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1
2025UT21
Ref: UTS/AP/25/0018
DECISION OF
Lady Poole
IN THE APPEAL
in the case of
A Scottish Council
Appellant
- and -
LM
Respondent
FTS Case Reference: FTS/HEC/AR/23/0203
Representation
Appellant: Paul Reid KC; Harper Macleod LLP
Respondent: Mike Dailly, Solicitor Advocate; Govan Law Centre
31 March 2025
DECISION
The Upper Tribunal for Scotland ("UTS") allows the appeal. The decision of the First-tier
Tribunal of Scotland ("FTS") dated 20 January 2025 was made in error of law. It is quashed and
re-made as follows:
"The reference to the FTS is dismissed. The FTS has no jurisdiction to determine the
reference under section 18(3)(da) of the Education (Additional Support for Learning)
(Scotland) Act 2004. The placing request was not within paragraph 2 of schedule 2 of that
Act, because the requested school was not a special school within the statutory definition
in section 29(1) of that Act".
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REASONS FOR DECISION
Summary
1. This is a case about a school placing request made by the mother of a child CM ("LM").
Where a child or young person has additional support needs, an education authority may
have a duty to comply with a placing request in respect of that person. If such a duty arises,
the education authority must place the person in the requested school, and meet the
expense of attendance there. However, the duty can only arise in relation to requested
schools within definitions set out in governing legislation. One category in the legislation
relied on in this case is a special school.
2. This case finds that, when the statutory definition of special school is properly interpreted
and applied, the requested school was not within that definition. No duty could therefore
arise to place CM there under the provisions relied on in this case. A consequence of that
finding is that the FTS did not have jurisdiction to determine the reference made to it, and
should have dismissed it. That is because the governing legislation did not give the FTS
jurisdiction unless the placing request was in relation to a special school.
3. Before making its decision in this case, the UTS read the views of CM about the placing
request provided to the FTS, both in the FTS bundle and as summarised in the FTS decision.
It was helpful knowing those views. However, it is primarily for the law makers to specify
which types of schools can be covered by a placing request. The function of the FTS and
UTS is to apply the provisions of the law as enacted, even though it is acknowledged that
the outcome of this appeal is not the one CM and LM would prefer. CM and LM may wish
to consider further what is set out in paragraph 17 below.
Background and procedural history
4. CM has a diagnosis of ADHD and autism, and has additional support needs. The appellant
education authority (the "Council") had given CM a place in a mainstream school. CM
experienced difficulties there, so LM moved CM to a small independent school ("school
B") for the start of the new academic year in 2023. LM made a request to the Council
formally to place CM at school B. The Council refused the placing request on 1 November
2023.
5. LM referred the Council's decision to the FTS on 19 December 2023. In a decision dated 20
January 2025, the FTS found it had jurisdiction by majority, overturned the decision of the
Council, and required the Council to place CM in school B immediately. The Council then
appealed to the UTS on a point of law, and permission to appeal was granted by the FTS.
3
The UTS granted an application of the Council to suspend the decision of the FTS pending
determination of the appeal, after the Council gave an undertaking that, if unsuccessful in
the appeal, it would meet the expenses of school B from the date of the FTS decision.
Because the appeal was about the education of a young person, and given the time that had
already elapsed since the placing request was made, procedure in the UTS was accelerated
by agreement. Parties provided written submissions and authorities, and an oral hearing
of the appeal was heard on 28 March 2025.
The ground of appeal and parties' submissions
6. The ground of appeal before the UTS, following additional permission granted by the UTS,
was:
"Did the tribunal err in its interpretation and application of the term "special
school", as it is defined in section 29(1) of the Education (Additional Support for
Learning) (Scotland) Act 2004 (the "2004 Act")?"
