ASNTS_D_07_2014_11.08.14

ANONYMISED DECISION OF THE TRIBUNAL

Summary of Decision

The Tribunal confirms the decision of the respondent,  to refuse the placing request, relying on paragraph 3 (1) (b) of the Education (Additional Support for Learning) (Scotland) Act 2004 (hereafter “the 2004 Act”), namely that the education normally provided at School A, is not suited to The child, after consideration of his ability and aptitude.

Representation and Witnesses

The Tribunal was listed to sit on 11 and 12 August 2014. The hearing was concluded on 11 August and the hearing day of 12 August was not required.

The appellant, the child’s mother, was represented by a solicitor. The appellant gave evidence but did not call any witnesses to give oral evidence. She relied on her own evidence and the written report of a educational psychologist, dated 15 June 2014.

The respondent was represented by an advocate, and solicitor. They called evidence from Witness A, a Quality Improvement Officer; Witness B, education psychologist, and Witness C, deputy head of School A.

Each witness called gave evidence, led first by the Tribunal, and then each party was provided with an opportunity to ask questions (albeit questioning of The appellant by counsel for the respondent was not considered to be necessary or helpful and the Tribunal is grateful that An advocate indicated she had very few questions to put).

As the parties had the benefit of legal representatives who took their own notes of the evidence, this decision does not set out the oral evidence of the parties. The findings of the Tribunal set out below, provides the evidence which was accepted, however, it must be noted, there was almost no material dispute as to facts and the determination of the material issues, turned on a fairly subtle dispute in relation to opinion evidence.

The Issues

The issues for the Tribunal are narrow and encompass:

1. what are The child’s additional support needs and what education does he need;
2. what education is normally offered at School A;
3. is the education normally offered at School A suited to The child’s ability and aptitude;
4. considering both placements, School A and the Language and Communication Resource at School B, is it, in all the circumstances, appropriate to confirm the refusal of the placing request (if one or more grounds for refusing the placing request exists).

The parties raised a further issue, namely whether the respondent could rely upon paragraph 3 (1) (g) of the 2004 Act to refuse the placing request in addition to paragraph 3 (1) (b). For reasons that are set out below, it has not been necessary for the Tribunal to consider this issue.

Findings of Fact

1. The child was born in 2002. He is twelve years old. He has Asperger’s Syndrome, a form of autistic spectrum disorder. This was diagnosed in May 2008. He is academically of at least average ability and is able to access a mainstream, curriculum with appropriate support. He was working at Level 2 in mathematics and social subjects of the Curriculum for Excellence. His autistic spectrum disorder creates social communication difficulties for him. He can present as anxious. He also has dyslexia and presents with literacy difficulties. His main barrier to learning is his autistic spectrum disorder. The child seeks our peer interaction and at School C sought out peer interaction with more able peers.
2. The child attended the Language and Communication Resource (hereafter “the LCR”) at School C from 2008 until June 2014. At School C he was mostly taught in a class of nine with one teacher and one teaching assistant. The pupils in his class had autism and/or language impairments. Whilst there, there have been some challenging moments, but The child has made progress and has succeeded.
3. Witness C, who previously taught at School C gave evidence that, and the Tribunal accepts her evidence, that: she taught The child from primary 2 until December 13 at School C; The child fitted into the population of the autism unit well; his primary barrier to learning is his autistic spectrum disorder; and he was making progress. The child appeared to the school to staff to have coped, but The appellant reported that he was not coping. He did struggle with writing at times, however, was achieving within the second level for both maths and social studies and level 1 in English. He is verbally more able. He was achieving in a mainstream co-located unit.  With appropriate support and adaptation The child can access mainstream curriculum. He has the capacity to access  a secondary curriculum. He is a motivated learner.
4. The School C LCR is co-located with the mainstream primary school at School C and pupils socialised together during lunch and break times. The child was able to socialise in the mainstream playground.
5. School A is maintained by the respondent. It makes provision for pupils with learning difficulties from S1 to S6. The Tribunal accepts the evidence of Witness C and finds as a fact that:
   
