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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> NS& Anor v. The Scottish Legal Aid Board [2007] ScotCS CSOH_116 (06 July 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_116.html Cite as: [2007] ScotCS CSOH_116, [2007] CSOH 116 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 116 |
|
P455/06 |
OPINION OF C J MACAULAY, Q.C., Sitting as a Temporary Judge in the Petition of N S and F S Petitioners; against THE SCOTTISH LEGAL AID BOARD Respondents: ญญญญญญญญญญญญญญญญญ________________ |
Petitioners: Blair;
Respondents: Mure;
The Scottish Legal Aid Board
Introduction
[1] In this petition for judicial review the
petitioners challenge the respondents' refusal to grant them legal aid. The petitioners are the parents of an
autistic child. The child was born on
[2] The
petitioners made a placing request to the education authority, South Ayrshire
Council ("the Council"), requesting the child's placement in another school
which they considered to be more appropriate to his educational needs. That request was refused by the education
committee. The petitioners appealed
against that decision to an appeal committee.
By letter dated
" (i) the specified
school is not a public school;
(ii) the authority are able to make provision for the special
educational needs of the child in a school under their management;
(iii) the authority
have offered to place the child in the school referred to in subparagraph (ii)
above, and
(2) In all the circumstances it was
appropriate to do so."
In terms of the relevant legislation the petitioners
have appealed against the education committee's decision to the Sheriff at
Legal aid application for appeal to Sheriff
[3] The
application for legal aid was received by the respondents on
[4] By
letter dated
[5] By
letter dated
[6] Subsequent
correspondence resulted in stalemate and eventually by letter dated
"Our view is
that the parent is not acting in a representative capacity in appeals in terms
of section 28(f). It is correct that the
action is about the child but the child cannot in terms of section 28(f) appeal
the refusal of placement request and the section gives that right only to the
parent. The parent is therefore the
litigant."
[7] By
letter dated
Legal Aid for
Judicial Review
[8] Subsequently
an application was made for civil legal aid to challenge the respondents'
decision to refuse legal aid by way of judicial review. The application is dated
[9] An
application for review of the refusal of legal aid was made to the Sheriff for
Lothian and Borders in terms of section 14(4) of the Legal Aid (
The petition
[10] Statement
5 of the petition is in the following terms:
"That the petitioners seek:-
(i) Declarator that the Respondents erred in law in making
their decision of 17th and 27th August and 4th
November 2004 to refuse civil legal aid;
(ii) Declarator
that the Respondents acted in breach of Article 2 of the First Protocol to the
European Convention on Human Rights and Fundamental Freedoms 1950 and thereby
breached Section 6(1) of the Human Rights Act 1998 in making their said
decision to refuse civil legal aid; and
(iii) Production and Reduction
of the said decision."
Mr Blair, counsel for the petitioners, indicated at
the outset of his submissions that he did not propose to present the human
rights argument that was foreshadowed in the petition and that he was not
insisting upon his second plea in law.
"PART I
PROVISION OF EDUCATION BY
EDUCATION AUTHORITIES
School education and further
education
1.- Duty of education authorities to secure
provision of education.
(1) Subject to subsections 1(A) and (2A) below, it shall be the
duty of every education authority to secure that there is made for their area
adequate and efficient provision of school education and further education.
(5) (d) "special educational needs", in relation
to a child or young person, are needs caused by a learning difficulty which he
has which calls for provision for special educational needs to be made for him.
...
PART II
RIGHTS AND DUTIES OF PARENTS
AND FUNCTIONS OF EDUCATION AUTHORITIES IN RELATION TO INDIVIDUAL PUPILS
General
principle
28.A Pupils to be educated in accordance with the wishes of their
parents.
(1) Where the parent of a qualifying child
makes a written request to an education authority to place his child in the
school (other than a nursery school or a nursery class in a school) specified
in the request, being a school under their management, it shall be the duty of
the authority, subject to subsections (2), (3), (3A) and (3F) below, to place
the child accordingly. Such a request so
made is referred to in this Act as a 'placing request' and the school specified
in it is referred to in this Act as the 'specified school'.........
