DE
Reference: R 14 0064
Gender: Male
Aged: 15
Type of Reference: Placing Request
- Reference
On 17th August 2014 the Appellant lodged a reference under section 18(3)(da) of the Education (Additional Support for Learning) (Scotland) Act 2004, [now as amended by the Education (Additional Support for Learning) (Scotland) Act 2009] (“the Act”) against a decision of The Authority, Education Authority (“the Authority”).
The reference is in respect of the decision dated 10th June 2014 where the authority refused a placing request made by the Appellant under paragraph 3(1)(f) of Schedule 2 of the Act, for her son, to attend the requested school, School A, (“School A”) as a day student.
- The Decision
The Reference is allowed.
The decision of the Respondents to refuse the Placing Request is overturned. The Respondents are directed to place the child in School A, not later than 16th February 2015.
- Preliminary Issues
By email prior to the conference call on 9th January 2015 the Appellant advised that the child now wished to be referred to as The child and had gender identified as male. It was agreed that those wishes would be respected. Thereafter it was agreed that the Authority would lead at the hearing; the representative for the Appellant advised that they intended to lodge additional documentation prior to the hearing and arrangements were made for The child to speak directly to the Tribunal, rather than formally give evidence.
4. Evidence:
Documentary evidence was produced in a bundle with papers T1-T31; A1-A17 and R1-R127.
Oral evidence for the Respondents was taken from:
Witness A and Witness B. Having heard their evidence the Tribunal requested an additional witness from the Respondents and accordingly evidence was also taken from Witness C.
Oral evidence for the appellant was taken from:
The Appellant, and Witness D.
The Tribunal considered that the witnesses each gave their evidence in a forthright manner and we were willing to accept their evidence, together with the evidence in the Bundle, as being credible and reliable.
The child did not attend during the hearing but the Tribunal had the opportunity to speak with him directly outwith the presence of his parents and the parties’ representatives with a view to obtaining his views.
We were satisfied that we had sufficient evidence upon which to base our decision.
- Findings in Fact:
The Child
The child now known as The child is aged 15. The child was born female and was known as Anon until 24th December 2014. At that time the child disclosed to his mother that he did not identify with being female and no longer wished to be addressed as female. He also declared that he no longer wished to be addressed as Anon and now wished to be addressed as The child. Following upon a formal request by the Appellant, we agree to refer to the child in accordance to his wishes.
The child lives with his mother and step-father. He has 2 younger siblings aged 3 and 14 years of age. The birth father of the children does not live with them and no longer has any contact with them. The relationship between the Appellant and The child’s father was characterised by domestic abuse and the Appellant described him as being a very controlling person towards her and the children. The lifestyle of the family could, at best, be described as chaotic, with The child taking on responsibility for caring for himself and his younger siblings. Even after the relationship came to an end around February 2013 The child’s father continued to exert control over the family. In August 2013 The child confided in staff that he was self-harming, about difficulties at home and the bullying that he was suffering at school. Staff were also concerned regarding The child’s general presentation. The Social Work Dept. became involved and offered support and advice. Matters came to a head on 30 September 2013 after The child refused to return home and confided in Witness A, his Community Link Worker, who subsequently contacted the appropriate authorities. The child was placed with his maternal grandparents for approximately one month. The child and his siblings were placed on the Child Protection Register and since then the Appellant has broken all ties with The child’s father. The child was taken off of the Child Protection Register on 6th February 2014 but The child and his siblings continue to have Social Work input and The child has his own allocated Social Worker.
Since August 2013 the Appellant has formed a new, stable, relationship and has married her partner. The child’s home life is now more stable and calm. The child has chosen to adopt Stepfather’s surname as his own. Stepfather is in employment and the Appellant, his mother, is therefore his primary carer.
Needs of the Child
An assessment was carried out on behalf of CAMHS and The child received a formal diagnosis of Autistic Spectrum Disorder (“ASD”) in April 2014. The factors giving rise to The child’s additional support needs are:
- Diagnosed Autism Spectrum Disorder with associated anxiety, depression, social and communication difficulties and heightened sensory awareness.
- Difficulties experienced by The child with social interactions with his peers which can make him socially isolated.
- Very difficult family circumstances which have impacted upon The child’s ability to manage change. This has had a negative impact upon his mental health and emotional wellbeing and has also exacerbated his ASD behaviours.
- Difficulties experienced with emotions and wellbeing which resulted in his being referred to CAMHS after he was found self-harming at school and disclosed suicidal thoughts.
- Emotional difficulties which impact upon his ability to concentrate in class.
- Non-attendance of timetabled classes resulting in The child’s falling behind with his work in most subjects.
- Difficulties with eating in front of people – reported at school.
- Difficulties with sleeping.
- Wishes to gender identify as a male.
The child had attended at School B. This was a small rural school with approximately 43 pupils. The child successfully completed primary education and then went on to School C (16/08/11 – 05/10/12). Due to home circumstances and the Appellant taking herself and the children out of the family home and in to a Woman’s Refuge The child moved to School D (22/10/12 – 27/02/13). There were further changes of school, first to School E (28/02/13 – 07/06/13) and then, as The child felt that the school were refusing to accommodate his wish to do 3 science subjects due to timetable difficulties, to School F (10/06/13). The child remains on the roll at School F.
