DE
Reference: R 053 2014
Gender: Male
Aged: 16
Type of Reference: Placing Request
Reference
1. This Reference, made by application received on 25th June 2014 (T1-13), is made under s.18(1) and (3)(da)(ii) of the Education (Additional Support for Learning)(Scotland) Act 2004 (‘the 2004 Act’).
Decision of the Tribunal
2. The Tribunal confirms the decision of the Respondent to refuse the Appellant’s placing request, in accordance with s.19(4A)(a) of 2004 Act.
Preliminary/Procedural Matters
3. A hearing took place on 13th and 14th November 2014. Various conference calls between the Convener and the parties’ solicitors took place prior to the hearing (see Directions of 18th October 2014, 4th November 2014 and Conference Call Record of 4th November 2014, at T70-75).
4. Following the hearing, written submissions were directed in relation to the current Reference (T76) with an opportunity for comment on the submissions of the other party. These submissions, plus comments from the Appellant, were delivered by the deadline set for those (see Appellant’s submissions at T77-89 and comments on Respondent’s submissions at T101-2; Respondent’s submissions at T90-100 and Appellant’s authorities at T103-162). Thereafter, the Tribunal panel members deliberated and reached a decision. A summary decision was issued on 8th December 2014 (T163-64). The current document is the final decision with reasons. Certain documents were lodged either shortly before or during the hearing, and no objection was taken to any of these being added to the bundle; all were therefore added. The Tribunal asked for a copy of the IEP and a colour version of The young person’s timetable; both were lodged and added to the bundle (IEP at R75-86 and coloured timetable at R87, a colour version of the timetable already lodged at R47).
Summary of Evidence and Proceedings
5. The bundle consists of: pages T1-164 (Tribunal papers), pages A1-A117 (Appellant’s papers) and pages R1-R87 (Respondent’s papers). We took into account all of the information in the bundle in reaching our decision.
6. Oral evidence was led from the witnesses over two days. The evidence of Witness F was taken over the telephone, the plan was to take his evidence by video conference (see Direction of 8th October 2014) but Solicitor for the appellant agreed that it would be acceptable for his evidence to be taken by telephone. The telephone line was clear, and questioning was unhindered. the young person currently attends school A. The placing request seeks placement of the young person in school B. We note here that, rather unusually, none of the witnesses for the Respondent had met the young person (Witness B explained that he had met the young person briefly from time to time around the school, but not had a proper meeting with him). Witness D explained why Witness C gave evidence of the speech and language therapy (SLT) input for the young person, rather than Mr W who provides direct SLT input for the young person. Solicitor for the appellant, at various points in her written submission, alludes to the fact that the Respondent’s witnesses had not met the young person. By contrast, both of the Appellant’s professional witnesses had met him. We took this into account in assessing the evidence. Although we would have preferred to hear (at least to some extent) evidence from witnesses from the Respondent who have had some contact with the young person, this is not essential. We were satisfied that all of the Respondent’s witnesses had sufficient expertise and knowledge of The young person’s needs to state the views they offered. It was not suggested that their lack of direct contact with the young person materially undermined their evidence, nor could this be suggested.
7. Included in the evidence were the views of the young person himself. He attended and spoke directly to the Tribunal members, in the presence of his mother (who agreed to remain at the back of the room during The young person’s evidence, and not to intervene). We canvassed with the parties our provisional views on the appropriate procedure and it was agreed that hearing from the young person in the presence of only his mother was the best way to proceed. Following the session between the Tribunal and the young person, we fed back to the parties and their representatives the content of our questions and The young person’s answers. This would allow the parties to raise any issues which emerged from The young person’s views with any subsequent witness, or during submissions. In advance of the hearing dates, the Convener asked the parties to submit proposals as to questions for us to put to the young person. We considered these suggestions and decided on the best questions to ask the young person, given his age, ability and the pertinent issues in the case. We drew up three phrases, (each on a separate piece of paper) for the young person to use during our discussion with him, if he wished, referring to ‘like’, ‘not like’ and ‘not sure’. We did this on the basis of information from the parties and from the documents in the bundle as to how best to assist the young person to communicate. In the end, the young person communicated with us directly, and did not use these visual aids. Given the situation, following hearing from the young person, once the parties had reconvened but before the young person had left the venue, we gave mum an opportunity to indicate whether or not she felt we should put any further questions to the young person. She declined our offer.
8. We were impressed with The young person’s open approach to the questions from the Tribunal panel members designated to pose them (on the basis of their professional educational backgrounds). The main points the young person made were as follows:
(a) When asked what he likes about school A, he mentioned friends, doing things, hockey and badminton. He mentioned anon as a friend.
(b) When asked what he dislikes about school A, he responded: ‘Nothing’.
(c) When asked what people he liked at school A, he mentioned Mrs Anon (an ASDAN teacher) and Witness B (Woodwork).
(d) When asked if there was anyone he does not like at school A, he answered that he has forgotten.
(e) When asked what he likes at school B, he said playing football (although he added that he had acquired two blisters as a result).
(f) When asked if he liked the lessons in school B, he replied ‘ish’.
(g) When asked about anything he did not like at school B, he did not answer.
(h) When asked about anyone he did not like at school B, he replied ‘no-one’ but stated that he did like a boy there (another pupil).
(i) When asked if he liked the teachers at school B, he replied that he liked all of them.
(j) On break-time at school A, the young person explained that he would walk about, sometimes on his own, sometimes with other pupils.
(k) On lunchtime clubs at school A, he stated that he likes badminton.
(l) On what he does with his family, he stated that he plays badminton, walks the dog and sometimes plays games.
(m) On what he does with his grandparents, he stated that he likes playing snooker in their games room and (in a reference to his grandparents who live locally) he visits them every Thursday. On his grandparents in England, he stated that he had gone to see sand sculptures in a tent.
(n) On his sleepover at school B, he was asked if he enjoyed it and he replied ‘a small bit’, and agreed that he had a nice room. When asked if there was anything he did not like about sleeping over there, he replied: ‘no’.
9. We will comment on The young person’s views at appropriate points in assessing the evidence below.
The submissions of the parties
10. Solicitor for the respondent asked us to confirm the refusal decision, in terms of s.19(4A)(a) of the 2004 Act. He urged us to find that the ground of refusal in paragraph 3(1)(f) of Schedule 2 to the 2004 Act exists and that it is appropriate in all of the circumstances to confirm the refusal decision. His reasons and the evidence he relied upon to support these reasons, are set out in detail in his written submissions (T90-100).
11. Solicitor for the appellant urged us to find that the ground of refusal relied upon by the Respondent does not exist and that, if we find that it does, we ought to find that it is not appropriate in all of the circumstances to confirm the refusal decision. If she succeeded in these arguments, we would be obliged to overturn the refusal decision and place the young person in school B. Solicitor for the appellant’s arguments in support of her position are set out in her written submissions (T77-89 and T101-2, supported by the copy authorities produced, T103-162). It is clear from previous case law that the Respondent bears the burden of proof, and this was the basis on which we approached the analysis of the evidence.
