Legal Interpretations

[Magrew]

In legal parlance can these phrases be interchangeable?

"pending a review"

"subject to a review"

They have been interchanged in a recent case in which I was involved. I would argue that this is a misinterpretation. Would I be correct in that argument?


I would also be interested in anyone elses experience of surprising interpretations presented by the masters of the craft of intelligent argument.

[Magrew]

Re: Legal Interpretations

I was hoping that someine would have a view on this. Can anyone help me out?

[bluebottle]

Re: Legal Interpretations

Although I am not a legal professional (I am, in fact, a retired law enforcement professional) and there are more learned LBs, to answer your question, the term "Pending A Review" can be interpreted as meaning to be awaiting a review, whilst the term "Subject to A Review" would tend to suggest something is conditional upon a review. You would be best to seek professional legal advice and I would recommend you contact your local Law Centre where you can obtain free legal advice.

[alham]

Re: Legal Interpretations

That's correct - "pending " means awaiting a certain condition to be fulfilled (i.e. review) for the outcome to definitely happen, whilst the "subject" means that something may happen if the review is agreeable.

[Celestine]

Re: Legal Interpretations

Unless the usage of the wording significantly affected the outcome of a case, I wouldn't be surprised to see these terms and their differences in interpretation being called 'de minimus' by opposing counsel.

[Magrew]

Re: Legal Interpretations

I shall set this in a fuller context and see if that makes my argument clearer.

In this instance an authority were obliged to undertake a specific action, the terms are outline below:-

"85. From the date of transfer, the co-ordinated
support plan is deemed to have been prepared by the receiving education
authority. Subject to any review they may initiate, (which they may do
immediately if they consider it necessary or expedient as a significant change
in the circumstances of the child or young person) the new education authority
are bound by the terms of the co-ordinated support plan and the plan must be
treated in the same way as any other co-ordinated support plans prepared for
children and young people in their area. Any review will be subject to the
provision in section 10 of the Act and in the Regulations."

My argument is that this paragraph states that they were required to deliver the terms (bound by the terms) of the plan until a review had been undertaken.

The opposing view is:-

"The Additional Support Needs Code of Practice makes it clear that the receiving
Education Authority adopts the CSP and takes such steps as it can to implement
it pending a review process."

To paraphrase they have interpreted that the authority are only required to deliver what they can until a review has been undertaken.

I appreciate that this is not a consumer rights issue but I think the interpretation matter is something that you guys appear very able to pass comment on. I am just trying to establish if I have a point of argument worth debating.

Your opinions have been helpful and very much appreciated. I would be very pleased if anyone was able to offer further commnet on the fuller context.

[Celestine]

Re: Legal Interpretations

My understanding and interpretation of that paragraph is absolutely in agreement with your own.

Their interpretation is flawed. If they only have to do 'what they can' till a review, that is a licence for unlimited non compliance.

The paragraph states that they must adopt the CSP until a review dictates differently?

[Magrew]

Re: Legal Interpretations

So in this context it would not be valid for the opposing counsel to call it "de minimus"?

[Celestine]

Re: Legal Interpretations

No because apart from anything else...I'm assuming this has not yet been to court. Pls correct me if wrong.

If this 'flawed' interpretation was the trigger for court, it would effectively be your cause of action, so could not be regarded as de minimus in any way.

[labman]

Re: Legal Interpretations

Hi,

Are you by any chance in Scotland?

[Magrew]

Re: Legal Interpretations

yes i am

[labman]

Re: Legal Interpretations

At what age is the transfer taking place?

[Magrew]

Re: Legal Interpretations

He was 13

[labman]

Re: Legal Interpretations

So the transfer being discussed is primary to secondary school. Did the LA seek and take account of relevant advice and information from other agencies no later than 12 months before the transfer took place? This would have involved the relevant external agencies as well as the parent and child.

I'm just trying to establish if things were done correctly prior to the transfer, as the plan may be fundamentally flawed in any case if the correct procedures were not followed.

[Magrew]

Re: Legal Interpretations

The transfer was between secondary schools and education authorities, there is no dispute over the competency of the transfer or the plan, it was simply that the receiving authority did not engage any of the defined external support in the plan (known as appropriate agencies) our son failed in light of this lack of support and they then excluded him for the responsive behaviour that was a symptom of the lack of the prescribed support.