In S1 and S2 School reports indicated that The child was apparently doing well. No information had been given by the Appellant to the Authority to indicate at that time that there were any concerns with The child or that The child had any difficulties with school. The Appellant responded that The child’s father controlled matters to such an extent that it limited her relationship with the children and her ability to identify if they were coping or not.
At one point during an exam The child exhibited an anxiety attack at school. The child’s mother, the appellant, and his father were called up to the school. At that time the Appellant was noted as dismissing this behaviour as a ploy on the part of The child for attention. On 30th September 2013 The child appeared to become visibly upset at school, displaying rocking behaviour and refusing to return home. Witness A, The child’s Community Link Worker, was able to calm The child. The child then made further disclosures to Witness A regarding the conditions at home, the abusive relationship with father and his care for his siblings and the stress that this was putting upon him. The child was placed in the care of his maternal grandparents and The child and his siblings were placed on the Child Protection Register. The child returned to live with the Appellant approximately one month later.
Prior to The child’s refusal to return home in September 2013 The child had already began refusing to attend at certain classes at School F. Witness A had begun to suspect that The child was exhibiting autistic behaviours and has sought the assistance of the Principal Teacher of Guidance. Witness A made efforts to identify the reasons for school refusal with The child and address issues. This included looking at issues with individual classes, placing The child in smaller classes of 2 or 3 pupils and providing a upport worker in class. Witness A described that each effort to address an issue would be met with apparent success for a short time and then The child would find a new reason to refuse. The child has refused to return to School F since January 2014. Witness A described that The child had “opted out” of school. Witness A last saw The child in December 2013.
The Appellant made investigations to determine if there was another school that The child could attend. The Appellant contacted School A and arrangements were made for The child to visit for one day. The child attended at School A and such was the success of that visit that a further three day visit was arranged to take place the following week. The child attended and completed 3 full days.
School A issued a formal offer of a place to The child by letter dated 21 March 2014. The Appellant made a Placing Request to the Authority in April 2014 and this request was refused by the Authority by letter dated 10th June 2014. At a meeting on 27th May 2014 the Authority had determined to offer an alternative place for The child at The Community School of School G.
The Community School of School G – Specified School (“School G”)
This is a small semi-rural school with a roll of 453 pupils. It is an “All Through School” which combines a nursery, primary and secondary departments. The Support for Learning facilities situated above the Learning Resource Centre is experienced in supporting a wide range of children and young people with significant additional support needs, both within the base and in mainstream classes, depending upon the individual needs of the child. The facility comprises of two main spaces, one for academic learning and the other offering a more nurturing approach. There is a small room, without windows, which can be used as a quiet room. The base is described as having “a horrible bell”, although this could be switched off if deemed appropriate. The School G is currently successfully supporting young people who have ASD.
Specialist staff at School G attend at regular Integrated Team Meetings (ITM) where particular cases can be discussed and solutions sought from a variety of specialists. These specialists can be available on an appointment basis as required. The School G Primary Mental Health Worker (from CAMHs) is a member of the school’s integrated team meetings and is available for support and information if/when required.
The teachers at the school are accredited and qualified to teach subjects, particularly the sciences, up to Advanced Higher level including Higher. Support for Learning staff and teachers and Pupil Support Assistants work closely together to support and meet the needs of all pupils. In addition to their subject specialisms teaching staff at School G have training, experience and qualifications in:-
Developmental Disorders including ASD and ADHD; Identifying appropriate Additional Assessment Arrangements; Electronic adaptive software and hardware including digital papers and the use of recording software; visual Dyslexia, Sensory Integration Difficulties.
The School G has a Wider Achievement Programme which affords its pupils the opportunity in taking part in extra-curricular activities such as Duke of Edinburgh Award Scheme, a Photography club, outdoor learning, after school sporting activities, school trips and music and drama opportunities.
The School G is able to plan and support pupils into further and higher education and we were provided with details of the level of success in this regard.
The child and his family carried out an initial visit to School G. The Authority accepted that this was less than successful, due to a number of factors including the size of the group attending with them and the limited time that Witness B had available.
The School G have identified PAS as a valuable resource in engaging with The child and presently pay for a room within PAS to allow some initial tuition to take place. On behalf of the Authority it is stated that “it is hoped that they can continue to develop their relationship at PAS as it is an environment in which [The child] is clearly comfortable.”
School A,– Requested School (“School A”)
This is an independent school registered as a Charity and run on a non-profit basis. School A has become increasingly specialised and caters for pupils with a range of issues, including ASD, Aspergers, ADHD and Tourette’s syndrome. Presently two thirds of the pupils enrolled at School A have a diagnosis of autism with most of them being described as high functioning.
The school accepts children between the ages of 11 and 19. The school presently has a roll of 25 pupils, of whom 18 are residential and 7 are day pupils. School A encourages day pupils to take part in extra-curricular activities along with the residential pupils and to join in with outings. School A has a football team and matches are arranged against teams from other local schools. They also encourage mixing with the local community by arranging work experience placements in the local community and encouraging pupils to join organisations such as local Guide groups.