Findings in Fact
12. The Appellant is the father of the young person, who lives with his mother and father.
13. the young person was born in 1998.
14. the young person has additional support needs (‘ASN’) as defined in s.1 of the 2004 Act. Those needs, and the additional support required to meet them, are outlined in The young person’s Coordinated Support Plan (‘CSP’) dated 3rd November 2014 (R66-74) and in his Individual Education Plan (‘IEP’) (R75-86) dated August 2014. In general terms, the young person has significant global language and communication needs, leading to difficulties in processing simple and complex language, which in turn lead to difficulties in understanding and expressing language. These difficulties impact on the delivery of education to the young person. the young person is registered disabled.
15. the young person was a pupil at the Language Unit at school C (‘the Unit’) from 2003. This Unit provided intensive support, with a teacher and speech therapist in the classroom. He was educated there for four years, although on a part-time basis only during his final year there, with the rest of his education during that year being provided at school D Primary School, (‘school D’). One of the years the young person spent at the Unit was a repeated year. the young person attended school D from August 2007 on a full-time basis until he joined school A for the start of his secondary school education in August 2011. He has attended as a pupil there since then, and is currently in S4. The young person’s language skills did improve while at the Unit, but not to a significant extent.
16. school A is a mainstream secondary school with a school roll of approximately 1000 pupils. the young person is currently in S4 and his education follows the Curriculum for Excellence. school A offers qualifications in SQA National 1-7 levels as well as a number of other award bearing courses (examples provided at R50 under ‘Qualifications’). A colour-coded timetable for the young person, at R87, sets out The young person’s regular weekly class time at school A. This timetable is accurate, except that the direct Speech and Language Therapy (‘SLT’) input, when available, is delivered for one hour per week, not two, as suggested on the timetable. the young person therefore receives regular Pupil Support Assistant (‘PSA’) input as well as 1 to 1 teacher input and direct SLT input. the young person would normally benefit from PSA support in 21 of his 32 timetabled periods (the slots coloured blue on his timetable at R87) as well as four on a 1:1 basis with the school teacher (yellow in the timetable at R87) and one with the speech and language therapist, Mr W. the young person was not provided with the timetabled direct SLT input on three occasions since the start of the current school term (26th August, 9th September and 11th November, all 2014). The young person’s educational progress at school A is generally very good, as demonstrated by his most recent Progress Report (T57-66).
17. school B is a non-maintained residential special school for pupils with specific speech, language and communication disorders. There are currently 46 pupils there. the young person visited school B from 31st March until 2nd April 2014, spending time in classes and other school activities, and resided in the school. During that period, an informal assessment process was carried out to determine The young person’s suitability to attend school B as a residential pupil. The report on that visit and assessment process is at T22-T34. Although school B does not teach the Scottish Curriculum for Excellence to any of its current pupils, it offers the English National Curriculum (‘NC’). The subjects the young person is taking currently could be taught at the appropriate NC level by school B. If the young person attended school B, he would be at neither the top or the bottom end of his class, in terms of ability. He would be in a class of six pupils (the young person and five others). school B provides access to sporting and leisure activities as well as vocational courses and local College access. school B employs six SLT staff, who provide dedicated input for the pupils at the school. This input is at three levels: target setting; assistance to the class group and individual assistance. If the young person attended school B a speech an SLT staff member would be present in his classes for around 50% of his class time. school B also employs three Occupational Therapists (OTs) and two assistant OTs. They also provide assistance at the three levels mentioned above.
18. The budgeted running costs of educating the young person at school A is £9,000 for session 2014-15. This sum is calculated by taking the running costs of the school and dividing that sum by the number of pupils being educated there. The current annual fees for The young person’s attendance at school B would be £46,506 per year. If the young person attended school B, he would be transported home and back to school at the end/beginning of each term. If the young person attended school B, he would spend the quarter term holidays with his grandparents in England, and would not be travelling home on these holidays. In addition, if the young person attended school B, his parents/grandparents would travel with the young person to and from school (as far as/from the mainland ferry), at no cost to the Respondent. The only transport costs the Respondent would incur if the young person attended school B would be £450 per year, to cover the cost of an escort to take the young person from the school to the ferry at the start of holidays and back from the ferry to the school at the end of holidays. The total annual cost of The young person’s attendance at school B would, therefore, be £46,956 (fees plus transport costs). If the young person attended school B his Disability Living Allowance payments would be reduced by £862 per year.
Reasons for Decision
19. We should note here that we accepted the evidence of all of the witnesses as being credible and reliable. This was not a case where any of the central facts were disputed; our decision involved an interpretation of the relevant facts and circumstances.
(a) The placing request refusal ground (2004 Act, Schedule 2, paragraph 3(1)(f))
20. This ground contains a number of constituent parts, numbered in paragraphs (i)-(iv). The Respondent must satisfy us that each of the paragraphs apply, in order that we may be persuaded that the ground of refusal exists. We are persuaded that this ground of refusal has been established. We will deal with of the four constituent parts of this ground in turn.
Paragraph 3(1)(f)(i)
21. This paragraph requires that the specified school (school B) is not a public school. We are satisfied that this is the case, and this was not disputed.
Paragraph 3(1)(f)(ii)
22. This paragraph requires that the Respondent is able to make provision for The young person’s additional support needs in a school other than the specified school. In this case, that other school is school A. We are satisfied that school A can make such provision.
23. The application of this paragraph is disputed. The Respondent’s submissions on this paragraph can be found at T90-96. The Appellant’s arguments are set out in pages 2-8 of Solicitor for the appellant’s written submissions (T78-84), as well as, insofar as relevant, the content in her response to the Respondent’s submissions (T101-102).
24. The first point to note is that there was no skilled evidence to the effect that school A could not meet the needs of the young person. Indeed, the skilled evidence which does exist is to the contrary effect. No major concerns were identified in the evidence of Witness B (Deputy-Head at school A, and a very experienced teacher); Witness A (educational psychologist who has completed a detailed appraisal of The young person’s education at school A – R48-56 and see her report at R59-61) or Witness C (an experienced SLT and lead SLT professional for the Respondent – see her report at R62-63 and her jointly signed letter at R58). Each of these witnesses gave clear evidence of the suitability of school A for the young person. Neither Witness A nor Witness C departed from their written evidence under questioning.
25. Secondly, we note that the young person is doing very well overall at school A. By the end of academic session 2013-14, it was reported that he was performing to an ‘Excellent’ or ‘Good’ standard across all of his Curriculum for Excellence subject areas (each measured against ‘Effort’ ‘Behaviour’ and ‘Homework’ – see The young person’s S3 Progress Report at T57-66, although for some subjects there was no entry against ‘Homework’). Indeed, of the twenty-three grades recorded there, only five are recorded as ‘Good’, the remaining entries are ‘Excellent’. We note also that the young person is currently working towards a National Certificate at a number of levels, some at the higher end (the highest being National 5).
