidelines used when considering applications for the grant and transfer of assisted places. No response was received to that letter until 5 March 2001. The petitioner had to wait for that information because she required to know that a practical result was achievable.

[21] I shall deal first with the plea of mora. In O'Reilly v Mackman [1983] 2 A.C.237, Lord Diplock said at page 280-81:

I was also referred to the cases of Kwik Save Stores v Secretary of State for Scotland 1999 S.L.T.1993 and Singh v Secretary of State for the Home Department 2000 S.L.T.533, in which the question of delay in the bringing of judicial review proceedings was considered. As Lord Nimmo Smith said in Singh, it is well recognised that a plea of mora taciturnity and acquiescence may, in appropriate circumstances, be sustained in an application for judicial review, but unreasonable delay will not, of itself, be sufficient to found a successful plea. In Assets Co Ltd v Bain's Trustees (1904) 6F 692 at 705 Lord President Kinross said this: "But in order to lead to such a plea receiving effect, there must, in my judgment, have been excessive or unreasonable delay in asserting a known right, coupled with a material alternation of circumstances, to the detriment of the other party". Two questions therefore require to be considered. Firstly, has there been an excessive or unreasonable delay? Secondly, has such delay given rise to a material alteration of circumstances, to the detriment of the other party?

[22] Mr Logan sought to explain the delay by referring to the difficulties which his client experienced in obtaining legal aid. While such difficulties were unfortunate, particularly when the petitioner was unwell and required admission to hospital, I was not given any explanation of the reasons for the repeated refusal of legal aid. It was not suggested that the unsuccessful applications were wrongly refused. Accordingly I must assume that it was only in April 2000 that the petitioner succeeded in stating a probable cause. There then followed a delay of approximately one year which was not, in my opinion, satisfactorily explained. I do not see why it was necessary, once the petitioner had obtained legal aid, for her solicitors to seek advice from the Scottish Executive on what criteria or guidelines were used by the Department when considering applications for the grant and transfer of assisted places. What was at issue was the refusal of a continuation of an assisted place. During the period between July 1998 and early 2001, the Department had, in my view, no reason not to proceed with the phasing out of the scheme on the basis that the Minister's decisions were not to be challenged, and to make the necessary financial arrangements. In these circumstances I have come to the view that the delay which arose between the end of the school year 1997-98 and the lodging of the petition in March 2001 can be categorised as excessive and unreasonable.

[23] On the question of prejudice and whether the granting of the order sought would be detrimental to good administration. The following points are of significance. Following on the Minister's decision, the Department proceeded to alter and fix their budgets and the level of funding for individual schools. The administration and the phasing out of the scheme then continued on that basis for almost 3 years. It is possible that success in this petition might give rise to a number of similar petitions. The factual and legal bases of such petitions could be many and varied, with the result that future funding requirements would be uncertain, and schools, as well as the Department, would suffer difficulties in future financial planning.

[24] It is, in my view, relevant to the plea of mora that the ground upon which the original application for the continuation of Jude's assisted place was based is no longer relied on by the petitioner. She no longer wishes an assisted place for Jude at Loretto because of the benefit he derived from the education there. She wishes a declarator that he should have been entitled to an assisted place there to the completion of his secondary education, and she contends that if she were to be successful in that, an application could then be made for a transfer of the place to which Jude should have been entitled to Strathallan or Rannoch. One difficulty about this position is that the availability of an assisted place depends on the school's willingness to offer one. Mr Logan informed me that there is no place on offer at Loretto. A further difficulty is that an assisted place can only be transferred if the Minister exercises his discretion to allow a transfer. Such guidance as was given to the petitioner in the Department's letter to her solicitors of 5 March 2001 gives no indication that an application for a transfer from a child in Jude's situation would necessarily receive favourable consideration. Accordingly even if I were to grant the remedies sought by the petitioner, she could not achieve the end she seeks.

