This is an interesting case concerning the criteria for determining which children or young persons require a Co-ordinated Support Plan (CSP).
Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 sets out the criteria as follows:
For the purposes of this Act, a child or young person requires a plan (referred to in this Act as a “co-ordinated support plan”) for the provision of additional support if-
(a) an education authority are responsible for the school education of the child or young person,
(b) the child or young person has additional support needs arising from-
(i) one or more complex factors, or
(ii) multiple factors,
(c) those needs are likely to continue for more than a year, and
(d) those needs require significant additional support to be provided-
(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or
(ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.
Section 2(1), Education (Additional Support for Learning) (Scotland) Act 2004
The meaning of this provision, and of its four criteria, has already been the subject of much discussion. Some of the criteria are more straightforward than others.
The criterion set out in Section 2(1)(d) tends to be the one which is the hardest to pin down, and has needed the most in the way of judicial interpretation. Of particular note is the case of JT v. Stirling Council [2007] CSIH 52, which more or less settled the correct approach to deciding whether particular support(s) can be considered as “significant” or not.
This case considered the question of what the modifier “significant” applies to in the first place.
CD’s request for a CSP
CD is a pupil in a mainstream secondary school. With the assistance of an advocacy worker from the national children’s support service, My Rights, My Say, he made a formal request to his education authority (Aberdeenshire Council) to determine whether he required a CSP. The education authority decided that he did not.
There was no dispute over subsections 2(1)(a) to (c). It was accepted that these criteria were met. However, the education authority decided that 2(1)(d) did not apply. It was (more or less) accepted that the child required significant additional support from the education authority in the exercise of their education functions. The education authority, however, found that the additional support the child required from social work and health services was not significant.
This then, was at the heart of the matter. Should the Tribunal be considering whether the additional support required (across education and the other agencies) was significant? Or should it consider separately whether the additional support from education was significant and – in addition – whether the additional support from the other agency or agencies was significant. At the First-tier Tribunal (Health and Education Chamber), the first was described as being a “cumulative approach” and the latter as being a “non-cumulative approach” (although the Upper Tribunal did not adopt these terms).
At the First-tier Tribunal, a cumulative approach was adopted, and the education authority were ordered to prepare a CSP for the child. In fact, the Tribunal decided that he would be eligible for a CSP under either approach in any event. This means that the Upper Tribunal appeal which was lodged by the education authority would not have an effect of whether or not CD should have a CSP, but it would certainly have an impact on whether other children and young persons will receive such plans.
As Lady Poole (the Upper Tribunal Judge) notes: “CSPs benefit pupils for whom they are necessary, but they also place burdens on education authorities with finite resources” (pg 2, para 2).
It therefore matters, both for children and young people with additional support needs, but also for education authority finance officers, which approach is correct.
The correct approach
In the end, the decision for the Upper Tribunal was a relatively easy one.
My decision is that the FTS ought to have concluded that in order to meet the criterion in section 2(1)(d), as well as the pupil requiring significant additional support from the education authority, the pupil also had to require significant additional support either from the local authority exercising functions other than education or from one or more appropriate agencies.
Aberdeenshire Council v. CD [2023] UT 28, per Lady Poole at para 10
You can read the full decision here: Aberdeenshire Council v. CD [2023] UT 28
The Upper Tribunal was satisfied that the ordinary meaning of the words “as well as” as used in subsections 2(1)(d)(i) and (ii) was that both sets of additional support had to be significant.
This was held to be consistent with intention of the Scottish Parliament. While it was conceded that “It may be that co-ordination of services would be of assistance, even if services provided by a body external to the education authority are not ‘significant’ ..” it was held that the formal, statutory document of a CSP was intended only “for those with the most extensive co-ordination and support needs”. It was held that this approach “is likely to channel CSPs to cases where there is an increased need to co-ordinate services from different services.”
While the specific issue in this case had not been considered before, the approach adopted by the Upper Tribunal was consistent with statements made by the Inner House of the Court of Session in other cases considering questions of eligibility for a CSP. Even though the point may not have been argued, there was “a consistent assumption common to all of [the cases] which has endured since shortly after the 2004 Act came into force .. It is appropriate that this clear and consistent body of caselaw is followed, rather than the FTS taking a different approach.”
Finally, the preferred approach was consistent with the Code of Practice which, while not binding on the Upper Tribunal, would need a good reason to depart from its provisions. In the view of the Upper Tribunal “insufficient reasons are available in this particular case to depart from the relevant parts of the Code of Practice.”
Additional comments
As sometimes happens, having made the decision, the Upper Tribunal went on to make some more general comments – in this case about Co-ordinated Support Plans. The comments are extremely helpful, and so I am taking the time to summarise them here for you. As the Upper Tribunal notes: “CSPs can be of great benefit to a person with additional support needs and their families, so it is important the statutory criteria are applied properly.”
The Upper Tribunal first noted that just over 241,000 pupils in Scotland have additional support needs (approx. one third of the total pupil population). Of those pupils, only 1,401 have CSPs (i.e. around 0.2% of all pupils). It has been noted elsewhere that while the numbers of pupils with additional support need has been increasing year on year, the numbers of co-ordinated support plans, paradoxically, have been dropping year on year. (cf. “Vital support plans for pupils ‘disappearing’” The Herald, 2019)
- The Upper Tribunal notes that the wording of section 2(1)(d) is “those needs require significant additional support to be provided”. That is, what does the child or young person require – not what are they being provided with, or what has been offered. The answers to these questions may differ. As the UT notes “an approach that analyses only support that has in fact been provided, rather than what needs ‘require’, may in some cases be too narrow”. In my experience, all too often an education authority’s pro forma enquiry to appropriate agencies asks only what is being provided. This needs to change.
- The Upper Tribunal reiterates the well established approach to determining whether support is “significant” or not – it “is to be judged by reference to the need for co-ordination, with attention being paid to frequency, nature, intensity and duration of the provision of support, and the extent to which the support is necessary for achievement of educational objectives”. This is a useful restatement of the test, underlining the centrality of the need for co-ordination, and the multi-factorial nature of the test. The Upper Tribunal goes on to observe that the term significant “is not intended as an impossibly high standard”.
- The decision is clear that there should be no “cumulative approach” or summing-up of support across education and other services. However, the Upper Tribunal confirms the Code of Practice’s approach, which is to take a cumulative approach in determining whether there is significant additional support from sources external to the education authority. “The totality of support required from providers external to the education authority exercising education functions should be considered, in order to determine if it amounts to significant additional support.”
Conclusion
From a pupils’ rights point of view, the decision is a disappointing one, as the opposite decision would likely have led to a substantial increase in the numbers of pupils receiving a CSP. However, I think it is the correct decision, given the wording of the section, the Inner House authority and Code of Practice. And, in its concluding comments, the Upper Tribunal has provided some useful guidance for education authorities which, if followed, should avoid some children with additional support needs being incorrectly refused a CSP.
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