The school offers pupils the opportunity to attain ASDAN qualifications, which are life skills based, and more formal qualifications such as National Awards and Highers. All of the education staff, with the exception of the P.E and Home Economics teachers, are GTC registered and have the approval of SQA to provide courses. The school can offer academic courses in: English, Maths, Geography, History, I.T., Biology, Chemistry, Physics, PHSE, Art, Drama, Music and Horticulture. Pupils at School A can sit formal exams when they are deemed to be ready, rather than at a fixed point in the year.
All staff at School A have ongoing training in autism. School A has received good HMIE reports. In the previous year School A received a poor report from the Care Inspectorate. Witness D, the Head of School, explained that this had occurred during a period of change of personnel and that steps had been taken to address the issues raised. She was confident that the next report would once again be positive
Cost to the Authority of School G
In relation to School G they stated that the cost of his attendance would work out at £23,384 per annum. There would be a one off outlay of £1,000 to purchase a laptop. Additional costs to be taken into account would be the cost of transporting The child to and from school. In the event that transport was to be by taxi, then the annual cost could be stated as £10,395 pa.
Cost to the Authority of School A
The fees for attending as a day student at School A were £37,116. The cost of transport by taxi was calculated at £13,230. This did not take into account any additional costs should The child choose to attend extra-curricular activities. As no evidence was put before us as to what these costs could be, we are not in a position to take any such costs into account
Availability of Place at School A
If the placing request is granted, the requested school would be able to offer a non- residential place to The child with immediate effect.
Views of the Parent.
The Appellant spoke very briefly about her relationship with The child’s father, describing him as a very controlling person. We had sufficient information from the Bundle not to require her to go into matters in detail. It was clear from the papers and also from speaking with The child that there had been a long period when their home life was far from ideal. The Appellant described The child’s behaviour in refusing to come home to be a “wake up” call about the ongoing negative role of The child’s father in their lives. The Appellant now has formed a new relationship and married and is engaging with Cedar and counseling to try to rebuild her relationship with her children. She advised that she feels that she now knows The child well and that things have improved to such an extent that The child felt comfortable confiding in her and “coming out” about his gender.
The Appellant described herself as a positive person, always looking for the positives in life. She advised that she had tried to instill this in The child, encouraging him to at least “give things a go”. She had also brought The child up to be polite. This explained, in her view, the comment that The child had appeared to engage with Witness A at School F but when it became clear to The child that things weren’t working for him, he refused to go back. It also explained The child’s positive engagement with Witness B. However, when The child returns from being with Witness B at PAS The Appellant described him as being exhausted.
The Appellant confirmed The child’s interests in drama and Sherlock Holmes. She explained that The child would “put on a mask, a persona” and would tend to approach things using that persona, as far as he could understand and take on that persona.
The Appellant confirmed that The child had taken to PAS and had a lot of trust in them, that they could care for him. In turn, The child felt able to place trust in those covered by “the umbrella” of PAS. As Witness B was introduced to The child through PAS and tuition took place within PAS, this had allowed The child to feel safe, particularly as Witness B was engaging The child in a subject that he was keen to pursue.
The Appellant stated that initially The child had not been told that the purpose of attending lab sessions at School G was to introduce him into attending at that school. The Appellant was generally positive about School G and was very enthusiastic about Witness B, describing her as “brilliant”. When attending for the visits to use the lab, The Appellant advised that The child would need lots of preparation, would be anxious and would wear ear defenders when attending in case the bell went off. She also advised that The child would require a couple of days to recover from each visit to School G.
The Appellant went with The child to his first visit to School G to see the school. Someone from School F met up with them and Witness B but the school was busy and they were only able to look around the base and the quiet room, which she described as being full of equipment and windowless. The child had met a girl within the base that he knew from PAS but despite encouragement from his mother, he refused to make eye contact or to interact with her in any way. For the second visit to School G The child had attended with a Special Needs Teaching Assistant. Unfortunately they arrived just as the bell rang and the pupils were changing class. The child and the Teaching assistant went to the base but were not noticed initially. Thereafter a video was put on for them to watch but again the school bell went off and The child asked to leave. The Appellant described The child as being extremely anxious and traumatised following this visit and was self-harming for a few days after.
The child did return to School G after two successful periods of tuition within PAS. However, there had to be a number of conditions, such as the school being empty and The child being allowed to wear ear defenders. The reference in the Bundle suggesting that The child’s anxiety had lessened had been taken out of context, according to Mrs. , as the comment referred to the sessions within PAS, not to attending at the lab at School G. The Appellant stated that if The child was to attend at School G the involvement would increase slowly and, in fact, was likely to stagnate.
In relation to attending at School A, The Appellant advised that before his first visit there The child was very depressed, isolated and anxious. On the first visit they were shown around by another pupil and The Appellant was surprised at how she and The child (Anon at the time) spoke the whole way around the school. The child’s response to the school was so positive that The Appellant immediately arranged for a further visit for an assessment to be carried out the following week. The Appellant stated that The child talked the whole way home from School A, keen to tell her all about the pupils that he had met at the school, all their names and what they were doing.
