ASNTS_D_15_2009_23.11.09

ANONYMISED DECISION OF THE TRIBUNAL

 

Reference:                              D/15/2009

 

Gender:                                   Male

 

Aged:                                       12

 

Type of Reference:                 Placing Request

 

 

 

1. The Reference:

 

The reference was in respect of the decision dated 3 August 2009 where the authority refused a placing request made by the Appellant, the mother, under paragraph 1 of Schedule 2 of the Act, for the child to attend the requested school.

 

The Tribunal has jurisdiction as the authority had agreed that the child should have a co-ordinated support plan and one was in existence when the placing request was refused.

 

2. Decision of the Tribunal:

 

The Tribunal confirms the decision of the authority dated 3 August 2009 and refuses the placing request that the authority place the child in the school specified in the placing request, in terms of section 19(5)(b)(i) of the Education (Support for Learning) (Scotland) Act (hereinafter referred to as “the Act”).

 

3. Preliminary Matters

 

The hearing was conjoined with a reference on the contents of the co-ordinated support plan in which the parent was represented by other agents.

 

4. Summary of Evidence:

 

The Tribunal had regard to an extensive bundle of papers and the oral evidence of the witnesses.

 

5. Findings in Fact:

 

1. The child is now aged 12.  He lives with his parents. He has no siblings.  His father works away from home two weeks in every month and one further week he spends away working on a house which he is constructing. His mother is therefore the primary carer and the family home is in rented accommodation.   This is relatively isolated as the child’s parents think that such an environment offers him less opportunity to encounter socialisation problems with his peers.

 

2. The child was formally diagnosed with Autistic Spectrum Disorder (ASD) in 2003 but indicators of this condition were present from a very early age. The diagnosis has a constant impact on how he can interact with others and learn.  He needs to be in an environment which can offer appropriate support to address the barriers to his learning resulting from his autistic difficulties and a high level of adult support.  He has delayed understanding and communication with unusual speech patterns. His speech may be fluent but he speaks obsessively on topics making use of his own language or repeating words. He integrates fantasy stories with his own life experiences. His understanding of language is impaired to the extent that even words he is able to use may have no meaning for him.  He employs avoidant body language and poor eye contact, particularly with strangers. He dislikes crowds and is sensitive to noises.

 

3. His motor skills were noted to be clumsy in the past. His parents sought advice from the Institute for Neuro Physiological Psychology (INPP) which is an independent organisation. INPP gave the child a diagnosis of neuro developmental delay and his parents follow a programme at home, set out by the Institute. There is no carry over of this programme to his primary school.   He plays repetitively on his own and either does not like, or is not able to, engage with others in play.  Although he craves friendship he does not have the skills to interact with his peers in a consistent way.

 

4. The child formerly attended another Primary School. He has attended his current School since August 2005.  His family had moved from out with the area to this vicinity.

 

5. He is very close to his mother as the main adult in his life and there is a history of him becoming much attached to female children in a possessive and emotional way. He has an obsessive attachment to one girl in his year. He is physically mature for his age and although he is still attending primary school he is now of the chronological age to attend secondary school. He has started to take an interest in sexual activity consistent with his age but is unable to process these feelings appropriately.

 

6. He is normally well behaved in school but the frustrations he has experienced in school often break out once he is home and he can be threatening and challenging in his behaviour towards his mother whom he tries to manipulate. He has hit her on occasion when very frustrated. He has recently expressed aggressive thoughts. He has not been observed to act on these thoughts.

 

7. In the past 8 years, 17 children with a diagnosis of ASD have attended the specialist support base in his current Primary School. Since August 2009 the base has been an Autism specific facility. The base has provision for 10 children and at present, 8 of the children attending have a diagnosis of ASD. All teaching staff in the school have received training in working with children with this condition There are also specially trained teaching assistants.
   
   1. The Principal Teacher of the Specialist Facility has a Post Graduate Diploma in Support for Learning, as well as specific modules relating to ASD, including Language & Communication (parts 1 & 2) and challenging behaviour.  She has also completed an action research module on Inclusion, at University and contributed to the Respondents’ Handbook on Autism, a valued resource for mainstream teachers.
   2. Another teacher within the Specialist Facility has a Post Graduate Certificate in Autism.
   3. The education officer who is responsible for supporting the Specialist Facility has extensive experience in ASD, and chairs multi-agency steering group meetings every term to monitor and evaluate ongoing practice within the Specialist Facility.
   4. All staff within the Specialist Facility have had a minimum 2 day training in Picture Exchange Communication System (PECS) as well as several specialist PECS tutor sessions delivered in the Specialist Facility. There has been training in TEAACH, MAKATON, Boardmaker, Clicker 4 etc. as required to support individual children.
   5. In 2008 all Specialist Facility staff and the head teacher of the current Primary School attended a conference organised by the Respondents where a Professor of Autism Studies and an adult with Autism presented to parents, partner agencies and school staff. 
   6. The Respondents also fund places for staff development opportunities including national conferences, individual courses and accredited modules  provided by the Scottish Society for Autism leading towards the post graduate certificate and diploma in Autism.
   7. All staff in the base are engaged with school staff in implementing Curriculum for Excellence, and active learning is a focus within the authority.  The current Primary School has access to an ASN ICT teacher, who assists schools and provisions in the best use of ICT and technology for children and young people with additional support needs.
   8. Staff in the base have good awareness of the autism specific facility at the Secondary School.   
8. In January 2006 the Appellant and her family went to the USA to enable the child to engage in a Son Rise programme which claims that it can remove most symptoms of ASD. It is based on using eye contact as a first step and forces the child to initiate contact. If the child engages then he is rewarded. The child returned in February 2006. He was kept at home for home schooling with periods in the day when the Sun Rise programme was followed. It was a very big undertaking for the appellant and she was supported by helpers. Shortly before Christmas 2006 the appellant indicated that the child would return to school. This was done on a phased re-entry from February to March 2007 as he was unused to being with peers.
9. From Easter to June 2006 he was managing so well he was spending time in the classroom. He had become very used to engaging only with adults and needed some re-processing to engage with other children. Since that time he has attended school moving between the base and the classroom as appropriate.
10. The child was provided with a CSP and an Individualised Education Programme (IEP).

 

11. His parents also arranged for him to attend a group called Future Kids. Mainstream contact is important for him. His peers can explain to him if they find his conduct unacceptable.

 

12. The child copes well in his current primary school. He has one to one teaching in the base for 45 minutes in the morning and then moves into the classroom for a variety of activities based on his learning profile. His needs are met flexibly. And he can move back to the base if he needs a quieter environment. He is less disabled by his autism than other children in the base as he is verbal. He occasionally seems tired and this can affect his behaviour. His mother records in his daily diary when he has had sleeping problems. If he is upset he can remain in the base. It is very important to prepare him for projects and changes.

 

13. He has an annual review meeting. Only speech and language therapy are actively involved at present. There is a SLT therapist or support worker in the school one and a half days each week. He is recognised as having the potential to respond to significant SLT input as he has shown a marked improvement in response to this therapy.

 

14. Occupational therapy input will be provided as arranged by the Respondents in future. A previous policy meant that where private arrangements were being made, no other facility would be put in place in case there was a conflict between the two types of therapy.

 

15. There has been input from Social Work referred services, Plus and the Befriender Scheme. In view of communications difficulties between the Appellant and Social Work the full potential of these services has not been realised but they do offer significant and realistic potential support for the child and his family.

 

16. The school does not regard his autism as profoundly rigid. He is at the milder end of the Asperger’s range. He can be engaged on topics of discussion. He is regarded as well integrated locationally. He has a trained buddy within his group and he usually accepts this. Even though tables in the mainstream class rotate each term his buddy is there as his constant.

 

17. Academically he performs at level A in most subjects but level B in some. He can read key words and instructions. His numerical work is good but computations are difficult for him. It is difficult for him to perform well or consistently in a standardised assessment paper. He has matured socially. He may introduce odd or random topics of conversation but no longer talks about Thomas the Tank Engine and interests appropriate to younger children.  His performance is variable depending on his mood and his learning is not linear. He learns better in small groups or one to one when his attention can be directly engaged. At lunchtimes he often likes to be alone and uses this time to de-stress. It can appear that he has difficulty attaching to any peer friendship group which is consistent with his diagnosis.

 

18. The school is satisfied that he is making progress. They use reward stickers when he performs well and this strategy is also used at home. If he misbehaves he will lose time from Golden Time when he can choose what he wants to do. He receives a smiley face if things are going well and his expressions often conform to those symbols. Strategies used at his current school can be consistently carried through at Secondary School.

 

19. There is a significant difference in the cost provision of the requested school as opposed to the Secondary School or the current Primary School.

 

20. He copes less well with unstructured time in the playground. It is too long for him to spend with his buddy. The appellant has raised this as an issue with the school. She felt that he was being stressed by this situation. Early in 2009 there was a meeting with the Principal Teacher with responsibility for the base, which was not satisfactory in resolving this issue and the appellant lost confidence with the current School after this meeting.

 

21. The child enjoys sports activities. He is good at physical activities and enjoys them. He has good ball skills. He enjoys working with his computer. He is able to Google to find places of interest. He likes trains and stations and can find them searching the internet. He has given a presentation at school on the Japanese bullet train which interests him in particular.