26. Thirdly, while it is fair to note that certain concerns have arisen around school A’s provision for The young person’s needs (and these were articulated very clearly by mum in her oral evidence) in our view, taken together, they do not persuade us that school A is unable to meet the additional support needs of the young person. These concerns are discussed by Solicitor for the appellant in her written submission at T78-84. We will comment on each of the broad concerns raised. In general terms, Solicitor for the appellant argues that school A does not have the specialist experience to provide properly for The young person’s needs. She refers to a ‘lack of knowledge and experience within school A which has impacted negatively on [The young person’s] learning’ (T79). To evidence this assertion, a number of specific concerns are mentioned:
(1) One such concern is homework. We agree that there appears to be a problem around the suitability of some of the homework tasks the young person is set. Solicitor for the appellant referred to mum’s evidence on a Divorce poem (A101). The evidence suggests that this piece of homework was not appropriately presented for The young person’s completion, and that, given the evidence of The young person’s difficulties, it seems to us that he would struggle with the abstract understanding that would be required to complete a homework task relative to that poem (we are assuming here that the notations on that poem are for The young person’s use, although the evidence about this is not clear). There are other indications that homework is a problem for the young person (see his most recent Progress Report at T60 and T64, the entries for Religious and Moral Education and Science and the Environment, respectively). While these concerns exist, we note that the young person still secures a ‘Good’ or ‘Excellent’ for homework across all subjects where there is a grade for Homework in his Progress Report for session 2013-14 (T57-66).
(2) Solicitor for the appellant also relies on the content of a Music Technology Guide (A102) which was sent home to The young person’s parents for comment. There is evidence from Witness A to the effect that some of the terminology would be difficult for the young person to understand. However, as Solicitor for the appellant notes, Witness B indicated that support would be provided to the young person to understand the document, and that it could be differentiated further. Nonetheless, we agree that this example highlights a probable issue with the extent to which written material needs to be differentiated for the young person.
(3) Solicitor for the appellant refers to some e-mail correspondence between teaching staff which suggests that the young person is struggling in some aspects of his school work. We note the contents of the e-mail exchanges at A56-60. These demonstrate concern over The young person’s understanding in Maths (A56, A58 and A59) and in mainstream generally (A57). However, in our view, consideration of e-mails in isolation is not a reliable way to measure how the young person is progressing at school. It is clear that across all subject areas, the young person is assessed as progressing very well (see paragraph 25, above). In addition, even taking these e-mails in isolation, they do not present a picture of a child who is struggling. In the context of maths, the teacher expresses hope that the young person can regain his ‘confidence and enjoyment’ that he had until recently prior to that e-mail (see A59). We note that the author of the e-mails about The young person’s Maths progress rates him as ‘Excellent’ across all three benchmarks in his Progress Report (see T59). That report identifies a need to participate more and to ask for help more, but overall is very positive. We note that the recommendation of National Certificate at level 3 or 4 recorded there is in line with the level at which he should perform in some other subjects (for example Music – 4 (T63) and Science in the Environment – 4 (T64)). Further, what the e-mail exchanges do demonstrate to us is that the school A staff are prepared to communicate about The young person’s needs in the class, and to seek to resolve them. That is a positive aspect of school A’s work with the young person.
(4) Solicitor for the appellant refers to mum’s efforts to produce a chart for the young person to assist with his arithmetic, and that this was simply laminated and passed around. However, we refer to our comments above on looking at the wider achievement of the young person, as well as overall achievement in subjects such as Maths. Having said that, we accept that this incident does demonstrate that further dialogue between the parents and school A staff, and a sharing of ideas, would be of assistance to the young person.
(5) Solicitor for the appellant refers to Religious, Moral and Philosophical Studies (RMPS) as a problem subject (T80). There was some evidence from mum and from The young person’s latest Progress Report that suggests that the young person does not ask for help when difficulties arise and that homework could be done better (T60). There is also evidence in e-mail correspondence of problems in this subject (A50). Witness B conceded that differentiation could be better in this subject. We accept that the evidence suggests that more could have been done for the young person in this subject (the young person no longer takes RMPS at school A).
(6) Solicitor for the appellant makes some negative comments about the timing of the preparation of the IEP and the CSP (T80-81). We need to be mindful of our task. We are not conducting a wholesale review of all of the actions of the Respondent. We note that an IEP and a CSP are now in place. We refer to our comments above on The young person’s progress during academic session 2013-14 (paragraph 25, above) which took place in the absence of either an IEP or CSP. These documents are, of course, very important, but their absence in circumstances where they should be in place (even if we accept that this is the case here) is not necessarily evidence of lack of educational provision (although in another case, it might be). We take the criticisms here into account, but they are of limited impact on the decision we have to make.
(7) Solicitor for the appellant moves onto the SLT provision for the young person (T81-82). She notes that there was a re-referral leading to a re-starting of SLT input in May 2013, and that direct SLT input (one scheduled hour per week, see paragraph 16 above) started from August 2014. She argues that there has been little SLT support provided by way of strategies for teaching staff until the current academic term. It does appear that there was a lull in the provision of direct SLT support for the young person which ended with the re-referral in May 2013. This is against a background of intensive support early in The young person’s schooling (at the Unit – see paragraph 15 above) with further support during The young person’s primary education. However, there are two counterbalancing considerations. The first is that the young person has been performing well at school (see paragraph 25 above). The second is the view stated by Witness C, a very experienced SLT professional. Her view (expressed clearly both in writing - R58 and R62-63 – as well as in her oral evidence) is that given The young person’s age, he is unlikely to make significant gains in his speech, language or communication (see R62, third paragraph). Mr W, SLT, agrees with this view (R58). Further, both Mr W and Witness C concur in the view that despite previous intensive SLT input (a reference to the period the young person spent in the Unit), the gap between the young person and his peers has continued to increase significantly (R58). There is evidence to suggest that previous SLT input was beneficial to the young person (see Initial Assessment Report, A9-11; Summary of Assessment, A12-13; Minutes of Annual Review Meeting, A15; SLT Reports, A16-17, A27-28), but this evidence is not recent, and the current professional SLT evidence available to us is as noted above. However, it is clear from Witness C’s evidence that the young person did not make significant progress over that period compared with what would have been expected (the usual period attending the Unit before being back in mainstream education full time being two years, not four – R62, first paragraph). The remaining source of SLT evidence available to us is the assessment carried out at school B. The SLT part of the report is at T23-28. However, this assessment is aimed at exploring the suitability of school B for the young person, and does not assist in considering school A. Witness C was asked which of the provisions the young person would receive at school B (listed by the Appellant at T11, 1-10, 1-7 being the main SLT provisions) that school A could not meet and she referred to only one, namely provision 7, since she doubted whether work on idiomatic and inferred language would be fruitful for the young person.
