Upper Tribunal refuses mother’s appeal over tribunal jurisdiction for school transition duties

About this case:

• Citation:
  2026UT74
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Lady Carmichael

Lady Carmichael held that the tribunal’s jurisdiction under the Education (Additional Support for Learning) (Scotland) Act 2004 extended to failures concerning statutory duties relating to children ceasing school education, but did not extend to separate transition duties imposed by regulations covering changes within school education.

The appellant, RS, is the mother of a four-year-old boy with additional support needs who was attending a nursery class at a primary school and was due to begin primary education there in August 2025.

She made a reference to the First-tier Tribunal alleging that South Lanarkshire Council had failed to comply with its transition duties. Among the matters raised were that a class had not been identified for the child, professionals had therefore been unable to visit it to advise on the support and strategies he would require, and plans had not been made concerning his inclusion during break and lunch times or his personal care needs.

The First-tier Tribunal considered as a preliminary issue whether it had jurisdiction to determine an alleged failure to comply with transition duties where the transition in question was not from school into post-school provision. It concluded that it did not and dismissed the reference.

The appeal was heard by Lady Carmichael, with Mike Dailly, solicitor advocate of Govan Law Centre, appearing for the appellant and David Anderson, advocate, appearing for South Lanarkshire Council. 

Public interest in determining jurisdiction

By the time the matter reached the Upper Tribunal, the child had already started primary school and there was no longer a live dispute for which RS sought a remedy.
Lady Carmichael nevertheless considered that the jurisdictional question should be determined. She had been told that Mr Dailly was aware of other parents who had wished to bring similar references but had refrained from doing so because of the “received wisdom” that such cases could not be brought. She said: “It would be in the public interest for the point to be decided.”

The relevant transition duties were contained in two different parts of the statutory scheme. Sections 12 and 13 of the 2004 Act impose duties concerning children and young people who are expected to cease receiving school education. Separately, the Additional Support for Learning (Changes in School Education) (Scotland) Regulations 2005 impose duties where specified changes occur within school education, including where a child begins primary education. Section 18(3)(g) of the 2004 Act permits specified persons to make a reference to the First-tier Tribunal concerning a failure by an education authority to comply with its duties under sections 12(6) and 13.

For RS it was argued that the provision should be interpreted so as to provide access to the tribunal in relation to the duties created by the 2005 Regulations. She contended that the word “and” in section 18(3)(g) ought to be read as “and/or”, relying on the Human Rights Act 1998 and arguing that the First-tier Tribunal’s interpretation deprived her child of an accessible and effective remedy.

It was further submitted that the distinction disadvantaged younger children, as those transitioning within school education could not take complaints about failures of transition duties to the tribunal, and that the statutory provision should be construed consistently with Article 23 of the UN Convention on the Rights of the Child. For the council it was submitted that the argument misunderstood the First-tier Tribunal’s decision. The question was not whether both sections 12(6) and 13 had to be breached before jurisdiction arose, but whether the reference in section 18(3)(g) to duties under section 13 extended to duties created by regulations made under that section.

Plain meaning excluded wider jurisdiction

Lady Carmichael rejected the appellant’s construction of section 18(3)(g), saying that “the plain meaning of section 18(3)(g) is it confers jurisdiction on the FTS only in relation to the duties imposed on education authorities by section 12(6) and 13 of the 2004 Act.” She continued on to explain that “the appellant’s complaint is that she has been unable to refer to the FTS a failure to carry out the duties imposed on the education authority by regulations 3 and 4 of the 2005 regulations. Such a reference would require the reference to section 13 in section 18(3)(g) to be read as including duties imposed by regulations made under section 13. The plain meaning of the words selected by the legislature excludes such a reading.”

The legislative history supported that conclusion. Section 18(3)(g) had been introduced after the 2005 Regulations and, Lady Carmichael observed, Parliament could have expressly referred to duties under those regulations had it intended to confer jurisdiction over them. The explanatory notes to the amending legislation also referred to “post-school transitions”.

She further held that reading “and” as “and/or” would not assist RS. Both sections 12(6) and 13 were concerned with the point at which a child or young person was expected to cease receiving school education rather than transitions between stages of school education. 

No civil right for Article 6 purposes

Lady Carmichael went on to consider the appellant’s case under Article 6 ECHR.

Although the 2005 Regulations imposed duties on education authorities, she considered that their content did not create clearly defined and enforceable private rights. Rather, they required authorities to make a series of evaluative judgments, including deciding which agencies or people to seek information from and what arrangements would be appropriate for the child.

She stated: “It is difficult to construct from regulations 3 and 4 of the 2005 regulations a private right belonging to a parent, child or young person. Rather, the education authority is directed to carry out a number of evaluative processes.” Furthermore, she added that “the education authority is afforded a wide measure of discretion as to how to carry out the duties to gather and impart information. In order to decide what to do, they require to carry out evaluative exercises.”

Lady Carmichael concluded: “Against that background, in my opinion, the provisions do not give rise to civil rights within the autonomous Convention, meaning of that expression. Article 6 is not engaged, and the issue raised by the appellant does not fall within the ambit of Article 6.”

It was therefore unnecessary to determine whether judicial review would constitute an adequate remedy for a breach of the statutory duties or whether the difference in tribunal access between those leaving school and those moving between stages of school education amounted to age discrimination. 

UNCRC did not require proposed interpretation

Turning to the appellant’s reliance on the UNCRC, Lady Carmichael noted that the 2005 Regulations could be regarded as supporting the provision of education in a way conducive to the fullest possible social integration and individual development of a child with additional support needs, consistently with Article 23. However, she emphasised that “there is nothing in article 23 which obviously requires the construction of section 18(3)(g) for which the appellant contends”.

The appellant had also referred to General Comment 27 on children’s rights to access to justice and effective remedies. Lady Carmichael noted that the document remained a draft and that the relevant process before the UN Committee on the Rights of the Child had not been completed. It was therefore not appropriate to use it in construing Article 23.

Concluding that the First-tier Tribunal had been correct to find that it lacked jurisdiction over the reference, Lady Carmichael refused the appeal and upheld its decision.