 

22. He has learned that certain phrases provoke reactions from his peers such as “tubby custard”.  He knows if he puts on his “sad face” he can also attract attention. He is able to cope with noisy places such as the school hall at lunchtime as he understands the context and it does not frighten him. He is not unduly hypersensitive to traffic noise.

 

23. There has only been one example of the child becoming physically aggressive at school when he pushed a support for learning assistant. He was very agitated in the period after play time. It was regarded as an isolated incident and was addressed at the time. It took place between Christmas and Easter 2009. There has been no repetition of this behaviour. He sometimes stamps his foot or puts on his “angry face”. His temper is not often in evidence in school.

 

24. Children at the requested school generally have needs at the more severe end of the Autistic Spectrum. It is not an ASD specific facility. There may be a risk that the child would start to copy more extreme behaviours.

 

25. The child’s parents have visited more than 30 schools, both state and independent with a view to determining if there is a school which could meet his needs better than the provision currently offered or planned. They had previously considered making placing requests for two other residential schools but these did not proceed. They have now made a placing request for the school specified in the reference, which is a residential facility based on the Rudolph Steiner principles of education. The letter refusing this placing request was issued on 03/08/2009 and appears at T56 of the bundle.

 

26. It is recognised that the child requires support in transferring his learning from one context to another both in and out of school.

 

27. The Respondents propose that the child attends Secondary School full time from August 2010. This school has a facility specifically for children on the Autistic Spectrum Disorder (ASD). It was set up in a new building in 2008. It has very good facilities. There is a base with lots of space and a garden for pupils. Subject teachers work in the base with the children who require this specialist support. The pupils engage with the mainstream curriculum in an individually adapted form in a way appropriate to their ability which is constantly assessed. There are 20 children who are attached to the base. The curriculum is adjusted to suit each child so that engagement with the mainstream is variable and infinitely adjustable.
28. Within the Base Facility there is currently a Principal Teacher (with Post Graduate diploma In SEN (ASD focus)) and 4 full time teachers alongside 10 FTE SLAs to support 20 young people.  Next session, the predicted numbers in the ASD Specialist Facility will be 16 pupils.
29. All young people within the Base Facility have opportunities to access the mainstream curriculum depending on their needs.  This will be tailored specifically for the child. The young people have a registration class within the mainstream setting, but their daily timetables are designed around their individual needs.
30. The school also ensures that there is reverse inclusion where mainstream pupils attend the Base Facility regularly.  This ensures there would be access for the child to mainstream pupils even at times when he would not be working in the Base Facility.
31. There is a range of specialists and partner agencies offering support for pupils, including an educational psychologist, speech and language therapy and occupational therapy (which will be tailored to the child’s needs).  The Tribunal heard during evidence that occupational therapy has not been possible for the child due to a policy that this therapy would not be provided where a pupil receives occupational therapy from an alternative provider.  The Tribunal also heard that this policy has been changed to now allow occupational therapy to be provided in addition to that of an alternative provider.  Therefore, at the proposed Secondary School, the child would receive occupational therapy as required.
32. The staff at the proposed Secondary School have access to the same training and development opportunities as described for the Primary school, and often participate in joint events. All staff have been trained in PECS (Picture Exchange Communication system), and some have been trained in TEACCH.
33. The Base Facility makes use of a variety of resources from a range of providers in order to make the curriculum relevant and accessible.
34. The Base Facility has an excellent personal and social development programme for young people with ASD which offers various opportunities to develop social skills, independence, health & safety awareness, and to prepare for life after school.  The Tribunal heard from the Education Psychologist, that time in the Base facility would be used to reduce the child’s anxiety during the day.
35. Senior pupils are available as “buddies” or peer mentors for young people within the provision, and the child would be assisted by buddies during his time at Secondary school.
36. There are also excellent sports facilities for the child to access to continue his progress in swimming, running and basketball which are three activities he likes.
37. The Respondents consider that the child has the potential to take a range of access courses in higher education and eventually participate in work experience arranged by the school and post school could attend a local college.
38. No steps have yet been taken to prepare the way for the child’s transition to Secondary School in view of the current reference. Transition arrangements have commenced for other children who will move to different schools. Two other children from the current Primary School are going to the requested School in 2010 but their needs are regarded by the Respondents as much more extensive than the child’s.
39. After visiting the requested school, the child said to his teacher than he liked his current Primary School and would miss his mummy if he went to stay at the requested school. It is impossible to predict how the child will respond to a residential school facility and separation from his mother at this stage of his development.
40. Children at the requested School generally have needs at the more severe end of the Autistic Spectrum. It is not an ASD specific facility. There may be a risk that the child would start to copy more extreme behaviours.
41. From April 2008 to January 2009 the child’s parents have incurred considerable expenditure in an intensive Applied Behaviour Analysis programme (ABA) to reduce negative behaviours and develop positive behaviours, with particular emphasis for the child on improving on task behaviour. They consider that this may account for the improvement in his literacy skills.

    

6. Parties’ Submissions:

 

I. The Appellant’s Submission

 

1. The Appellant challenges the decision of the Authority in respect of their refusal to grant her placing request to have her child attend the requested School.     In terms of Section 19(5) of the 2004 Act, the Tribunal may

 

(a)        confirm the decision of the Authority if satisfied that –

 

(i)         one or more of the grounds of refusal specified in paragraphs 3(1) or (3) of Schedule 2 exists or exist and

 

(ii)        in all the circumstances it is appropriate to do so.

 

2.         It is now well established, both in practice and law, that the Tribunal is faced with a two stage test.    In the first instance, the Tribunal requires to consider whether or not a statutory ground of refusal exists in terms of paragraph 3(1)  or (3) of Schedule 2 of the 2004 Act.      If none of the statutory tests has been met then the Tribunal should look at all of the circumstances of the case and only confirm the decision of the Respondents if it is, in all the circumstances, appropriate to do so.   

 

3.         In a very detailed Case Statement, the Respondents, at R22, found on two of the statutory exemptions, namely paragraph 3(1)(d) and paragraph 3(1)(f).   It is submitted that on the evidence neither of these statutory tests have been made out. 

 

4.         Paragraph 3(1)(d)

            This paragraph provides that “if where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school.”    Applied to this case, the test is whether or not the child has additional support needs requiring the education or special facilities offered at the requested school.   It was striking in the evidence offered by the Respondents that none of the Respondents’ witnesses had ever visited the requested school with a view to making an assessment as to whether or not it was appropriate to meet the child’s needs.   Evidently, children previously placed at this school by the Respondents had different needs compared to the child’s and an unwarranted conclusion was drawn by the Respondents’ witnesses that the requested school would not be a suitable school for the child to attend.    The Principal Teacher of the current school, in her evidence, stated that she had visited the requested school and that “for certain children it is superb”.     This comment was made while the witness was considering R196, the transcript of her discussion with the child.    The matter was further explored in questions by a tribunal member on behalf of the Tribunal.     In response to the member’s questions, the Principal Teacher advised that she went into one classroom and observed a lesson.   Her concern appears to have been around the language capabilities of the pupils in that particular class.       No evidence was led, however, that this was the class into which the child would be introduced were he to attend the requested school.   The evidence led from the Principal Educational Psychologist was in a very similar vein.     It is submitted that her evidence, however, should be viewed generally with a great deal of caution.    Her actual one-to-one time with the child has been very limited.       She has never assessed him and, by her own admission, had not visited the requested school with a view to ascertaining what would be on offer for the child.      The Tribunal, regrettably, did not have the benefit of hearing evidence from the child’s speech and language therapist or his social worker.      Evidence offered in respect of these two particular disciplines by the Respondents came from senior staff who had never actually met the child.     It is submitted that their evidence is of very little benefit to the Tribunal in ascertaining whether or not the child has additional support needs requiring the education or special facilities normally provided at the requested school.   The Appellant led, in support of her case, the evidence of one of the managers at the requested School.      The Manager painted a quite different picture of the requested school from that offered by the Respondents’ witnesses.    She had had the benefit of meeting the child on three separate occasions and, clearly, had had access to a good number of reports which had been built up about the child over the years.       The Manager gave a very full account of a day at the requested school and impressed as a reliable and credible witness.   Her evidence as regards a suitable education for the child at the requested school was very compelling.   She was asked about how the child’s manipulating and aggressive behaviours would be dealt with.     It was apparent from the witness that these sorts of problems are not at all unusual in children who present with the child’s additional support needs.      It was apparent that this is something that the requested school deal with on a fairly regular basis.   She was not fazed at all to learn of these difficulties that the child presented and, indeed, saw them as common problems for a child with similar needs to those of the child.  The requested school has an in-house speech and language therapist and access to a physiotherapist.     The Manager went on to describe the class in which the child would be working.   He will have a peer group aged between eleven and thirteen with a broad range of abilities but it would appear that most, if not all, of the children will be working at a similar curriculum level to the child.   Some will be more able and others less able.   It is submitted that the evidence presented by the Manager, in and of itself, should be sufficient to establish that the statutory exceptions set out at paragraph 3(1) has not been made out.   The Tribunal, however, had the benefit of evidence from an Educational Psychologist who had had the opportunity to assess the child on three separate occasions and had also been able to see the arrangements made for him at his current Primary School, and the requested school.    Her report was made available to the Tribunal and need not be rehearsed here suffice to say that she was satisfied that the requested school was a school that could meet the child’s needs.   Finally, the evidence of the appellant is also of assistance.    She revealed that she has looked at some thirty-five schools for the child and the requested school is the only one that she has been able to satisfy herself on that it is a school suitable for the child to attend.       Clearly, the child’s parents have made a countrywide search to find an education which is suitable for him and have formed the view that the requested school is an appropriate place that can meet the child’s additional support needs.     It is submitted that the appellant’s evidence, in particular, should not be taken lightly.    She knows the child better than anyone.    It is, perhaps, unfortunate that often in these cases a parent’s voice is lost amongst “expert” opinion.  It is submitted that the appellant gave her evidence in a very compelling way.      She, clearly, has thought through the issues long and hard.     Initially she and her husband had hoped that the child would benefit from a mainstream education but, sadly, they have come to the view that that is not going to work for him.       It is submitted that this evidence is of significance when considering the matter generally and, in particular, whether or not this statutory exception has been made out.   In summary, to meet this test, the Local Authority have to set out the education and special facilities normally provided at the school to meet the needs of the child.       It is submitted that it is not sufficient to test the suitability of the school against other pupils who may have been placed there.   As previously submitted, the school deal with a wide range of additional support needs and it was a striking part of the Respondents’ case that none of the Respondents’ witnesses had ever attended the requested school with a view to assessing what was on offer for the child.   Considering the state of the evidence it is submitted that paragraph 3(1)(d) had not been made out.

