ASNTS_D_06_2015_01.12.14

 

 

DECISION OF THE TRIBUNAL

 

Reference:    R 062 2014            

 

Gender:        Male

                    

Aged:            6                  

 

Type of Reference:  Placing Request     

 

 

 

 

 

1. Details of the reference

 

A reference, dated 15 August 2014, was received by the Tribunal Secretariat in respect of a placing request made by way of the Appellant’s letter dated 20^th May 2014.  This request was refused by the Education Authority, apparently under paragraphs 3(1)(b) and (g) of Schedule 2 to the Education (Additional Support for Learning)(Scotland) Act 2009 (hereinafter “the Act”).  It is against that decision that this appeal is made.

 

2. Summary of the decision

 

The appeal is upheld and the placing request is therefore granted.  We direct that the child should commence at School A on his return to school in January 2015.

 

3. Procedural history

 

There had been a conference call to discuss the witnesses in the case and other procedural matters in the lead up to the hearing.  It had been agreed that the Respondent would lead at the hearing, but that certain evidence from the Appellant may require to be interposed, in order to make best use of time.  It had been agreed that a statement would be lodged by each witness in an effort to focus issues.

Evidence was heard on 1^st and 2^nd December 2014.  Thereafter written submissions were directed.  These, plus comments on those of the other party, were received by 9^th December, as directed.  Thereafter, the Tribunal deliberated and reached a decision on 11^th December.  That decision was issued in brief terms on 12^th December and this is the final decision and reasons for it.

 

4.  Preliminary Issues

 

The Appellant wished to lodge late papers at the outset of the hearing.  The Respondent’s representative indicated he was not opposed to this, provided witnesses had an opportunity to comment on them.  Papers A63-65 were thus allowed.

 

5. Summary of Evidence

 

5.1

The bundle consists of T1-33, A1-65 and R1-101.  We took into account all of this information in making our decision.

 

1. 2. the child’s views

the child was five years old at the time of the hearing. As a result of his young age it was not practical to obtain his views, particularly having regard to his additional support needs.

 

 

 

6. Findings in fact
   1. The appellant is the mother of the child, who is a male child and who lives with her.  Also in the house is the child’s baby sister.
   2. the child was born on in December 2008.
   3. The child’s father lives separately from the child but provides considerable assistance to him and the appellant.
   4. the child attended Nursery School, which is attached to School B. He repeated his pre school year and had an agreed deferred entry to primary one and is currently completing his first term there.
   5. the child has additional support needs, as defined in section 1 of the 2004 Act. He was diagnosed with autism by Professor at the Royal Hospital for Sick Children, on 8^th January 2014.  the child has difficulties with social interaction and communication.  He has developmental delay.
   6. On 20^th May 2014 the appellant made a placing request for the child specifying School A.
   7. On 16^th of June 2014 the education authority refused the placing request.  They offered a place at School B, which is the local mainstream primary.
   8. the child has had involvement with the Visiting Teacher and Support Services (VTSS), Speech and Language Therapy and the Educational Psychologist.  He is also involved with K, Support for Learning Teacher at School B Primary.
   9. On 7 February 2014 the child was assessed by VTSS. He was found to have a developmental age of three years six months when his chronological age was five years two months.
   10. School B has a roll of about 400 pupils.  There are 34 children in the child’s current class. There are two experienced teachers in the classroom who team teach. the child has a full-time pupil support assistant (PSA), to assist him both in the classroom and at breaks.  the child does not sit at a table with the other children in the classroom. He has a workstation of his own.  This has high sides and the child’s visual timetable is posted on it. The use of the workstation reduces the distractions within the classroom for the child.  the child does not eat his lunch with other children as he finds this too noisy and distracting.  He eats his lunch in a room alone with his PSA,
   11. School A is a special school with a roll of about 87 pupils. the child would be placed within the primary one class there with five other pupils. All children who attend the school have a diagnosis of autism.
   12. the child was assessed by Speech and Language Therapy on 31^st October 2014.  At that time he was noted to have mild to moderate difficulty with speech sound system. He was noted to have a moderate to severe difficulty with expressive language, language comprehension, social interaction and attention and listening.  Thus there is a significant impairment in the child’s receptive and expressive language development, which impacts on his ability to access the curriculum.
   13. On 29^th of May 2014 Witness A, Head Teacher at School B primary, completed a School Report for Assessment of Support Needs (R38-40). He indicated that “the child will not be able to access the primary one curriculum and therefore will need a differentiated curriculum. the child will struggle with the routines and formal structure of a mainstream classroom. He will be distressed by the number of children. the child is unable to follow verbal instructions. the child cannot maintain focus for even short lengths of time.”  That was an accurate statement of the position at that time.
   14. On 26^th of August 2014 K completed an Assessment of Need (A26-28) in respect of the child. She indicated that the child was unable to do even simple tasks while integrated with his peers. She indicated that the child requires one to one PSA support constantly to experience a Primary one classroom. She indicated that the child is not accessing the P1 curriculum and is unable to interact with his peers and finds the classroom overstimulating. She did not anticipate that changing.  That was an accurate statement of the position at that time.
   15. the child has made progress in primary one.  This progress has been limited.  He requires a differentiated curriculum.  He is not able to participate in much of the normal life of the classroom.  Mainstream schooling is not suited to his ability or aptitude.

