ANONYMISED DECISION OF THE TRIBUNAL
**This decision was appealed to the Court of Session on 18/12/2008 and the appeal is still pending**
Reference: d/017/2008
Gender: Male
Age: 16
Type of Reference: Placing Request
1. Reference
The mother, (hereinafter “the Appellant”) lodged a reference dated 18th March 2008 under section 18(1) of the Education (Additional Support for Learning) (
2. Decision of the Tribunal
The Tribunal find in favour of the Respondent (the Authority) and hereby confirm their decision, all in terms of s19 (5) (a) of the Act.
3. Preliminary Matters:
a. Paperwork
This case in respect of a placing request for the child was earlier conjoined with a case concerning the contents of a CSP. The cases were to be heard together. However, after discussion and agreement the Tribunal decided to consider the issue of the contents of the CSP on the first day of the four days set down for a hearing of the conjoined cases. The Tribunal was thus able to issue a decision in respect of the contents of the CSP on the morning of the second day of the conjoined hearing.
On the morning of the first day of the hearing the Tribunal was provided with several documents by both parties, clearly well after the case statement period had ended.
These were:
i/ a document showing how the Appellant wished the CSP to read (on behalf of the Appellant in the contents case)
ii/ a psychologists report and three OFSTED reports (on behalf of the Appellant in the placing request case) and
iii/ a report by a Speech and Language Therapist (SALT), a report by another Speech and Language Therapist, a letter by an Occupational Therapist and various OFSTED reports (on behalf of the Respondent in the placing request case.)
Parties sought to lodge these documents late. The parties were asked to state their position in relation to the documents that the other sought to lodge. Objection was taken by Counsel for the Respondent to the draft CSP which the Appellant sought to lodge in relation to the contents case only. No other objection was made to the other documents being lodged late. The Tribunal had to consider whether to allow the late lodging of these documents.
Having had regard to Rule 34 of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006, in respect of the papers which the other party did not oppose the late lodging, the Tribunal allowed those, being satisfied that, in all the circumstances it would be fair and just to do so.
Thereafter the Tribunal considered the submissions made in respect of the “proposed CSP”. The decision in respect of that is dealt with in the judgement for the CSP reference.
b. The child’s views
At the outset of the hearing Counsel for the Respondent indicated that she had serious concern that the Tribunal did not have evidence of the child’s views and she submitted that it was essential that these were taken. She pointed out that the child would be sixteen in five weeks time and according to his mother was capable of studying for Scottish Highers. She indicated that in one way his views could determine the matter as, if he did not wish to move school, he could effectively “veto” a transfer. However, if he did wish to go that would not be determinative as other concerns would then come into play. Within the existing papers there was an apparently positive reference by the child to the provision of schooling the post-16 provision at the specified school. However the proposal was for the child to go to the specified school and not the post-16 provision. He was to go into year 10 or 11 and the post-16 provision was for year 12 pupils. There was a concern as to the extent to which the child properly understood this. The Respondents indicated that they were not clear that the child had the correct picture.
At R146 a Speech and Language Therapist gave her account of the child’s views. There was no further comment. In relation to timing it was submitted that the child’s views on moving to the specified school should be made available as early as possible to all parties so that these could be explored in evidence if necessary.
The Appellant’s position was that there was sufficient information within the papers to allow for an assessment of the child’s views. A16 was referred to. This is a letter written by the child as a result of being visited by a Children’s Rights Officer. The Children’s Rights Officer had sent the letter to the Authority. In the event that the Tribunal did not consider that letter to be sufficient then the Appellant was very resistant to the child being brought to the Tribunal and being questioned. By doing so it was submitted that the Tribunal would get a very confused picture as the child was unlikely to understand the questions asked of him or the subtlety of them. The Appellant felt that would be asking too much of the child in view of his difficulties and would not be appropriate. Reference was made to the Tribunal’s ability to appoint an expert in terms of Rule 24.
In considering this matter the Tribunal started from the standpoint that it was incumbent upon them to try to have the child’s clear views. The Tribunal was not satisfied that the information within the papers was sufficient, as it was to some extent contradictory.
After making further enquiry the Tribunal was able to secure the services of the head of the Partners in Advocacy project who was in a position to meet with the child at short notice. She was given an agenda of topics to discuss with the child. That individual was then able to attend on the morning of the second day of the tribunal hearing in order to give an account of the child’s views to all parties.