 

5.         Paragraph 3(1)(f)

            In terms of this statutory exception, there are four elements, all of which have to be established before the Tribunal if the Tribunal is to confirm the Respondents’ decision.    Parts 1 and 4 of this exception are not in dispute.      The second element is disputed by the Appellant, namely whether or not the Authority are able to make provision for the child’s additional support needs at his current Primary School and the proposed Secondary School.    On this matter, we invite the Tribunal to prefer the evidence of the Educational Psychologist.    Superficially, it might be said that the child’s needs are being catered for at his current Primary.    The evidence of the Educational Psychologist was that the child is being contained rather than educated.   In reality, he does not have a peer group and he is not integrated in the normal sense of that word.   He may spend most of his time in a classroom but he is not engaging at any meaningful level and is, clearly, beginning to feel more and more isolated.     His behaviour after school, which his mother is beginning to struggle with, requires to be taken into account.      With a child such as he, whose needs are complex, the broader picture requires to be addressed.   It should not be enough for a child simply to be contained within the classroom and, to some extent, kept under control in that environment.         He has become obsessed with another girl in the school and had previously expressed a wish to hurt her by kicking or biting and, more recently, by much more threatening behaviour.       There was some dispute as to whether or not, at least in some measure, this concern had been disclosed to the Principal Educational Psychologist and the child’s social worker.       It is not disputed that the child has said these things and that is what is of greatest concern.   In particular, the Educational Psychologist expressed the view that unless something was done for the child now, she had concerns as to how these behaviours, borne out of the child’s frustration, might express themselves as he gets into adulthood.   The Principal Teacher admitted that the child has no friends at school as we would normally define friends.   He is taught a separate curriculum from the class and, inevitably, is isolated both educationally and socially.  It is submitted that location in a class is not integration.     It is unfortunate in cases before the Tribunal that such comments are usually taken by the Local Authority to be a criticism of their provision.    That was not the case that was presented by the Appellant here.   Her witnesses, and indeed the appellant herself, admitted that the school were doing all they can.     The difficulty is that while the child may have made some progress recently with reading and writing, looking at him from a broader perspective, he is, in fact, regressing.   All of this is set out in the report of the Educational Psychologist and was confirmed in the evidence of the appellant.   It is submitted that what the child requires is the twenty-four hour curriculum offered by the requested school.   Without that he is deprived of the possibility of transferring skills learned in school into his daily life.    Somewhat reluctantly the Principal Teacher admitted in her evidence that there was no formal method by which what the child was learning at school was being transferred outwith the school day.     There seemed to be only a minimal amount of interaction with home through the school diary which may, in part, be due to a strain which has developed in the appellant’s relationship with the school.   This may be a criticism of the way in which the Co-ordinated Support Plan has been co-ordinated as there does not appear to have been much “joined up thinking” between home, school, and other therapists.   It is submitted that the child requires the benefit of a twenty-four hour curriculum that will allow him to take what he is learning into the class and develop his life skills outwith class.   For a child like him, this is of utmost importance.    He requires a concentrated effort to deal with his aggressive thoughts and his tendency to manipulate.    These are major issues for the child which cannot be addressed in a mainstream school.   Of necessity, the Tribunal were required to consider evidence about the proposed secondary school provision.    Very little was offered in terms of detail from the Respondents as regards the proposed Secondary School.      The child would be one of two children joining the special unit at the proposed Secondary School.   We have no idea as to what his peer group would look like.   No evidence was offered as to how the child’s learning at school might be transferred into his daily living.    No evidence was offered as to whether the child would receive any daily living skills at the proposed Secondary School.    The educational Psychologist expressed her own concerns about this arrangement and felt that the child would be “confined” to the base for most of the school day as he would not be able to cope with life in a large Secondary school.     It is submitted, therefore, that the Authority are unable to make provision for the child’s additional support needs either at his current Primary School or at the proposed Secondary School.       If this submission is upheld then there is no reason to look to part 3 of paragraph 3(1)(f).    However, if the Tribunal is not with the Appellant in that part of her submission it is also submitted that 3(1) (f) (iii) has also not been made out.  

 

            The test states that we have to look at the respective suitability and cost of the two provisions.        It is submitted that the Tribunal, in order to be satisfied with regard to this test, has to be able, on the basis of the evidence, to compare the suitability of the current Primary School (and the proposed Secondary School) as against the requested School.       It was clear from the evidence that the Respondents had not carried out that exercise.     Witnesses, on behalf of the Respondents, had a knowledge of the requested  School but had never enquired of the requested school as to the provision that would be made for the child.    Similarly, with regard to respective costs, there was very little evidence led in that regard.     The issue of costs was barely raised at all by the Respondents and it is submitted that, clearly, the case presented was grounded much more in paragraph 3(1) (d) than 3(1) (f).   The social worker from whom the Tribunal heard indicated that other facilities were to be put in place for the child but that assessments had not yet taken place.    These are costs to the Local Authority and would have to be taken into account but no evidence was led as to precisely what would be offered to the child or how much it would cost.   In general, the Respondents did not offer any cogent evidence as regards respective suitability and respective cost and, accordingly, they have failed to establish this part of the statutory exception.    

 

            For these reasons, it is submitted that the Respondents have failed to meet either of the statutory tests and, accordingly, the Tribunal is obliged to refuse to confirm their decision to refuse to place the child at the requested School and should grant the placing request.

 

6.         In the event that the Tribunal considers that the statutory test has been made out then the Tribunal should consider all the other circumstances of the case.     In that regard the evidence of the appellant is particularly persuasive.      She has looked at thirty-five schools throughout the United Kingdom and has failed to find a school, apart from the requested school that would suit the child’s needs.      The situation at home is becoming increasingly difficult.   During her evidence, when asked by the Convener regarding the child’s behaviour at home, the appellant became visibly upset and concerned that the child had become more threatening to her at home.      The Parents are not a couple who have either raised this appeal lightly or have been anxious to secure an education for the child outwith mainstream.    In fact, the reverse is the case.       They started off with a genuine desire to have the child educated in a mainstream school and have left no stone unturned to try and make that a possibility for him.    The appellant has engaged in the very intensive therapy of ABA and it may be that the reason for the child’s recent improvement has been that intensive therapy that he has received at home.     The fact that the child’s parents have reached the point where they feel that he can no longer be mainstreamed ought to be an important consideration to the Tribunal when looking at all of the other facts and circumstances of the case.   It is submitted that the Tribunal should have regard to the way in which the appellant, in particular, gave her evidence.     The Tribunal should also have regard to the deterioration in the child’s behaviour generally.    His obsession with the other girl at school is clearly becoming a major factor for him in his life.      He has weaved fantasy into reality and the Educational Psychologist, in particular, highlighted the need to have these issues addressed for the child in the sort of environment offered by the requested school.    The Educational Psychologist made the point that if the child is to go to the requested school now then the school have six years in which to work with him.     This is a significant advantage for the child if he can secure the sort of learning environment that the requested school has to offer.   The child, himself, is entering puberty which makes much of his behaviours much more difficult and complex to address.    There is nothing to suggest that the proposed Secondary School will be able to offer him the sort of ongoing assistance that he will require throughout his adolescence.    The Tribunal should, in considering all the other facts and circumstances, again have regard to the evidence offered by the Manager and the Educational Psychologist.       The requested School gives the child the greatest possible opportunity to develop appropriately as an adult.   This is not a criticism of the provision made by the Authority.    The Educational Psychologist did not set about trying to undermine, in any way, the provision made by the Local Authority and, indeed, was complimentary of both the current Primary and proposed Secondary School.   It is submitted that that makes the evidence of the Educational Psychologist all the more credible in that she has, clearly, seen a provision that is impressive for certain kinds of pupils but not for those with needs such as the child and not for the child with particular reference to the concerns as set out in the Educational Psychologist’s report.