The Appellant advised that The child was so excited to be attending that on the morning of the 3 day visit that he was up and dressed and had his bag packed by 6am. She and Stepfather had taken The child to School A for the first visit but Stepfather was not able to take more time off work and so The child had to travel independently by train to the school for each of the next three days. The child was anxious but was so committed to attending that he was able to cope with this new experience. The Appellant took him to the train and arranged for the conductor to sit with him during the journey and she arranged for her father to meet The child at the other end. The child had never travelled by train before. Previously The child had only travelled independently by bus when returning home from PAS after a lot of planning and preparation.
The Appellant advised that despite The child having a number of issues around food, he sat with the other pupils at School A and had lunch with them. He had been able to speak directly with the cook, tell him about his triggers and learn what was in the food and how it was cooked. The child was able to form a friendship with the girl who had originally shown them around the school and The Appellant advised that The child felt very fond of her. The Appellant advised that the only negative about School A was the thought that The child might not be able to return there.
In stark contrast to The child’s refusal to attend at School G The child has stated to his mother that he would be willing to start at School A “tomorrow”. The child has no history of refusal at School A. The Appellant is clearly of the view that School A can support The child and, although he may not be able to take the conventional route to where he wants to be (studying medicine) she is confident that School A can help him take the necessary steps to get there.
Views of the Child
The child had good memories of his primary school. He explained that the school was very small and he identified other pupils there who were like him. He was very confident in his own academic abilities and stated that he was working in Primary school at secondary school level. When he moved to secondary school this was to a much larger school. The child described that there was a lot going on in his life and that for a lot of the time he felt that he was simply pretending to cope.
The situation at home was not a happy one. The child felt that he had to be responsible for caring not only for himself but also for his sisters. He described having this caring role from a very young age. The child chose to view this in a positive light, congratulating himself for being able to do this. At school he had to pretend that everything at home was okay.
The child increasingly found it difficult to relate to his peers. When he was drawn to interact with the boys they would tell him to go away as he was a girl and when he attempted to interact with girls they would tell him to go as he was too much like a boy. He also found the size and the noise of the school difficult to cope with. Again, The child felt that he had to pretend to be a girl to try to fit in and pretend to be learning with the rest of the class.
The child stated that the reason for the positive school reports in his early secondary years was because he felt that he had already covered the work in primary school and so was able to complete the work while waiting for the rest of the class to “catch up” to him. The child was very clear that he did not feel that he has received any education since he left primary school other than what he perceives he has arranged for himself.
The child stated that finally he did not want this situation to continue and he knew that by refusing to return home his mother would have to do something about it. His home life did improve once his father was no longer around and he no longer had to have the responsibility of being a carer for his sisters. His mother has remarried and The child gets on well with his step-father.
With regard to his refusing to attend at school, The child felt that he had done everything that had been asked of him - “jumping through hoops” but despite this he still could not return to mainstream education. He is keen to learn. He spends a lot of his time writing and is very interested in Sherlock Holmes. He is interested in going into medicine, seeing it as an area where he could carry out investigations and lab work. He recalled wanting to be a doctor since he was 3.
The child had knowledge of School G. Although he accepted that this was a smaller school with fewer pupils, this did not mean that the school was less busy or the class sizes were smaller, just less of them. He had been to the school to carry out experiments using their lab. However, most visits there were outwith the normal school day and had made him very anxious.
The child was concerned about his personal safety at School G, not only from the aspect of bullying, but also the possibility of his absconding from school. The child advised that he had previously left School F and walked home when things got too much. He appeared to think that the response from School G should he repeat this there was that they would show his photo around. He clearly considered this inadequate. There was also the risk posed by the physical distance he would have to travel to get home. In contrast, should he feel the need to escape at School A, he believed that he could do so safely by going out into the school grounds. There was only one access and exit to the school which was monitored. He appeared to have already discussed the possibility with the school and was satisfied that they would be alert to his disappearance, give him some time on his own before coming to speak with him and afford him extra time should he require it before returning to class.
The child commenced engaging with PAS (“PAS”) in March 2014. The child had very high praise for his involvement with PAS, describing them as “angels”. He clearly had a lot of trust in PAS. They arranged activities such as drama, which he enjoyed, and he was also keen to try other activities such as karate. Whatever the outcome of this hearing, The child made it clear that he intended to continue attending with them.
One of The child’s concerns was about bullying. He stated that he had experienced this in his former secondary schools. He was concerned that there would be bullying at School G. In contrast, he did not think that bullying would be a problem at School A as each pupil there had their own eccentricities and so would be more understanding of others and their behaviours and differences. The child had very recently gone back to School A and had spoken with the other pupils about his change of gender. They did ask him about it but mainly why he had chosen the name that he had. He felt very accepted by them.
When asked if he would attend at School G if our decision was to refuse the appeal, The child was very clear that he would not do so.
5. Reasons for the Decision
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.
The issue in dispute was the respective suitability of the provision available at School A, the Requested School and School G, the Specified School, and the respective cost of the provision, for the additional support needs of the child.
