ANONYMISED DE
- Reference
The appellant The Appellant lodged a reference under section 18 (4) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) against a decision of (“the authority”).
The reference was in respect of the decision dated 13 March 2014 where the authority refused a placing request made by the appellant under paragraph 1 of Schedule 2 of the Act, for The Child to attend School A
- Summary of the Decision
The Tribunal confirms the decision of the Authority and refuses the request to place The Child at School A.
The Tribunal confirms the decision of the respondents, in exercise of its power under section 19(5) of the 2004 Act. In terms of section 19(5)(a)(i) of the 2004 Act, the Tribunal is satisfied that the ground of refusal specified in paragraph 3(1)(f) and 3(1)(g) of Schedule 2 of the 2004 Act exists. In terms of section 19(5)(a)(ii) of the 2004 Act, the Tribunal was also satisfied that in all the circumstances it is appropriate to confirm the decision.
- Findings of Fact
1. The Child is aged 10. He lives in with his mother, father and younger sister.
2. The Child has a diagnosis of Autistic Spectrum Disorder and Attention Deficit Hyperactivity Disorder. His primary problem is autism, and his ADHD symptoms are secondary to his autism condition. He is intelligent and articulate. He can be impulsive, unpredictable, easily distracted, disorganized, can struggle with social interaction and display inappropriate behaviour. He is emotionally immature.
3. The Child commenced primary school in Aberdeenshire, and in 2009 when the family moved to the authority, he went into P2 at School B. He has attended School B since then, and has just completed P6. He is assessed at Curriculum for Excellence Second Level Consolidating, which is appropriate for his age and stage.
4. School B is a mainstream local authority primary school with 197 pupils. There were twenty four pupils in The Child’s P6 class, and there will be twenty pupils in P7. The authority continue to offer a place to The Child in School B.
5. The Child had been prescribed medication which had assisted his concentration during the school day. Owing to unacceptable side effects, his parents, having taken medical advice, decreased the dose, and then stopped the medication. During his P5 year, the school noted that The Child had less focus when working, was more impulsive in his behaviour and at times showed no boundaries. There was a significant increase in incidents in school relating to his behaviour after he had stopped medication.
6. In August, September and October 2013 there was an escalation of very troubling incidents at home. These were severe and potentially dangerous incidents, including The Child having broken a window, climbing onto the roof of his home, climbing out of a moving car and threatening to harm himself with a knife.
7. The Child refused to go to school on 25 September and 26 September 2013. At a meeting on 26 September 2013, pre-arranged under the Staged Assessment and Intervention procedure, it was agreed that he attend school on reduced hours. The part-time time-table continued until 18 November 2013. Since then his attendance is on a full-time basis. The school instituted a plan of action which involved blocks of time when the class teacher had time-tabled additional support; one to one sessions with senior management depending on circumstances; supervised breaks with the others; afternoon withdrawal periods for short periods to pre-empt any incidents in class, as and when necessary; regular communication between home and school.
8. Until his P6 year, additional support in school required by The Child had been covered by Predictable Needs Funding provided to the local authority schools for general support across the broad range of abilities/difficulties generally presented in the school population.
9. In January 2014 the school applied for Exceptional Needs Funding in respect of The Child. This is allocated to pupils who are considered to have complex and enduring additional support needs not generally present in the school population. Exceptional Needs Funding was allocated for The Child from April 2014.
10. From early in the summer term 2014 The Child has had five hours support a week in class. In August 2014 he will have funding for ten hours a week support in class. The support time is used flexibly. He has the support of an Additional Support Needs auxiliary to facilitate his engagement in group work, with social skills and in the class room, including classes taught by different specialist teachers in French, PE and music. He is supported during transitions and in the playground. It is likely that the additional hours to be available in the P7 year from August 2014 will be allocated to afternoons. The Child becomes more restless and finds it harder to cope later in the school day. Within the school he is also supported by his class teacher, the Deputy Head Teacher, to whom he can go for “chill-out time” if he feels stressed, and the Head Teacher. With these supports The Child is managing well in school.
