Re J [2006] ScotCS CSOH_201 (21 December 2006)

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 201

XA155/06

OPINION OF LORD GLENNIE

in Appeal to the Court of Session under Section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004

SM as legal

guardian to J

Appellant;

against

A Decision by the Additional Support Needs Tribunal on 12 August 2006 to uphold the refusal of a placing request for J. at R.B., Edinburgh by Edinburgh City Council

________________

Appellant: Logan; Campbell Smith, W.S.

Respondents: Scott; G Lindsay, City of Edinburgh Council

21 December 2006

Introduction

[1] This is an appeal to the Court of Session under section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act") against a decision of the Additional Support Needs Tribunal ("the ASNT") made on 12 August 2006 upholding the refusal by the Edinburgh City Council of a request ("a placing request") by the appellant that his daughter, J, who was then nearly five years old, be placed at the RB School in Edinburgh. The appeal was remitted to the Outer House under Rule of Court 41.44 to enable the appeal to be heard expeditiously, since J is presently at home and not in school pending the resolution of this dispute. Before me, both the appellant and the Edinburgh City Council were represented by counsel. I was told that this is the first appeal under this legislation.

The legislative context - "additional support needs"

[2 ] The 2004 Act puts in place a system for dealing with the education of children and young persons with additional support needs. I am here concerned with a child, and I shall, therefore, confine my references to the provisions of the Act dealing with children rather than young persons. In relation to a child, "additional support needs" are defined in section 1 of the Act in the following way:

"(1) A child ... has additional support needs for the purposes of this Act where, for whatever reason, the child ... is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child ....
(2) In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child ... to their fullest potential.
(3) In this Act, 'additional support' means-

(a) in relation to a prescribed [child] ... receiving school education, provision which is additional to, or otherwise different from, the educational provision made generally for children ... in schools (other than special schools) under the management of the education authority for the area to which the child ... belongs ..."

[3 ] Section 2 requires a "co-ordinated support plan" to be drawn up for a child for whose education the education authority is responsible, if he or she has additional support needs arising from factors which (taken singly or in conjunction with other factors) are likely to have an adverse effect on his or her school education; and if those additional support needs require significant additional support to be provided (i) by the education authority or (ii) by one or more appropriate agencies, as well as by the education authority. Those "appropriate agencies" are identified in section 23 as (a) any other local authority, (b) any Health Board and (c) any person specified for these purposes in an order made by the Scottish Ministers. The co-ordinated support plan replaces the "Record of Needs" in the previous legislation.

[4 ] The duties on the education authority in relation to children having additional support needs are set out in section 4 of the Act. This provides as follows:

"(1) Every education authority must-

(a) in relation to each child ... having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child ...

(2) Subsection (1)(a) does not require an education authority to do anything which-

(a) they do not otherwise have power to do, or

(b) would result in unreasonable public expenditure being incurred."

In the present case it is agreed that J has additional support needs (and that a co-ordinated support plan requires to be drawn up for her, though this has not yet been completed) and that the education authority is required to make adequate and efficient provision for such additional support as J requires; but it is not required to do anything that would result in unreasonable public expenditure being incurred.

The placing request

[5 ] The education authority determined that J's needs could adequately be met at O School, a school managed by it. The appellant made a placing request for J to be placed at the RB School instead. That placing request was refused. The appellant referred that decision to the ASNT under section 18 of the Act. The ASNT upheld the decision of the education authority.

The legislative context - placing requests

[6 ] Schedule 2 to the Act makes provision about placing requests in relation to children having additional support needs. The following paragraphs of Schedule 2 are relevant to this case:

"2(1) Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.
(2) Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being-

(a) a special school the managers of which are willing to admit the child,

(b) ...

it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school.
(3) A request made under sub-paragraph (1) or (2) is referred to in this Act as a 'placing request' and the school specified in it is referred to in this schedule as the 'specified school'. ...
3(1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply-

(a) if placing the child in the specified school would-

(i) make it necessary for the authority to take an additional teacher into employment,

(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,

(iii) ...

...

(f) if all of the following conditions apply, namely-

(i) the specified school is not a public school,

(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,

(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school, and

(iv) the authority have offered to place the child in the school referred to in paragraph (ii), or

..."

It is agreed that the RB School is a "special school the managers of which are willing to admit the child" within the meaning of those words in paragraph 2(2)(a) of the Schedule. The Schedule, therefore, places on the education authority a duty to comply with a placing request, and where necessary to meet the fees and other necessary costs of J's attendance at the RB School, save in the cases where that duty is excluded.

[7 ] The only paragraph of Schedule 2 relevant in the circumstances of this case is 3(1)(f). Sub-para.(i) thereof is satisfied, since the RB School is not a public school. Sub-para.(ii) is also satisfied. The appellant does not say that O School is inadequate for her needs, just that the RB School is better suited. Sub-para.(iv) too is satisfied, since the education authority has offered to place J in O School. The issues on this appeal arise under sub-para.(iii).