The Act requires that in order to uphold the decision of the Authority, we have to be satisfied that they are able to make provision for the additional support needs of the child in a school other than the requested school.
We were referred to the case of McAuley v Aberdeenshire Council 2008 SLT (ShCt) 126. This was a case dealing with a refusal of a placing request. We were referred to extracts from paragraphs [45] to [57] of that case, which I have set out in the Addendum to this Decision. In effect, there was criticism in that case of the Education Authority in that by the time of the hearing before the Sheriff they still had not carried out an assessment to identify the needs of the child. Consequently, as no assessment of needs had been carried out, they were not in a position to determine whether or not they could meet those particular needs.
Of particular relevance to the case before us is paragraph [47] of that judgment, as follows:-
“[47] It seems to me that what the defenders are saying is not that I should refuse the appeal and confirm the authorities (sic) decision because they have shown that in terms of para 3(1) 9(f)(ii) they are able to meet R’s additional support needs at [S school]. Rather they are saying that if I refuse the appeal then they will assess R’s needs and decide how best to meet them… That is manifestly not what para 7)6) of the schedule requires of me.”
In the present case we carefully considered whether the authority had satisfied us that they were able to meet The child’s needs. In order for this to be so, we required to be satisfied that they had firstly identified The child’s needs and secondly, considered how they were going to meet those needs.
The Authority had taken into account the outcome of the CAMHS assessment and had identified his need for additional support. Their description of The child’s additional support needs was not challenged by the Appellant. The Authority focused on the fact that The child has a stated interest in medicine and is keen to pursue a career as a doctor, having held this desire from a young age.
We were advised by Witness B that The child was not yet on the roll of School G and she did not know when this would change. The Authority did not foresee a difficulty with his name being added to the roll, depending upon the outcome of this Reference.
Witness B gave evidence that she has been working with The child on a 1:1 basis, providing him with tuition at PAS and, leading on from that, she and The child had attended at School G to carry out experiments in the lab. Witness B’s task was to try to engage with The child “to see if School G would be a fit”. Witness B assumed that a Panel Hearing would be arranged to make the decision as to if the school was a good fit. She would expect to be invited to give her input but would not be involved in making the decision. She advised that the Educational Psychologist from School F would also be invited (although we had no evidence to indicate when the Educational Psychologist last had any contact with The child) After this Panel Hearing the Authority would still require the agreement of The Appellant to the placement. Witness B did not know what would happen if the decision of the Panel Hearing was that the School G was not a good fit.
Witness C in her evidence made comment that if the Tribunal Hearing had occurred earlier, say, in December 2014, then they would be further on in their planning for The child. This clearly indicates that the Authority, rather than approaching the Tribunal in a position to demonstrate that they can meet The child’s particular needs, were awaiting the outcome of the hearing before they would even begin the formal assessment and planning process.
This evidence appeared to be at odds with the information within the Bundle that a support plan had been prepared for The child’s transition to School G.
In the Bundle the Authority had lodged an Individualised Educational Programme (IEP) for The child. However, the IEP had been prepared after The child began refusing to attend at school but before the decision was taken, in May 2014, that The child should attend at School G. It does not appear to have been updated in any way and certainly, as at the date of the hearing, had no mention of the significant change in The child’s life and his determination to gender identify as a male. There were no detailed proposals or timescales for actually encouraging The child back into school and, in particular, School G rather than School F.
A meeting had been arranged for 28th October 2014 to develop a plan for The child. At that meeting The child continued to state that he would not attend at School G. No evidence was given to suggest that at the meeting a plan had actually been formed.
Following the authority of McAuley we are bound, in these circumstances, to hold that the Authority have failed to discharge the onus upon them which is to establish that they are able to make provision for The child’s additional support needs in School G.
Respective Suitablility and Respective Costs
We did go on to consider the remaining parts of the test as laid out in section 3(f)(iii) of the Act, namely the respective suitability of each of the schools and the respective costs.
With regard to the costs, the Authority provided the above figures which, in their view, reflected the costs to them of The child attending at each school. These costs were not contested by the Appellant. Accordingly, we determine that the additional cost to the Authority in sending The child to School A amounts to £16,567 per annum.
The position of the authority in their submissions was that as they were able to make provision for The child at School G, any costs incurred in sending him anywhere else were unreasonable. Accordingly, if we were satisfied that their decision to refuse the placing request was correct then it would be unreasonable to require them to incur the cost of funding a place at School A. They appeared to concede that if we held that their decision was not correct, then cost was not an issue.
It is difficult for us to give consideration to respective costs following this line of argument. If taken to a logical conclusion, then if the decision of the Tribunal is to uphold the appeal, then it will always be reasonable to order the authority to meet the cost, whatever that is.
Looking again at the McAuley case, we see guidance from the Sheriff as to how this issue is to be addressed.