7. At the oral hearing before the UTS, the parties were in agreement that the FTS had erred in
its approach to statutory interpretation. The FTS had approached the task of statutory
construction in the wrong way, by breaking down the definition of special school into
multiple constituent parts, rather than following the approaches to statutory construction
suggested in the authorities. The question for determination in this appeal then came to be
what the correct interpretation and application of the statutory provisions were. Parties
helpfully provided a short summary of their respective positions, from which the next two
paragraphs are adapted. The UTS also took into account everything in the written and oral
submissions before it.
8. The Council argued that, applying the ordinary rules of statutory interpretation (R
(Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at paragraph 8), for a school to be
a "special school" within the meaning of the 2004 Act, it
(a) has to have as its main purpose the provision of education specifically suited to
the additional needs of its pupils ("the purpose test"); and
(b) has to select its pupils for attendance by reason of their additional needs ("the
selection test").
The Council argued that the majority in the FTS erred in finding that the purpose test was
met in respect of school B, and the minority member was correct it was not. The FTS also
erred in finding that the selection test was met; on the contrary, on the evidence accepted
by the FTS, school B did not select its pupils by reason of their additional needs.
9. LM on the other hand argued that the finding of the FTS that school B was a special school
was correct. Section 29(1) should be interpreted in relation to its ordinary use of language
and in the wider context of the definitions in section 1 and the 2004 Act generally (R222 for
Judicial Review (Appellant) (Northern Ireland) [2024] UKSC 35 at paragraph 74), and also
4
having regard to the 2004 Act's Explanatory Notes and the relevant statutory guidance.
LM further argued that the FTS had sufficient evidence before it to make findings-in-fact
that school B's "main purpose" was to provide "education specially suited to the additional
support needs of ... young persons" and that CM had been "selected for attendance" at
school B "by reason of those needs". It was submitted that the case turned on its own
unique facts and circumstances and did not give rise to any wider public policy
implications. The UTS was invited to refuse the appeal and reinstate the FTS's decision of
20 January 2025.
10. The UTS accepts that the approach of the FTS was in error of law. The FTS should have
approached the task of statutory construction by seeking to ascertain the meaning of the
words used by Parliament in the light of their context, and the purpose of the statutory
provision (JR222 for Judicial Review (Appellant) (Northern Ireland) [2024] UKSC 35 at
paragraph 73). The FTS ought to have sought to give effect to Parliament's purpose, read
the whole provision in the context of the statute as a whole, and the statute in the historical
context of the situation which led to its enactment (R (Quintavalle) v Secretary of State for
Health [2003] 2 AC 687 at paragraph 8). They should have endeavoured to give the
definition of special school its natural and ordinary meaning (Barratt Scotland Ltd v Keith
1993 SLT 142 at 157E). The task for the UTS was therefore to apply that approach to the
interpretation and application of section 29(1) of the 2004 Act.
Governing law
Relevant provisions in the 2004 Act
11. Placing requests in respect of children and young people with additional support needs are
primarily governed by the 2004 Act, and in particular schedule 2 which is given effect by
section 22. Paragraph 2 of schedule 2 sets out the types of schools where a duty may arise
to place a child or young person after a placing request. There are various types of schools
listed, such as public schools under the management of an education authority, and certain
other schools not relevant in this case. Because school B is not under an education
authority's management, LM relies on a particular part of paragraph 2(2) of schedule 2.
This makes provision for placing requests to a school
"not being a public school but being...a special school the managers of which are
willing to admit the child...".
The Explanatory Notes to the 2004 Act explain at paragraph 72 that placing requests can be
for a special school (public or independent) or a mainstream school. If the specified school
is an independent special school, in Scotland or elsewhere in the United Kingdom, the
education authority must meet the fees and other costs.
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12. The definition of special school given in section 29 of the 2004 Act is:
""special school" means
(a) a school, or
(b) any class or other unit forming part of a public school which is not itself a
special school,
the sole or main purpose of which is to provide education specially suited to the
additional support needs of children or young persons selected for attendance at
the school, class or (as the case may be) unit by reason of those needs".
