Autism and the good society
The educational needs of autistic children, and recent case law on the duties of an education authority in meeting those needs
It is a mark of a decent society that its laws and policies aim to provide all of its children with the opportunity to develop their talents to the highest degree possible. State provision of education is the central tool by which society furthers this aim. Good education is expensive, but its value to society as a whole far exceeds the enhancement of earning power enjoyed by those who are educated best.
The good society knows this, even if the Big Society does not. Scotland fulfils its obligations in this regard by imposing a duty on local authorities to secure adequate and efficient provision of school education (Education (Scotland) Act 1980, s 1), and to bear the costs. Now, some children are more expensive to educate than others, because they have support needs additional to those of the “normal” child. To rely on parents to meet additional educational costs would deny many children with additional needs the opportunities available to other children.
These additional costs therefore also fall to society as a whole, via the local authority: Education (Additional Support for Learning) (Scotland) Act 2004, s 4. This is so even although the Supreme Court has held that the failure of a local authority to identify and provide suitable additional educational facilities for an autistic child is not necessarily an infringement of the child’s ECHR right to education, entitling the child to damages: A v Essex County Council  1 AC 280.
However, even when suitable facilities are identified and are available, contentious litigation may follow if the parents and the local authority cannot agree that the child truly needs these facilities, or where the parents wish a more expensive provision to be made available for their child than the local authority considers appropriate. This is illustrated in two recent cases with similar factual backgrounds.
Placing requests and resources
City of Edinburgh Council v MDN  CSIH 13 arose from a placing request made by parents who wished their child to be placed at a particular residential school which they believed would better meet his needs than his current day school. The child suffered from autism spectrum disorder, with pronounced learning difficulties and highly challenging behaviour both at home and at school. The local authority had refused the placing request, preferring the much cheaper option of keeping the child at his existing day school.
The authority founded on the fact that while sched 2, para 2 to the 2004 Act obliges local authorities to give effect to placing requests and, where necessary, to meet the fees and other necessary costs of the child’s attendance at the requested school, para 3 disapplies that duty where it is not reasonable, having regard both to the respective suitability and the costs of the placement, to place the child in the requested school. In the present case, the local authority decided that it was not reasonable, taking account of the costs, to place the child in the residential school. The Additional Support Needs Tribunal for Scotland overturned that decision, and the authority appealed to the Court of Session.
The costs of the residential school that the parents preferred were around five times the costs of the day school preferred by the local authority, but it had better facilities for managing the child’s behaviour, and a range of activities more suited to his interests. The tribunal concluded that the local authority had failed to show that it was “not reasonable, having regard both to the respective suitability and the costs of the placement, to place the child in the specified school”. The local authority appealed on the basis that this seriously underplayed the cost factor and that the tribunal had assumed that suitability of provision always trumps cost, but the Inner House found that the tribunal had clearly discussed the cost implications and appropriately balanced them with their assessment that the support needs of the child were appreciably more likely to be met at the residential than at the day school. So there was no error in the tribunal’s approach.
Another ground of appeal was the allegation that the tribunal had failed to address what educational needs the child actually had that were to be met at the residential school. This ground too was rejected. The Education (Additional Support for Learning) (Scotland) Act 2009 had amended the 2004 Act to extend the definition of additional support to include non-educational support, and in the present case various non-educational provisions had been identified that the residential school could provide for the child. The court acknowledged the important point that education, particularly for children with additional support needs, requires to be looked at holistically, taking account of the structures and support mechanisms in the child’s life, for these have a profound influence on whether and to what extent educational or developmental benefit actually accrues to the child.
Educational provision and looked-after children
Another autistic child was at the centre of the English case of RO v East Riding of Yorkshire Council and Secretary of State for Education  EWCA Civ 196. After a long and bitter dispute, involving various complex court proceedings under the (English) Education Act 1996 and the Children Act 1989, the parents had been successful in having their child placed in a residential school which, though expensive, would best meet their child’s severe special educational needs (“SEN”, in the English terminology).
The respite care that the local authority had been providing while the child was at home was withdrawn as being no longer necessary, and the local authority argued that this meant the child was no longer, in terms of the 1989 Act, a looked-after child.
The significance of this was that the child would not be able to access the aftercare provisions in the Act on his attaining the age of 18. The parents sought to have his “LAC status” restored, for that purpose alone. This depended on the child being accommodated under s 20 of the Children Act 1989, but the local authority argued that the statutory authority under which they were providing him with accommodation was the Education Act 1996, and provision under that Act did not give the child “LAC status”.
This is not the first time that English local authorities have attempted to avoid their child care obligations by arguing that the child was being accommodated other than under s 20 of the 1989 Act (see R(G) v Southwark LBC  1 WLR 1299, where Baroness Hale said that councils could not “sidestep” their duties under the Children Act by labelling an issue as a housing problem rather than a child law problem). Following this in the present case, the Court of Appeal accepted that the two regimes (SEN and LAC) lie side by side and that neither takes precedence over the other; but it further held that since the child’s social and educational needs had driven the placement, it could not be said that the SEN placement supplanted rather than supported the LAC regime.
The gateway to LAC status is being accommodated and its purpose is to ensure the child’s welfare is preserved and promoted. It was impossible to see the placement at the residential school in purely educational terms since its residential nature was a response to the parents’ inability to cope with the child in social terms. So the child remained a looked-after child who, in the fullness of time, would be able to access the aftercare provisions to help him into adult life: that “is as it should and was meant to be”, said Rix LJ at para 126.
The Scottish approach
How would this play out in Scotland? Section 17(6) of the Children (Scotland) Act 1995 includes within the definition of “looked-after child”, any child who is being provided with accommodation under s 25 of that Act (the equivalent of s 20 of the 1989 Act). The local authority is obliged by s 25 to provide accommodation to a child when (a) no one has parental responsibility for the child, (b) the child has been abandoned or lost, or (c) the person who has been caring for the child is prevented from providing suitable accommodation. It is not immediately obvious that a child being accommodated in a residential school because of additional support needs comes within (c), but the policy of the English cases, to prevent local authorities being able to sidestep their responsibilities by classifying the case as one thing rather than another, is sound and ought to be followed here.
Parents may be said to be “prevented” from accommodating a child if they cannot ensure appropriate education without a residential placement away from home. So the child in City of Edinburgh is a looked-after child. This is as it should be, for it ensures equal opportunities are provided to all children as they move into adulthood, and it advances the good society.
Kenneth McK Norrie is a Professor of Law at the University of Strathclyde