“[57]…No evidence was led as to what the defenders education budget is, or their special needs budget, or even their budget for [the Specified School], so I cannot put the maximum additional cost of £2390 in context, but any way it seems likely to have a minimal impact and to amply justify Mrs. H' assertion that cost was not an issue. “
The question is whether the cost to be incurred in sending the child to the requested school is, in terms of section 28(1) of the Education (Scotland) Act 1980 “ an unreasonable use of public expenditure”. What is unreasonable can only be determined if the Tribunal has evidence of the overall budget of the Authority and what impact it would have on the Authority to meet the additional costs of the child attending at the Requested School. Without this information the Tribunal is not in a position to make any determination of reasonableness. As we find ourselves in this position in the present Reference, we shall make no determination as to the reasonableness or otherwise of the costs involved.
Turning the respective suitability of the two schools:-
Provision at School G
Although they Authority did not have a formal plan in place for The child and he was not yet on the roll, their evidence was that should the appeal be refused, they did not anticipate that placing The child on the roll would be a difficulty.
Witness B’s main objective at this point in time was to form and build a relationship with The child, which she had been doing with some success. Witness B was unable to state how matters would progress from there, although Witness C stated that things would move quickly once the decision had been taken for The child to attend. Witness B did plan to introduce The child to a second teacher at the school who taught English with the idea that The child would engage with her as well. There was a view that they believed that they would be able to encourage The child back into school, initially in the base and, in due time, to introduce him to mainstream classes where this was appropriate.
Witness B confirmed that she had seen the SMARTS profile for The child but not the Neurodevelopmental Assessment Report issued on 25th April 2014 which The Appellant advised that she had handed in to a teacher at School F. Witness B advised that she did not have any information from The child’s last school as to what steps had been taken by them to overcome The child’s refusal to attend at school. She considered that it was enough that School G would be a “fresh start” for The child. Adaptations could be made, such as turning off “the horrible bell” in the nurture base. The Authority appeared confident that the strategy of building upon Witness B’s relationship with The child, with the ongoing assistance of PAS, would be sufficient to get The child back into full time education. Thereafter The child would have the benefit of qualified teachers who would be able to teach The child either in mainstream classes or engage with him and provide work to him in the nurture base. The child would be able to study the three sciences that he would need in order to pursue medicine.
Provision at School A
School A carried out a 3 day assessment of The child in addition to taking a history from The Appellant and The child and perusing reports and documents provided to them by The Appellant. Witness D advised that rather than arrange classes by age they put together pupils of similar ability. The child was put into a class of 6 (2 girls and 4 boys), all high achievers who want to get on and do well. These pupils are mostly doing National 5, although all teaching is individualised. Witness D advised that on each day The child joined the class he followed the curriculum and joined in with the life of the school. She described The child as “a natural fit” and “difficult to distinguish from the other pupils”. Witness D advised that The child had coped well eating with the other pupils in the dining room, despite the noise.
School A are able to offer a wide range of academic subjects up to Higher level, including the sciences that would be important for The child to pursue his stated profession. While Witness D accepted that their chemistry lab was small, this had been considered and solutions could be found by using video tutorials and possibly also by linking with the nearby High School as they had for a previous course. School A also focus on teaching life skills on the basis that “it doesn’t matter how bright you are if you can’t operate in the real world”.
Academically we consider that both schools are able to provide for The child’s educational needs if they are able to engage his interest and succeed in getting him to attend. However, School A placed greater emphasis on life skills than School G and while academic qualifications are important, without the appropriate life skills the prospect of successfully attending at and completing further education is limited. Accordingly, we consider that School A would be the more suitable in this regard.
Further Education – School G
The Authority appeared confident that they could support The child into higher education. They appeared to dismiss the approach of taking “baby steps” to achieve this and stated that they could support The child directly from school into university. However, considering that The child has missed a large amount of education and is presently refusing to attend for more than two hours a week, this does not seem to us a realistic position to take. No assessment of The child’s academic ability has been undertaken to assess whether he would be capable of catching up and achieving the necessary qualifications to allow this to happen in the time that he would have left at school.
Further Education – School A
School A are in a position to support pupils into further education and would look to build links with the college or university local to where the pupil resides. They would support the pupil through “baby steps”. Witness D stated that their strength lay in providing pupils with life skills to allow them to cope in the wider world. School A has not had pupils to go straight into university education but have supported pupils in applying for HND courses which may then lead on to university education. Considering the period of lost education this approach has much merit.
Refusal to Attend – School G
At present The child has been attending at School G for a limited time and with support from PAS. When asked how they would address The child’s clear stated intention not to attend at School G on a more full time basis, Witness B advised that she would look to build upon her relationship with The child and use this to encourage him back to school. She did not have any information from Witness A as to the strategies that had already been tried with The child. She considered that School G would be a “fresh start” and that this would be sufficient to allow The child to put his previous negative experiences of mainstream schooling behind him. We consider that this may have a prospect of success but are concerned at the negative experience The child had of attending at School G for the introductory visits, the limited time available to The child having regard to his age and the incremental nature of the steps being proposed by the Authority to get The child into the school. We also have regard to the comments of The Appellant that The child initially agreed to attend at School G for the purpose of carrying out lab experiments rather than for the purpose of getting used to attending at the school.