The Explanatory Notes to the 2004 Act explain that the section provides a new definition
of special school, referring to provision suited to the additional support needs of children
and young persons, rather than recorded children as in the previous definition.
13. Even where a placing request is made to a school of one of the types that is specified, it can
still be refused if statutory grounds are established. These are set out in paragraph 3 of
schedule 2 to the 2004 Act. It is not in dispute in this case that no grounds of refusal existed,
and so if school B is a special school, the placing request falls to be granted.
14. Section 18(3)(da) of the 2004 Act permits references to the FTS if an education authority has
made a decision refusing a placing request, among other things, to place a child in a special
school.
15. Section 1(1) of the 2004 Act defines additional support needs as:
"A child or young person has additional support needs for the purposes of this Act
where, for whatever reason, the child or young person 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 or young person".
Additional support, under section 1(3), means:
"(a) in relation to an eligible pre-school child, a child of school age or a young person
receiving school education, provision (whether or not educational provision) which
is additional to, or otherwise different from, the educational provision made
generally for children or, as the case may be, young persons of the same age in
schools (other than special schools) under the management of the education
authority responsible for the school education of the child or young person, or in
the case where there is no such authority, the education authority,
(b) in relation to a child under school age other than an eligible pre-school child,
such provision (whether or not educational provision) as is appropriate in the
circumstances."
6
Other legislative context
16. Section 15 of the Standards in Scotland's Schools etc. Act 2000 (the "2000 Act") provides:
"(1) Where an education authority, in carrying out their duty to provide school
education to a child of school age, provide that education in a school, they shall
unless one of the circumstances mentioned in subsection (3) below arises in
relation to the child provide it in a school other than a special school. ...
(3) The circumstances are that to provide education for the child in a school other
than a special school --
(a) would not be suited to the ability or aptitude of the child;
(b) would be incompatible with the provision of efficient education for the
children with whom the child would be educated; or
(c) would result in unreasonable public expenditure being incurred which
would not ordinarily be incurred,
and it shall be presumed that those circumstances arise only exceptionally".
This is commonly known as the presumption in favour of mainstream education. The
presumption is given further effect in the 2004 Act by being a reason a duty to place a
child in a requested school may not arise; schedule 2, paragraphgraph 3(1)(g).
17. A placing request under the 2004 Act is not the only way in which a request for a pupil to
be educated in a particular school may be met by an education authority. Leaving aside
the placing provisions in respect of pupils without additional support needs in the
Education (Scotland) Act 1980 (the "1980 Act"), there are further provisions in section 49
and 50 of the 1980 Act. Section 49 confers powers on education authorities to assist pupils
to take advantage of educational facilities. Section 50 gives powers to education
authorities, among other things, to make arrangements to enable a pupil to attend an
appropriate school where
"
school education suitable to the age, ability and aptitude of any pupil can ... best
be provided for [them] at any particular school".
These are discretionary powers, but they can be used by education authorities in
appropriate cases to make available educational facilities and schools, even where no
duty to do so arises under the 2004 Act.
Statutory construction of the definition of special school
18. The starting point is the wider legislative context, before going to the terms of the
definition of special school in section 29(1) of the 2004 Act. There is a presumption in
favour of mainstream education (section 15 of the 2000 Act, given further effect in
schedule 2 paragraph 3(1)(g) of the 2004 Act). Parties agreed this was a deliberate policy
choice to further inclusion. This suggests that the majority approach in the FTS to the
7
statutory definition of special school, of treating it as "vague... purposely so to allow the
justiciary maximum discretion given the matter is dealt with in an expert jurisdiction",
cannot be correct. The context instead points towards an interpretation which respects
statutory wording, rather than one which seeks to increase education outside mainstream
education by taking an expansive approach to "special school" unsupported by the
words of the statute or facts found. Also evident from the wider legislative context is that
the 2004 Act is not the only statutory route under which an education authority may
make available education in a particular school if it is best provided there. In particular,
section 50 of the 1980 Act may be apposite where the characteristics of a pupil may
suggest school education in a particular school. Those powers are discretionary, and their
exercise is not a matter over which the FTS has jurisdiction. But their existence suggests
the overall legislative scheme is not one where it is appropriate to strain the definition of
special school in the 2004 Act (and its application) in order to achieve a result that might
be available under other powers the legislature has provided.
