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Education: additional support needs; whether co-ordinated support plan required.

Mrs JT as legal guardian for KT v Stirling Council Court of Session, Edinburgh Inner House, Extra Division: Lords Nimmo Smith and Kingarth and Lady Paton 21 June 2007

This case was concerned with some of the provisions of the Education (Additional Support for Learning) (Scotland) Act 2004--the 2004 Act. That Act replaced the provisions about special educational needs in the Education (Scotland) Act 1980, with effect from 14 November 2005. In particular, the 2004 Act introduced the terms 'additional support needs' (ASN) and 'co-ordinated support plan' (CSP).

The 2004 Act sets out ASN in section 1 and states that a child will have them 'where, for whatever reason, the child ... is, or is likely to be, unable without the provision of additional support to benefit from school education'. Additional support is defined as what is provided in addition to or different from general education provision. Section 2(1) sets out when a child requires a CSP to provide for his or her ASN:

* There has to be a responsible education authority (in this case, Stirling Council) (subs(1)(a)).

* The child has to have ASN as a result of '(i) one or more complex factors or (ii) multiple factors' (subs(1)(b)).

* The ASN 'are likely to continue for more than a year' (subs(1)(c)).

* And 'significant additional support' is required from the education authority or from other 'appropriate agencies' (subs (1)(d)).

Section 2(2) describes complex and multiple factors:

'(2) For the purposes of subsection (1)--

(a) a factor is a complex factor if it has or is likely to have a significant adverse effect on the school education of the child or young person;

(b) multiple factors are factors which--

(i) are not by themselves complex factors, but

(ii) taken together, have or are likely to have a significant adverse effect on the school education of the child or young person.'

The matters the court considered in this case were the circumstances when a CSP would be needed to provide additional support for a child, whether the ASN for this child were 'significant' and whether a CSP was required in this case.

The child, KT, was 12 at the time of the Appeal Court judgment and lives with her adoptive parents. KT has learning difficulties, dyscalculia and is registered blind. The application for a CSP was made by her mother, Mrs T, to the education authority (EA), Stirling Council. There was no dispute that they were the EA responsible for KT's education and she attended a primary school run by them. They refused Mrs T's application for a CSP in May 2006 and she appealed to the ASN Tribunal--the Tribunal.

In November 2006, the Tribunal confirmed the EA's decision that a CSP was not needed, as the conditions for such a plan were not met. Although KT did need speech and language therapy from another agency as opposed to the EA, the therapy would only be for a short time. The Tribunal took the view that this therapy was not 'significant additional support' as set out in section 2(1)(d) of the 2004 Act. Mrs T appealed to the Court of Session. A single judge heard the case and allowed the appeal in March 2007, remitting the case back to the Tribunal. He held that the Tribunal had been wrong to find that KT's additional support needs for therapy were not 'significant' and that this should be read as 'not insignificant'. The EA appealed against that decision to the Inner House of the Court of Session.

The Inner House granted the appeal. The Tribunal had been correct about how 'significant' in section 2(1)(d) should be interpreted. The word meant more than 'not insignificant'; it meant significance around the extent to which CSP was provided, not the effect of the ASN on the child.

The Court also discussed the Code of Practice issued under the 2004 Act, Supporting Children's Learning. The Tribunal was bound to use the Code in considering the 2004 Act provisions. The Code required the Tribunal to consider 'the frequency, nature, intensity and duration of the support, and the extent to which that support was necessary for the achievement of the educational objectives which would be included in a CSP'. If the length of support needed suggested that a CSP would be of little or no help, then the Tribunal should find that one was not necessary. That was what they had done in this case and that was correct.

The Appeal Court therefore overruled the single judge's decision. It held that the Tribunal decision should stand, namely that a CSP was not necessary for KT.

Alexandra Plumtree, Legal Consultant at BAAF's Scottish Centre, prepared these notes
COPYRIGHT 2007 British Association for Adoption & Fostering
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Title Annotation:Case in brief
Author:Plumtree, Alexandra
Publication:Adoption & Fostering
Geographic Code:4EUUS
Date:Sep 22, 2007
Previous Article:Postponement of final decision in care proceedings to be accompanied by robust and specific framework for future conduct.
Next Article:3. Report on Implementation of the UN Convention on the Rights of the Child in Scotland.

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