Refusal of the placing request

[8 ] By letter dated 7 June 2006, the education authority refused the appellant's placing request by reference to sub-para.3(1)(f)(iii) in these terms:

"it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision of the additional support needs of J in the [RB School] and in [O School] to place J in the RB School."

In its decision letter of 14 August 2006 confirming that decision, the ASNT made a number of findings in fact. In finding (1) it set out J's age and the conditions from which she suffers:

"... She has the following conditions: neonatal encephalopathy, infantile spasms, myoclonic seizures, progressive microcephaly, quadriplegic cerebral palsy and scoliosis. She also has severe cortical visual difficulties and is registered blind."

Finding (3) is to this effect:

"She has severe and complex physical difficulties, including severe visual impairment. Her learning difficulties have not been fully or formally assessed. She is thought likely to have learning difficulties."

In Finding (4), the ASNT identified J's requirements in terms of schooling:

"She requires to attend a school where the staff have expertise in the education and management of children with severe and complex difficulties. She requires access to a stimulating environment specifically for children with multiple physical needs. She needs to have access to a coherent broad and balanced relevant curriculum delivered at a pace and level matched to her profile of strengths and difficulties. She needs a programme to develop language and communication skills. She needs a programme to develop her visual skills. She needs the opportunity to develop her communication through the use of communication aids. She needs strategies and activities to develop her fine and gross motor skills. She needs a programme of occupational therapy and physiotherapy. She needs individual attention when engaged in an activity and close attention in a small group. She is reliant on others for all her care needs, and requires a high standard of care."

The ASNT then went on in its findings to compare the two schools in question. I shall come back to mention some of the details. It found the costs of placing J in the RB School were £32,832 per annum, whilst those of placing her in O School were £23,590 per annum. Their conclusions are set out in findings (9) and (10):

"(9) Both [schools] are able to make suitable provision for J's additional support needs. There is negligible difference between the two provisions for J's additional support needs.

(10) There is a significant difference in the cost of the two schools"

These findings and the conclusions in findings (9) and (10) were supported by passages in the Reasons in the decision letter.

[9 ] On those findings there was, I suspect, only one likely answer to the balancing exercise required to be carried out under paragraph 3(1)(f)(iii) of Schedule 2. The schools were equally suitable, yet one cost half as much again as the other.

The appellant's case on appeal

[10 ] An appeal to the Court of Session under section 21 of the 2004 Act is on a point of law. Mr. Logan, for the appellant, recognised that he could not go behind the findings of fact made by the ASNT unless it had erred in law in reaching them. But he submitted, consistently with the Grounds of Appeal, that the ASNT had made two material errors of law, which undermined its findings in critical respects. The first was that it had erred in law in its approach to calculating the "respective costs" of placing J in each of the two schools. The second was that it had erred in law in rejecting a critical piece of evidence tendered on behalf of the appellant.

[11 ] I shall consider each of these submissions separately. Before doing so, however, I should note also another point made forcefully on behalf of the appellant - no so much as a separate ground of appeal but rather by way of informing the discussion on the other two matters - to the effect that nowhere in its decision letter did the ASNT make any reference to the fact that prima facie it is the duty of the education authority under the Act to give effect to the parents' placing request; and it is for the authority to establish that the duty is displaced by reason of one or more of the factors set out in paragraph 3(1) of Schedule 2. If the evidence is insufficient, and the education authority fails to satisfy the ASNT that the relevant facts are made out, it will have failed to establish that the duty on it does not apply. I think that there is some force in this point, but it cannot be taken too far. However, a tribunal such as the ASNT is intended to adopt a measure of informality in its proceedings and to deal with references fairly and justly; and I consider that it would be inconsistent with this to require it to approach its decision-making task on the basis that it was always required to ask where the onus or burden lay on a particular issue. I shall return to this point in connection with the second ground of appeal.

Ground 1- "respective cost"

(i) submissions for the appellant

[12 ] Paragraph 3(1)(f)(iii) of Schedule 2 requires attention to be paid to "the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child" in one school as compared with the other. It does not in terms answer the question: cost to whom? Nor does it say how that cost is to be assessed. The ASNT clearly regarded the answer to the first question as obvious: "the cost is the cost to the education authority". It answered the second in this way: for the RB School, it simply assessed the "fees and other necessary costs of the child's attendance"; whereas for O School, which is a local authority school, it appears to have divided the running costs of the school by the number of available pupil places, and added "a sum to account for central costs which include therapy services as well as central services administration costs". Although it is not entirely clear how this latter sum was dealt with, the general approach is relatively easy to understand.