19. The 2004 Act, in which the definition of special school is found, has an overall purpose of
making provision for people with additional support needs in connection with school
education. It sets out provisions which are not of general application to all children, but
focus on those with additional support needs. LM's submission that the definition in
section 1 of the 2004 Act of additional support needs is wide is accepted. It is also
accepted that a wide range of factors may lead to some children and young people having
a need for additional support, and support can be provided in a number of ways and
locations. The definitions in section 1 of the 2004 Act are wide enough that over 1/3 of
children in school A, and over 1/2 of pupils in secondary schools in the Council's area, are
recorded as having additional support needs. But it does not follow from these wide
definitions that the FTS should also take an expansive approach to the interpretation and
application of a special school. Given that so many children are recorded as having
additional support needs, it has to be recognised that additional support needs can be
and often are met within mainstream education. The 2004 Act imposes obligations on
education authorities which must be met from public funds in respect of pupils with
additional support needs, and so it is appropriate to observe not only the existence of
those obligations but also their limits. The 2004 Act does not give rise to obligations in
respect of all school pupils, and its provisions apply only to pupils with additional
support needs. One particular limit Parliament chose to impose was the type of schools
to which placing requests may be made under schedule 2. Parliament could have chosen
to include independent schools as a general category, but did not. Instead, the only
independent schools which are covered in paragraph 2 of schedule 2 are those which also
fall into the listed categories, such as being a special school. The context is one in which
Parliament chose to be selective.
20. Turning to the wording of the definition of special school in section 29(1) of the 2004 Act,
the task of the FTS was to give effect to the natural and ordinary meaning of its words,
8
construed in their context. The definition of special school on its wording catches some
classes and units within public schools. This case is not concerned with that aspect of the
definition, but just the part that refers to "a school". (This is because the wording of
paragraph 2(2) of schedule 2 being relied on for the placing request in this case includes
the words "not being a public school"). So the FTS had to consider if school B was a
school "the sole or main purpose of which is to provide education specially suited to the
additional support needs of children and young persons selected for attendance at the
school...by reason of those needs".
21. The Council submitted that on the plain wording of the definition of special school in
section 29(1) of the 2004, it contains a "purpose" test and a "selection" test. It is accepted
that it is helpful to analyse the provision in that way, although the two "tests" are
interlinked and cannot be completely separated because of the way the definition is
worded. The "purpose" test is that the sole or main purpose of the school has to be to
provide education specially suited to additional support needs. And, reading the full
definition, it is not just any additional support needs, but the particular type of additional
support needs of children selected to attend it. That is because the words at the end of the
definition "by reason of those needs". This links back to the type of additional support
needs it is the purpose of the school to provide education specially suited to. The
"selection" test is that pupils have to be selected for attendance at that school by reason of
those needs being the additional support needs the purpose of the school is to provide
education specially suited to.