28G.- Application of sections 28A to 28F and Schedule A1 to young
persons.
Sections 28A to
28F of this Act and Schedule A1 to this Act shall apply in relation to a young
person who is a pupil and in that application references in those sections to
the parent of a qualifying child as well as references to the qualifying child
himself shall be construed as references to the young person.......
30. Duty of
parents to provide education for their children.
(1) It shall be the duty of the parent of
every child of school age to provide efficient education for him suitable to
his age, ability and aptitude either by causing him to attend a public school
regularly or by other means........
31. School
age.
Subject to
sections 32(3) and 33(2) and (4) of this Act, a person is of school age if he
has attained the age of five years and has not attained the age of sixteen
years.........
Children requiring special education
60.- Functions of education authority in relation to children and
young persons with certain special educational needs.
(1) It shall be the duty of an education
authority to disseminate in their area information as to the importance of the
early discovery of special educational needs and as to the opportunity for
assessment available under the following provisions of this Act.
(2) An education authority -
(a) shall have
power, as regards-
(i) children in
their area who have not attained school age [and are not children in respect of
whom the authority is under a duty by virtue of subparagraph (ii) of paragraph
(b) below]; and
(ii) young persons
belonging to their area (in accordance with section 23(3) of this Act) who are
receiving school education; and
(b) shall be under
a duty, as regards children belonging to their area (in accordance with section
23(3) of this Act) who
(i) are of school age[;or]
[(ii) have not attained school age but, being at
least two years of age, have come to the attention of the authority as having,
or appearing to have, special educational needs,]
in accordance with the provisions of
section 61 of this Act, to establish which of those children or, as the case
may be, young persons have pronounced, specific or complex special educational
needs which are such as require continuing review and to open and keep a Record
of Needs of each such child or young person......
61.- Examination and assessment of children and young persons.
(7) It shall not be lawful for an education
authority to establish, under section 60 of this Act, that a young person has
pronounced, specific or complex special educational needs such as require
continuing review and to record him unless-
(a) that young
person has undergone such process of [observation and] assessment as the
authority consider necessary for the purpose of affording to them advice as to
his special educational needs and whether or not they ought to record him; and
(b) that young person or, where the
education authority are satisfied that a young person is not capable of
expressing his views for the purposes of this section, his parent has been
invited by the authority, by notice in writing, to express to the authority,
within 14 days from the date of the notice or such longer period as the notice
may specify, his views as regards the special educational needs of the young
person and the measures required to meet those needs.
63.- Appeals against decisions about recorded children or young persons.
(1) The parent of a recorded child may refer
to an appeal committee set up under section 28D of this Act......
(d) subject to
subsection (4) below, their decision refusing his placing request in respect of
the child.
(2) Where the education authority were
satisfied that a young person was not capable of expressing his views for the
purposes of section 61(7) of this Act, his parent and, in any other case, the
young person himself may refer to an appeal committee set up under section 28D
of this Act-
(c) subject to
subsection (4) below, their decision refusing a placing request in respect of
the young person.
(3) A decision of an education authority as
to nomination of a school to be attended by a recorded child or recorded young
person may be referred under subsection (1)(c) or
(2)(b) above only if the parent or, as the case may be, the young person has
made a placing request......
64.- Provisions supplementary to section 63.
(2) Subject to subsection (1) above, an
appeal committee may, on a reference made to them under section 63(1) or (2) of
this Act, confirm the education authority's decision as to nomination, for the
purposes of section 65D(2)(d) of this Act, of a school
to be attended by the child or young person to whom the reference relates or
refusing a placing request in respect of him if they are satisfied that-
(a) in relation to the placing request, one
or more of the grounds of refusal specified in section 28A(3) of this Act as it
applies to recorded children or, as the case may be, recorded young persons
exists or exist; and
(b) it is, in all
the circumstances, appropriate to do so
but otherwise shall refuse to
confirm the authority's decision and shall, where they so refuse, require the
education authority to place the child or young person in the specified school........