 

7.         In summary, the Respondents have failed to establish either of the statutory tests referred to in their Case Statement.      Accordingly, the Tribunal requires to refuse to confirm the Respondents’ decision and make a placing request for the child to attend the requested School.    If the Tribunal considers that the statutory cases have been made out then the Tribunal should take into account all the facts and circumstances of the case and refuse to confirm the Local Authority’s decision as it is inappropriate to do so.

 

II. The Respondents’ submission

 

The Respondents submitted as follows:

1. This is an appeal against the Respondents’ decision to refuse a placing request made by the appellant for her son to attend the requested school on a residential basis. 
2. The Respondents’ position is that it was entitled to refuse the Appellant’s request in accordance with the terms of the Education (Additional Support for Learning) (Scotland) Act 2004 (Act).
3. The Respondents' submission is that the appeal should be dismissed on the following grounds:
4. The child does not have additional support needs requiring the education or specialist facilities normally provided at the requested School in accordance with Paragraph 3(1)(d) of Schedule 2 of the Act.
5. in accordance with Paragraph 3(1)(f) of Schedule 2 of the Act:
6. The requested school is not a public school;
7. The Respondents is able to make provision for the child’s additional support needs in his current Primary School and proposed Secondary School being schools, other than the requested School;
8. It is not reasonable, having regard to the respective suitability and cost of providing the child with the additional support needs in the requested School  compared to his current Primary School and proposed secondary School to place the Appellant in the requested School; and
9. The Respondents has offered the child a place in his current Primary School and proposed Secondary School.

Placing requests

10. Paragraph 2(2) of Schedule 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 provides:

            Duty to comply with placing requests

2          (2) 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,

(b) a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs, or

(c) a school at which education is provided in pursuance of arrangements entered into under section 35 of the 2000 Act,

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.

11. It is accepted that the child has additional support needs for the purposes of the Act and that the Respondents is an education authority for the area to which the child belongs. 
12. Therefore, the key issue for the Tribunal to consider is whether one of the statutory exceptions in paragraph 3 of Schedule 2 of the Act applies. 

Exceptions:  Paragraph 3 of Schedule 2 of the Act

13. The Respondents submits that the exceptions set out in paragraphs 3(1) (d) and 3(1) (f) of Schedule 2 of the Act apply.

Paragraph 3(1)(d)

14. Paragraph 3(1)(d) of Schedule 2 of the Act provides:

3 (1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply—

if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,

15. The Respondents submits that the child does not have additional support needs requiring the specialist residential facilities normally provided at the requested School.
16. The Respondents’ view is that residential care on the basis offered at the requested School is contrary to the child’s needs.
17. The Respondents’ submission is that the child does not require a residential placement of the nature offered by requested school.  The Senior Social Work Team Leader stated in her evidence that the child has already reached a level of development where he would not be eligible for a residential placement in adult life and consequently does not require residential support in his schooling.  The Senior Social Work Team Leader also stated that the Social Work department would be able to provide the appropriate support to the child’s family to allow them to cope with the child’s development into his adolescent years rather than he transfer to the requested school on a residential basis.  Accordingly, the Respondents’ submission is that the additional support needs required by the child are not of a level that requires a residential placement.

Paragraph 3(1)(f)

18. If the Tribunal does not agree with the Respondents’ submission in respect of paragraph 3(1)(d) the Respondents further submits that paragraph 3(1)(f) applies.
19. Paragraph 3(1)(f) of Schedule 2 of the Act provides:

Circumstances in which duty does not apply

3 (1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply—

 

(f) if all of 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 a school 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 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)

20. The Respondents submits that all the above circumstances apply.

Paragraph 3(1)(f)(i):  The requested School is not a public school

21. The requested School is an independent, non-denominational residential school.

Paragraph 3(1)(f)(ii):  The Respondents is able to make provision for the Appellant’s additional support needs in his current Primary School and the proposed Secondary School being schools, other than the requested School

22. The Respondents submits that it is able to provide for the Appellant’s additional support needs in his current Primary School and proposed Secondary School.

Current Primary School

23. The current Primary School is a mainstream primary school with a specialist Autistic Spectrum Disorder (ASD) facility to cater for the needs of children with autism spectrum disorder (Specialist Facility).  The Respondents submits that this Specialist Facility meets the child’s additional support needs.
24. As the Tribunal has heard from the Principal Teacher for the Specialist Facility that the learning environments provided by the current Primary School are appropriate to meeting the needs of children with ASD, with specialist trained staff to assist education.
25. Within the Specialist Facility there are 3 FTE specialist teachers and five support for learning assistants. The Specialist Facility currently has 10 pupils 8 of whom are on the ASD spectrum. In addition, external resources are engaged where appropriate and the school has dedicated time from an educational psychologist and a speech and language therapist.
26. All the current Primary School staff both within the Specialist Facility and mainstream classes have had specialist training in ASD.
27. On a day to day basis, children within the Specialist Facility split their time between the Specialist Facility and mainstream education.  Specialist teachers support class teachers to appropriately adapt the curriculum, environment or materials where necessary.  This includes:
28. Specialist and mainstream staff holding consultation sessions at the beginning and end of each term to plan, monitor and evaluate the curriculum and targets for each child.  Informal consultations take place on a daily basis during normal staff interactions and handover of information.
29. Joint planning with school staff and partner agencies on a regular basis, including educational psychologist, speech and language therapists and social workers.
30. Partnership with parents is supported by daily contact, as well as a daily home/school diary, staged intervention reviews which take place every term, and a full involvement with the life of the school.  The school has an open door policy for all parents to discuss any concerns they have or developmental  needs of their children.

Specific services for the child

Current Primary School

31. As the Tribunal heard the child currently attends this Primary School.  His school day is mixed between his mainstream class of 20 pupils and the Specialist Facility.  He currently spends two thirds of his time in the mainstream class and a third of his time in the Specialist Facility. His time includes:
32. Registration with the mainstream class;
33. A differentiated curriculum which can be carried out in the mainstream class;
34. A period of 1-1 teaching within the Specialist Facility;
35. Group Learning;
36. Blocks of Speech and Language Therapy.
37. To ensure continuity, the child has a work programme diary which is known to all staff who work with him, and ensures he has an appropriate spread of tasks and activities across his day.
38. The child has a Co-ordinated Support Plan to ensure the appropriate partner agencies are involved in his development and an Individualised Education Plan to provide specific short term objectives for him to meet. 
39. The child’s reading, language and maths tasks are differentiated by the specialist teacher, and can be used within the classroom setting so that he works alongside his peers.  The class teacher differentiates all other curricular areas using the strategies and techniques which have been discussed with specialist staff during the consultation sessions.
40. The Principal Teacher is responsible for the child’s education in the Specialist Facility.  The Tribunal heard from the Principal teacher that she has had daily contact with the child since his enrolment at his current Primary School in 2005.  The Principal Teacher has approached the child’s needs as a joint approach with his parents, specifically his mother.  The Principal Teacher uses a daily school diary to facilitate this joint working, an example of which is at page R151 to R182.  This mechanism is used to allow daily contact between the Principal Teacher and the appellant on the needs of the child.  The daily school diary allows the Principal Teacher to inform the appellant of what has been taught to the child during the day and raise any concerns.  Equally, the appellant is able to raise any issues and share her views with the School.  This would also allow the appellant to re-enforce the teaching carried out at School in the home.  The Respondents’ submission is that this is an appropriate mechanism for addressing the child’s needs provided it is done in conjunction with other services.  At R175 there is an exchange between the Principal Teacher and the appellant where the Principal Teacher is clearly looking to engage with the appellant regarding the appellant’s concerns.  This exchange also demonstrates the Principal Teacher’s attempts to engage in ensuring the classroom strategies are adopted by the appellant at home so that there is a consistent approach to the child’s needs.
41. The Principal Teacher informed the Tribunal that there are regular review meetings which are of a more formal nature which allows dialogue between the School, the child’s family and any agencies that are required to assist in the child’s learning needs.  The Principal Teacher also stated in her evidence that the current Primary School has an open door policy for the appellant to contact the Principal Teacher at any stage about the child’s development.  The Principal Teacher also stated that initially when the appellant dropped the child off at School in the morning she would have a brief catch up which she found useful to assist communication on a daily basis.  All these mechanisms are designed to ensure that the current Primary School and the child’s family have a joined up approach to the child’s needs.
42. The child has an A4 work file containing the work he is tasked with.  Where he is unsettled in the mainstream class he can take his work jotter and move the Specialist Facility to carry on his work there.  This is a further mechanism to ensure that his needs are met by the current Primary School.
43. The Respondents’ submission is that the child is integrated into his mainstream class at the current Primary School.  However, it has been suggested that this is not the case.  The child is educated on the 5-14 curriculum, operating at level A.  While this is at a level below that expected of a boy in primary 7 this is a feature of Scottish Education.  There are many children within class who have a differentiated curriculum and many work on their own.  The Respondents’ submission is that the child is integrated with his class geographically but also educationally.  The Respondents’ submission is that the child has a suitably differentiated curriculum to allow him to be educated along with his peers. 
44. The Principal Teacher provided an example of how this integration operates in practice. The child successfully worked on class project in relation to Japan (one of three Projects where he joined the mainstream class in his learning).  The Principal Teacher’s evidence was that the child meaningfully contributed to the project and was able to learn as a result.  This is a clear example of his integration into his mainstream class at the current Primary School.  The same approach would be expected at Secondary School.
45. Specific teaching approaches related to the child’s additional support needs are planned with speech and language therapist and educational psychologist and delivered by a range of staff (specialist teachers and SLAs, therapists and mainstream staff) as appropriate.  The child can attend the Specialist Facility where 1 to 1 sessions will take place where the majority of his learning takes place.  This facility can also be used where the child is having problems in the mainstream class.
46. At present, the child receives a combination of blocks of individual therapy with the speech and language therapist as well as small group work.  These are jointly planned and run by the specialist teacher and therapist.
47. Consistent use of strategies is planned with all staff to facilitate the child’s communicative functioning and to boost his understanding of communication in a variety of situations.  Supports include the use of visual timetables, symbols, social stories and include strategies for all settings within his environment i.e. structured teaching situations within the classroom, lunchtimes, playtimes, during individual settings and small groupwork.
48. The Tribunal also heard from he Principal Teacher, the Educational Psychologist and the Senior Social work team Leader that joint working could be organised so that the child’s family can adopt strategies to cope with the child when he returns from school.