[25] It is also relevant to this issue, in my view, to consider what course of action I would have taken in the event of success on the part of the petitioner, had the petition been lodged timeously. I am clearly of the view, for reasons which I will explain later, that the appropriate course would not have been for me to grant a declarator that Jude should have been entitled to an assisted place to the completion of his secondary education. At best for the petitioner my decision would have been to remit the matter back to the Minister to reconsider his decision on the basis of a proper construction of the statutory provisions. In all these circumstances I conclude that if the petitioner were to succeed in this petition at this stage, it would be detrimental to good administration and could not achieve the result the petitioner seeks. In these circumstances I shall sustain the plea of mora.

[26] It follows that the petition will fall to be dismissed, but in deference to the arguments presented on the merits of the petition I think it appropriate to indicate my conclusions on them.

[27] The first point to be made is that the decision at which this petition is directed, namely the one intimated in the letter of 27 July 2000, had no practical effect. Nor was the decision intimated in the letter of 14 January 1998 one from which any practical result flowed. At that time the end of the school year was about six months ahead and in the letter the Minister invited further representations. In doing so he indicated that the decision was open to reconsideration. Thereafter he did receive further representations and was advised of the contents of the psychologist's report and of Jude's resultant move to the higher class. The operative decision was the one intimated in the letters of 28 April, 15 May and 29 June 1998. That decision was made by the Minister when he was in possession of all the relevant information and had the effect of bringing Jude's assisted place to an end. In these circumstances I take the view that the petition has been directed at the wrong decision. In other circumstances such an error might not be the basis of the dismissal of a petition which was otherwise meritorious where the defect could be cured by amendment. In this case, however, because of the conclusions I have come to on the other arguments I consider that there is no reason not to base the dismissal of the petition on this ground also.

[28] The petitioner argued that the letter of 14 January 1998 revealed an error of law which tainted the subsequent decisions. In the fifth paragraph of that letter the Minister correctly set out the effect of section 75A(1B)(b) and stated that he had considered very carefully whether his discretion should be exercised in Jude's favour. In the sixth paragraph he went on to say: "However, the position is that the criteria for continued eligibility is the stage of education which the assisted pupil is undertaking in the 1997-98 school session, not the pupil's age or the circumstances in which a pupil is at a particular stage. I regret therefore that I cannot from the information you have given me allow continuation of assistance to Jude". The first of these sentences seems to me to contain a description of the effect of subsection (1B)(a), and the implication is that since Jude would complete his primary education in that year he would cease to hold his assisted place at the end of it. The use of the word "therefore" in the second sentence seems to me to indicate that, so far as the Minister was concerned, that was an end of the matter, and that because of the provisions of subsection (1B)(a) the Minister was precluded from exercising his discretion under subsection (1B)(b). If that interpretation is correct it seems to me to disclose an error in law, since the provisions of subsection (1B)(b) clearly allow the Minister to render inoperative the provisions of subsection (1B)(a) in the cases of children whose circumstances seem to him to justify it. Accordingly the petitioner's argument in so far as it was directed against the letter of 14 January 1998 seems to me to be well founded.

[29] Turning now to the letters of April, May and June 1998 and the question whether they are tainted by the error in the previous letter, I take the view that the substance of these letters, as contained in the two paragraphs from the letters of 28 April and 15 May 1998 quoted earlier, are unexceptionable. They correctly set out the way in which the provisions of subsection (1B)(a) affect Jude and go on to say that the Minister had given further careful consideration to whether discretion should be applied in his case. So far I detect no error of law. Mr Logan, however, argued that since these letters referred back to the earlier decision of 14 January, using the words "he concluded that there were no grounds for altering his earlier decision", they were tainted by the earlier error. The two paragraphs however make it clear that the Minister had considered the matter afresh and had taken account of the additional information provided to him. They give no indication within their own terms of an erroneous approach having been adopted. In these circumstances had the letter of 29 June 1998 not been written, I would have concluded that the letters of 28 April and 15 May 1998 revealed no grounds for judicial intervention.