(10) An appeal committee shall notify their
decision under this section and the reasons for it in writing to the parent or,
as the case may be, young person who made the reference to them and to the
education authority and, where they confirm the education authority's decision
as to the nomination of a school to be attended by the child or young person or
refusing the placing request to which the reference relates, they shall inform
the parent or, as the case may be, the young person who made the reference to
them of his right of appeal to the sheriff under section 65 of this Act.
65.- Appeal to sheriff on the placing in a school of a recorded
child or young person.
(1) A parent or young person who has made a
reference to an appeal committee under section 63(1)(c)
or (d) or 2(b) or (c) of this Act may appeal to the sheriff against the
decision of the appeal committee on that reference.......
135.- Interpretation.
(1) In this Act, unless the context
otherwise requires,-
'child'
means a person who is not over school age;
'parent' includes guardian and any person who
is liable to maintain or has parental responsibilities (within the meaning of
section 1(3) of the Children (Scotland) Act 1995) in relation to, or has
care of a child or young person;.......
'pupil', where used without
qualification, means a person of any age for whom education is or is required
to be provided under this Act; and a pupil shall be deemed to be attending or
in attendance at a school if he is shown by the register of admission and
withdrawal;.......
'Record', and 'recorded' and other
cognate expressions have the same respective meanings as in section 60 of this
Act;
'school age'
shall be construed in accordance with section 31 of this Act;
'young
person' means a person over school age who has not attained the age of eighteen
years.......
SCHEDULE 2A
APPLICATION OF CERTAIN
PROVISIONS OF THIS ACT TO RECORDED CHILDREN AND YOUNG PERSONS
'28A.-
(1) Where the parent of a recorded child makes a written request
to an education authority to place his child in the school specified in the
request, being a school under their management, it shall be the duty of the
authority, subject to subsections (2) and (3) below, to place the child
accordingly; and where the parent of a recorded child makes a written request
to the education authority for the area to which the child belongs (in
accordance with section 23(3) of this Act) to place his 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) a school in England and Wales or in
Northern Ireland, the managers of which are willing to admit the child and
which is a school making provision wholly or mainly for children (or as the
case may be young persons) with pronounced, specific or complex special
educational needs;
it shall be
the duty of the authority, subject to subsections (2) and (3) below, to meet
the fees and other necessary costs of the child's attendance at the specified
school. Such a request so made is
referred to in this Act as a "placing request" and the school specified in it
is referred to in this Act as the "specified school"........
(4) An education authority shall inform a
parent in writing of their decision on his placing request and, where they
decide to refuse it, shall give him written reasons for their decision and
inform him of his right to refer it under section 63 of this Act to an appeal
committee......
4.-
(1) Sections 28A, 28B and 28D of this Act
and Schedule A1 to this Act shall, subject to the provisions of this paragraph,
apply in relation to a recorded young person as they apply in relation to a
recorded child.
(2) For the purposes of the application of
those provisions to be recorded young persons, references therein to the parent
of a recorded child as well as references to the child himself shall, subject
to sub-paragraph (3) below, be construed as references to the recorded young
person.
(3) Sub-paragraph (2) above does not apply
in a case where, for the purposes of section 61(7) of this Act, the education
authority were satisfied that the young person was not capable of expressing
his views for the purposes of that section.
5.
Sections 28C, 28E(1) to (6)
and 28F(1) and (5) to (7) of this Act shall not apply in relation to a recorded
young person (corresponding provision being made in sections 63 to 65 of this
Act)".
[12] The 1995 Act so far as relevant for
present purposes provides:
"Parental responsibilities and parental
rights
1.-(1) Subject to section 3(1)(b) and (3) of
this Act, a parent has in relation to his child the responsibility-
(a) to safeguard
and promote the child's health, development and welfare;......
(d) to act as the
child's legal representative,........