11. The same teacher who had his P6 class, will teach The Child in P7 from August 2014. During the year there will be enhanced transition planning towards his move to secondary school. There are six secondary schools within the authority: at School C there is a specialist Base to support thirty pupils with severe and complex needs, and at School D there is a small unit for ten pupils with language and communications difficulties. There are plans to open another specialist provision for pupils with autism and communication difficulties in another school in August 2015. The Child’s parents will have the opportunity to consider a placement for The Child in any of the authority’s secondary schools.
12. As a result of the crisis situation in September 2013, supports were put in place to help the family. Barnardos Intensive Behaviour Support Service worked with the family over a twelve week period. Nine hours support per week was provided for The Child from Care UK. This offers three hours respite/share the care three times a week. The support worker takes The Child out to enjoy activities on a one to one basis, or spends time with him within the home. At a meeting of the authority’s Respite Support Panel on 17 March 2014, there was agreement to continue the nine hours of support. This can be taken up by the family in different ways: family based respite with share the care, using another agency, or by direct payment for the family to employ a personal assistant, or a combination of these. A social worker is allocated to The Child.
13. The Child has contact with the Child and Adolescent Mental Health Services. His parents are due to meet again with Dr M, Consultant Child and Adolescent Psychiatrist, in August.
14. The Child’s mother has been attending her GP with depressive symptoms resulting from her difficulties at home coping with The Child’s behaviour. She is prescribed anti-depressant medication.
15. School A is a school for boys with additional support needs, many of whom are on the autistic spectrum and some of whom also have ADHD and Tourette’s Syndrome. It has Autism Accreditation from the National Autistic Society. The school caters for pupils from early primary to age 18, both day and residential, and with both 39 and 52 week provision. In spring 2014 there were nineteen pupils in the school, three of whom were in the junior class at late primary stages, the remainder in the secondary setting. The Management Team at the school feel that The Child’s needs could be appropriately met at the school. Were The Child to attend the school on a 39 week placement, he would return home each weekend during school term and during holidays. He would leave home on Monday mornings and return on Friday afternoons. Class sizes are small, between two and six pupils, and each pupil has an individually designed Personal Learning Plan. All pupils have a class teacher responsible for monitoring and guiding their progress, and liaising with professionals and parents, and also has a dedicated key worker allocated to him. The primary role of the keyworker is to ensure that pupils are fully supported in all aspects of their lives, and a vital part of the role is dedicated to supporting the parents of these pupils
16. When a child is placed at School A there is a policy of a six monthly review: this can be carried out more frequently if felt desirable or if changing child need dictates. On such review consideration is given to whether or not the placement is meeting the child’s needs, and if there is an alternative at which the child may be better placed.
17. Residential schooling in a specialised setting makes later transition to a mainstream setting more difficult for a young person. A mainstream school has a spread of peers and personalities from whom the child has the chance to learn appropriate social behaviour, and the chance of learning to adapt his behaviour in a setting with all the social opportunities expected in a mainstream setting. Children on the autistic spectrum need to have had the opportunity to develop sufficient social interaction strategies with people who do not have similar conditions to aid them on transition to adult life,
18. The annual costs of The Child’s attendance at School A would be around £75,000. This figure includes travel and other incidental costs.
19. The calculation of the annual cost of a pupil attending the mainstream School B amounts to £4,077, and the mainstream School C School is £7,177. The cost of the Exceptional Needs Funding allocated to The Child is £4,793 per annum. The cost of social work input is £7,838 per annum. The present cost of Care UK respite care provided to The Child is £6,908 per annum. The alternative care support which is available (Share the Care) would cost £4,528 per annum, and if a direct payment is made to enable the family to employ support care themselves this would be £4,619 per annum. Disregarding the calculation of annual cost per child at School B (£4,077), the cost to the authority of The Child’s attendance at School B with additional support, is either £19,539, £17,159 or £17,256.
20. It is not reasonable having regard to the respective suitability and the respective cost of School B and School A to place The Child in School A.
21. The authority have a statutory duty to place The Child in a mainstream school. The Child has the ability and aptitude to remain as a pupil at School B. At times his behaviour can be disruptive to other pupils, but this is managed by the school and his place in the class is not incompatible with efficient education of the other children.