(8) Before concluding on this part of the ground of refusal, Solicitor for the appellant summarises the main parts of the evidence of Witness E (‘Witness E’). It is clear that he is a very experienced Support for Learning teacher, having held Principal teacher posts (from 1986 -1994) before taking up a Head of Department post at College in 1994. Following his retiral from this post in 2008, he has continued working in the college as their educational psychologist. He has extensive academic and practical experience in the field of dyslexia (see his biography at A115-116). He gave oral evidence for the Appellant, in line with his report (A86-99). It is true to say that Witness E (unlike any of the Respondent’s witnesses) met the young person and carried out general enquiries about the provision in school A (as well as school B), leading to a comprehensive and well-written report. However, at this stage, his report is of limited significance; the report (and his oral evidence) concentrate mainly on a comparison between the two schools, which of course is relevant to the respective suitability question (see below). On school A, and whether it can meet The young person’s needs, although Witness E does not comment on this specifically, he does appear to be positive about the provision there, at least in the context of a mainstream environment. He states:
“The documents provided for this assessment by the school and the local authority are coherent, thorough and very professional, and convey a strong impression of the school and staff doing all they possibly can with the resources and structures available to them in meeting a level of language need they have not encountered until now. They reflect too the care and concern on the part of the school staff to find the right balance between challenging [the young person] while at the same time assuring his emotional welfare.” (A87, paragraph 5).
“[The young person’s] S4 timetable is differentiated and modified.” (A92, first paragraph).
“[The young person’s timetable at school A] is clearly a timetable that offers a high degree of differentiation and support, and allows [the young person] scope to develop his practical skills to a relatively high level while keeping other academic demands at a level that seem appropriate and achievable.” (A92, second paragraph).
“It is difficult to see how a mainstream school could provide a better differentiated and supported curriculum than that planned for [the young person] at school A in S4 and beyond. But it is not an intensively language-focussed curriculum.” (A93, final paragraph).
In addition, in his oral evidence, Witness E stated that, in his view, the IEP at school A is ‘excellent’ and that school A is meeting The young person’s needs as best it possibly can.
(9) Solicitor for the appellant refers to friendships for the young person at school A. It is clear that the young person does not have any substantial friendships with those in his year group. On the other hand, Witness B referred to seeing the young person in a group of pupils in the school, although not necessarily being the centre of attention. mum gave evidence of two older children who spend some time with the young person. The impression we have from the evidence (including from the young person himself) is that he is a quiet child who does find it difficult to mix with his peers. However, we can only apply limited weight to this evidence; there is no concrete evidence that the young person is unhappy with his relationships at school or that lack of peer friendships is detrimentally affecting his educational progress. Further, Witness C stated that the young person will have difficulty making ‘real friends’ wherever he is educated.
27. It is true (as Solicitor for the appellant observes) that Witness E (along with mum) suggests that remaining in school A implies accepting the barriers that The young person’s ASNs present, but Witness E’s view on this matter is heavily caveated, and is, in fact, based on assumptions which are contradicted in other evidence. We deal with this in more detail below, and refer to the discussion there insofar as it is relevant here.
28. Solicitor for the appellant seems to suggest that the Appellant’s placing request has acted as a catalyst for an improvement in school A’s approach to meeting The young person’s needs. If that is the case, then this is only of limited relevance to the questions we need to consider. Of course, improvements in provision for a child should not depend on any pressure applied by the making of a placing request, but what we have to consider is whether or not school A is able, today, to provide for The young person’s needs. How they have come to be in the position of being able to do so is not a question we are tasked with answering. Further, Solicitor for the appellant stresses her client’s loss of confidence in school A’s ability to meet The young person’s needs. That is a relevant factor to consider, since that lack of confidence could be an indicator of lack of ability on the part of the Respondent. However, while we understand the reasons for such a lack of confidence (and there is no doubt that those concerns are real and genuine), and while the provision at school A is not perfect, we have to take a view on all of the evidence; a lack of parental confidence is one factor (albeit one to be examined with care).
29. Solicitor for the appellant concludes by suggesting that school A represents a ceiling to The young person’s potential. We disagree. In our view, taking all of the evidence together (including the evidence of the Appellant and Witness E), school A can (and indeed is) meeting The young person’s needs. This is evidenced by the assessments of Witness A, Witness C, Mr W and, to an extent, Witness E. In addition, there is evidence of good progress across all subject areas in The young person’s most recent annual Progress Report. The content of the IEP and CSP were not criticised, and present a clear picture of intended future input. We have, of course, considered the concerns listed above, but weighing these against the strong professional evidence, we conclude that this part of the ground of refusal has been established.
Paragraph 3(1)(f)(iii)
30. The application of the condition in this paragraph is disputed. This paragraph requires us to have regard to both the suitability and cost of the provision for The young person’s additional support needs at school A and school B respectively. Having carried out these comparison exercises, in order for this paragraph to apply, we must conclude that it is not reasonable to place the young person in school B. It is clear that we must have regard to both cost and suitability, and in considering both, to reach a decision on the reasonableness of placing the young person in school B. In other words, this ground does not require us to consider cost and suitability separately and apply a reasonableness test to each. If Parliament had intended each factor (suitability and cost) to be judged separately against a reasonableness test with the result that reasonableness requires to exist on both before the condition is satisfied, each factor would be contained in a separate paragraph within 3(1)(f). Further, this interpretation, as well as being clear from the words and structure adopted, is sensible. It would be absurd if the way in which this paragraph is interpreted could mean that a child must be placed in an affordable but completely unsuitable school. The reasonableness question must be viewed from the Respondent’s standpoint, and this approach was confirmed by Sheriff Tierney in the case M v Aberdeenshire Council 2008 SLT (Sh Ct) 126, where he says at paragraph 54:
“The matter in respect of which a decision on reasonableness is required is the placement of the child in the specified school. That placement would be made by the…education authority and accordingly it seems to me that the question is whether it would not be reasonable for the education authority to place the child in that school, not whether it would be reasonable for the parent to seek to have him so placed. The two factors which have to be taken into account are suitability and cost. It seems to me that suitability involves an assessment of the respective qualities of the provisions from which [the child] will benefit in each of the two schools. The respective costs, on the other hand, are the costs in respect of each of the two schools which the local authority will bear.”
We agree that this is the correct approach.
Respective suitability
31. Returning to Sheriff Tierney’s comments on respective suitability (which we adopt), we must embark on “an assessment of the respective qualities of the provisions from which [the child] will benefit in each of the two schools”.
32. This exercise involves a direct comparison of the respective qualities as they relate to the young person, and on the evidence available. It seems to us that this comparison exercise might involve a comparison between two schools, both of which could adequately meet the needs of the child in question; the comparison need not be between an unsuitable school and a suitable one. In our view, this is the situation in this case: it is clear to us from the evidence that both school A and school B would be able to meet The young person’s additional support needs.