Proposed Secondary School

49. The child has been offered a place at Secondary School for the 2010/2011 school year.  This Secondary School also has a specialist ASD facility (the Base Facility).
50. Transitional planning for the child’s move from his current Primary School to Secondary School would take place in the next few weeks.   This transition would need to be carefully managed.
51. In terms of the legislation the Respondents must demonstrate that “it is able to make provision for [the child’s] additional support needs”.  The Respondents’ submission is that as the current Primary School and proposed Secondary School’s are ASD specific schools and given the strategies identified above, the Respondents is able to make provision for the child’s additional support needs at both these Schools.

Paragraph 3(1)(f)(iii):  Respective suitability and cost of the requested School compared to Current Primary School and Proposed Secondary School

52. The next limb of the test is that the Tribunal must make an assessment of the respective suitability of the schools referred to in this reference and the cost of the provision.
53. The Respondents submits that, having regard to the respective suitability and cost, the current Primary School and proposed Secondary School are better placed to meet the child’s additional support needs than the requested school.
54. This view is shared by the Principal Teacher at the current Primary School, the Educational Psychologist and Senior Social Work Team Leader, all of whom have in their evidence recommended the provision at the proposed Secondary School rather than the requested School as the suitable provision for the child.
55. The Tribunal heard evidence from the Principal Teacher, the Principle Educational Psychologist and the Senior Social Work Team Leader for the Respondents and from Educational Psychologist for the Appellant in this respect.  Each view was based on the individual’s assessment of the level of the child’s additional support needs.
56. In essence there is a broad agreement that the child has a diagnosis of Autistic Spectrum Disorder, Asperger’s Syndrome and Neuro-developmental Delay.  Where there is some disagreement is how significantly this impacts on the child and as a consequence how his needs can best be met.
57. The Appellant’s position is based on the psychological report of the Educational Psychologist which starts at page A231.  This assessment of the child was most recently undertaken in September 2009 but refers to previous assessments in 2007 and 2005.  The Educational Psychologist describes the child as “profoundly rigid” on page A236.  It is based, to a large extent, on this profound rigidity that she recommends that the child should be placed at the requested school on a residential basis.  The reason for this assessment is that the child needs a 24 hour curriculum to meet his needs and that his needs will never be met in a day placement.  The Respondents disagrees with the conclusion that the child needs a 24 hour curriculum or that he requires a residential placement.
58. In evidence both the Principal Teacher and the Principal Educational Psychologist disagree that the child is “profoundly rigid” in his autism.  The Principal Teacher stated that the child can learn skills on a 1:1 basis and can generalise these skills into small groups.  The Principal Teacher also stated that she can discuss situations with the child and he can take on board what is being said.  While the Principal Teacher did acknowledge that as he has matured the child speaks out more to avoid doing tasks he does not like to do, she did not consider that his autism was profoundly rigid.
59. The Principal Teacher also stated in her evidence that it takes time to get to know the child as he is anxious and is cautious with strangers.  She stated that she took some time to gain his trust.  The Respondents’ submission is that the Tribunal should prefer the evidence of the Principal Teacher and the Principal Educational Psychologist to that of the Educational Psychologist for the appellant when considering the rigidity of the child’s autism.  The Respondents submits that the assessment of the Educational Psychologist, given the nature of the assessment, is unlikely to be as reliable as the views of the Principal Teacher and the Principal Educational Psychologist.  It is the Respondents’ submission that as the child is cautious with strangers the mere presence of the Educational Psychologist would render the assessment inaccurate as the child does not react in the same way as he does when he is comfortable with those around him.  The Respondents’ submission is that the Educational Psychologist’s assessment is not accurate in its conclusion of rigid autism as the child would not be comfortable with the Educational Psychologist for the appellant. 
60. Additionally, the Principal Educational Psychologist expressed some concern that as the child had been assessed by three different schools during the past year this may have added pressure to him.  The Respondents’ submission is that it is possible too that these various assessments of the child have contributed to the Educational Psychologist’s assessment of a profoundly rigid boy which is not the picture the Respondents have of the child.
61. The evidence of the Principal Teacher and the Principal Educational Psychologist is that the child is making progress academically.  For example the Principal Teacher described the child’s ability to use the “google” search engine very well.  The Principal Teacher also stated that the child’s numeracy had improved.  She also stressed that in sports the child is very much part of the group.
62. The Principal Teacher’s evidence was that collaborative working could have been better achieved but that the appellant’s interaction with the current Primary School diminished over recent months.  The Principal Teacher’s evidence is that the current Primary School is able to provide more help but that in order to provide this, there needs to be more input from the child’s family.  For example the appellant did not fully share the information she has regarding the ABA programme with the School.  Had she done so, further work could have been undertaken to assist the child.  The Principal Educational Psychologist also stated in her evidence that she had asked for reports but had not been provided with them.  Access to these reports would allow the Respondents to achieve collaborative working.
63. The Principal Educational Psychologist was referred to document A34 to A36.  This is her educational psychologists report in response to the placing request that is part of this reference.  The Principal Educational Psychologist’s assessment was made on the basis of one home visit with the child and observations made at the Specialist Facility at the current Primary School.  On page A36 the Principal Educational Psychologist set out her recommendations for the child’s progression to Secondary School.  The Principal Educational Psychologist was, as part of her evidence, asked to identify which of the schools could undertake the particular recommendation contained in her report. 
64. The first recommendation relates to Flexible Curriculum centring on the development of communication, knowledge, social interaction, general independence and life skills.  The Principal Educational Psychologist considers that the requested school, current primary school and proposed Secondary school would be able to provide this.  However, she felt that the proposed Secondary School is a purpose-built autism specific facility but that the requested school is more curative with a less autism focussed approach.  The proposed Secondary School has 6 years experience with children with Autistic Spectrum Disorders.  The Principal Educational Psychologist had visited the requested school on a number of occasions and has been the case psychologist for young people at this school.  Her view of the school was that it had more of a focus on skills outside the classroom.  The Principal Educational Psychologist as the case psychologist for the proposed Secondary School for 10 years felt she had a good idea of what could be offered by the school.  Her view was that the school takes good practice and makes it ASD specific.  The Principal Educational Psychologist had contacted the requested school regarding PECS as she had some concerns that this is not universally developed throughout the School.  On that basis she believed that the proposed Secondary School could deliver on this recommendation.
65. The Second Recommendation relates to substantial curriculum differentiation which supports the continuation of current learning targets such as literacy and numeracy skills.  The Principal Educational Psychologist’s view was that the Secondary school was more focussed on literacy and numeracy than the requested school.
66. The Third Recommendation was that the child would require individual and small group teaching.  The Principal Educational Psychologist felt that both the requested school and Secondary school could offer this.
67. The Fourth Recommendation was that substantial support would be required to ensure the child remained focused on the task in hand in a mainstream setting.  The Principal Educational Psychologist’s professional view was that the child needed a wider peer group, that access to this peer group could be achieved by support from an SLA.  The Principal Educational Psychologist considered that the child needs experiences of mainstream life in order to develop his social skills. The Principal Educational Psychologist believes that access to mainstream class could be built up from the Base Facility as it had done during the child’s time at his current primary school.  The Principal Educational Psychologist stated that as she had seen the child’s understanding grow and develop she considered this to be an appropriate recommendation in the circumstances.
68. The Fifth Recommendation related to ongoing access to speech and language therapy and occupational therapy. 
69. The Sixth Recommendation was that there should be opportunities for the child to extend his physical, IT and creative skills.  The Principal Educational Psychologist felt that this recommendation could be met by both schools.
70. Recommendation Seven related to opportunities for the child to further develop friendships and participation with his peers including those not on the autistic spectrum.  The Principal Educational Psychologist considered that the Respondents could provide a holistic approach by working with the child’s family to achieve this.  The Principal Educational Psychologist was unsure as to how wide the child’s social group would be at the requested school.
71. Recommendation Eight concerned the child having strong home/school links which she considered could be achieved by both schools.
72. Recommendation Nine and Recommendation 10 could be met by both Schools.
73. The Principal Educational Psychologist was also asked to comment on the report provided by the Educational Psychologist for the appellant at page A231.  Her concerns are briefly listed here:
74. The Principal Educational Psychologist was concerned by the Educational Psychologist’s report as it did not observe the child in the Base at his current Primary School where much of the good work is carried out.  This is where his 1 to 1 teaching occurs and the work with the Speech and Language Therapist.
75. She was also concerned that although the report purports to have observed the child in 2007 at his current Primary School but that the Educational Psychologist in fact did not observe the child in school during that assessment.
76. The Principal Educational Psychologist also disagrees with page A262 in that the child’s language has deteriorated.
77. The Principal Educational Psychologist disagrees with the Educational Psychologist’s assertion at page A263 that the child’s full potential would not be met in a day placement.
78. The Principal Educational Psychologist was surprised that the report contained no positives of the child.
79. The Principal Educational Psychologist’s view was that the Respondents could provide support for the appellant by working jointly with the child’s Family.  The Principal Educational Psychologist felt that moving the child to a residential school was an enormous step.  She referred to the level of autism specific support at the proposed Secondary School and the sports complex.
80. The Principal Educational Psychologist was aware that the Base at the Secondary School had pupils of a similar level to the child functioning at level A on 5-14 curriculum.  The Respondents’ submission is that the child could carry out meaningful work placements in the future and that this would be best achieved through the proposed Secondary School.
81. The Respondents’ submission is that the element of mainstream contact currently in place at the current Primary School and the proposed Secondary School is important so that the child can learn social cues required for his development from the mainstream class.  While there is a focus on the educational element of the provisions as an autistic child he needs to develop the social aspects he is lacking.  The Respondents considers that regular access to a mainstream class would develop this more quickly and more appropriately than the child would at the requested school.  The Respondents’ submission is that the child is more likely to develop his social skills where he has contact with a mainstream class (or the mainstream class has access to the Base Facility) than he would at the requested school.
82. The Tribunal also heard from The Principal Teacher and the Principal Educational Psychologist that the child copies extreme behaviours.  The Respondents’ submission is that this type of mimicking is more likely to occur at the requested school where all the pupils have some level of educational support needs.  At the proposed Secondary School the child will have at least some regular contact with the mainstream class where recognised social cues would be demonstrated by the others in class and also the child’s buddies.
83. The base unit at the Secondary School is small and secure.  The approach to moving into the mainstream class is carried out in a sensitive way.  Because of this the child would have his anxiety managed in a way that he could best deal with.
84. The Principal Educational Psychologist’s concern with the requested school was that the focus is on a variety of skills rather than education.  There is only 21 hours of teaching each week.  In addition, the focus on literacy and numeracy equated to 1.5 hours per day.  The Respondents’ submission is that the child needs more than this low level of numeracy and literacy as part of his education.  The Educational Psychologist stated that the child’s development in this area is slow.  However, it would appear that by attending the requested school that element of the child’s education would be reduced. 
85. The Respondents’ submission is that being away from his mother for 38 weeks of the year is not appropriate for a boy of the child’s age. The Senior Social Work Team Leader’s evidence was that she would not make a recommendation for a residential placement for a child unless the parents could clearly not cope of there was a risk to the child.  The Senior Social Work Team Leader’s view was that there were strategies that could be applied by the parents to help them cope and that the Respondents could assist in a variety of ways to assist them in doing so.
86. The Senior Social Work Team Leader also considered that the level of autism that the child has is such that he would not be considered for a residential placement once he becomes an adult.  From a social work perspective his needs are not so great to fulfil the requirements for this so the child will be supported in the community.  Given the child has reached such a level it is submitted that the placement at the requested school is not reasonable in the circumstances.  The Senior Social Work Team Leader’s view was that the child would be best served developing the skills he needs for adult life during his formative years than try to develop them as an adult.
87. As part of the assessment of the particular school the Tribunal is also referred to the HMIe Report of the requested school at R214.  The Report states on page 215 that “children and young people are making limited progress in reading and writing”.  The Respondents is concerned that this would impact on the child.  The report also provides on page 215 that “young people have too few opportunities to gain appropriate qualifications”.  The Respondents’ position is that the child is at a level where in the future he would have to the potential to achieve access courses,. and that the proposed Secondary School would support and encourage this.  While one of the manager’s of the requested school stated that said school has the opportunity for access level courses, the report casts a serious doubt on the opportunities of children to do so. In addition, the report states that the curriculum is weak, which supports to some extent the Principal Educational Psychologist’s concern about the level of classroom teaching.
88. In contrast the HMIe report of the proposed Secondary School has an “excellent” curriculum.  The Report states that those on the autistic disorder spectrum learn particularly well and are increasing their skills in social interaction with other young people, staff and visitors.
89. The Tribunal are also asked to consider that teachers employed at the requested school are not registered with the General Teaching Council.
90. The Respondents’ submission is that comparing the provisions for the child’s additional support needs, the current Primary School and proposed Secondary  School are more suitable than the requested school.