   1. all pupils have additional support needs, such as hearing and/or visual impairments, physical needs, general learning needs – global delay and around 30 % have autism;
   2. the school caters for a range of low academic profiles and some pupils operate with functional language of only  2-3 words constructions and two pupils are elective mute;
   3. in the last 6 years only one boy has gone back to mainstream;
   4. of the pupils coming into the current S1  they are low functioning and none are considered to be of secondary mainstream academic ability.
6. The curriculum at School A is significantly modified to meet the needs of the pupils and to cater for their below average cognitive abilities. The curriculum is also narrower than would be found in the mainstream, with less subject specialist teachers and less facilities. There is no technical department and limited science facilities. The curriculum is adapted to meet the lower cognitive levels of the pupils and is not specifically adapted to meet the needs of those with autistic spectrum disorders.
7. Class sizes are, on average, small with around ten pupils to two adults.
8. School B  is maintained by the respondent. It is a mainstream school catering for pupils with a wide range of cognitive abilities. It has around 400 pupils on roll.
9. School B has a LCR. It is funded for up to 24 pupils and there are currently approximately 17 pupils. It is managed by an experienced teacher,  who has been in post for 2 years and previously taught in a similar specialist setting. There are in addition eight further teachers, all of whom have experience of teaching pupils on the autistic spectrum or who have language and communication difficulties. There are three or four teaching assistants, who have received training in autism.
10. All pupils at the LCR are of at least average cognitive ability and can access a mainstream curriculum with support. All have either autism or a language and communication disorder. They have access to the full curriculum and the usual range of mainstream subjects and facilities are offered.
11. Pupils allocated to the LCR spend their time flexibly either in the classrooms used by the LCR, where they are taught by mainstream or specialist teachers, or are supported by LCR staff in the mainstream classes. The division of time between the LCR and the mainstream is needs led and carefully transitioned. The child would begin in the LCR classrooms and transition to the mainstream setting would be carefully planned, based upon his needs. The aim is to integrate the LCR pupils into the mainstream. Pupils can spend their lunch and break times either in the mainstream environment or in the LCR.
12. The LCR is supported by educational psychology input, speech and language therapy input and more limited occupational therapy input, if required by specific pupils.
13. The mainstream teachers at School B are trained in autism and language and communication issues and are actively made aware of the needs of the LCR pupils. The mainstream pupils also receive autism specific assemblies and other strategies to help them understand the needs of the LCR pupils.
14. The head of the School C LCR and The child’s last class teacher are of the opinion The child should attend the LCR at School B and not School A.

Tribunal’s Reasoning

1. The Tribunal has considered all the written and oral evidence, the parties’ written submissions and the statutory Code of Practice.

2. Pursuant to paragraph 3 (1) (b) of the 2004 Act the respondent is relieved of its duty to accede to a placing request if it is of the view the “education normally offered at the specified school is not suited to the age, ability or aptitude of the child”.

3. The Tribunal is therefore required to consider whether the education normally offered at School A is suited to The child’s ability and aptitude. Contrary to the submissions for the respondent, the Tribunal does not consider age is relevant. The Tribunal has considered the suitability of the education normally offered at School A and whether it is suited to The child’s ability and aptitude separately, and not by way of a comparison with School B LCR. It is not the role of the Tribunal (at this stage of the statutory exercise) to compare and contrast the relative suitability of the placements (School A versus School B). The Tribunal considers whether or not the education is suited and must involve consideration of the education generally and not simply the education to meet a pupil’s additional support needs and broadly considers that for education to be suited (or suitable) it must adequately meet the needs of  the pupil in question, having regard to their ability and aptitude. There seemed to be little or no disagreement from the parties with respect to this approach.