[13 ] Mr. Logan, for the appellant, criticised this approach. He argued that what was important was not the cost to the local authority but the cost to the public purse. In this context he reminded me that, in section 4(2)(b) of the Act, the financial qualification on the duty of the education authority to make adequate and efficient provision for those with additional support needs was expressed in terms of "unreasonable public expenditure being incurred". This was looking to public expenditure generally, not just expenditure of the education authority. The fact that the local authority was required to identify support needed from other "appropriate agencies" added force to this approach. The reference to "cost" in paragraph 3(1)(f)(iii) ought to be construed in a like way. He submitted that the reference in that sub-paragraph to "(including necessary incidental expenses)" pointed in the same direction.

[14 ] Some details of the costs of the two schools were provided in the documents lodged in process. The cost of £32,832 for the RB School included medical costs, nursing costs and care costs totalling over £10,000. A significant part of these costs were for services provided by the Lothian Health Board ("LHB") which was an "appropriate agency" in terms of the Act. The RB School paid the LHB for its services; and the education authority, therefore, in paying the fees of the RB School for any child placed there, indirectly paid for the services provided by LHB (see document L9 and production 6.44). The LHB provided similar services, where required, for children at O School, but did not charge the education authority for them. The breakdown provided (at document L4) of the £23,590 cost of placing J at O School did not, therefore, include any element in respect of such services. Yet in both cases those services were provided at the public expense. It was simply a question of which budget they came out of: the education budget, if J went to the RB School; or the LHB budget, if J went to O School. If the correct approach was to look at the respective cost to the public purse generally, there was no material upon which the ASNT could properly have concluded that placing J at the RB School would cost more than giving her a place at O School. In any case, that was not the approach that the ASNT had adopted, and the case should be remitted to it so that the proper exercise could be carried out.

[15 ] Mr. Logan submitted that another way of dealing with the same issues was simply to take such costs out of the calculation of the cost of sending J to the RB School. A fair comparison of the cost of provision required both sets of costs to be treated equally. The LHB and similar charges should be included in both costings or neither.

[16 ] In addition, Mr. Logan submitted that the exercise carried out to ascertain the cost of sending J to O School was artificial and did not produce a true cost to the education authority. He made a number of points. First, the actual cost would vary from child to child depending upon an assessment of needs for that particular child. The local authority should have carried out an assessment of J and worked out the likely cost of placing her in O School. Second, even if it was appropriate to take an average figure per pupil, the basis on which this had been done was questionable. The cost per pupil was calculated by dividing the total running costs by the number of available pupil places (48). This produced the notional cost per pupil of £23,209. But there were actually only 37 pupils at the school. If one divided the total running costs by 37 the notional cost per pupil rose to £29,242. Such a cost was not so very far from the cost of placing J at the RBS School. If the difference was only £2,000 to £3,000, the balancing exercise in paragraph 3(1)(f)(iii) might work out very differently. Third, the notional costs per pupil at O School were worked out using the school budget for the previous year. Yet, as the ASNT recognised in its decision, O School was due to move in January into a new purpose built school building with more and better equipment. This was likely to affect the running costs, but it was not taken into account in producing a figure for the cost of J attending that school.

(ii) submissions for the education authority

[17 ] For the education authority, Mrs. Scott argued in support the ASNT's approach to comparing the cost of placing J in the two schools. She argued that "the respective cost ... of the provision for the additional support needs of the child" in the two schools meant the cost to the education authority. This was clear, she submitted, on a proper construction of the words in their context. There were difficulties if one were to look more generally to the cost to the public purse. For example, the RB School received a significant subsidy from the Scottish Executive. Should this be brought into account in assessing the cost of placing J there? It was not realistic to assume that local education authorities knew, or to require them to investigate, all the funding arrangements relevant to ascertaining the cost to the public purse of placing a child in a particular school. She noted that the 2004 Act was only concerned with educational provision. The cost referred to in paragraph 3(1)(f)(iii) of Schedule 2 referred naturally in this context to the cost to the education budget. The ASNT had applied this approach. So far as the fees of the RB School were concerned, those fees were direct costs to them. She accepted that those fees included payment for services rendered by LHB and other agencies. These services would be provided to the local authority free of charge for children educated at O School. It was proper, therefore, to include them when ascertaining the cost to the local authority of sending J to the RB School, but not when ascertaining the cost to the local authority of sending J to O School.

[18 ] Although she defended the ASNT's decision in this case that "respective cost" meant cost to the education authority, Mrs. Scott submitted that it had been wrong to arrive at that cost by calculating an average cost per pupil (running costs divided by number of pupils or by number of places). The correct approach was simply to look at the additional costs (sometimes in argument referred to as "marginal costs" or "on-costs") to the education authority of sending a child to one school rather than another. In the case of the RB School, this was the whole amount of the fees. But in the case of the O School, the additional costs would be very small. The school was there and had space for J. The only additional cost might be extra help or equipment required specifically for J. If J went to RB School, the provision which the local authority had made at O School would be under-used. The authority would, in effect, be required to pay for J to go to another school albeit that they had incurred expenditure in making provision at O School which was adequate for J's needs. Such an approach, if applied by the ASNT, would almost certainly be even more adverse to the appellant's placing request. Mrs. Scott submitted that this was an approach which, albeit under different legislation, had found favour with the English Courts in considering similar issues under the Education Act 1996. Counsel did not shy away from the fact that where the provision made by the local authority in one of their own schools was adequate for the additional support needs of the child, the balancing exercise required to be undertaken in terms of paragraph 3(1)(f)(iii) would seldom fall in favour of requiring the local authority to grant a placing request by parents for their child to be placed at a fee-paying school.