33. Solicitor for the appellant, in her written submission, summarises the main positive points from the evidence about the proposed provision for the young person at school B (see T84-87). She also relies on parts of Witness E’s evidence as well as the evidence of mum. Witness F gave his evidence in a very measured, professional manner. As Principal of school B school, he is ideally placed to give evidence about the provision there, and he is a very experienced teacher (see his Biography at A117). He demonstrated a very good awareness of The young person’s needs and was able to confidently answer questions about how those could be met at school B. His evidence was supplemented by a detailed report following The young person’s stay at school B (T21-34). We need not address all of the points made there and in Witness F’s evidence and Solicitor for the appellant’s summary of the main points in favour of school B; we are satisfied that school B could meet the needs of the young person if he were placed there. We are also satisfied that the educational resources at school B, as far as they are relevant to the young person, are more significant than those available at school A. In particular, we note, from Witness F’s evidence, that the SLT input would be considerable (there would be direct support in class from a qualified SLT for around 50% of The young person’s class time). We also accept that the young person would be taught in an appropriate peer group, with access to good extra-curricular activities and life skills education and assistance. He would also be provided with an appropriate, differentiated educational curriculum.
34. Solicitor for the appellant relies on the evidence of Witness E. Again, he gave his evidence in a very measured and professional manner. He is the only witness who, having assessed the young person directly, proceeds to offer a comparison of the suitability of the two schools. He visited school A and school B for the purposes of assessing their suitability for the young person. His report (A86-94) is detailed and illuminating. For these reasons, Witness E’s evidence deserves particular attention. Although Witness E gave his oral evidence confidently, he did not, as far as we could tell, deviate from the views expressed in his written report. We turn to consider that report. What is striking is the persistent and clear use of caveats. We do not mean this as a criticism; on the contrary, the fact that these caveats are attached is part of the reason for according Witness E significant credibility and reliability. However, the caveats seriously undermine the weight we can give to his evidence, especially when combined with other evidence we heard.
35. On those caveats, Witness E attaches a number of these to the assessment instruments used for his assessment of the young person; after listing them, he states:
“It has to be remembered that these tests are, at best, very approximate indicators – they do not ‘measure’ in any precise way, only sample certain skills within fairly loosely defined areas. Nor are they as stable over time as once was thought – structural changes in the brain may occur, so that skills and attainments may change over the years to some degree.
It has also to be remembered that these tests do not measure perhaps the most important factors in trying to understand an individual – those of emotional intelligence and interpersonal competence. Social and emotional competence is often considered to be a far more important predictor of subsequent success than are the academic skills measured by these tests.” (A89, third and fourth paragraphs).
36. Witness E later refers back to these caveats:
“The caveat on page 4 above is important: that it has to be remembered that these tests are not as objective as they appear, and that they are, at best, very approximate indicators.” (A93, paragraph 5, emphasis by the author).
He goes on to refer back to some of the specific limitations discussed earlier, and quoted above.
37. We cannot avoid concluding, based on these comments alone, that the results of Witness E’s tests carry little evidential weight. They are described as ‘very approximate indicators’ which do not measure in ‘any precise way’. They are not stable over time, and they leave out the most important predictive factors. Given these uncertainties, in our view, it would be unsafe to place considerable weight upon Witness E’s conclusions derived, at least in part (and, naturally, in large part) on the results of such tests.
38. Even if we ignore these caveats, Witness E adds further caveats, this time to his conclusion. Witness E suggests that placing the young person at school B might lead to his language and communication difficulties being seen as a barrier which needs to be addressed rather than as a ceiling (the suggestion being that the latter is how they are viewed at school A). He explains the issue in his report (A93, penultimate and final paragraphs) and in the final paragraph of his report, he concludes that placement at school B is recommended for the young person. However, in between those two parts of his report, Witness E states:
“If such underlying linguistic gains can be made [by the young person] then it is likely that they would clearly outweigh the disadvantages inherent in moving to such a distant community, so far from his own.” (A94, 2nd paragraph, emphasis by the author).
39. In our view, Witness E is accepting here that he cannot tell, with any degree of certainty, whether the placement of the young person at school B will lead to ‘significant improvement in his underlying linguistic competencies’. We note here, as pointed out by Solicitor for the appellant in her responses to the Respondent’s submissions (at T101-102, paragraph 5) that Witness E does compare school B with school A favourably, but we need to consider the context in which he gave his evidence. During his oral evidence, Witness E accepted that, when considering the opinions of educational psychologists and speech and language therapists on a child with The young person’s difficulties, the more reliable opinions are those of speech and language therapists. We refer back here to the evidence of Witness C (noted above) and in particular to her conclusion (shared by Mr W) that significant gains for the young person in his speech, language and communication are not expected (see R58). In our view, the evidence of Witness C and Mr W on this point is preferable. There are a number of reasons. Firstly, as Witness E accepts, the views of speech and language therapists are more reliable on this question than the view of educational psychologists. We should add here that we are not suggesting that the views of educational psychologists are to be ignored on this point. However, when placing the views of these two disciplines side by side, we feel that we should place more weight on the view of the speech and language therapists here (and both therapists are of the same view). Secondly, Witness E’s caveat in the conclusion of his report undermines the strength of his conclusion, particularly since at the heart of that caveat is the question of whether significant linguistic gains could be made if the young person were at school B (the very question on which Witness C and Mr W harbour doubts). Thirdly, Witness E’s caveats expressed at A89 (and repeated later in his report) weaken the strength of his conclusions.
40. Solicitor for the appellant points to Witness F’s evidence suggesting that linguistic gains could be made by children with certain difficulties (see her summary of his evidence in this area at T84, final paragraph - T85). However, the views of Witness F were based on examples of other children, while those of Witness C and Mr W were based on the difficulties of the young person and his needs. It is trite to say that each child is different, and, all else being equal, we prefer an assessment of predictive linguistic skills based on the child in question. In addition, Witness F is not a speech and language therapist and for this reason, we prefer the views of Witness C and Mr W on this point. On Witness F’s evidence of research referred to by Solicitor for the appellant near the foot of T84-85 (a presentation in which school B was involved), the research was not made available to us, nor was it put to any other witness for comment. We are not able to conclude, then, whether any value should be placed on this evidence. Even if we were, it is research relating to other children. We should add that we are not suggesting that evidence of the abilities of other children with similar difficulties to the young person is of no value; much will depend on the extent and nature of the evidence, and whether it can be fairly applied to the young person. When viewed in comparison with professional advice based on The young person’s needs and difficulties, however, such evidence is necessarily more limited in value.
41. For these reasons, we accept the evidence of Witness C and Mr W and we take the view that if the young person were placed at school B, significant gains in his speech, language and communication would not be expected.