Refusal to Attend – School A
School A look to build relations with pupils and their families and also already have links with PAS. At present The child has shown a clear desire to attend at School A. Witness D advised that the school always try to stay alert to changes in the pupil and would look to address any refusal to attend by making a home visit and working with the family and child to support a return to school. This is at least comparable to the steps that would be taken by the Authority.
Gender Identity School G
When questioned about how they would approach the gender identity issue, it appeared to us that there had not been a lot of thought given to this by the Authority, which may have been understandable, considering that that this had only been a recent disclosure. However, in contrast, The Appellant advised that when The child’s decision had been made known to PAS, they requested that The child refrain from attending at the drama club for two weeks to allow them to consider how best they would approach this with the other children and parents attending, to obtain the consent of the parents to speak with their children and generally to prepare them for The child’s return in a new identity.
At School G they had the advantage in that The child had not yet met any of the pupils there and so would be making a fresh start. They would simply introduce The child to the school in his male identity. The toilet within the base was already unisex and could be used by The child. When questioned about facilities in the rest of the school we were advised that a further toilet there could also be designated as unisex.
This appeared, to us, to fall far short of what would be realistic and appropriate. There was no suggestion that The child’s views would be sought as to how he wished the Authority to deal with this issue. Introducing The child as male to the other pupils would fail to take into account that The child’s body is female and as The child progresses through puberty it is likely to be increasingly evident to other pupils that The child has a female form. It also begs the question as to whether they would expect The child to pretend to other pupils that he has always been a boy or whether there would be support offered to him and/or the other pupils should he wish to disclose the true position. The child had previously described his anxiety at having to pretend to be something that he was not, and we do not consider that it would be in his interests if he were to be placed in a position where once again he had to make and keep up a pretence.
Gender Identity – School A
School A have previously had experience of a pupil with gender issues. Witness D advised that they had given some thought as to how best to approach the disclosure that The child had now gender identified as a male. She gave an example of steps that they had taken when a pupil with Tourettes Syndrome had come to the school, carefully preparing the pupils in advance, informing them of the nature of the condition and, with the consent of the child, showing short videos of the child so that when he started at the school, the other pupils were already familiar with him.
The child had previously visited School A as Anon. In the end it was agreed to simply re introduce him as The child. The child appeared comfortable with this and told us that the other pupils had shown some curiosity, mainly for why he chose The child as a name, and then quickly moved on. Accordingly, we consider that at School A the issue of gender identity is not likely to cause significant issues for The child.
Conclusion
The Tribunal considered the ability of School A to make provision for The child's additional support needs and concluded that this was established. In comparing the respective suitability of the schools we are satisfied that School A is the more suitable of the two.
Finally, having regard to section 19(4A)(a)(ii) of the Act, we went on to consider
Whether it is reasonable in all of the circumstances.
The child is presently 15 years of age. Since starting secondary education he has attended at 4 separate schools. While attending at School F great attempts were made to get The child back into education. Witness A described that there was nothing left to try. The child described having been willing to give it a try but that these attempts did not work. Both parties described “jumping through hoops”. The child is keen to continue with education but has made it very clear that he will not co-operate in attending at School G. He has also expressed and, in addition, demonstrated, that he will co-operate with attending at School A.
The child will be 16 in August 2015 and will legally be able to leave school after 31st May 2015. Accordingly, we require to consider whether it is realistic to consider that the Authority will be able to engage with The child between January and May to such an extent that he chooses to stay on at school and thereafter continue there long enough to gain sufficient qualifications to apply to study his chosen profession. The decision by the Authority to send The child to School G was taken at a panel hearing on 27th May 2014. Witness B did not start to engage with The child until October 2014. Her engagement to date has largely been successful through the direct support of PAS. We have no evidence as to how or when her engagement will be increased or what steps, other than introducing The child to a second teacher at School G, will be taken to get The child to attend directly at school. As the Appellant noted, in total the Authority have only managed to engage The child in less than 10 hours of education since January 2014.
In contrast, The child has attended at School A for at least 3 full continuous days of education following upon his initial visit, and has recently returned to remind himself about the school (25 hours); followed the curriculum and has shown a clear enthusiasm for returning there.
We considered the report of the independent psychologist, lodged by the Appellant. In particular the passage where it stated:
“After years of disrupted education and school refusing he is so enthusiastic about what this school [School A] has to offer that he is keen and ready for an immediate start. This in of itself is progress…It is my professional opinion that there is nothing to be gained be sending him to school which he does not wish to attend therefore where the outcome is doomed from the start. If he has experienced a school to which he is attracted then that would logically be a starting point for what should be a satisfying consequence both educationally and psychosocially.”
It appears to us that the priority is to get The child fully engaging with education as soon as possible. Considering his stated opposition to attending at School G and demonstrable commitment to School A we consider that in all of the circumstances School A has the best prospect of success.
For all of the stated reasons, the appeal is upheld.
Addendum
Statutory Provision.
Education (Scotland 1980
Section 28 states that Pupils are to be educated in accordance with the wishes of their parents.
(1)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
Education (Additional Support For Learning )(Scotland) Act 2004, as amended
Section 1 of the Education (Additional Support for Learning)(Scotland) Act 2004 states:
1(1) A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support, to benefit from school education provided or to be provided for the child or young person.