(iii) further submissions

[19 ] In a brief reply, Mr. Logan said that the fallacy in the "marginal costs" argument was that there was no evidence that a place at O School would remain empty if J did not take it up.

(iv) authorities cited

[20 ] Both counsel referred me to English authorities on the proper construction of the Education Act 1996 although, because of the differences between the legislation in England and Scotland, neither counsel argued that they were directly in point. The relevant provisions of the 1996 Act are section 9, which states that

"in exercising or performing all their powers and duties under the Education Acts, ... local education authorities ... shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure." [emphasis added]

and the constraint, in paragraph 3(1) of Schedule 27, that the education authority must accept the parent's choice of school

"unless ... (b) the attendance of the child at the school would be incompatible with ... the efficient use of resources." [emphasis added]

The authorities to which I was referred were: B v Harrow LBC [2000] 1 WLR 223 (House of Lords); Oxfordshire CC v GB [2002] ELR 8 (Court of Appeal); and, at first instance, C v Special Educational Needs Tribunal [1997] ELR 390, Wardle-Heron v L.B. of Newham and Special Educational Needs Tribunal [2004] ELR 68; HW and W v Bedfordshire CC [2004] ELR 586; S v Somerset CC [2003] ELR 78; R(W) v Special Educational Needs Tribunal and L.B. of Hillingdon [2005] ELR 599; and Essex CC v SENDIST (unreported, Gibbs J, 28 April 2006).

(v) discussion of "respective cost" issue

[22 ] I do not consider that the reference to the phrase "unreasonable public expenditure" in section 4 of the Act provides any support for the appellant's argument. In my opinion, this too refers to expenditure by the education authority. I do not see how an education authority, charged with making a decision about providing for the additional support needs of a child, could be expected to form a view about what level of general public expenditure was reasonable or unreasonable.

[23 ] I also consider that the "additional cost" submissions made on behalf of the education authority are to be preferred. Simply on the wording of paragraph 3(1)(f)(iii) of Schedule 2, it seems to me that the only meaningful assessment of the "cost" of providing the additional support at each school is by reference to what amounts the education authority will have to spend to secure that provision. The assessment of the cost of each option is a tool to enable the education authority to judge whether the greater suitability of the specified school - if such is established - is justified by the extra cost to the education authority. The question is: how much more will we have to spend to give the child that extra benefit rather than place her in our own school? That inevitably involves identifying the costs which will actually be incurred if one or other option is chosen. This points clearly to looking for the "additional costs" involved with each option. If J is placed in a fee paying school, the school fees (and other necessary incidental expenses) to be paid by the education authority will be the measure of the cost to the education authority of making that provision; whereas if J is placed in a state school under its management, the cost to the local authority of making that provision will be measured only in terms of what further expenditure is necessary to enable it to meet J's needs. Any other approach seems to me to be highly artificial.

[24 ] Counsel were agreed that the English authorities must be approached with care. They were decided under different legislation, and the construction of specific phrases arises from a detailed consideration of the legislation as a whole. Although the particular expressions are similar, the 1996 Act is by no means identical to the 2004 Act. However, in so far as assistance can be derived from the English cases to which I was referred, they tend to support the submissions of the education authority.

[25 ] In B v Harrow LBC the local authority, in issuing a final statement of special educational needs for a child with severe learning difficulties, named a school managed by itself, rather than one run by a neighbouring local authority which the parents preferred. The special educational needs tribunal ("SENT") rejected the parents' appeal, on the basis that for the education authority to have to bear the cost of paying for the child to be educated in the neighbouring authority's school would be incompatible with "the efficient use of resources", a ground specified in paragraph 3(3) of Schedule 27 to the 1996 Act. As the case went through the courts, the question focused on whether (as SENT and the judge both held) one looked only at the resources of the child's education authority, or whether (as the Court of Appeal held) one should look also at the resources of the neighbouring authority which maintained the school chosen by the parents. The House of Lords agreed with SENT and the judge that one should look only at the resources of the child's own education authority. In the course of his speech, at p.228, Lord Slynn said this:

" In my opinion, further, Moses J. was right to have regard to the differences between the funding arrangements made for special schools on the one hand and other schools on the other. In the latter case, funding is in part geared to the number of pupils actually attending the school; in the former it is in part geared to the number of pupils for whom it is anticipated the school will need to provide places. This means that places may be provided for which if, for example, a child leaves to go out of the borough, will not be utilised but the cost will be incurred. ...