She indicated to the Tribunal that she had thirty years experience of working in the field of children with additional support needs, principally for Barnardos. She had left Barnardos eighteen months before to join Partners in Advocacy, which provides help for children with additional support needs. She had spent about one hour and fifteen minutes with the child at his home. They were alone during their discussion. She sat with the child in the conservatory. She considered the child to have engaged well with her and found him “chatty”. He was able to make eye contact. She discussed her role as an advocate with the child and what it meant. She then told the Tribunal the information that the child had given her, which was broadly to the effect that he wished to attend the specified school. A written account of her findings was made available to all parties and submitted as evidence.
4. Summary of Evidence:
The Tribunal considered the papers in the bundle, which consisted of:
1. Copy reference to Additional Support Needs Tribunal for
2. The respondent’s case statement and submissions.
4. The appellant’s case statement and submissions.
5. The oral evidence from all of the witnesses.
6. The oral submissions made by both parties on 24th September 2008.
The Tribunal heard oral evidence on behalf of the Authority from:
- the Speech and Language Therapist at the child’s school and who currently deals with him,
- the Head Teacher at the child’s school, the Principal Educational Psychologist for the Authority,
- the child’s Educational Psychologist, and
- the manager of Professional Services within Children and Families for the Authority.
We also heard oral evidence on behalf of the Appellant from:
- the Depute Head of Therapies at the specified school,
- the Clinical Head of Occupational Therapy at the specified school.
- the Head Teacher at the specified school
- a Chartered Educational Psychologist instructed by the Appellant, and
- the Appellant herself.
5. Findings in Fact:
1. The young person is now aged sixteen. (The child was 15 when the reference was made). He currently attends his school from Monday to Friday each week. At the weekend he lives with his mother and father.
2. The young person has attended this school since August 2004. He previously attended a primary school. On ending primary education he was offered a place at a High School by the Authority. However, following a successful placing request he was placed at his current school.
3. The current school is described as a school for “educationally fragile” children. It has a current roll of 37 pupils and is a residential school. 22 of the pupils have a diagnosis of Asperger’s Syndrome. Between 5 and 8 have a diagnosis of ADHD. 2 have Tourette’s syndrome. The school is not able to support pupils with significant emotional and behavioural difficulties. The young person is in the top 30% of pupils academically.
4. The young person has Asperger’s Syndrome with associated difficulties in social use of language, social interaction and self confidence.
5. The young person’s mother wishes him to attend a specified school south of the border. It specialises in the education of children with communication and language difficulties and autism. It will shortly have a roll of 94 students. It is a residential school with pupils who can attend on a day basis, or for thirty-eight weeks a year or for fifty-two weeks a year. 62 pupils have a diagnosis of Asperger’s Syndrome or high functioning autism. 11 have emotional and behavioural difficulties.
6. Currently, the cost of attendance at the young person’s current school is £35,988. The cost of attendance at the specified school is £71,479 per annum. After consideration of transport costs there is a minimum difference in cost of £38,806 per annum.
7. At the young person’s school, he currently has support from a Speech and Language Therapist (SALT). The Speech and Language Therapist is based at the local Royal Infirmary. She generally attends the school two mornings a week. She had 12 group sessions and 12 individual sessions with the young person in the academic year 07/08.
8. The young person was discharged from Occupational Therapy (OT) by the NHS on 14th September 2008 (R81). The Occupational Therapist had previously concluded that the young person’s occupational therapy needs “are well catered for within the elaborated curriculum at his current school.”
- The specified school provides pupils with intensive SALT and also provide OT at an extra cost. The level of SALT available to the young person at the specified school would be substantially greater than is currently available to the young person.
- The young person’s IQ has been tested on many occasions through the years using a wide variety of tests. The majority of these tests give results in both verbal skills and performance skills which are used to provide a full scale IQ. Because of the difficulties the young person has in language and communication as a result of Asperger’s Syndrome it is difficult to accurately assess his full scale IQ. It is uncertain if it is in the average range. IQ is not always an accurate predictor of academic ability as many other factors can affect this. However, the young person is unlikely to be a candidate for Scottish Higher grade exams.
- The young person currently attends his school from Monday to Friday and returns to the family home for the weekend. If he attended the specified school he would return home less frequently.
- From the evidence available, it was not possible to establish the young person’s views conclusively in relation to the proposed change of school.
6. Reasons for decision:
The Tribunal considered all of the evidence indicated above. The Tribunal had made specific arrangements to ensure that the young person’s views were sought. There were considerable difficulties in taking the young person’s views. The Tribunal considered that, given the young person’s additional support needs, we had as clear a picture of his views as was possible to elicit. The Tribunal was therefore satisfied that there was sufficient evidence available to it to reach a fair decision on the reference.
The submissions on behalf of the Respondent were provided in written form and spoken to. These were very comprehensive and helpful to the Tribunal. Similarly the solicitor for the Appellant made full and effective oral submissions. The Tribunal considered both of these submissions in some detail. The Tribunal did not find this an easy case and felt that the issues were relatively finely balanced.