4. The Tribunal has placed considerable weight on the opinion of Witness C who taught The child for many years. She knows The child and his needs well. She is also now the deputy head of School A. The Tribunal found her evidence clear and helpful and found her uniquely able to address the question of whether or not the education normally offered at School A would be suited to The child, given his aptitude and ability. Her opinion was clear that the education normally offered was not suitable and in particular she gave evidence that:

• The child could achieve beyond what takes place at School A;
• the peer group at School A would be a real issue,
• The child requires more socially appropriate peers than attend School A;
• the peer group in S1 at School A function at a lower level academically than The child;
• there was a question mark over whether The child would have friends and whether he would be isolated;
• The child needs positive role models, mainstream peers who do not have autism, who do not have impairments, so when conversations break down, they can be fixed.
• The child would achieve academically beyond the level of the current pupils at School A.

5. The Tribunal also heard very similar evidence from Witness B. Whilst she had not carried out any 1:1 assessment work or observational work, she was the allocated educational psychologist and knows both the LCR at School B and School A. She had attended meetings and met with the staff at School C LCR. She had formed the view that the education normally offered at School A was not suitable for The child. Her reasoning was very similar to Witness C’s. Whilst she had not carried out an assessment, which may have been helpful, the Tribunal was able to place weight on her evidence, given her professional role and from what she had read and discussed with The child’s teachers at School C. The Tribunal accepted her evidence.

6. The Tribunal note the written evidence of Educational Psychologist that on balance his preference was for The child to attend School A. The Tribunal could not accept this evidence and preferred the evidence of Witness C and Witness B. It is not accepted that The child’s needs can be adequately met at School A, as suggested by Educational Psychologist and the Tribunal did not consider the seven areas of need, identified at paragraph 5,1 of his report could be fully met by a placement at School A for the reasons given by Witness C and set out above.

7. The Tribunal also carefully considered the oral evidence of The appellant and understood her concerns for The child and her fears in relation to what she perceived to be, essentially, a mainstream placement at School B LCR. On the crucial issue of the suitability of the education normally offered at School A, The appellant was not able to re-assure the Tribunal in relation to the difficulties identified by Witness C and Witness B.

8. After careful consideration of all the written and oral evidence, the Tribunal have come to the clear view that the education normally offered at School A is not suited to The child’s ability and aptitude because:
   
   1. it does not cater for his average cognitive profile and ability to access mainstream school with support;
   2. the peer group would be inappropriate both academically and socially;
   3. The child would not have access to the mainstream peers and opportunities he needs;
   4. The child would be denied the full range of subjects and specialist facilities which are not on offer at School A.

1. The Tribunal have considered pursuant to sub-section 19 (4A) (ii) of the 2004 Act whether in all the circumstances it is appropriate to confirm the decision of the respondents to refuse the placing request for School A. The Tribunal have concluded it is appropriate to confirm the decision because:

1. 1. the education normally offered at School A is not considered suited to The child (see above);
   2. the Tribunal concluded the provision offered at the School B LCR is appropriate given it has teachers with understanding, knowledge and experience of pupils on the autistic spectrum; offers an appropriate peer group of mainstream pupils and cognitively average pupils and permits a careful balance of provision between the small group teaching of the LCR with the carefully supported provision in the mainstream;
   3. whilst  it is accepted The child had a difficulty with mainstream provision at School D primary school, this was before his diagnosis of autism and the LCR offers a range of expertise that was not on offer at School D, therefore the placement at School B LCR cannot be compared to his previous mainstream experience.

10. In the circumstances because the ground of refusal founded upon in sub-paragraph 3 (1) (b) of the 2004 Act has been upheld, it is unnecessary to consider the arguments made by the parties in relation to sub-paragraph 3 (1) (g).

11. The Tribunal is grateful to the representatives for their helpful and constructive approach.  

Order

The reference is dismissed and the decision of the respondent, refusing the placing request, is upheld.