It seems to me also relevant in considering the question as to whose resources are referred to in paragraph 3(3) of Schedule 27 to bear in mind that the scheme for special educational needs provision is for children for whom the local education authority is 'responsible.' Those are children, inter alia, who are 'in their area:' section 321(3). It is on the parents of such children that the notice of intended assessment and the statement of special educational needs is to be served and for such children that special provision is to be made. This points in my view to the resources concerned being those of the responsible local education authority. ...

...

I do not, in any event, consider that it can possibly be intended that the resources other than the two authorities directly concerned should be considered. That would place a very difficult task on the local education authority. If such an exercise had been intended, it is more likely that it would have been imposed on the Secretary of State.

...

I do not consider that section 9 of the Act means that parental preference is to prevail unless it involves unreasonable public expenditure. In dealing with special schools, the authority must also observe the specific provisions of paragraph 3(3) of Schedule 27. This does not mean that the parent loses the right to express a preference. A preference may be expressed but it is subject to the qualifications set out in paragraph 3(3), one of which is the efficient use of resources - in my opinion, the responsible local education authority's resources. It may be as a result that a child seeking to go to a special school out of his own local education authority's area may have more difficulty in doing so than a child seeking to go to another school. But that is what, in my view, Parliament has clearly provided."

In these passages, Lord Slynn is dealing with the concept of "efficient use of resources" and is clearly excluding from consideration the wider question of public funding. In his opinion it is relevant to focus only on the resources of the child's local education authority.

[26 ] The first instance decisions in C v Special Educational Needs Tribunal and in S v Somerset CC, interpreting the expression "unreasonable public expenditure" (now found in section 9 of the 1996 Act), are consistent with this approach. In the former case, Dyson J said, at p.401C:

"It seems to me that the phrase 'unreasonable public expenditure' ... must be a reference to public expenditure by educational authorities, and does not include public expenditure by other authorities such as health authorities. So far as I am aware, LEAs have no right of access to the detail of costs incurred by, for example, health authorities. If Parliament had intended LEAs to take into account the costs borne by health authorities, I would have expected this to be spelt out clearly in the legislation."

In the latter case, Sir Richard Tucker preferred this view to the contrary opinion expressed in another case and said (at paragraphs [30] and [34]):

"[30] ... what section 9 is dealing with is the expenditure, not of a public authority as a whole, but with the expenditure of the local education authority.

...

[34 ] ... I conclude that in assessing whether or not unreasonable public expenditure would be incurred, it is only the costs accruing to the education budget which are to be taken into account ..."

[27 ] Oxfordshire CC v GB was concerned with a choice between a mainstream comprehensive school and an independent school. There were two specific issues relating to what had been included in the costs of the comprehensive school: first, whether transport costs should be included in the cost of placing the child in the comprehensive school; and, second, whether the cost of a teacher for the deaf should be included. It was argued that, although the child was going to travel by taxi, the taxi was already carrying two children and would not charge more for a third; and that the teacher was already employed there and would remain there whether the child was placed there or not. The Court of Appeal held that if these facts were accepted, it would be wrong to regard these items as part of the cost of educating the child at the comprehensive school. In other words, unless the costs were "additional costs" which would not otherwise have been incurred, they should not be included in the cost of placing the child in the particular school. Sedley LJ made a number of helpful remarks. In paragraph 4 he identified the question of principle thus:

"The problem posed by this appeal ... can be stated in a narrow and a broad form. Put narrowly, it is whether in making a comparison between two appropriate schools, one an independent specialist school, the other a mainstream LEA school with a specialist unit, the cost of the latter is to be taken as the global cost of LEA provision (either in total or for the school in question) divided by the relevant number of pupils, or simply the additional budgetary cost of placing the child there. In its broader form, it is whether the cost of placing a child in the state sector should be taken to be an individual fraction of the global cost of local state provision, or whether that provision is to be regarded as given and the relevant expenditure quantified as the additional amount which the placement will cost the LEA."

He went on to refer to the judgment of the House of Lords in B v Harrow LBC, saying in paragraph 14 of his judgment:

"In other words, as we understand it, if unused special school places represent a loss which can be made good by making efficient use of them, then letting the child be unnecessarily placed elsewhere is an inefficient use of such resources."

In his conclusions he made the following pertinent observations:

"[15] ... It is of course true that unreasonable public expenditure is not a term of legal art. But neither is it, in its present context, a protean concept capable of producing opposite outcomes on the same facts and figures depending on the individual tribunal's choice of accountancy method. In our judgment the chief object of the last part of section 9 is to prevent parental choice placing an undue or disproportionate burden on the education budget. When one considers that a single placement in the independent sector may well cost a ring-fenced education budget more than a teacher's salary, one can readily see why.

