The First-tier Tribunal for Scotland (Health and Education Chamber) has overturned a local authority’s school placing request refusal in terms of section 19(4A)(b)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (2004 Act) and required Glasgow City Council (GCC) to place the child in the specified school that would meet additional support needs (ASN).
On the evidence, the tribunal found that GCC’s ground of refusal had been made out on a prima facie basis, namely, that placing the child in the specified school would make it necessary for the authority to take an additional teacher into employment (paragraph 3(1)(a)(i) of schedule 2 of the 2004 Act). However, the tribunal went on to find that it was not appropriate to refuse the placing request for the child and GCC was required to place the child in a “special school” that would meet ASN.
The tribunal accepted that on the evidence the effect of its decision would mean GCC would have to create a new full-time teaching post at the specified school that did not currently exist. In setting out its reasoning, the tribunal explained as follows:
“53. In its written submissions the respondent sets out four arguments in support of its position that it is in all the circumstances appropriate for the tribunal to confirm the decision of the respondent: (i) the significant impact on both staff and pupils at the specified school if the child was to be placed at the specified school; (ii) there would be a significant wider impact on the respondent in terms of its contractual obligations to its existing staff if the child was to be placed at the specified school; (iii) there are wider staffing issues for the respondent that will significantly impact the respondent’s ability to resolve any issues arising from the child being placed at the specified school by recruiting an additional teacher; and (iv) the current provision and professionals working with the child at the current school have been able to make progress with the child and there is a plan in place which is being monitored and reviewed to enable further progress.
54. Arguments (i) and (ii) can be dealt with briefly. These are matters that we have considered in deciding that the ground of refusal exists. We have, of course, considered them again in considering whether in all the circumstances it is appropriate to confirm the decision of the respondent. The logic of our decision that in all the circumstances it is not appropriate to confirm the decision of the respondent and, instead, to overturn the decision of the respondent and require the respondent to place the child in the specified school, is that the respondent should take an additional teacher into employment (as it says it is necessary for it to do if the child is placed in the specified school) and provide a teacher to the specified school. In that case, the concerns raised in arguments (i) and (ii) will not arise.
55. Argument (iii) is essentially a staff management and recruitment issue for the respondent. We have considered this point. We understand that the respondent, like other education authorities, is working in a challenging climate in respect of the recruitment and retention of teachers, particularly in respect of additional support needs provision. The respondent’s head of inclusion made that point clearly. That is why we have allowed the respondent until the first day of the new term after the 2026 Summer holiday to place the child in the specified school.
56. We did not understand the evidence of the respondent’s head of inclusion to be that recruiting an additional teacher to enable the respondent to allocate a teacher to the specified school was impossible. Rather, that it would be difficult and would incur significant cost.
57. The respondent’s own written submission does not claim that it is impossible”.
In relation to the child’s current mainstream school the tribunal found that: “On the basis of the written and documentary evidence before us we are not satisfied that the current school has been meeting even the child’s most basic needs, or planning to meet them. On the basis of the written and documentary evidence before us were are not satisfied that the current school has a cogent plan, or anything approaching a cogent plan, to meet the needs of the child”.
The appellant was represented by Sophie McBride, trainee solicitor at GLC’s Education Law Unit; while the respondent was represented by Claire Osborne, solicitor, Harper MacLeod LLP.