Cost

Costs for Current Primary School

91. The cost of the Appellant’s current placement at Primary School are:
92. £19,733 per school session; and
93. Travel costs of £2,850 per school session.

Costs for Requested School

94. The costs for the Appellant to attend the requested School on a residential basis are
95. £39,045 per school session of 39 weeks.
96. The travel costs of £3,320 per annum including escort.

Costs for Proposed Secondary School

97. The costs for the Appellant to attend the proposed Secondary School are:
98. approximately £21,831.
99. Transport costs for session 2010/11 are £975 per school session, as the Appellant would be sharing transport with another young person.
100. It is submitted that these additional costs are unreasonable, as the Appellant’s educational needs are being well met at his current placement at Primary School and can be met for the 2010/2011 school year at the proposed Secondary School.

Paragraph 3(1)(f)(iv):  Offered a place

101. The Appellant currently attends Primary School and has been offered a place for the 2010/2011 school year at Secondary School.

Conclusion

102. For the reasons set out above, the Respondents submits that the Appellant’s appeal should be dismissed.  The Respondents submits that it in terms of section 19(5) (a) (ii) it is in all the circumstances appropriate for the Tribunal to confirm the decision of the Respondents to refuse the placing request.

 

 

 

 

7. Tribunal’s Reasons for Decision

 

The Tribunal considered all the evidence and were satisfied that there was sufficient evidence available to reach a fair decision on the reference. The Tribunal has considered this reference very carefully having particular regard to the potential impact which its decision may have on the child and his parents. We have great sympathy for the parents’ predicament in trying to find the optimal educational environment for their son and we are grateful to them for the manner in which they participated in the hearing. We have no doubt that the appellant believes that she is acting for the best interests of her family in pursuing this matter and we agree that matters are finely balanced. The Tribunal endeavoured to make the proceedings as informal as possible within the constraints of the legislation. Nonetheless the task of the Tribunal is to focus on the statutory tests to be satisfied and to try and apply these to the evidence which was available to us.

 

The Tribunal was ably assisted by the parties’ representatives over the three day hearing. Deliberations were in written form and I am conscious that the extensiveness of these submissions and the double reference has made the writing up process far lengthier than anticipated.

 

Reference is made to the findings in fact above. The Tribunal considered the totality of the evidence before it which included all the productions and the oral evidence of the witnesses in the course of the hearing.  The Tribunal also had due regard to the submissions made orally and in writing on behalf of the parties. The decision making of the Tribunal is based on an application of the legal tests to be considered in relation to the findings in fact. It was a matter of agreement that there was little dispute in relation to the essential facts of the case. We are persuaded by the force of the Respondents’ submissions and refer to our findings in fact.

 

The issue is whether these facts can meet or fail to meet the statutory requirements for the application of section 19 of the Education (Additional Support for Learning) (Scotland) Act 2004.

 

The issue in dispute was the respective suitability of the provision available at the independent facility for which the placing request was made at the requested School and both the current Primary School but more particularly the proposed Secondary School, and the respective cost of the provision in meeting the additional support needs of the child.

 

In view of the transition from the current Primary School which is due to commence the focus of this decision is on the suitability is the proposed Secondary School in relation to the requested school. The authority submitted (in short) that the Secondary School was at least as suitable a facility for the child as the requested school.   The Tribunal accept that there was a discernable difference between the two schools in terms of the child’s ability to benefit from education and that on balance the Secondary School offered the better range of educational facilities as well as sports facilities, the availability of a mixed ability peer group more consistent with the child’s ability, the prospect of more seamless after school transition when the time comes and the added advantage of maintaining closer parent contact.