However, the legal framework that is provided, in section 19(5) and Schedule 2 of the Act, is clear as to the “two-stage” test to be applied. The first stage is to consider whether the EA has established one of the grounds set out in paragraph 3(1) of Schedule 2 to the Act.
Paragraph 3(1)(a)(iii): placing the child in the specified school would be seriously detrimental to the continuity of the child’s education
In considering this the Tribunal noted the submissions of counsel for the Authority: that the young person is one full academic year and two months into various courses in the Scottish Credit and Qualifications Framework that are studied for over two academic years. These courses include Standard Grade mathematics.
Essentially, if the young person moved to the specified school he would require to go into year 10, thus going back a year in terms of his age, so that he could begin in the first year of the two years of study that make up GCSEs in the English system. He would therefore have to complete a GCSE course designed to be completed over two years of study in one and a bit years, before he reached school leaving age. The young person would also have to fill in any gaps in his knowledge of previous areas studied in the English National Curriculum prior to year 10.
Of lesser importance, but still of relevance, is the fact that the young person would be starting part way through an academic year and thus having to catch up on work already covered during the present academic year.
The Appellant’s solicitor submitted that the word “seriously” had to be given attention. The Appellant did not believe there was evidence on which to establish such a case. He submitted the impression that the Principal Psychologist, within the Authority (a witness for the Authority) had given was that he had carried out an exercise in which he was looking for every possible criticism of the specified school. He had even taken exception to the way that the school was set up financially and to the appearance of the website. He asserted that the Psychologist’s approach was coloured, he was not neutral and was biased. He had an agenda, which was that the young person should stay at his current school. In contrast, the Appellant’s solicitor submitted, that the approach of the Educational Psychologist instructed by the Appellant could not have been more different. He asserted that this Psychologist had carried out a proper analysis. He had seen the young person in class in both schools. He had concluded that the young person would be best served by moving to the specified school where, his opinion was, that the young person would have a better opportunity of reasonable academic achievement. The Appellant’s solicitor further submitted that the current school provided an environment that was “more laid back” and “fun” whereas the specified school was more driven academically. In looking at the ethos of the two schools he considered that the young person would be better placed at the specified school
In considering the arguments in relation to the above paragraph the Tribunal relied on the evidence of thee Head teacher of the young person’s current school. His evidence was that the young person was following national qualifications. He is studying for Standard Grade mathematics but is also following an Access 3 level mathematics course as a fall back position. Access 3 level mathematics is at an equivalent level to a foundation Standard Grade but is obtained by continuous assessment of course work rather than by formal examination. If the young person did not obtain Standard Grade mathematics at the sitting in 2009, but did achieve Access 3, then presentation for Intermediate 1, the equivalent of a general Standard Grade, would be possible in 2010. The young person is also following Standard Grade Art, Intermediate 1 biology, Access 3 English and other courses.
Furthermore the Tribunal considered that the wording of the Act required us to also consider (in the young person’s case) the transition between school and college or work or further education at the end of school. Given the young person’s age and the proximity of such a transition and that he is most likely to return to Scotland for each of those options, the lack of what the Tribunal considered as continuity between school in England and FE colleges or employment in Scotland was also a factor to be considered.
If he moved to the specified school, he would be exposed to a number of new teachers and care staff. There are 19 teachers, 30 classroom assistants and 56 care staff at the specified school as opposed to 16 teachers and 6 care staff at his current school. This is relevant as all evidence was to the effect that students with Asperger’s syndrome and the young person in particular can be unsettled by change.
The above factors were considered in terms of Section 2 Paragraph 3(1)(a)(iii). The Tribunal took the view that the words “seriously” and “detrimental” had to have their normal meaning applied. The Tribunal also took the view that it had to decide if placing the young person in the specified school would be seriously detrimental to the continuity of his education (exactly as the Act stated)., rather than weighing up the respective suitability of the schools as both Psychologists had done; we were being asked to consider if placing the young person in the specified school would be seriously detrimental to the continuity of his education. The test to be applied is whether a move to the specified school would “be seriously detrimental to the continuity of the child’s education”. It is not about the relative services available in each school. The Tribunal were of the view that there were areas of strength in both schools and that neither was perfect for the young person.
The Tribunal did consider that the “loss” of more than a year of study, the change of education and exam system, the exposure to a whole new peer group and a whole new staff, the change per se together with the more limited contact that the young person would be able to have with home and the possible implications of that, meant that this subsection did apply and that placing him in the specified school would be seriously detrimental to the continuity of his education.