22. The suggestion on behalf of LM that there cannot be a "selection" test, but instead should
be a "reason" test, is rejected. The submission was that, in addition to a purpose test, a
reason test should be applied, of whether the reason for attendance was because of a
pupil's additional support needs. Consideration was given to the extracts from the
Additional support for learning: statutory guidance 2017 provided by LM, but ultimately it
was for the UTS to give effect to the wording Parliament chose to use. The problem with
LM's submission is that it fails to give effect the word "selected" which the legislature
chose to use. The word "reason" is within the section 29 definition of special school, but
it is part of the selection test, because the wording is "selected...by reason of those
needs". Despite the submissions on behalf of LM, there is no absurdity in finding that
selection refers to the decision of the school to offer a place to the child by reason of their
additional support needs. This fits in with the wording of paragraph 2(2)(a) of schedule 2
to the 2004 Act, which qualifies eligible special schools by the words "the managers of
which are willing to admit the child". It also fits with the finding of the FTS that children
were selected for attendance at school B (paragraph 94). Finally, as submitted by the
Council, although the concept of a special school existed before the 2004 Act was passed,
and was the subject of definitions in the 1980 Act, the "selection" wording was a new
introduction in the 2004 definition. It must be assumed that Parliament meant the new
wording to be given effect. Accordingly, a child may wish to go to a particular school as
9
it will fit better with their additional support needs, and that is their reason for going. But
that is not enough to meet the selection test, if the school does not select them for a place
by reason of their additional support needs, which are needs that it is the purpose of the
school to provide education specially suited to.
Application of statutory provision to the facts found by the FTS
23. The decision of the majority of the FTS that school B was a special school was surprising
given two other findings it made. The first was that school B was not on the National
Register of Special Schools. The FTS was correct that it is not a statutory requirement for
a school to be on that register before falling within the definition of special school in
section 29(1) of the 2004 Act. Nevertheless, it is likely to be a strong evidential factor as to
whether a school is a special school or not. The second was the evidence of the
headteacher of school B that she did not view it as a special school.
24. To decide if school B is a special school, both the "purpose" and the "selection" tests
discussed above must be applied. Before doing so, it is worth observing that the
"purpose" and "selection" tests are relatively easy to apply in relation to many special
schools, because they are frequently set up for a particular type of additional support
need. That is one reason why they are special. The FTS mentioned special schools for the
blind, autism spectrum disorder, and severe and complex needs. Others might be
epilepsy, deafness, or secure schools. It is clear the sole or main purpose of the school is
to provide education specially suited to the type of additional support needs it has been
set up for, and in respect of which pupils are selected for attendance. By contrast, in this
case the FTS experienced evident difficulty in applying the statutory wording to school B
so as to find it to be a special school.
25. Looking first at the "purpose" test, the majority of the FTS found that the purpose of
school B was to allow those who couldn't access education in a mainstream environment
to access the education they were entitled to (paragraph 64). Two points may be made.
First, it is unclear what the factual basis for making this finding was. The evidence of the
headteacher of school B was that school B was dedicated to supporting young people
who had struggled in school environments regardless of what they are (paragraph 67),
with no reference to mainstream. Most if not all schools take pupils who have moved
from other schools, but that does not make them a special school. Second, the use of the
word "special" suggests that the purpose of the school has to be to provide not a general
education, but something special or particular which is adapted to the needs of pupils
selected by reason of those needs. There is no finding that the sole or main purpose of
school B is to provide education specially suited to learners with ADHD and ASD such as
CM. It is a smaller school that can provide a tailored education, but it is not tailored just
to additional support needs. The basis on which the majority found school B met the
purpose test is unpersuasive. The minority on the other hand looked at the evidence of
10
how the school came into being. First there was a college from the 1980s for pupils of 16
and over, to complete English and other qualifications. The school developed so that
from 2012 it came to have a middle school for pupils from S3, often where they had
struggled in other environments. A clear finding was made on that evidence that school
B's main purpose was to support the learning of all children who required support. But
that was the purpose of all schools, so school B's sole or main purpose was not to provide
education specially suited to additional support needs. As the Council put it, school B
was a smaller school that could provide a tailored education, but it was not tailored just
to additional support needs. The minority approach is based on a factual analysis, and
appears closer to the intention of section 29(1) of special schools being those offering
education specially adapted to additional support needs of pupils selected for them by
reason of those types of needs. The minority approach to school B's purpose is to be
preferred, and school B did not satisfy the "purpose" test within section 29(1).