(2) 'Child'
means for the purposes of-
(a) paragraphs (a),
(b)(i), (c) and (d) of subsection (1) above, a person
under the age of sixteen years;
2.-(1) Subject to
section 3(1)(b) and (3) of this Act, a parent, in
order to enable him to fulfil his parental responsibilities in relation to his
child, has the right......
(d) to act as the
child's legal representative.
(4) The
rights mentioned in paragraphs (a) to (d) of subsection (1) above are in this
Act referred to as 'parental rights'; and a parent, or any person acting on his
behalf, shall have title to sue, or to defend, in any proceedings as respects
those rights .........
Court Orders
Court orders relating to parental responsibilities
etc.
11.-(1) In the relevant
circumstances in proceedings in the Court of Session or Sheriff Court, whether
those proceedings are or are not independent of any other action, an order may
be made under this subsection in relation to -
(a) parental responsibilities;
(b) parental rights;....."
[13] It is
also necessary to have regard to the "The Civil Legal Aid (
Interpretation
2.(1) In these
Regulations -
" 'child' means a person under the age of 16 years;
'legal
representative' means a person having parental responsibilities in relation to
a child;
'parental
responsibilities' has the meaning given in section 1(3) of the 1995 Act;
'parental
rights' has the meaning given in section 2(4) of the 1995 Act;....
Form of application
5.-(1) Subject to
regulations 6 and 18 below, an application for legal aid under section 14 of
the Act shall be-
(a) in writing, in
such form as the Board may require,
Applications on behalf of children
6.-(1) Without prejudice to any right of a child to apply under
regulation 5 above, application on behalf of a child may be made by the child's
legal representative or by any person in whose care the child is, or by a
person acting for the purposes of any proceedings as the child's tutor or
curator.
Attendance for interview and supply of information
9.-
(2) Where
an applicant for legal aid fails to comply with a requirement under paragraph
(1) above;
(a) the Board may
treat the application as having been abandoned, and where it does so it shall
give intimation of the abandonment to the applicant and any opponent;
Assessment of recourses, etc. of person making application in
representative, fiduciary, official or other capacity
14.-(1) Where the
applicant is a person who is concerned in the proceedings only in a
representative, fiduciary or official capacity or is a named person by virtue
of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment)
(Scotland) Act 2003, then for the purpose of determining that person's
disposable income and disposable capital, and the amount of any contribution
required under section 17 of the Act, the personal resources of the applicant
shall be disregarded but regard shall be had to the value of any property or
the amount of any fund out of which the applicant is entitled to be indemnified
and to the disposable income and disposable capital of any persons (including
the applicant if appropriate) who might benefit from the outcome of the
proceedings."
[15] The law
in relation to placing requests for recorded children has been changed by the
Education (Additional Support for Learning) (
Submissions
Submissions for
the petitioners
[19] In
support of his submissions Mr Blair placed some reliance on the observations
made by the Sheriff Principal A L Stewart QC in his
decision in upholding the petitioners' appeal against the refusal of legal aid
- Sinclair v The Scottish Legal Aid Board (unreported,
Submissions for the respondents
[24] Mr Mure also referred to the Standards in
[25] In
dealing with the 1995 Act Mr Mure submitted that that
Act did not amend the 1980 Act and did not affect the governing principle
enshrined in section 28 of the 1980 Act namely that it was the parents' wishes
in the case of a child that lay at the centre of the proceedings. He did not demur from the proposition that
the parental responsibilities set out in the 1995 Act included the duty to see
that a child received education but that did not detract from the underlying
principle of section 28 of the 1980 Act.
The 1995 Act provided for private law duties between the parent and
child whereas the 1980 Act was dealing with public law duties in connection
with a child's education. Mr Mure also referred to the position in
[26] In
summary, Mr Mure's position was that on a plain
reading of the 1980 Act the title to appeal against a placing request in
respect of a child rested with the parents.