42. On one view, it could be said that since there is a chance that the young person could gain additional benefit from attending school B than is available at school A, he should be placed there. However, this brings us to consider one other important factor. Placing the young person at school B would necessitate his attendance there on a residential basis, since the school is far from his current home. mum indicated that he would be escorted to the ferry on the mainland by his parents, and picked up by them from the ferry, again on the mainland. school B staff would escort him to and from the ferry on the island. The plan would be for the young person to return home at the end of each term, and during the quarter terms he would live with his grandparents who reside in Southampton, much closer to School B than School A. This would mean that he would only be making the long trip home and back again at the end of each term. mum gave evidence that she was not overly concerned about the possible impact on the young person of attending a school far away from home, and felt that he would fit in well there. While we accept that The young person’s parents are responsible and clearly want the best for him; and while we accept, of course, that they know the young person better than anyone, we do have some concerns over the potential negative impact on the young person of attending school B. These are concerns that are evidenced by some of the professionals. Witness E, as noted above, referred to the ‘disadvantages inherent in moving to such a distant community, so far from his own’. Witness A, an educational psychologist with the Respondent, in providing her views, does so against the background of having carried out a detailed Placement Options Appraisal (R48-55) in which she comments on both school A and school B across a number of variables (14, in total). Included in her assessment are the views of the parents and of the young person, as well as some background information on the young person. Witness A also prepared a report for the Tribunal (R59-61). In her oral evidence, she generally confirmed the views expressed in these documents. Witness A notes how the young person engages in current activities within his community (R51 under ‘school A’ against the variable ‘Community linkages and relationships’). In coming to a view in favour of the young person remaining at school A, she states:
“[the young person attending school B] would mean [the young person] would live away from the supportive family environment in which he currently resides and which seems to benefit him greatly and prevent him from the opportunity to develop links and gain experience in the place that it is likely he will live as an adult.” (R61, final paragraph).
43. We note here the views expressed by mum and Witness F around the likelihood of the young person settling into school B (summarised by solicitor for the appellant at T86, 3rd and 4th paragraphs). There is evidence that the young person coped well during his assessment stay there, and this is positive, but we are not convinced that this is indicative of how the young person would fare if placed in the school. A relatively short visit for assessment purposes is not the same as attendance at a school as a pupil for much longer blocks of time. While Witness F indicated that he knew of only one boy in the last three years who could not cope with residential education, this does not inform us of the general happiness of the children there; a child might cope in such an environment while being unhappy. In any event, our concern is over the risk of a negative influence on the young person; no one can be sure about what would happen in reality. We note here also the evidence of mum (summarised by Solicitor for the appellant in her response to the Respondent’s submissions at T102, final paragraph) to the effect that mum had consulted with Skills Development Scotland on the ease of transition and that the young person would still be a part of the local community during holiday periods. However, we are of the view that this confidence in the low risk of any impact of a move on the young person is misplaced; the professional view is that there is a risk attached, and we have to consider the evidence that the young person is a quiet boy, who has not found it easy to form peer friendships even after three years in the familiar environment at school A. For these reasons, we are not convinced that the confidence in the likelihood of the young person settling in well at school B is merited.
44. Taking the evidence of Witness E and Witness A together on this point (while giving limited weight to Witness F’s assurances) we can conclude with confidence that there would be a risk associated with the young person attending school B; that risk would be of removal from a familiar and supportive family unit for significant periods of the school year. While we accept that the young person may find a new supportive relationship in school B, there is a real risk that this may not happen. This is a risk we must consider in weighing respective suitability.
45. In addition, we note that transition planning from school to further education or work is being undertaken for the young person – see the summary of these by Witness A in her Placement Options Appraisal at R51, under ‘Transition’ in the ‘school A’ column. We also refer to The young person’s CSP, R70, the second of the Educational Objectives listed on that page (and over onto R71). While there is evidence that a transition process would be followed at school B (see Witness A’s equivalent commentary for that school at R51) it seems to us relevant to take into account the fact that the current transition plan would be cessated, with the need to start a new one, if the young person attended school B.
46. Another factor in the respective suitability exercise is the views of the child. We are fully aware of the evidence that suggests that the young person is eager to please, and that his expression of views should be regarded with care, given this and his language and communication difficulties. Having said this, we gained the impression in our meeting with the young person that he was trying his best to answer the questions and that his answers were genuine. It is also relevant to note that The young person’s views were taken before the hearing, and recorded in Witness A’s Placement Options Appraisal at R54-55. The young person’s views were taken by Mr W, speech and language therapist (R54-55) and his guidance teacher, Miss S. (The young person’s mother is recorded as having agreed that the young person has a good relationship with Miss S – R54, penultimate paragraph). Taking the views recorded as having been expressed in R54-55 along with the views expressed by the young person in response to our questions, we did not detect a clear desire on The young person’s part to attend school B. We note that Mr W is recorded as being of the view that the young person tends to be very reluctant to rate anything negatively unless he feels ‘incredibly strongly about it’ (R54, final paragraph). We note that the young person has expressed negatives and positives about both schools. Among the negatives around school B, we note a reference to possible nerves around staying away from home (R55, in response to a question from Miss S) and a preference for school A, on the basis that he knows the people and has been there for three years (R55, also in response to a question from Miss S). We should add that we do not place heavy weight on the specific answers to particular questions, and the questions and answers recorded R54-55 were not put to any witnesses for general comment (although they need not be to have some evidential value). Nonetheless, it is relevant to consider that the young person does not appear to have a strong favourable view of school B. This is one factor against the suitability of school B (when compared with school A) since The young person’s happiness at school is clearly an important factor in his educational wellbeing. We stress, we have placed some but limited value on this consideration.
47. Drawing these points together, it seems to us that, considering the suitability of the provision for the additional support needs of the young person in each of the two schools, the provision at school A is more suitable than that which would be provided at school B. This is based on The young person’s progress at school A (as discussed above at paragraph 25) as indicating its suitability; on the evidence of the unlikelihood of significant gains in his linguistic ability if he attended school B; on the risk inherent in attending school on a residential basis away from his home environment; on the impact on the current transition planning and (to a limited extent) on The young person’s own apparent lack of preference for attending school B.
Respective cost
48. Solicitor for the appellant argues that we should, in assessing respective cost, follow a line of case law in the English courts. That case law involves an interpretation of s.9 of the Education Act 1996, which provides:
“In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”
49. The cases referred to by Solicitor for the appellant are: Oxfordshire County Council v GB [2002] ELR 8; Slough Borough Council v Special Educational Needs and Disability Tribunal [2010] EWCA Civ 668 and EH v Kent County Council [2011] EWCA Civ 709. Solicitor for the appellant argues that the approach to the interpretation of s.9 of the 1996 Act adopted in the Slough case was approved in the Kent case, again by the Court of Appeal. In our view, this is the correct interpretation of those cases, and it appears to us that the position approved by Lord Justice Sullivan in the Kent case reflects the current position in England.
