Aberdeenshire Council and SS, DS [2020 UT 25]


Upper Tribunal for Scotland, Decision Notice of Lady Carmichael, 26th March 2020

The Upper Tribunal has produced written reasons for its refusal of permission to appeal a decision of the First-Tier Tribunal (FTT) at a hearing on 16th March 2020.

The appellant, Aberdeenshire Council, had refused a placing request by the respondent, SS. The FTT overturned this decision and required the Council to place the child in a school, B.

The Council sought permission to appeal the decision of the FTT.

During the case in the FTT, a case conference call was carried out. During the call, the Council sought to amend their response and add in a new ground. The new ground was that to allow the placing request would be seriously detrimental to the continuity of the child’s education (paragraph 3(1)(a)(iii) of schedule 2 of the Education (Additional Support for Learning) (Scotland) Act 2004). The relevant rule in the FTT procedure rules (rule 19.5 of the First-Tier Tribunal for Scotland Health and Education Chamber (Procedure) Regulations) allows a response to be amended only in exceptional circumstances and if permission is given by the legal member of the tribunal. The FTT had refused to allow the Council to amend their response on the basis that the information the Council was seeking to add would have been available to them when they first drafted their response. The Council had tried to argue that their solicitor had only just become involved and had picked up something which the Council had missed previously, but the FTT did not agree that this was an exceptional circumstance.

However, the FTT did state that the Council could still lead evidence on the matter, as it would potentially be relevant to the question of whether it was reasonable in all the circumstances for the FTT to uphold or overturn their refusal of the placing request.

The Council appealed the decision to refuse to allow the amendment and the decision to refuse to overturn the placing request.

However, the Upper Tier found that it was not arguable that the FTT had erred in law in applying the test that an amendment could only be made to a response in exceptional circumstances. It was argued on behalf of the Council that the exceptional circumstance was evidence that the child had issues with transitions, which the Council had not previously identified. However, the UT found that the response had been lodged by legally qualified local authority staff and the case statement for the parents had identified that the child had difficulty with change. Difficulty with change is also a frequent feature of a child with autistic spectrum disorder, which the FTT would have been aware of. Therefore, this was evidence before the FTT and it could not be said that the FTT had erred in law. Further, the FTT had considered the issue of transition and found it to be relevant to the issue of whether school B was suitable for the child. Therefore, it was not arguable that the outcome would have been any different if the serious detriment to continuity test had been applied.

The Council also argued that the FTT erred in failing to consider the provision which the child was already receiving at school B. However, the FTT stated that their decision would have been the same even if they had done so. They had carried out a thorough and detailed analysis of both schools and had found that there was a lack of provision for the child at school A. Again, therefore, the UT found that there was no arguable, material error of law.

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