- Reasons for the Decision
1. The Tribunal considered all the evidence and were satisfied that there was sufficient evidence available for the Tribunal to reach a fair decision on the reference.
2. The issues in dispute were (i) the respective suitability of the provision available at School B and School A, and the respective cost of the provision, for the additional support needs of The Child; and (ii) that placing The Child in School A would breach the requirement in section 15(1) of the Standards in Scotland’s Schools etc Act 2000, viz. the duty on the authority to place the child in a mainstream school rather than a special school.
3. Both solicitors provided written submissions and these are referred to for their terms.
4. Section 19(5) of the Education (Additional Support for Learning) (Scotland) Act 2004 provides:
"Where the reference relates to a decision referred to in [section 18 (3)(e)] the Tribunal may –
(a) confirm the decision if satisfied that –
(i) one or more of the grounds of refusal specified in paragraph 3(1) or (3) of Schedule 2 exists or exist, and
(ii) in all the circumstances it is appropriate to do so;
(b) overturn the decision and require the education authority to
(i) place the child or young person in the school specified in the placing request to which the decision related ...
5. Paragraph 2(2) of Schedule 2 of the Act provides:
"Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being –
(a) a special school the managers of which are willing to admit the child
...
it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school."
6. Paragraph 3(1) of Schedule 2 of the Act provides that this duty does not apply:
"(f) if all the following conditions apply, namely –
(i) the specified school is not a public school;
(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not under
their management) other than the specified school;
(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support
needs of the child in the specified special school and in the
school referred to in paragraph (ii) to place the child in the
specified school
...
it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school."
7. Paragraph 3(1) of Schedule 2 of the Act provides that this duty does not apply:
"(f) if all the following conditions apply, namely –
(i) the specified school is not a public school;
(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not under their management) other than the specified school;
(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified special school
and in the school referred to in paragraph (ii), to place the
child in the specified school, and
(iv) the authority have offered to place the child in the school referred to in paragraph (ii).
(g) if, where the specified school is a special school, placing the child
in the school would breach the requirement in section 15(1) of the
2000 Act.
8. Section 15(1) of the 2000 Act provides:
“Where an education authority, in carrying out their duty to provide school education to a child of school age, provide that education in a school, they shall unless one of the circumstances mentioned in subsection (3) below arises in relation to the child provide it in a school other than a special school.”
9. Section 15(3) of the 2000 Act provides:
“The circumstances are that to provide education for the child in a school other than a special school:
(a) would not be suited to the ability or aptitude of the child;
(b would be incompatible with the provision of efficient education for the
children with whom the child would be educated; or
(c) would result in unreasonable public expenditure being incurred which
would not ordinarily be incurred,
and it should be assumed that those circumstances arise only exceptionally.”
10. There is a two stage test in terms of section 19(5) (a) as set out above: firstly the Tribunal requires to determine if the authority has established any of the circumstances in paragraph 3(1)(f) or (g); then, the Tribunal has to consider whether in all the circumstances it is appropriate to confirm the decision of the authority.
11. Para 3(1)(f)(i) and (iv) are not in dispute. School A is not a public school, and the authority offer to continue the placement of The Child in School B.
12. In the case statement the appellant made preliminary submissions about the calculation of the costs of the placement at School B. It was submitted that the reasoning of Lord Glennie in the Outer House case of SM, Appellant 2007 Fam. L.R. 2 at paragraphs 23 and 28, approved by the Inner House in JB (Parent of the child CB) v Glasgow City Council 2014 SC 209, was incorrect. The appellant submitted that the Tribunal should follow the English Court of Appeal in the case of Slough Borough Council v Special Educational Needs and Disability Tribunal [2010] EWCA Civ 668, and include the full cost per pupil of provision in an authority school as well as any additional costs incurred for that pupil in that placement.
13. For the authority, the solicitor submitted that the Tribunal was bound by the decision of the Court of Session.
14. We agreed with the position of the authority that we require to calculate the costs of placement at School B as the costs of the further expenditure incurred by the authority necessary to meet The Child’s needs. These costs, which comprise the exceptional needs funding, social work costs and the costs of additional respite care, amount to between £17,256 and £19,539 per annum.