[16 ] In cases like the present, the parental preference for an independent school over an available state school, while perfectly reasonable, may have difficult cost implications for the LEA. In that event it is for the LEA, or on appeal the SENT, to decide whether those cost implications make the expenditure on the independent school unreasonable. This means striking a balance between (a) the educational advantages of the placement preferred by the parents and (b) the extra cost of it to the LEA as against what it will cost the LEA to place the child in the maintained school. In cases where the state system simply cannot provide for the child's needs, there will be no choice: the LEA must pay the cost. In cases where the choice is between two independent schools, it is accepted on all hands that the second criterion is simply the respective annual fees, whatever the comparative capital costs or other sources of income of the two establishments: for example, the one with lower fees may have private or charitable funding, but this will have no bearing on the quantum of public expenditure involved in a placement there. In cases where the choice is between two maintained schools, by Schedule 27, paragraph 3, the Act substitutes a test of suitability to the particular child, efficiency in education (for example because of possible disruption) and efficient use of resources. The latter will intelligibly include comparative on-costs, such as transport and personal support, but in most cases it is unlikely to be helped by apportioning the LEA's accounts or balance sheet. This approach, it seems to us, chimes with the final sentence of the passage cited in paragraph 10 above from Lord Slynn's speech in B v Harrow LBC.

[17 ] If so, there is no intelligible reason why a comparison of public expenditure as between an appropriate independent school and an appropriate maintained school should be at large. Mr Friel, indeed, defends the quantification of the cost of School MH, the independent school, as the bare annual fee - that is to say, the cost to the LEA's annual budget of placing M there. In our judgment exactly the same is true of the cost of placing M in the hearing-impaired unit of School L: the question is what additional burden it will place on the LEA's annual budget. That means, generally speaking, that the existing costs of providing School L and of staffing it and its hearing-impaired unit do not come into account.

[18 ] This is not to say that there may not be particular cases in which some other method of comparison needs to be used in order to meet section 9. But as a matter of purposive construction of the section, it seems to us that what Parliament has called for in the ordinary run of cases is a consideration of the burden which the respective placements will throw on the annual education budget when matched against their educational advantages and drawbacks for the child in question. Costs which either the private provider or the LEA would be incurring with or without the proposed placement are accordingly not in general relevant. This being so, it is not necessary to say anything about the accountancy problems which would bedevil any endeavour to quantify the per capita cost of providing for a child's education in the state sector.

I agree with those remarks.

[28 ] It follows, in my judgment, that the ASNT was wrong to calculate the cost to the education authority of placing J at O School simply by dividing running costs by the number of pupils or places. It ought to have approached the matter on the basis that only relevant costs were the additional costs which would be incurred by them if J went to that school. It is perhaps unfair to criticise the ASNT for adopting this approach since this was how the matter was presented to them by the education authority. Had the correct approach been applied, the result would clearly have been less favourable to the appellant in that the imbalance between the cost of placing J at the schools in question would have been greater. If this had been the only point in issue, therefore, I would not have thought it right to remit the case to the ASNT for reconsideration, since their error could not have affected their decision.

Ground 2 - rejection of critical evidence

(i) how the issue arises

[29 ] This ground of appeal arises in this way. The appellant, though their counsel, criticise the assessment made by the ASNT that there is negligible difference between the two schools in terms of providing for J's additional support needs. They say that that assessment does not sufficiently recognise the difficulties caused by J's visual impairment.

[30 ] The findings in fact made by the ASNT make it clear that the RB School is a purpose built school for visually impaired pupils, though it caters also for children with multiple disabilities. One third of teachers there have a diploma in visual impairment and one third are presently training for that diploma. All staff have experience of children with visual impairment. O School is a school for pupils with severe and profound developmental delay. Many of the staff have many years experience with children with severe and complex difficulties, including those with sensory and sensory processing impairment. About one third of the current pupils have a visual impairment and six are registered blind.

[31 ] The appellant accepts that O School would provide adequate support for J's additional support needs; but he says that the RB School would make much better provision for them. As he sees it, the difference is between the adequate and the best. He complains that the ASNT has failed to attach sufficient weight to J's visual impairment.

[32 ] At first blush, any criticism of the ASNT's conclusions along the lines indicated would not appear to raise any question of law. Indeed, Mr. Logan, for the appellant disclaims any attempt to challenge the ASNT's decision on factual matters. He accepts, correctly, that in principle it is for the ASNT to assess and evaluate the evidence and make findings of fact. Unless it has misdirected itself in law in doing so, the Court cannot intervene.

[33 ] It is necessary to set out the following passage from the decision of the ASNT. This passage falls under the heading "Reasons" and contains the major part of the ASNT's consideration of the evidence.

" On the evidence accepted by the Tribunal, there was nothing to support the implicit assumption put forward on behalf of the parents that J's primary problem was her visual impairment, and she would thus be better served by receiving education at the RB School.