[30] In the letter of 29 June 1998 however the Minister added two further paragraphs which I have also quoted above. The first of those paragraphs stated that the provisions of subsections (1A) and (1B)(b) had significantly reduced the money available for the stated purpose of reallocating funds to the reduction of class sizes. In the second paragraph the Minister said that the operation of section (1B)(b) would prolong both the scheme and the costs associated with it "for a further unacceptable period". Mr Logan argued that this second paragraph compounded the error in the letter of 14 January to the extent that the Minister was precluding any exercise of his discretion, this time because of the financial consequences of subsections (1A) and (1B)(a).

[31] I think that there is force in Mr Logan's argument and I consider that the reader is entitled to infer from the second paragraph that the Minister's position was that no circumstance particular to any child should be allowed to prolong the scheme. It might be argued that such an inference would be illegitimate since the Minister actually granted 97 continuations out of 144 applied for. While it is true that he did so, the correct course, it seems to me, is to examine in isolation, such evidence as exists as to the reasoning behind the particular decision relating to Jude, because it cannot be assumed that the Minister's approach was the same in all cases. Although the two paragraphs appear only in the letter of 29 June 1998, it is clear that they reveal the reasoning behind the decision intimated in the letters of April and May.

[32] In these circumstances I have come to the conclusion that the course of correspondence does reveal an error of law on the part of the Minister. It does not, however, follow that, if this matter had come before me within a reasonable time of the making of the decision, when the decision could have been reconsidered without a great deal of administrative disruption, I would have granted all the remedies sought by the petitioner. Whilst it might have been appropriate to grant reduction of the April/May 1998 decision, it would not, in my view have been appropriate to pronounce a declarator that Jude should have been entitled to an assisted place to the completion of his secondary education. To have done so in the circumstances of this case would in effect have been to substitute my own decision for that of the Minister. That is not my function. Since I am unable to accept the petitioner's alternative argument that the Minister's decision was so unreasonable that no reasonable Minister could have come it, the appropriate course would have been to remit Jude's application back to the Minister for reconsideration in the light of my decision on the question of law.

[33] I also take the view that the petitioner's argument based on the Disability Discrimination Act 1995 is ill-founded. In the first place, the relevant section of the Act was not in force at the time the operative decision was made. But I also consider that the argument fails on the merits. The assisted place which Jude enjoyed was offered and granted to him by the school. He began the school year 1997-98 in Primary 6 because of the decision of the Headmaster based upon the evidence available to him at the time. The Minister's function at that stage was to pay the necessary funding for the scheme to the school in terms of the1980 Act. Accordingly the unfavourable position in which Jude found himself had nothing to do with the Minister, it was the decision of the school that rendered him ineligible for automatic continuation of his assisted place. The Minister's task under subsection (1B)(b) was to decide on 144 applications for continuation of assisted places. The decision he had to make in each case was whether or not the applicant should be exempted from the provisions of subsection (1B)(a). I do not know what the circumstances of the various applicants were, but I think one can assume that not all of them suffered from a disability. The Minister was bound to take account of the particular circumstances of each child. The fact that a child suffered from a disability was a factor that he would have been expected to take into account. There is nothing in the relevant statements of policy which were produced to indicate that children with a disability would be treated any less favourably than able children. It was open to the Minister to continue the assisted places of disabled children just as he could continue the assisted places of able children. The Act does not require the provider of services to give favourable treatment to disabled persons, it requires him not to treat the disabled person less favourably than others. In these circumstances it cannot be said that the Minister had a practice policy or procedure which made it impossible or unreasonably difficult for disabled children to obtain a continuation as compared with able children.

[34] Having reached that conclusion it is not necessary for me to deal with the other arguments advanced in this part of the case. I was not provided with sufficiently detailed argument to enable me to form a concluded view on whether the Minister was a provider of a service. My preliminary view however would be that he was not. He was exercising a discretion conferred on him by statute as to whether Jude as an individual should be relieved of the effect of a statutory provision, namely subsection (1B)(a). I do not consider that that power can be categorised as the provision of a service to Jude.

[35] For all these reasons I shall refuse the petition.