50. Solicitor for the appellant argues that we should follow this line of cases rather than the line which has emerged from the Court of Session. The two relevant Scottish cases are SM v City of Edinburgh Council 2007 Fam LR 2 and JB v Glasgow City Council [2013] CSIH 77; 2014 S.C. 209; 2013 S.L.T. 1050, the latter an Inner House decision, the former a decision of Lord Glennie in the Outer House.
51. There are a number of problems with this suggestion. Firstly, Court of Session decisions on appeal from this Tribunal (of which type both of the above cases are examples) are binding on this Tribunal. Solicitor for the appellant argues that the Inner House approval in JB of Lord Glennie’s views on respective cost expressed in SM (see paragraph 18 of the JB decision) was on an obiter basis. Even if that is the case, an obiter comment from the Inner House which is directly relevant to a question for this Tribunal should be followed, unless there is good reason not to do so. In any event, the decision of Lord Glennie on its own is binding on us. Once the two are combined, it is perfectly clear that we are bound to adopt the same approach to respective cost as approved in both cases. Solicitor for the respondent makes this point, and in our view he is correct in doing so. Secondly, the provision in s.9 of the Education Act 1996 is not a direct equivalent to the provision in the 2004 Act, Schedule 2(3)(f)(iii). In fact, s.9 is almost identical to s.28 of the Education (Scotland) Act 1980, a provision which, for reasons we come to below, is relevant at the next stage (appropriateness in all of the circumstances). It is by no means clear to us that the Court of Session would, therefore, be persuaded that the line of English authority referred to should be followed in order to interpret Schedule 2(3)(f)(iii) of the 2004 Act. In fact, it seems to us that the approach taken in the two Scottish cases above derives from a careful consideration of the wording of the more specific provision in the 2004 Act; the provision in the English 1996 Act is far broader in its import. Thirdly, Solicitor for the appellant argues that it would be surprising if the same question was considered differently in England than in Scotland. Assuming that both lines of case law do address the same question, we think it is going too far to express surprise at a difference in approach. The Court of Session would be perfectly entitled, in our view, to take a different approach on the same question from the one adopted in the English courts. This would be the case even in the context of UK-wide legislation; in this case, we are comparing two different legislative regimes.
52. This leads us to the conclusion that we should follow the approach in the Scottish case law. This would involve, in this case, taking the figure for the provision of education for the young person at school A as nil (since the case law indicates that what must be considered is additional cost, and there is no evidence of any such cost here). However, we are conscious of the fact that, given the English case law cited, there is some uncertainty as to how the 2004 Act test might develop in future. It is perfectly possible that the Court of Session, in a future appeal, might revisit its analysis of the respective cost question, and this could lead to the English approach being followed, which may lead to a move away from a nil cost based approach in cases such as this one. Given this uncertainty, we feel that it is fair to the Appellant to examine the respective cost question by considering the actual cost of provision for the young person at school A as against the actual projected cost of The young person’s attendance at school B. On this basis, we will take each in turn.
53. The Respondent led evidence from Witness D, Education Officer, that the cost of providing education for the young person at school A is £9,000 for academic session 2014-15. This is based on the budgeted running costs of the whole school divided by the number of pupils at the school. This is, of course, not an entirely accurate method of calculation, since the cost of provision for the young person will be different to the cost of provision for some other pupils. However, short of carrying out a price analysis for each child (an almost impossible task) this is, in our view, the best reasonably available evidence of the cost of the educational provision for the young person at school A. Solicitor for the appellant urges us to use this figure of £9,000 in our calculation. We are content to do so.
54. Turning to the cost of provision for the young person at school B, the fees element for The young person’s attendance there is £46,506 per year (for attendance on a termly basis). This is not disputed by the Appellant (see R7 for the Respondent’s costs calculation). There is some dispute over the escort costs, with mum stating that she and her husband (or The young person’s grandparents at quarter term breaks) will transport the young person for all but the school-ferry and back parts of the necessary journeys. This, Solicitor for the appellant argues, reduces the school B transport costs to £450 per year. Solicitor for the respondent argues that the Respondent must still, legally, be ready to meet all transport and escort costs and so these should be considered in full. Solicitor for the appellant also seeks a reduction of £862 per year from the Respondent’s school B figure in order to account for the saving the Respondent will make in not having to pay Disability Living Allowance in respect of the young person for around 40 weeks of the year, if educated at school B. This argument is made in connection with s.28 of the Education (Scotland) Act 1980, not at this stage, but at the appropriateness in all of the circumstances stage. However, it appears to us that the argument may apply at this stage also, since the education authority and the local authority are one and the same, from a cost perspective. On the transport and escort costs, we are content that these should be adjusted as per Solicitor for the appellant’s suggestion. We have no reason to doubt the evidence of mum on her plans for the young person if he attends school B. In our view, we have to look at the evidence we have available to us now; if we were to include the whole amount for transport and escorts as set out in the table at R7, we would be inflating what we regard as the probable costs, based on the available evidence. This would not be the correct approach. On the Disability Living Allowance point, although we are not completely convinced that this is an allowable deduction for the purposes of Schedule 2(3)(f)(iii), we are prepared, again, to give the Appellant the benefit of the doubt, and to deduct this amount. Taking the Respondent’s lower figure of £60022 (R8, based on term and half term transportation only, since The young person’s grandparents would handle the quarter term transportation) and deducting all transport and escort costs, this leaves the fee figure of £46,506. A figure of £450 for reduced transportation costs is due to be added back, while £862 for benefits savings is to be deducted, taking the school B figure, for present purposes, to £46,094.
55. The cost of educating the young person in school A is £9,000 per year. The equivalent cost at school B would be £46,094 per year. The cost differential is therefore £37,094. In our view, this is a significant cost differential on an annual basis.
Conclusion – reasonableness arising from cost and suitability comparisons
56. Considering respective cost and suitability factors in the round, we take the view that it is not reasonable for the Respondent to place the young person in school B. We have explained above how, considered properly, school A is a more suitable school for the provision of The young person’s additional support needs. He is presently being educated there. It would not, in our view, be reasonable to place the young person in school B where that placement to a less suitable school would come at significant cost to the Respondent. If we were to follow the approach to respective cost which, technically, we are bound to, the cost differential would widen to £46,094, and our conclusion on reasonableness would be the same (since the cost to the Respondent would be even higher). We should add here that, given our assessment of suitability, even if the cost differential between the two schools were marginal, we would have reached the same decision. When the cost differential is added in, we have no hesitation in reaching our conclusion on reasonableness under Schedule 2(3)(f)(iii) of the 2004 Act.
Paragraph 3(1)(f)(iv)
57. The condition in this paragraph is met – the Respondent offered to place the young person in school A and he has been attending there since August 2011. The Appellant does not argue that this condition is not met.
(b) Appropriateness in all of circumstances (s.19(4A)(a)(ii) of the 2004 Act).