The report at page 404-405 [of the bundle] dated 16 July 2006 stated 'from a professional opinion I believe that J would be best suited going to a school that is dedicated to visually impaired children as it offers the specialist support and peer group that J needs in order to fulfil her potential.' This report was unsigned, and although there was some evidence that it was written by Ms SW the head teacher of OP Nursery, there was no evidence of the qualifications or expertise which would allow the Tribunal to rely on her professional opinion. Accordingly the Tribunal did not give any weight to that opinion.

Mr W a nursery nurse with many years experience had a specific interest in and had studied as a teaching assistant for children with visual impairment and had been J's key worker. He describes J as having a severe visual impairment, severe physical disabilities and uncontrolled epilepsy. He thought that the visual impairment was the primary barrier to her education, that because learning is acquired through vision, her learning is severely compromised. He knew J well and spoke with enthusiasm of her progress at the nursery, particularly using fluorescent light and paint to assist her vision and her ability to communicate. However although Ms L had never met or assessed J the Tribunal preferred her evidence, given her qualifications and experience, that J's visual impairment ... cannot be isolated from her other difficulties. She felt that the visual impairment has a very significant impact on her learning, but due to her range of problems, her use of vision could only hope to keep up with her cognitive ability. The Tribunal accepted that her evidence was based on many years experience of children with impairment in processing visual information. She explained that children will generally have that problem because of complex support needs; around 70% of children with cerebral palsy have such impairment. From the reports it appeared J had a group of needs very familiar to her experience.

With the exception of the report at page 404-405, the Tribunal accepted the evidence in all the reports prepared by the various professionals ... . Nothing in those reports, nor in the evidence of Mr W of the work which had been done with J and the progress achieved by her at nursery, would suggest that O School could not offer suitable provision for J's needs. Having regard to [various pieces of evidence] the Tribunal considered that the evidence strongly supported the school as a suitable provision for J.

The Tribunal accepted that the RB School would be a suitable provision for J. However, they considered that the differences in the provision were negligible. On the evidence accepted (including that of Mr. W) they found no substance in the submissions that the communications system used there was or would be better for J than the variety of communication systems used at O; that the qualifications and experience of the staff (including therapists, mobility officers and IT staff) at that school would provide J with more suitable provision for her needs than was available at O. ..."

This passage shows clearly the process of reasoning by which the ASNT arrived at the conclusion, in finding (10), that there was negligible difference between the two schools in terms of providing for J's additional support needs.

[34 ] As can be seen from the second of the quoted paragraphs, an important part of this process of reasoning was the decision not to give any weight at all to the report from the head of the nursery which J attended. I was shown a copy of that report. It clearly did support the appellant's case that J should be placed at a school, such as the RB School, that specifically caters for children with a significant visual impairment. Further, and this is a point of some importance in a case where the Tribunal placed great reliance on the evidence of Ms L who "had never met or assessed J", it provided a significant measure of assessment of J's needs - not surprisingly, perhaps, since the report states that OP Nursery is an assessment nursery. I cannot, of course, say what would have been the conclusion reached by ASNT if it had afforded some weight to that report. Much would depend on what weight it afforded it.

(ii) submissions for the appellant

[35 ] Mr. Logan submitted that the ASNT had erred in law in refusing to attach any weight to that report. Evidence from Mr. W had shown that it was Ms. SW who had written the report. She was head of the nursery, or the nursing teacher. The report is written on the basis, apparently, of a good deal of knowledge and understanding of J's problems. When Mr. W was asked whether he confirmed the recommendations in the report, the Convener of the Tribunal interrupted to ask whether Mr. W was "in a position to confirm recommendations by some other person whose experience or qualifications we don't know". Asked in a different way what, in his opinion, would be the best kind of provision for J, Mr. W answered: "Well, I affirm with what has been put down here", meaning in the report. It was quite wrong in those circumstances for the ASNT to say that it placed no weight on the report because it did not know what qualifications or expertise Ms. SW had. The ASNT was not required to approach the issue in the same way as a court of law. The process was meant to be informal. It was meant to be inquisitorial rather than adversarial. It was not good enough for the ASNT simply to sit back and then, in its decision, reject the report for this reason. If it thought this point was of importance, it should have said so and enabled the appellant to address it. Or it could have made enquiries itself. At the very least the Tribunal knew that Ms. SW was head of the nursery and might be expected to have some expertise.

(iii) submissions for the education authority

[36 ] For the education authority, Mrs Scott submitted that the acceptance or rejection of evidence and the decision as to what weight was to be attached to any particular piece of evidence was entirely within the remit of the ASNT. There was no question of law involved. Whereas a refusal to admit evidence might, in some cases, involve a question of law, a judgment as to the weight to be attached to a piece of evidence clearly did not. As to what was or was not a question of law, she referred me to passages from the ninth edition of Wade's Administrative Law.