In developing his submissions Mr Mure referred
to Sinclair v The Scottish Legal Aid Board, Wokoma v
Aberdeen City Council, Harvey v Tayside Regional Council (supra), R v London Borough of
Richmond, [2001] ELR 21, R v Alperton & Others [2001] ELR 359, Re Anderson [2001] NI 454, R v Leeds School Organisation Committee [2003] ELR 67, Crossan v
South Lanarkshire Council 2006 SLT 441, Sim v Argyll & Bute Council (unreported 13 September 2006, Lord Glennie) and Aberdeen
City Council v Wokoma
2002 SC 352. Mr Mure
also relied on certain passages in Wilkinson & Norrie
and in particular paragraph 8.44 at pages 254-255 and paragraphs 15.28
and 15.32 at pages 489 and 491 respectively.
The petitioners' reply
Discussion
[34] The
same point can be made under reference to the Standards in
"The question
then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in
an Act of Parliament. Account must, of
course, be taken of the fact that these components were included in the Bill
not for debate but for ease of reference.
This indicates that less weight can be attached to them than to the
parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a
rule of law to disregard them altogether.
One cannot ignore the fact that the heading and sidenotes
are included on the face of the Bill throughout its passage to the
legislature. They are there for
guidance. They provide the context for
an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are
unamendable, they ought to be open to consideration
as part of the enactment when it reaches the statute book ..."
[39] In
dealing with the 1980 Act, Mr Blair submitted that the rationale behind its
provisions was capacity. According to Mr
Blair that explained why a pupil who fell into the category of a young person
could make a placing request and why a child needed representation. However, it is to be noted that under the Age
of Legal Capacity (
"The legal
representative's role is, however, limited by its representational, protective
and administrative character, and for that reason the Court should not grant
the legal representative power to do anything that the child, if of full age
and capacity, could not do him - or herself."
The 1980 Act does not give a child the right to make a
placing request and, if that is correct, then in relation to such a request a
parent cannot act as the child's legal representative.
[43] In the
course of the submissions presented to me, a number of cases were referred to
by Counsel. In R v London Borough of
Richmond parents of a child then aged 5 expressed a preference for a place
at a particular primary school. The
chosen school was over-subscribed and their application was rejected by the
local education authority. The parents
appealed to the Appeals Committee of the local education authority but were
unsuccessful. The parents sought
judicial review of the two decisions that were made. They were unsuccessful at first instance and
also failed in their appeal to the Court of Appeal. The statutory background to that case was the
Education Act 1996 and in particular section 411 of that Act which provided
that a parent was entitled to express a preference as to the school at which he
wished his child to receive education.
Plainly the decision in that case turned on statutory provisions
different to those that are involved in this case but some observations were
made in connection with the question of representation which are
of some assistance. Kennedy LJ at page
29 when dealing with the issue of identity said:
"As to the first
issue - of identity - I am satisfied that where a parent wishes to challenge a
local education authority or an appeals committee in relation to the handling
of a parent's expression of preference as to the school at which his or her
child should attend it is the parent and not the child who should mount the
challenge. I accept that the child may
have a sufficient interest to mount the challenge, and in some exceptional
cases it may be appropriate for the child to make the application for
permission to apply for judicial review, but normally, as it seems to me, the
only reason why the application is made in the name of the child is to obtain
legal aid, and to enable the parents to protect themselves in relation to
costs. That I regard as an abuse. Our legal system works on the basis that
those who seek a remedy should expose themselves in relation to costs. If the device is used in future, permission
to apply for judicial review may well be refused on that ground."
[44] In his
judgement Ward LJ made the following observations:
"(1) Whose appeal?
The answer admits of no
argument. Section 423 of the Education
Act 1996 in dealing with 'appeal arrangements' provides:
"(i) a local
education authority shall make arrangements for enabling the parent of a child to appeal against -
(a) any decision made by or on behalf of
the authority as to the school at which education is to be provided for the
child ..." (emphasis added)
It is, therefore, the parent's
appeal, not the child's. The system is
open to abuse if the child applies for legal aid and that abuse must be
curtailed."