 

Even if it was the parent’s perception was that the requested school offered an educational ethos primarily focused on acquiring life skills which was their preference this could not justify the additional annual expenditure. The terms of paragraphs 64 to 67 of the Respondent’s submission were noted and were not disputed.  Accordingly the Tribunal find that the statutory grounds for refusal of the placing request were established.

 

1. The Appellant submitted that the parents had a right under the legislation to choose a school and make a placing request.  The child’s views on the school were sought by the Respondents.
2. Section 19(5) of the Education (Additional Support for Learning) (Scotland) 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..."

 

3. 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."

 

4. 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).

 

5. 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. 

 

6. Para 3(1)(f)(i) and (iv) are not in dispute.   The requested School is not a public school and the authority has offered to place the child in Secondary School. 

 

7. The Tribunal considered the evidence before it of the ability of the authority to make provision for the child's additional support needs in both his current school and Secondary School and concluded that this was clearly established.   Para 3(1)(f)(ii) is satisfied.

 

8. The Tribunal required to consider the respective suitability and respective cost in terms of paragraph 3(1)(f)(iii). In terms of paragraph 2 (2) of the Act 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 of the Act is established.

 

The Respondents appear to have incorrectly stated the position in respect of costs and have no had regard to the opinion of Lord Glennie in SM as legal Guardian to J [2006] CSOH 201 where he states

 

 “it seems to me that the only meaningful assessment of the “cost” of providing the additional support at each school is by reference to what amounts the education authority will have to spend to secure that provision…. The question is how much more will we have to spend to give the child the extra benefit rather than place [her] in our own school?.... Any other approach seems to me to be highly artificial.”  He then goes on to discuss English authorities to support his proposition. He then concludes “it follows that the ASNTS was wrong to calculate the cost to the education authority of placing J at O school simply by dividing running costs by the number of pupils are places. It ought to have approached the matter on the basis that only relevant costs were the additional costs which would be incurred by them if J went to that school.”

Since the respective costs is only a secondary aspect for the Tribunal’s consideration and not the one which has been material in the Tribunal reaching its decision, it follows that this aspect has not directly influenced the decision reached.

 

9. The child’s parents have spared no effort and little expense in trying to secure appropriate education for their son. For the past three years there has been continuity of primary education at the current School which has resulted in educational progress being made although this has been difficult to demonstrate by objective testing owing to the child’s difficulty in engaging in formal testing.

 

10. Section 1(1) of the Act provides:

 

"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 ...

 

Section 1(2) provides that:

 

"... 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".

 

11. The Tribunal had regard to C v City of Edinburgh Council 2008 SLT 522 where Lord Wheatley stated:

 

"The whole burden of the test of what constitutes additional support needs clearly refers to educational support, and further to education support offered in a teaching environment.   This in turn must refer to the educational needs of the child, and not to anything else.    It cannot refer to the social and environmental needs of the Appellant herself, or indeed of the child."

 

The first test the Tribunal has to apply, under paragraph 3 (1) (f) (ii), is whether the additional support needs can be met in a school other than the specified school.

 

Having considered all the evidence and the submissions the Tribunal is satisfied that the requested school and both the authority’s schools are able to make provision for the child’s additional support needs.  It is not a requirement that each school should be able to offer identical provision for those needs but that those needs can be met and in terms of the educational support offered in a teaching environment. The evidence could not reasonably justify the conclusion that either the current Primary School or proposed Secondary School was not a suitable school for a child with his needs. Indeed it would be perverse for the Tribunal to reach such a conclusion. We particularly refer to the evidence of the Educational Psychologist in commending the facility at the proposed Secondary School. It is accepted that the Tribunal would have had access to more comprehensive evidence by having a witness from the Secondary School but there was no challenge to the evidence of the Respondents’ witnesses who had all visited the school and were very familiar with it that the facility within the base at the school operates on a very similar pattern to the base at the current Primary School albeit within a Secondary School setting. The Tribunal must also meet its overriding objective of dealing with appeals proportionately and are mindful of the rule designed to limit the number of witnesses. However had the Tribunal considered this evidence in any way inadequate then we would have requested that the Respondents make available an additional witness.

 

The Tribunal then went on to consider the respective suitability of the Secondary School as compared to the requested school under paragraph 3 (1) (f) (iii). It is indisputable that the child will leave his primary school at some point during 2010 and will have to undergo a planned move to any new school which he is to attend. Essentially the Tribunal must try and anticipate the relative merits of these two facilities in terms of his education. It is evident that the requested school as a residential facility is not and cannot be directly comparable to the Secondary School which is a day school. Much of the evidence of the requested School related to the fact that the child would be part of a wider community and we accept that this would provide a very attractive residential environment but we require to consider the educational benefits of the establishment. It is entirely possible that some children attending the Secondary School do access other care packages such as respite care outside school hours and it is also possible that such additional support is or could be available to the child should this need be established as he matures and should his mother wish to take advantage of this. 

 

We also accept the evidence from the Respondents’ witnesses that many children attending the Secondary School have conditions and behaviours which are more severe than the child and they remain appropriately placed at a day school.

 

Schedule 2 of the Act, which applies to placing requests, sets out the duty of the education authority to comply with placing requests in specified circumstances. The onus is on the education authority to grant the placing request unless it can identify circumstances in which its duty would not apply.  Where the specified school is not a public school then paragraph 3(1) (f) has to be considered. The Tribunal carefully considered the evidence of the provision at the Secondary School, including the availability of access modules and were satisfied that within the context of the school day its provision was at least the equivalent, and in some respects superior, to that provided at the requested School. There was no dispute that the provision at the Secondary School was of a good standard and that there was no reason to believe that the child would not continue to make educational progress at that school. The accuracy of the indications of the child’s progress made at the current Primary School was not disputed. The Appellant in their submissions relies on indications that the child was actually regressing within his current educational placement. We accept that educational progress for children with ASD is not usually linear in that they make some progress in one area while falling back in others and while may be difficult to track progress effectively the overall trend was one of improvement.

 

The Appellant also made an argument that the Respondents had not carried out any child specific assessment of the requested school in relation to the child’s needs. It was apparent that there had been an assessment made in respect of two other children who were due to go from the current Primary School to the requested school in 2010 and that the facilities in the requested school were well known to the authority. The authority had sufficient specific information on the school and on the child to reach a reasoned decision. We know that where there is a proposal that a child may be placed in one class as opposed to another, this decision may be subject to change and that the dynamics of the classroom may change through possible changes in staff or pupils, as with any educational facility state or private, and that any prospective assessment has to be hedged with these caveats. A similar argument may be made for the Secondary School where the intake for 2010 may alter the balance within the base. The facility at the Secondary School is clearly provided for children with abilities and needs such as the child’s and is clearly regarded as a good facility.

 

 It follows that the authority is more likely than not to be able to make provision for the additional support needs of the child in a school other than the specified school in satisfaction of Paragraph 3 (1) (f) (ii) of the Act.  The placing request provisions do not make any distinction between residential and non-residential schools. Much of the force of the submissions for the Appellant were on the basis that education restricted to the school day was not sufficient for the child’s educational needs and that he required to be placed in a “24/7” provision where intensive work and structured routine outside normal school hours could enhance his learning experience in a way which mere parental enforcement at home could not achieve. We are conscious of the significant burden the needs of a child with ASD place on a parent and as in the appellant’s case she mostly had to bear this burden on her own, this has taken a personal toll on her own health.

 

It was argued that the definition of “additional support needs” should not be read purely in the context of what could be provided within the setting of the school day.  This approach may well be consistent with the original statutory intention but the Tribunal is bound to apply the reasoning of Lord Wheatley in C v City of Edinburgh Council 2008 SLT 522 where he opined

“The whole burden of the test of what constitutes additional support needs clearly refers to educational support and further to educational support offered in a teaching environment. This in turn must refer to the educational needs of the child and not to anything else. It cannot refer to the social and environmental needs of the Appellant herself, or indeed of the child.”

 

Section 1 states that:

 

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.”
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.

 

Chapter 2 of the Code of Practice at paragraphs 4 – 10 attempts guidance on what is meant by “additional support”. Neither party referred to the Code in their submissions but it is appropriate that in deliberating on this matter the Tribunal have regard to its terms, to determine if they can assist.

 

Paragraph 6 points out that additional support is too widely defined to permit an exhaustive list of circumstances but in paragraph 9, which gives seven examples of the additional support which might be provided from agencies outwith education services. None highlight examples of additional support which would require to be delivered specifically outside the normal school hours or on a residential basis. The case study example of a child at paragraph 9 indicates where a carer may have to be provided for the parent during normal school hours to enable the child to attend school rather than acting as his mother’s carer but it does not go on to indicate that any carer would be provided outside school hours to permit, for example, a child to undertake homework or any other educational pursuit.

 

 

In Chapter 2 of the Code which poses the question “What gives rise to additional support needs?” and considers the learning environment such as home factors where, for instance, the child does not speak English as a first language or has British Sign Language as their medium of communication. There is no suggestion that the child be removed from an adverse learning environment in order to acquire their new language more quickly even though intensive teaching might achieve this.  The additional support would be put in place within the school day. The Tribunal accept that some additional support may be delivered outside normal school hours but where, as in this case, education within the school is progressing well, and it is anticipated that this would continue in the specialist Secondary school provision planned such a placement is unlikely to meet the requirements of the Standards in Scotland’s School etc. Act 2000.