(iv) discussion of "rejection of evidence" issue

[37 ] I have come to the conclusion that in this respect the ASNT did err in law. I fully accept that in the ordinary course a decision as to what weight to attach to a piece of evidence is a matter entirely for the tribunal. But if the tribunal makes a decision to attach no weight at all to a report, that is equivalent to refusing to admit it in evidence. It is mere sophistry to suggest that there is a distinction in this respect between, on the one hand, refusing to admit a piece of evidence and, on the other, admitting it but declining to attach any weight to it. If the objection to the report was that the author lacked any appropriate qualifications, that would be a ground for refusing to admit it. It is accepted that the correctness of such a decision could raise a question of law. The question does not cease to be one of law simply because the tribunal deals with the same objection in a different way.

[38 ] Having said that, there might be some force in Mrs. Scott's submission if the ASNT were simply presiding over an adversarial process. In formal adversarial proceedings, if one party does not lead evidence as to the qualifications of the person producing a report, it is, I suppose, open to the other to invite the court or tribunal to refuse to admit the evidence. In the modern world, I cannot conceive of a court acceding to such an invitation without at least some enquiry as to that person's qualifications; and only if it turned out that he or she had none might the court or tribunal refuse to admit the report. But a reference to the ASNT is not intended to be either formal or wholly adversarial. And, in my judgment, the role of the Tribunal is intended to be, to some extent at least, inquisitorial.

[39 ] The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 set out, as Rule 3(1) states, a procedural code

"with the overriding objective of enabling a Tribunal with the assistance of the parties to deal with references fairly and justly."

Rule 3(2) elaborates on this:

"(2) Dealing with references fairly and justly includes-

(a) dealing with the reference in ways which are proportionate to the complexity of the issues and to the resources of the parties;
(b) seeking informality and flexibility in the proceedings under these Rules;
(c) ensuring, so far as practicable, that the parties are on an equal footing procedurally and are able to participate fully in the proceedings, including assisting any party in the presentation of his or her case without advocating the course he or she should take;
(d) using a Tribunal's special expertise effectively; and
(e) avoiding delay, so far as compatible with the proper consideration of the issues."

Rule 4 gives further guidance:

"(1) A Tribunal must seek to give effect to the overriding objective when it-

(a) exercises any power under these Rules; or
(b) interprets any rule.

(2) In particular a Tribunal must manage references actively in accordance with the overriding objective."

Although other Rules are detailed, dealing with such issues as citation of witnesses and lodging of documents, they do not detract from the general principles. Indeed, the Rules are to be interpreted so as to enable the ASNT to act in accordance with the overriding objective of fairness and justice.

[40 ] The general principles governing the ASNT and references to it include the following. The ASNT is under a duty to act in accordance with the overriding objective. Accordingly it must deal with references "fairly and justly". In doing this it is entitled to expect the assistance of the parties, but they are to assist the tribunal in the performance of this duty. Any failure on their part does not relieve the ASNT of its obligation. It must seek (and encourage) informality and flexibility. It must assist parties in the presentation of their cases. It must, where necessary, take the lead. It must manage references actively. The role of the ASNT under the Rules is quite different from that of a court. Whilst it would be wrong to describe it as wholly inquisitorial in nature, the process envisaged by the Rules is very far from being simply adversarial.

[41 ] To my mind, the way in which the ASNT dealt with the question of the report from the OP Nursery was in conflict with its duty. The appellant had a lay representative helping him. If the ASNT thought that without knowing the detailed qualification of Ms. SW they could attach no weight to the report from the nursery school, the Convener should have said so and given the appellant an opportunity of dealing with it. No doubt it could easily have been remedied, by telephone or by fax or some other rapid method of communication. Or the tribunal itself could, with the agreement of the parties, have made its own enquiries. There is power to allow further witnesses to be called, either in person or by remote means. When the tribunal identified this aspect as crucial to the issue raised by the appellant, it should at least have considered whether to ask that Ms. SW give evidence.

[42 ] It follows, in my judgment, that the ASNT erred in law in the way in which it dealt with this aspect of the evidence.

[43 ] It was agreed between the parties that, if I came to this view, I should not attempt to form my own opinion, in terms of paragraph 3(1)(f)(iii) of Schedule 2 to the 2004 Act, either (a) as regards the "respective suitability" of the provision for J's additional support needs or (b) the balance to be drawn between the respective suitability of the provision and the respective cost. Rather, I should remit it to the ASNT. This is clearly right. The ASNT may on such remit come to different conclusions on both aspects. How the balance is to be struck in light of their findings is a matter for the ASNT. To some extent it has to make a value judgment. It has to decide not only the issues of "respective suitability" and "respective cost", but has to form a view as to whether, in light of its conclusions on those matters, it is not reasonable to give place J in the school which her parents wish her to attend. In other words, if it found that the RB School was more suitable but would cost the education authority significantly more, it would have to ask whether the greater suitability justified that extra cost to the education budget, having regard to the importance attached to the principle of parental choice. That is a judgment for the ASNT to make.

Disposal

[44 ] I shall therefore allow the appeal and remit the reference to be considered again by a differently constituted Additional Support Needs Tribunal. I shall reserve all questions of expenses.