"In my judgement
neither are 'exceptional' within the meaning of the
judgement of Kennedy LJ. He accepted
that a child may have a sufficient interest, to which
both Mr Rawlings points to but the rationale of the judgement is that it is the
parents' legal right and its enforcement by the parents is sufficient to
protect the child's interest.
Exceptional circumstances will arise where the child's interest is not
protected by the action of the parents."
[47] I was
also referred to the decision in Re
"We respectfully
agree that the parents must as a general rule be the
parties to bring an application for judicial review to challenge the admission
decisions of school governors or the findings of appeal tribunals. Like the Court in Re JC, we do not rule out the possibility that in some cases the
children themselves may be the proper parties to bring the applications, but
there is no ground in the present case on which the appellants could be brought
within that exception. We do not propose
at this stage of the case to dismiss the appeals on the ground of standing, but
we would lay down some guidelines for future cases. Unless sufficient ground has been established
for such an exception to operate, we consider that judges ought to refuse leave
for applications for judicial review of governors' or tribunals' decisions in
relation to school admission to be brought in the names of the pupils. By the same token legal aid should be refused
when sought for such applications to be brought in pupils' names, unless
sufficient cause is shown why they and not the parents should be the
applicants."
[48] Insofar
as decisions in
[49] Mr
Blair also placed some reliance on Wokoma v Aberdeen City
Council. In that
case the mother of a child appealed to the Sheriff by way of summary
application against a decision of the education authority for
"As the party
whose appeal to the Committee had been refused, Mrs Wokoma
had a right which was clearly competent to appeal to the Sheriff. In any event, the Applicant was really
Millicent - on whose behalf the Application had been lodged and for whom the
appeal was proceeding."
It was that particular passage that Mr Blair founded
upon. However, what the Sheriff said in
that case is of little value to this case.
He was not addressed on the whole issue of title and to the extent that
he might suggest that the mother in that case was acting in a representative
capacity I would respectfully disagree with that conclusion.
[50] The
other
"There is one
observation. The pursuer in this Summary
Application sues qua curatrix
to the child. This in my respectful
opinion is not strictly correct. The
Education (
That in my opinion is a correct statement of the law
and supports the position adopted by the respondents in this case.
[51] I was
also referred to Crossan v
South Lanarkshire Council and to certain remarks made in that case by Lady
Smith. In that particular case the
father of a 13 year old boy who suffered from Downs Syndrome sought judicial
review of a decision by the local authority refusing to pay the child's fees
for after and out of school care. The
petition for judicial review in that case was not raised by the child's father
as an individual but by him in his capacity as the child's legal
representative. An issue arose as to
whether the child had an interest in the action because if he did not he would
lack the requisite title to sue. In
addressing that issue Lady Smith, having referred to R v London Borough of
Richmond and R v
"Although the
present case was presented as a claim that the respondents had failed to fulfil
their statutory duty to provide services to Declan, the real question was not
whether or not Declan could or should receive those services but who should pay
for them. The fact is that he has since
2000 and is at present receiving the benefit of the placement at the project
that his parents have chosen for him.
His interests have been and are being provided for. It seems to me that these proceedings are, in
truth, for the sole benefit of Declan's parents. It is they who have the interest in what is sought, namely that the respondents pay for Declan's after and out of school care, an alimentary
responsibility which presently and, as a matter of law, falls on them. It is difficult to resist the conclusion that
the petition has been raised in his name so as to secure legal aid funding."
She goes on to say:
"I cannot help
but share the views expressed by the Court of Appeal in the
The circumstances of that case can be distinguished
from the circumstances in this case but the observations made by Lady Smith do
underline the importance of establishing whether or not a parent is truly
acting in a representative capacity or on his own behalf. In this case, for the reasons I have already
expressed, I am satisfied that the petitioners in pursuing an appeal against
the education authority's decision in refusing their placing request are acting
on their own behalf and not in a representative capacity.