1(2) In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.
The 2009 Act came into force on 14th November 2010 and accordingly, the amendments therein apply as at the time of this hearing. The amendment to the Act is shown in italics.
1(3) In this Act, “additional support” means-
(a) in relation to a prescribed pre-school child, a child of school age or a young person receiving school education, provision (whether or not educational provision) which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the the childe age in schools (other than special schools) under the management of the education authority responsible for the school education of the child or young person, or in the case where there is no such authority, the education authority for the area to which the child or young person belongs.
Section 19(5) of the Act provides:
"Where the reference relates to a decision referred to in subsection (3) (e) of that section, 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, and
(ii) make such amendments to the co-ordinated support plan prepared for the child or young person as the Tribunal considers appropriate by such time as the Tribunal may require..."
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."
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).
In the circumstances of this case, in terms of paragraph 2(2) set out above, the authority is required to meet the fees and other necessary costs of the child's attendance at the Requested School unless one of the circumstances in paragraph 3(f) is established.
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); then, the Tribunal has to consider whether in all the circumstances it is appropriate to confirm the decision of the authority.
Para 3(1) (f) (i) and (iv) are not in dispute. School A is not a public school and the Authority have offered to place the child in School G. In their submissions the Authority appeared to rely solely on 3(1)(f)(ii) having regard to their position regarding the respective costs of the two school provisions.
Relevant Case Law
McAuley v Aberdeenshire Council 2008 SLT (Sh Ct) 126 (extracts)
[45] I consider that the proper time for assessing whether the conditions contained in paragraph 3(1)(f) are met or are not met is, for the purposes of an appeal to the sheriff, the date on which the hearing proceeds. The wording of the statutory provision is that "the authority are able to make provision for the additional support needs of the child in the school"……
[46] I consider that that does not meet the statutory requirement. I can understand that the local authority will not be able to determine whether or not they can or will meet a particular need until they have determined what these needs are. That determination should, in my opinion, have been made by the time Mrs. H as education officer had to take the first decision on the application for a placement and thereafter should have been available for consideration by the appeal committee referred to in paragraph 5(1) of the schedule. In the absence of such an assessment the procedures giving rise to each of those decisions might be seen as flawed.
[47] ….. Standing the concession by the defenders' counsel, a concession which was in my opinion rightly given, that the onus was on the defenders to satisfy the court as to the 4 conditions contained in para. 3(1)(f), the very latest time at which the defenders' assessment of R's needs should have been made was before the commencement of the hearing of the appeal and in time for proper consideration and examination of what they considered to be R's needs at the hearing of the appeal.
…... Their position was that if the defenders were successful in opposing the appeal they would only then themselves assess what they believed Rory's needs to be, and then what steps should be taken to meet them.
…It seems to me that what the defenders are saying is not that I should refuse the appeal and confirm the authorities decision because they have shown that in terms of para 3(1)(f)(ii) they are able to meet R's additional support needs at [S School]. Rather they are saying that if I refuse the appeal then they will assess R’s needs and decide how best to meet them. The statutory requirement is that the sheriff must refuse to confirm the authority's decision unless he is satisfied that one or more of the statutory grounds of refusal exists, in this case the four conditions that together make up ground 3(1)(f). If I was to accede to Miss W’s submission I would be deciding that R's needs for special measures would be met at [S School] without knowing what those needs were or what special measures would be taken at [S School] to meet them. That is manifestly not what para 7(6) of the schedule requires of me.
[48] The defenders have accordingly failed to discharge the onus which their counsel accepted fell upon them, namely to establish that the authority are able to make provision for R's additional support needs in [S School].
[49] That being so it cannot be said that all of the conditions contained in paragraph 3(1)(f) of the schedule are met. That was the only ground which was argued before me. Accordingly, in terms of paragraph 7(6) of schedule 2 to the Act, I must refuse to confirm the authority's decision.
[50] The consequence of that in terms of paragraph 7(7)(b) of the schedule, is that I must also require the defenders as the education authority to meet the fees and other necessary costs of R's attendance at [C School].
[57] If R attends [S School] the cost to the defenders would be the taxi and escort's costs which I was told would be £8560. As I understand it the defenders do not encourage parents to bring their children to [S School]. There was no evidence that there were any marginal costs which would be incurred by the defenders in running [S School] if R was to be placed there though clearly if an additional teacher or other member of staff required to be employed there would be such a cost. I proceed on the basis that the total cost to the defenders at the moment for placing R at [C School] would be £8560. Depending on the figure for fees if R attends [C School] it will therefore be at a cost to the council of £2390 on the higher fee figure, or at a saving to the council of £822 on the lower figure. If additional staffing was required for R there would be additional costs incurred by the defenders and on either figure for [C School] fees they would make a saving if R went to [C School]. No evidence was led as to what the defenders education budget is, or their special needs budget, or even their budget for [S School], so I cannot put the maximum additional cost of £2390 in context, but any way it seems likely to have a minimal impact and to amply justify Mrs. H’s assertion that cost was not an issue.