26. Even if that is wrong, and school B could be regarded as having a qualifying purpose,
there was no basis for the FTS to find that the "selection" test was met. There is no factual
finding that pupils at school B were selected for attendance at the school by reason of
their additional support needs (the sort of needs the sole or main purpose of school B was
to provide education specially suited to). Such a finding would have been contrary to the
evidence. It was accepted by the FTS that school B admitted learners without additional
support needs, albeit in small numbers (paragraph 69). There was also evidence that if a
prospective pupil was looking for a smaller school, they would not be rejected from
school B on the basis that they did not have additional support needs (paragraph 91). It
was accepted that school B was a school which took children without identified
additional support needs. The furthest the majority could go was to find that pupils were
selected for attendance (paragraph 94). The minority was correct, on the factual findings
made the FTS, to find that pupils were not selected by reason of additional support needs
(also paragraph 94). On that basis alone the definition of special school was not met, and
the FTS should have found it had no jurisdiction to determine the reference to it.
27. The underlying difficulty with the majority position is that their reasoning process means
many schools, including independent schools, could potentially fall within the definition
of special school, with duties then arising to place children there unless statutory reasons
in paragraph 3 of schedule 2 were made out. But the wider statutory context set out
above must be borne in mind; the presumption in favour of mainstream, the clear
intention of Parliament to restrict the types of schools to which placing requests can be
made under the 2004 Act, and the existence of alternative statutory powers in the 1980
Act which can be exercised as a matter of discretion in appropriate cases. The effect of the
majority's reasoning, albeit simplified, is that they note the features of school B which
suited CM's additional support needs (small numbers, small classes, reduced timetables,
fewer transitions, some online learning so attendance in classroom could be part time,
neutral colours and no bells giving sensory benefits, a quiet room, and others). Next they
11
note the high levels of pupils at the school with additional support needs, and two
previous placements of pupils by the Council at school B. Putting these and other factors
together, they ultimately find school B to be a special school. The problem with this
approach is that there is additional support needs provision at all schools. The minority
drew on education expertise stating that mainstream schools regularly make sensory
adjustments, adjustments to transitions, provide dedicated quiet spaces, and adapt
teacher and support staff to pupil ratio to provide support. The minority member
observed that all that was being provided in school B could be replicated in mainstream
with the exception of the class size, but that of itself was dependent on things such as
school location or subject. Further, there are also growing numbers of pupils with
additional support needs at schools, with over half of secondary pupils in the Council's
area having additional support needs. It does not follow from a school providing
significant levels of support for additional support needs, or having small class sizes, or
having high numbers of pupils with additional support needs, that a school is a special
school. Those may be features of special schools, but they are not the defining factors,
because they can be features of mainstream and independent schools too. Nor can
inferences properly be drawn from the Council having previously met fees of two pupils
at school B that school B is a special school, given the availability to the Council of other
powers under the 1980 Act. To decide whether a school is a special school or not, the
statutory definition in section 29(1) of the 2004 Act must be applied. The majority of the
FTS failed properly to do that.
Conclusion
28. The decision of the majority of the FTS was in error of law, in that it misconstrued and
misapplied section 29(1) of the 2004 Act. When that provision is properly interpreted and
applied, school B was not a special school within the statutory definition. The FTS had no
jurisdiction to determine the reference before it, because it was not within section 18(3)(da)
of the 2004 Act. Under section 47 of the Tribunals (Scotland) Act 2014 the decision of the
FTS of 20 January 2025 is quashed, and the decision remade in the terms at the start of this
decision.
Lady Poole
A party to this case who is aggrieved by this decision may seek permission to appeal to the Court of Session
on a point of law only. A party who wishes to appeal must seek permission to do so from the Upper
Tribunal within 30 days of the date on which this decision was sent to him or her. Any such request for
permission must be in writing and must (a) identify the decision of the Upper Tribunal to which it relates,
(b) identify the alleged error or errors of law in the decision and (c) state in terms of section 50(4) of the
Tribunals (Scotland) Act 2014 what important point of principle or practice would be raised or what other
compelling reason there is for allowing a further appeal to proceed.
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