 

Section 1(3) states “additional support” means –

 

1. in relation to a prescribed pre-school child, a child of school age or a young person receiving school education, 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 same age in schools (other than special schools) under the management of the education authority for the area to which the child or young person belongs,
2. [not relevant]

 

It is accepted that this statutory definition does not confine the additional support exclusively to that which can only be provided within the school or within the time the normal school day allows. It is accepted that it is always desirable that learning in school is reinforced in the home environment and that this is acknowledged as of even more significance where the child is on the autistic spectrum disorder, but the weight of the evidence did not persuade us that even where the appellant, as the main caring parent, considers that she cannot provide the optimal home environment for the child’s learning that this will mean that this would produce an adverse impact on his progress at school. We do not accept the evidence of the Educational Psychologist that he was utterly rigid in his autism as this was not supported by the weight of the evidence of the Principal Teacher and the Principal Educational Psychologist whose contact with the child has been more sustained. Indeed, the child has established that he has an ability to cope with planned changes in his routine, not least his ability to cope with a visit to the requested school and to make his own assessment of his ability to deal with such a change; he has restricted but sufficient flexibility, he has an ability to understand verbal communication, mimic the behaviour of others and attempt to form some basic social interactions which reinforce other positive aspects in his development.

 

The Tribunal is bound to weigh two very different perspectives on the child’s current situation. The first, submitted by the Appellant’s representative, was that the child’s circumstances in attending a day school where there was or would be acceptable, but time limited provision, but which could not offer a 24/7 autistic specific educational programme they argued was essential for him to benefit from school education.

 

The perspective of the Respondents, largely based on the same facts, was that whilst it was accepted that the child was displaying challenging and demanding behaviour at home where the appellant was mostly having to cope on her own, the home circumstances were not currently impacting on the child’s ability to access and benefit from education in a school environment; that the Respondents were potentially prepared to increase the amount of out of school support which would assist to relieve the pressures on the appellant (but that this was essentially an issue for the Social Work department supporting the appellant and contact to date had not been well established) and that some of these supports may already have been in place had it not been for the Appellant’s apparent reluctance to engage in referrals to other supports.

 

 

All children in a residential placement are considered and treated as “looked after” children by the local authority. There is always the potential that a residential school placement can impact adversely on the child’s relationship with their family and make it more difficult to put appropriate post school arrangements in place. Arguably the child would be confronted with even more marked transitions moving between a residential school environment and his home as it was proposed that he would attend the school only 32 weeks in the year and also spend some weekends at home.

 

As the child is only 12 it does not seem appropriate to place undue weight on his post school prospects at this stage but where it is possible for the child to reside in a community which he will be a part of when he leaves school, this seems more supportive of his long term educational aims and more enhancing of an ability to transfer his learned skills in different social situations.

 

We have no doubt that our decision will place continuing demands on the child’s parents and especially his mother. The Tribunal accept that low mood and stress are not uncommon for a parent in the same situation as the appellant but while she is managing to care for the child at home with currently very little support from other support providers there is no requirement that this factor should be given any weight.  It is clear that the child is very closely bonded to his mother and that this produces negative as well as positive consequences.

 

An important piece of evidence in giving an indication of the strength of the child’s feelings of attachment was introduced by the report from the Educational Psychologist appears at Page 7 of her report where she records that the child has expressed thoughts to his mother about the girl with whom he is obsessed. He had said that as he cannot play with her he wanted to “stick a knife into her, wanted to stab her, wanted to kill her and his mother feels he got this from Harry Potter.”  The Tribunal did not wish to attach undue weight to this report in view of the fact it appeared as an isolated outburst indicating the child’s mixed feelings of distress and anger and the appellant had appeared to ascribe his reaction to fictional ideation rather than a serious expression of intent. There is no evidence to indicate that the child has ever attempted to act out such feelings in any way whatsoever. Nevertheless it seemed that the Educational Psychologist’s Report and her oral evidence presented this reported behaviour as an imminent risk factor which further supported a residential placing request.

 

The report from the Educational Psychologist reports on three separate assessments of the child in 2005, 2007 and 2009. Each of these is a snapshot of his performance at school and at home on one or two days. She also visited the proposed Secondary School and the requested school. She reports briefly on the respective facilities for the child in both schools. In her report she does not make out any argument in respect of one school as opposed to the other except that at page 33 of the report she states “the child’s potential will never be met in a day placement, however good.” This is a very sweeping statement which can only be understood in the light of her positive assessment of the facilities at the requested school as it would be unsafe to assume that any residential facility would be better than a day school. In her oral evidence the Educational Psychologist robustly supported a placement at the requested school primarily in view of its 24/7 facility. She states “It cannot be expected that the appellant should continue to be placed under pressure from the child” and it is clear that her conclusion was strongly influenced by the impact the child’s behaviour is having on the appellant. She also characterised the child’s ASD as severely rigid but this assessment was not supported by the Principal Educational Psychologist who had had more opportunity to observe and assess the child in 2009.

 

We were also given very detailed information about the requested school by one of the Manager’s and we have no doubt that this is a good facility for children whose needs cannot be met otherwise than in a residential facility.  She had had fairly limited contact with the child in relation to the placing request.

 

The Educational Psychologist’s observation of the child in 2009 was at the current Primary School where he was observed for a morning working in the mainstream classroom where his engagement was found to be unsatisfactory. We accept that this was a snapshot of one day where circumstances may not have been typical. We also know that if he is unable to engage in the mainstream school at Secondary School his time in the base will be adjusted accordingly as it is currently at Primary School.

 

The Tribunal acknowledges that the home circumstances for many children with additional support needs are less than ideal – in this case both the child and his mother appear to be physically and socially isolated - and yet are not in a situation where a residential placement for the child would be considered necessary on educational or any other grounds.

 

The Appellant’s evidence gave us an account of the efforts which she has taken to arrange an out of school routine in such a way that she would take the child to various activities to meet other children and the difficulty she has establishing any out of school peer contact for him.

 

The Appellant indicated how relatively short the school day was and that the child would be able to benefit from education right through the day, and not just during school hours, at the requested school. We must balance the Appellant’s wish to have extended hours of education (in the broadest sense) with the evidence of the Principal Educational Psychologist who expressed concern about the suitability of the requested school in terms of the available peer group in that facility. She placed greater value on the availability of a mixed peer group, maintenance of home school ties and, on balance, she favoured the creation of a more comprehensive after school package to support the child’s transition to Secondary School. We were impressed by the very balanced and considered way in which the Principal Educational Psychologist gave her evidence. She has had very close contact with the base at the current Primary School as well as the proposed Secondary School where she was previously the responsible the assigned educational psychologist. She has also had contact with the requested school since 2001 and remained case psychologist for children in the authority placed at this school.  She had the best overview of all three schools relating to this reference in terms of both ongoing contact and length of contact. She expresses particular concern that the children at the requested school had more global learning disabilities and that the peer group which would be available to the child was not sufficiently rich having regard to his abilities. She agreed that both schools could offer a flexible curriculum but noted that the requested school did not promote its facility as autism specific. She observed that the requested school had more stress on life skills outside the classroom whereas the proposed Secondary School would offer more continuity with the child’s current educational programme. The Principal Educational Psychologist had observed few children at the requested school with the child’s level of learning and many children who are non-verbal. She queried the contact hours for language work at the requested school and the reliance on volunteer assistants who do not have English as their first language. She highlighted the child’s reading ability at A259 as disclosing the most useful tests. The Principal Educational Psychologist also stated that she was unaware of any deterioration in the child’s learning and specifically noted that he seemed easier to settle back to school after the summer of 2009. She queried the reliability of the Educational Psychologist’s observations as the child was aware why she was in the classroom and this may have influenced his behaviour. She commended the facility at the proposed Secondary School as being autism specific and the availability of high level curriculum differentiation which would ideally suit the child’s needs. She had had several one to one sessions with the child in 2009 where she could engage with him directly but had also observed him in the base at his current Primary on a regular basis. We felt she was in the best position to make a reliable assessment of the best educational provision for the child. Accordingly the Tribunal gave due weight to her evidence and opinion in reaching its decision.

 

In considering the two part test we have also weighted up all the circumstances and concluded that it is not appropriate to allow the reference in respect of the placing request. We are satisfied that the decision of the Respondents should be confirmed and that they have discharged their onus in establishing that they are able to make suitable educational provision for the child. In setting out our reasons where we have not, for the sake of brevity, addressed every issue in detail in view of the summary nature of the Tribunal jurisdiction, we adopt the arguments set out in the Respondent’s submission.

 

Finally, in reaching this decision we are conscious that the circumstances pertaining to the child and any child of his age with an ASD diagnosis may be subject to review. A placement at the proposed Secondary School will be subject to ongoing assessment just as a placement at the requested school would be. It is impossible to predict, with any certainty, how the child will develop and his response to any new educational establishment.  The child has a Co-ordinated Support plan and it is to be hoped that those professionals involved with the delivery of this plan will endeavour to ensure that the Secondary School is, and remains, an appropriate facility from which he can benefit from school education.