 

 

 

7.  EVIDENCE LED

The Respondent led evidence from three witnesses: Witness A, Head Teacher at School B, Witness B, Head Teacher of School A and Witness C an Educational Psychologist in the employ of Council who has been involved with the child.

 

The Appellant led evidence from Witness D, an independent educational psychologist, Witness E a Speech and Language Therapist, Witness F, Health Visitor and both parents of the child.  We shall comment on each witness, where appropriate, within the decision below.

 

 

 

 

 

8. SUBMISSIONS FOR THE RESPONDENT

 

Respondent Representative, submitted that School B was suitable to meet the child’s needs.  He submitted that there was a legal requirement to provide education in a mainstream setting, unless an exception exists.  He submitted that this requirement “sets a high bar of proof that must be met in order to find that a mainstream school is not suited to a child’s ability or aptitude” (para 4.5 of his submission). He submitted that the statutory ground contained in paragraphs 3(1) (g) of Schedule 2 to the Act applies, so there is therefore no duty on the education authority to comply with the placing request. It should be noted that this was the only ground on which the Respondent sought to resist the appeal; the refusal letter had mentioned other grounds but these were departed from by the Respondent on the conference call held in preparation for the hearing and thus before the hearing commenced.

 

 

 

 

SUBMISSIONS FOR THE APPELLANT

 

Solicitor for the Appellant submitted that education in School B and mainstream generally was not suited to the child. She submitted that it was not possible for mainstream education to provide the kind of support the child needs.  She submitted that the child met all of the circumstances set out in s15 (3) of the 2000 Act, whilst only one of the circumstances has to arise.

 

It was submitted for the appellant that none of the statutory grounds for the refusal of this placing request have been met and the Tribunal was asked to overturn the decision of the local authority and grant the placing request.

 

 

 

DECISION

 

The Tribunal considers that the correct approach is that informed by Section 19(4)(A) of the Act. Firstly the Tribunal requires to consider whether it is  satisfied that grounds for refusal exist and secondly whether, in all the circumstances it is appropriate to confirm the decision of the education authority; alternatively, if not satisfied that a ground for refusal exists, to overturn the decision.

 

Schedule 2, paragraph 2 of the Act requires education authorities to comply with placing requests, unless they consider that one or more of the circumstances set out in paragraph 3 apply. In this case Respondent Council state that the circumstances set out in paragraph 3(1) (g) apply and mean that they do not require to comply with the placing request. Against that decision an Appeal has been taken to the Tribunal.

 

In approaching this task, therefore, the Tribunal first requires to consider the terms of the paragraph founded upon in the refusal.

 

 

Para 3(1)(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.”

In deciding how to apply this sub-paragraph the tribunal looked at section 15 (1) of the Standards in Scotland’s Schools etc Act 2000. This states;

“15 (1) 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.

(3) 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 shall be presumed that those circumstances arise only exceptionally.

(4) If one of the circumstances mentioned in subsection (3) above arises, the authority may provide education for the child in question in a school other than a special school; but they shall not do so without taking into account the views of the child and of the child’s parents in that regard.”

 

The Tribunal understands section 15 to create a presumption for mainstream schooling, which can only be rebutted if one of the circumstances detailed in subsection (3) arises. For our purposes, then, the Respondent is saying that placing the child in School A would breach the presumption for mainstream and so it is for them to prove that he is not a child who falls into one of the subsections of subsection 3. The Respondent does not tell us which of those subsections they seek to rely upon (or indeed if it is all of them). We shall deal with each of these in turn.