58. Having concluded that a ground of refusal exists, for the reasons set out above, we require to consider whether, nonetheless, it is appropriate in all of the circumstances to confirm the decision to refuse the Appellant’s placing request, or whether we should overturn the decision and place the young person in school B. The burden of proof remains on the Respondent.
59. In considering this part of the test, we must take account of all of the circumstances, including those which are relevant to the consideration of the ground of refusal, as well as any other circumstances.
60. One of the circumstances Solicitor for the appellant urged us to consider is the duty placed upon the Respondent under s.28(1) of the Education (Scotland) Act 1980, which provides:
“In the exercise and performance of their powers and duties under this Act, the Secretary of State and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.”
61. Solicitor for the respondent, in his submission, casts doubt on the applicability of this provision in cases such as this one (see T97). However, we are satisfied that it does apply here. The test of appropriateness in all of the circumstances is a very wide one. It seems to us that those circumstances must include the question of compliance with any statutory duty upon the Respondent which might be relevant to any question of the provision of education or the cost of so providing. It seems to us that the fact that any particular statutory duty appears in an Act other than the 2004 Act is irrelevant to this question. If Parliament had intended to restrict the test, it could have done so. To put it another way, the wording employed cannot be taken to mean that breach of a relevant statutory duty from outwith the 2004 Act is to be ignored.
62. Turning then to consider this provision, it is clear that the duty, as Solicitor for the respondent observes, is not absolute. The education authority must ‘have regard to’ the general principle. This is different from the notion that that principle must, in all cases, be followed (this view is supported by reference to Court of Session authority, for example Keeney v Strathclyde Regional Council 1986 SLT 490 (Outer House) Harvey v Strathclyde Regional Council 1989 SLT 25 (Inner House, 1st Div.)). Further, it is clear to us that the wishes of The young person’s parents are clear – they wish him to be educated at school B. There is no doubt about this. Solicitor for the appellant refers to the meaning of ‘unreasonable public expenditure’ in the English case of Haining v Warrington Borough Council [2014] EWCA 398. We agree that the approach to that test expressed in that case is the correct one – we should consider the costs to any public authority as a result of the discharge of the local authority’s education functions.
63. In our view, in refusing the placing request, the Respondent has discharged its duty under s.28(1) of the 1980 Act. An important part of s.28(1) is the caveat: ‘so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure’. The Respondent has considered the views of the parents in deciding whether or not to grant the placing request (Witness D gave extensive evidence of the process of consideration of the request). The views of the parents feature in Witness A’s Placement Options Appraisal (see R54, first box). Those views were collected as part of consideration of the placing request (see Witness D’ letter of 11th June 2014, R11-13, at R11, 2nd paragraph). Suitable instruction and training have been considered too, since the Respondent has considered the provision of education for the young person at both schools under consideration (again, see Witness A’s detailed comparison between the schools in her Placement Options Appraisal at R48-55, especially R50-52). Further, the avoidance of unreasonable public expenditure has been considered – see the table at R7-9 where the Respondent has costed the provision at school B and compared it to the cost of provision of education to the young person at school A. The Respondent’s position is that the expenditure of the sums there would be unreasonable given the evidence of The young person’s progress at school A and the uncertain evidence of likely gains for the young person at school B. The Respondent implicitly concedes the point about the need to deduct the saving in disability living allowance (see Solicitor for the respondent’s submission at T99, penultimate paragraph). It is clear, then, that all of the component parts of s.28(1) have been considered in the context of the general principle of complying with parental choice. We should add that it is not for us to consider whether the wishes of the parents should be given effect to under s.28(1), we need only consider whether the Respondent has had regard to the general principle mentioned in s28(1) in the context of considering the placing request. In our view, it has done so, and so we cannot, in considering appropriateness, draw any negative inference from the terms of s.28(1).
64. Turning away from s.28(1) of the 1980 Act, and considering all of the other circumstances, we refer to those aspects of the evidence we have considered, above. In considering the evidence as a whole, we are of the clear view that the refusal of the placing request should be confirmed. the young person is performing well at a school which, as we indicate above, is meeting his educational needs. We have considered some of the criticisms offered by the Appellant, most of which were articulated through mum’s oral evidence. We understand that there are imperfections in the provision by school A. We agree that, on one view, the provision at school A has only improved recently and that there remain concerns (around homework, differentiation, level of direct SLT input, The young person’s understanding of what is happening in class to name some of the main concerns). We take account of the evidence of Witness E about the chances of school B making a difference, and those of Witness F on The young person’s suitability of school B for the young person. However, we do not think it is appropriate, in all of the circumstances, that the young person should be taken from his current relatively successful educational environment (and his very successful home environment) and placed in an unfamiliar setting, on the basis of a speculative (at best) chance of improvement in his linguistic and communication skills. Such an improvement would, we accept, lead to all kinds of educational and life advantages, but we are not persuaded, on the evidence we heard, that such an improvement has a reasonable prospect of success.
65. For these reasons, we are satisfied that it is appropriate, in all of the circumstances, to confirm the Respondent’s refusal of the Appellant’s placing request.
Further comments
66. We have four such comments to make. None is essential for the decision we reached, but we feel it would be useful to offer our brief observations.
67. Firstly, we are concerned at what appears to be some confusion over the volume of provision of direct SLT input for the young person at school A. All of the evidence, apart from that from mum (and including the timetable provided) suggested that the young person is receiving two hours of SLT input per week. mum was clear in her evidence that the young person is scheduled to receive only one hour per week. In our view, it is imperative that this confusion is considered by the Respondent and, if necessary, rectified. The Respondent predicated its case in this area on the provision of two hours per week, presumably on the basis that this is merited. If this is what is required, we would expect direct input at this level to be provided. Further, it seems from the evidence that three of the one-hour per week sessions have not taken place, even although, at the time of hearing the evidence, the academic year was at a relatively early stage. We would hope that, once a commitment as to the level of SLT provision is settled, that provision is maintained, given its key role in supporting The young person’s educational needs.
68. Secondly, we are not persuaded that all that could be done to differentiate the materials being provided to the young person is being done. It seems to us that it is crucial that a methodology for doing this across all materials in all subject areas is developed and implemented.
69. Thirdly (and related to the preceding point) we would encourage the opening of clearer, more rigorous and regular communication between The young person’s parents and school A staff in order that the school staff can be assisted by The young person’s parents in the development of differentiated materials and effective methods of communicating with the young person. It is clear to us that The young person’s parents have views on how the young person can learn from the adoption of certain methods of communication, and that school A can benefit from exploring their ideas more fully than has happened to date.
70. Fourthly, the area of appropriateness of the level of and instructions for the completion of homework could be handled in a better way by school A. It is crucial, in our view, that homework tasks are devised on the basis of The young person’s understanding of concrete concepts, and that instructions for him are clear and specific, so that he can complete homework tasks at home (with parental guidance, if necessary) to improve his confidence in this important area.