15. If we are wrong, and, as suggested by the appellant’s solicitor, we should choose to follow the judgement of the Court of Appeal made under different legislation, the costs of placement at School B (as set out at pages R146 – 147) would amount to between £21,327 and £23,616. It is clearly seen that the costs of School A are well over £50,000 more per annum than the costs of School B.
16. A second preliminary submission in the appellant’s case statement was that the mainstreaming duty set out in section 15(1) of the 2000 Act does not apply as the placement proposed was at an independent special school. Her solicitor has not produced any authority to support such an assertion. In her submissions the authority solicitor sets out reasons to refute the assertion, and we accept these in full. We are satisfied that there is a duty on the authority to educate the child in mainstream school. We are thus required to consider if any of the exceptions in section 15(3) apply.
17. The Tribunal considered the evidence before it of the ability of the authority to make provision for The Child’s additional support needs in School B. We were impressed with the witness Witness A, who seemed to us to be a very experienced and competent Head Teacher, and who knew The Child well. She did not minimize the difficulties of The Child’s behaviour, but explained the various supports and strategies that are in place within the school. She gave evidence of progress having been made by The Child during the year, speaking of the last term as being very successful. His end of year report was positive. His behaviour was less unpredictable. This improvement seems to have been achieved with the increase of direct support provided in school to The Child, the input of Barnardos Intensive Behaviour Support Scheme, and the respite care. The hours of support within school will double in the P7 year. Witness B, the Educational Psychologist appeared to us to give her evidence in a measured and balanced way. She had prepared a report in February 2014. She has not had direct contact with The Child since then, but had received reports from the school and had observed him on several occasions when visiting the school on other business. She concluded that The Child had made progress academically, socially and emotionally since she had prepared her report.
18. We accepted the opinions of Witness A and Witness B that The Child has the ability and aptitude to be educated in mainstream school with additional support. Supports both within and outwith school are in place, and increased hours in school will be provided next school year. We concluded that it was clearly established that the authority was able to make provision for The Child’s additional support needs in School B. The provisions of paragraph 3(1)(f)(ii) are satisfied.
19. The Tribunal required to consider the respective suitability and respective costs of each school in respect of the provision for The Child's additional support needs in terms of para 3(1)(f)(iii).
20. The evidence about the provision at School A was very positive. Witness B had direct knowledge of placing children at the school in her previous employment; one of her colleagues has a child currently placed there. From speaking with colleagues, her own knowledge and the research she had carried out, she was aware that it had a good reputation. She had visited the school in preparing her report of February 2014, had spoken with the management team, toured the care facilities and visited class rooms, speaking to pupils there. The Child’s parents had been very impressed with the school on their visit. The pupils had been very polite and the staff were clearly very experienced and knowledgeable in handling children with autism. Witness C, the independent social worker instructed on behalf of the appellant, had spoken with the head of School A by telephone and was very impressed with his child-centred approach.
21. With small classes, a three to one pupil to teacher ratio, the experience of the staff in dealing with children with difficulties similar to The Child’s, ease of transition from primary to secondary within the same school, the twenty four hour curriculum which ensures that the care staff reinforce and supplement the learning initiated in the class room, School A can offer suitable educational provision for The Child. His absence from the family home whilst in residence at school will reduce the stress experienced by his parents and sister due to his behaviour. However The Child may well feel rejected being sent away from home. There is also a concern about the peer group of pupils present at School A. Witness B, an experienced professional, although spending only a short time with the potential peers, considered that they had additional support needs greater than The Child: they appeared, in comparison to The Child, less socially interactive, less aware of social norms, and less responsive. They would be role models for The Child. They would not be as able to model appropriate social behaviour as peers in a mainstream setting.
22. The disadvantages identified by Witness B in February 2014 of The Child remaining at School B have been reduced in the intervening period in as much as he will have the same teacher in P7 as he had in P6, rather than moving on to another class teacher. However, although the school consider that in the main his relationships with the other children in school are good, now that his behaviour is less unpredictable, with the other children liking him and trying to support him, he has not managed to start attending clubs or out of school activity with other children, even with the respite support available to him.