 

(a) would not be suited to the ability or aptitude of the child;

The question here, then, is whether providing education for the child in a mainstream school would not be suited to his ability or aptitude. It is the view of the tribunal that this is clearly the case for the child.  In our opinion much of the evidence that we heard was incorrectly focused on considerations that would have been more appropriate to the refusal on the grounds of paragraph 3 (1) (f) of the Act, in that it involved a comparison of School B to School A, as might be expected where their respective suitability was being examined.  In our view a correct interpretation of section 15(3) requires mere focus on whether mainstream education would not be suited to the ability or aptitude of the child (and, of course, the other questions that appear at section 15(3) (b) and (c)).

 

We pause at this point to deal with something that became something of a repeated issue at the oral hearing, that being the evidence of Witness D, and how this had been obtained. The respondent’s representative made various objections in relation to this evidence and what he apparently saw as procedural points in relation to it. He also sought to call as an additional witness K, as we understood it, to rebut some of Witness D’s evidence.  As it was the view of the Tribunal that Witness D’s report, and thus the steps he took to prepare it, were of limited relevance in deciding the central question before us, we did not consider the procedural points taken by the respondent’s representative to be well made and nor did we consider it helpful to consider who said what to Witness D and whether they did so and when and thus did not consider that we would derive any assistance from K being called. In particular we note that Witness D summarises his instructions (A 30), as follows: “I am asked for an opinion on whether School A school is suited to the child’s age, ability and aptitude.”  With all due respect, we consider that that is a fundamental misunderstanding of the legal test that we require to apply. Had Witness D felt that he was commenting on whether the mainstream primary, or mainstream in general would not be suited to ability and aptitude of the child (i.e. the legal question that is at the heart of our decision), that might have been a different matter. In any event, for the sake of clarity we should make it clear that we did not rely on Witness D’s report.

 

In arriving at our decision we noted the following pieces of evidence:

• The content of an email from the support for learning teacher to the educational psychologist on 5^th March 2014 (A 29), which states: “I have just been on the phone to [the speech and language therapist] re our nursery boy the child. She is very concerned about his ability to manage in mainstream for P1 and thinks even a language class would not be appropriate, an opinion shared by our nursery staff.”
• The school report detailed in Finding in fact 6.13
• The Assessment of Need (A26), completed by the support for learning teacher on 26^th August 2014, which states: “the child is not accessing the P1 curriculum. He is unable to interact with his peers and finds his classroom over stimulating. We do not see this changing despite intensive support. the child can be unpredictable –climbing on desks, running from the classroom/  adults and lashing out, putting himself and others at risk.”
• The SALT report (A56) as detailed in Finding in fact 6.12
• The opinion of Witness B, head teacher at School A, expressed in her witness statement [R95] where she considers the child would be medium priority for a placing request at School A.

Witness A’s position at the oral hearing was that the child was able to learn effectively in his current class.  He gave evidence that the assessment of need report (A26-28) was an accurate reflection of the position at the beginning of the school term, but not an accurate reflection of the current position. He gave evidence that there were only two other children within the school who had a specific allocation of PSA hours. He gave evidence that the child is incredibly well supported within school and well-placed there.  Witness B, head teacher at School A departed from her written statement in the course of oral evidence. In particular she considered that the progress which the child has made from August until now demonstrated that he would be operating above the level of his potential peers at School A. She considered that he would now be a low priority for a place at School A.  The educational psychologist, Witness C indicated that educational psychologists within her local authority area did not give advice on placement.  It was her evidence that the child would be more advanced than other pupils in his class, were he to be placed at School A.

 

Evidence from Witness D in relation to his expertise and background was that he has previous experience as an educational psychologist with Council, Council and in England. It was his evidence that the child would not be in a mainstream school in any of those authorities due to his additional support needs.

 

Having reviewed all of the evidence it is our clear view that mainstream schooling would not be suited to the ability or aptitude of the child.  Whilst he has been able to make progress in primary one he is still well below the ability of all other pupils in the class and this is likely to remain the case. He is socially isolated and finds it very difficult to integrate, if not impossible.

 

It is therefore our analysis that the authority’s refusal on the basis of subparagraph (g) is incorrect and should be overturned.

 

 

(b) would be incompatible with the provision of efficient education for the children with whom the child would be educated;

We did not hear sufficient evidence on this matter to reach a conclusion; in any event this was not required in light of our view on subsection (a) above.

 

(c) would result in unreasonable public expenditure being incurred which would not ordinarily be incurred

We were not satisfied that this subsection applied.  The cost of the child attending mainstream school is similar to the cost of a place at School A school (R101).  However, it did not become necessary to examine this in depth as a result of our decision in respect of subsection (a).