On one view that would mean that the Tribunal did not need to go on to consider the other potentially relevant subsections. However, for the sake of completeness we did consider these.
Paragraph 3(1)(d): … the child does not have additional support needs requiring the education or special facilities normally provided at that school
The young person does have the additional support need for the provision of speech and language therapy and for some of the other special facilities, which would normally be provided at the specified school. However other specialist facilities, such as the 38 week residential placement, are not, in the view of the Tribunal, required by him. In addition the Tribunal were not satisfied that the young person’s need had been shown to be sufficiently profound as to require the facilities at the specified school. Therefore, on balance, the Tribunal considered that, the young person did not require the specialist facilities normally available at the specified school. Accordingly, this section would apply and would also remove the normal duty on the Authority to comply with the placing request
Paragraph 3(1)(f):
Subsections (i) and (iv) were not disputed by the EA.
(ii): the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school
The Appellant’s submissions in this regard were that we should consider the evidence from the Speech and Language Therapist at the young person’s current school. The Appellant agreed that she was a “very nice person” but it was submitted that the Speech and Language Therapist was under considerable professional pressure. The Head Teacher of the young person’s current school had conceded in his evidence that he was not satisfied with the provision of SALT to the young person. On being questioned by the Tribunal about the delivery of Speech and Language Therapy support for the young person, he agreed that the Tribunal were correct to form the view from his evidence that there was a general inadequacy around the area of Speech and Language Therapy and the delivery of it to the young person.
The Tribunal also considered the submissions of the Authority in this regard which were to the effect that the current school were able to make sufficient provision for the young person’s needs.
The Tribunal felt the wording of the Act in this area was worthy of note. It did not state that the authority, “are making provision for the additional support needs of the child….” Rather, the Act used the words “are able”. The Tribunal felt that, in principle, the Authority “are able” to meet the young person’s additional support needs at the current school and accordingly preferred the Authority’s submissions. The Tribunal did however form a view on the evidence (having particular regard to the diary of SALT provision produced by the Appellant) that the delivery of SALT to the young person could be improved and whilst the Tribunal could make no direction in this regard, hoped that this would be the case.
(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 school and in the school referred to in paragraph (ii), to place the child in the specified school
The Tribunal acknowledged that we had to look at both the “respective suitability” and at the “respective cost”. The cost was different, with the cost of the specified school being vastly in excess of the current school. The Tribunal concluded that the respective suitability had to be balanced with the respective cost. Whilst it was considered that the specified school may be more suitable for the young person the respective cost of it was not, in the view of the Tribunal, reasonable. Guidance given at paragraph 63 of the Code of Practice, Chapter 3 was considered by the Tribunal and found to be of assistance in deciding the matter. In this case the Tribunal was of the view that the extra cost incurred would be completely out of scale with the possible benefit to the young person.
Therefore, in relation to the “first” stage the Tribunal decided that the Authority’s duty to place the young person in the specified school is removed by virtue of section 3(1)(a)(iii) and by section 3(1)(d) and by section 3(1)(f) of Schedule 2 of the Act.
However the Tribunal then considered the provisions of section 19(5) (a) (ii) as it was required to do, given the fact that section 19(5) (a) (i) applied. This subsection required the Tribunal to decide whether to confirm the decision of the Authority (to refuse the placing request) by deciding whether “in all the circumstances it is appropriate to do so”.
The submissions for Counsel for the Authority on this matter appear at pages 25-27 of her written submissions. These suggest the type of factor the Authority submitted should be considered by the Tribunal.
The solicitor for the Appellant did not agree that any inhibition should be placed on the exercise of the Tribunal’s discretion in this area. He said we should have regard to:
1/ the fact that the Parent’s Charter provided for parental choice in the area of schooling on the basis that the parent knew their child best.
2/ the fact that the young person would have the opportunity to sit a number of nationally recognised qualifications at the specified school that the witnesses there felt they could assist him to achieve.
3/ the availability of therapies at the specified school that would be specifically geared towards meeting the young person’s additional support needs.
4/ the young person’s care plan at the specified school would be a lot more specific and would provide him with skills to transfer into everyday life.
5/ the move to the specified school was what the young person wanted.
The Tribunal heard considerable evidence from the therapists at the specified school in this case and examined that evidence carefully. However, ultimately, the Tribunal were not persuaded that the young person’s needs were such that he required the specialist provision at the specified school, as opposed to the specialist provision that he currently receives.
The view of the Tribunal was that, having considered and weighed the considerable number of factors in this case, (including all of the factors suggested in both submissions) it was, in all the circumstances, appropriate to confirm the decision of the Authority.. Thus the Appellant’s placing request is refused.