23. The parents believe that The Child’s anxieties build up at school and are released at home. They believe that The Child will fit into School A with other pupils of similar difficulties as him. The school has a holistic approach, and all staff, both education and care staff are very attuned to children and young people with autism. They hope that The Child will feel integrated and accepted in the school community, and that he will learn to develop social and emotional skills to deal with all situations. When he comes home every weekend they are hopeful that they will be able to spend quality family time together, and that The Child will be able to engage with others and become better integrated in the local community. They would be able to attend more activities if The Child showed more controlled behaviour. Dad had had direct contact with a seventeen year old pupil from School A who had carried out a week’s work experience in his veterinary practice earlier this year. That boy, although with a diagnosis of ASD and ADHD, was a charming and engaging young man, and had coped admirably during the week. Dad was greatly impressed at how the school had managed the placement and with the young man as a product of the school. The parents have very high expectations of School A.
24. In requesting the placement at School A, the parents provided letters from The Appellant’s GP dated 4 March 2014 and Dr M, Consultant Child and Adolescent Psychiatrist dated 7 March 2014. The GP supported a residential school placement for The Child based on her concerns about his mother’s low mood. Her letter was written at the time the social work section 23 assessment was being prepared. Dr M is clear in his letter that he does not normally support education out with mainstream for children with autism where they are intellectually capable. He specifically states that it is not his role to recommend an educational placement, but wonders if, for the short-term a residential placement should be considered to help relieve the pressure on the home situation, and to help his anxiety levels become more manageable. In a further letter dated 25 March 2014 he indicated that there was no clear further remit for CAMHS intervention, and had discussed with the parents opportunities for reducing levels of stress, both in the parents and The Child, to be explored with further social work support and intervention.
25. It was accepted by the parents that The Child’s behaviour has been less challenging than it was during the “crisis” time of last September/October, but he still has “melt-downs” although not at the level of the past. The signs of anxiety affecting his behaviour are still on-going.
26. In his report, the independent social worker instructed by the parents, made a suggestion of a short-term placement of one academic year at School A. He felt this would be of benefit to give space and respite to address the family’s needs, and to help prepare The Child for transition to secondary school. Neither Dad nor the head of School A supported this time-limited suggestion. With regard to the social work supports given to the family, Witness C thought that there had been insufficient medium to long-term planning and that the social work department were dealing with matters in reaction to crisis. Their response to the crisis had been in his view, “pretty good” and “adequate”. He was concerned, as indeed were Witness B and The Child’s parents, that if there was a further crisis, there may be family breakdown leading to emergency accommodation for The Child. This would have a negative effect on The Child, and it was necessary for there to be a package of care sufficient for intervention to prevent such crises.
27. We concluded that, with the supports that have been put in place at school and outwith school, School B is a more suitable placement for The Child than School A. That he is educated in mainstream school is the recommended option of all the professionals, and the supports which are currently in place have allowed him to progress over this last school term. The peer group at School A and the general difficulties of transition back into mainstream education or adult life in the community make School A a less suitable option.
28. There is a significant difference in the costs of placement of The Child at School A and School B.
29. We are required to carry out the exercise of weighing and balancing the respective suitability and respective costs. Having done so, we conclude that it is not reasonable that The Child be placed at School A, all in terms of paragraph 3(1)(f)(iii).
30. We required to consider the exceptions set out in section 15(3) of the 2000 Act, before deciding if paragraph 3(1)(g) applied.
31. We have concluded that School B is suitable for the ability and aptitude of The Child. He is working at a level appropriate to his age and stage, although it is thought that he could achieve more. Despite the disruptive behaviour and issues from time to time with other children in the class, we did not consider that it was incompatible with the provision of efficient education for the others educated with him. We took account of the incident referred to of the girl who was anxious about coming back to school because of The Child, and the letter written by her mother and lodged at T15 and T16, but accepted that such issues can be and were dealt with by the school. We did not accept that the additional Exceptional Needs Funding nor the social work costs could be considered as unreasonable public expenditure.
32. Having reached these conclusions, having regard to the second stage of the test set out in section 19(5)(a) of the Act, in all the circumstances, it is appropriate to confirm the decision of the authority to refuse the placing request.
