ASNTS_D_14_2012_26.03.12

Additional Support Needs

Category

Placing Request

Date

26 March 2012

Decision file

ASNTS_D_14_2012_26.03.12.doc186.5 KB

Decision Text

DECISION OF THE TRIBUNAL

Reference: D_14_2012

Gender: Male

Aged: 13

Type of Reference: Placing Request

1. Reference

This reference, made by application dated 18^th January 2012 (T1-11), is made under s.18(3)(da)(ii) of the Education (Additional Support for Learning)(Scotland) Act 2004 (‘the 2004 Act’).

2. Decision of the Tribunal

The Tribunal confirms the decision of the Respondent to refuse the Appellant’s placing request, in accordance with s.19(4A)(a) of the 2004 Act.

3. Preliminary/Procedural Matters

1. This reference was consolidated with a Disability Discrimination Claim relating to THE CHILD, (see the direction at T36).

Reasons and the deemed decision issue

2. One such matter which was not dealt with in directions and pre-hearing conference calls relates to the reasons for the refusal of the placing request. Although this was a preliminary matter which could have resolved this reference in its entirety, it was agreed during a pre-hearing conference call that a preliminary hearing should not take place since evidence would have to be heard on the related disability discrimination claim. In these circumstances, this preliminary matter was dealt with during submissions following the evidence. The placing request in this case was made by the Appellant, as noted below, in her letter of 10^th October 2011 to The Respondent (T14-15). The request for THE CHILD to be placed in School A School, can be found in the final sentence of the penultimate paragraph of that letter. The Respondent accepted that he had not dealt with that placing request by making a decision on it timeously. He explained that this was due to a ‘procedural lapse’ on his part. As The Respondent’s Representative noted in her written submissions, the earliest the placing request could have been received by the Respondent was 11^th October 2011. There was no response to the placing request letter, meaning that by 11^th December 2011, the Respondent was deemed to have refused the placing request. This is as a result of the application of paragraph 3 of The Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005, SSI 2005/515 (‘the 2005 regulations’). It was accepted by both parties that that paragraph applies in this case.

3. The Appellant’s Representative raised the preliminary point related to the deemed refusal in his Case Statement (see paragraphs 8-15 at A1-3). He refers to this argument in his written submission, paragraph 8. During oral submissions, he addressed this point further. In essence, The Appellant’s Representative made two points. His first point was a procedural one. His second point was a competency argument. On the procedural point, he argued that since the Respondent did not provide reasons for the refusal of the placing request, it had failed to comply with the provisions of s.28(2) and paragraph 4(1) of Schedule 2 of the 2004 Act. Section 28 provides as follows:

28 Requests under this Act: further provision

(1) References in this Act to a “request” are to a request which–

(a) is in–

(i) writing, or

(ii) another form which, by reason of its having some permanence, is capable of being used for subsequent reference (as, for example, an audio or video recording), and

(b) contains a statement of the reasons for making the request.

(2) Where an education authority decide not to comply with any request made to them under this Act, the authority must–

(a) inform the person who made the request of that decision,

(b) in so doing, give reasons for the decision,

(c) except where the request was of the type specified in section 7(2)(b), provide the person who made the request with information as to–

(i) the mediation services provided in pursuance of arrangements made by the authority under section 15(1), and

(ii) any procedures for the resolution of disputes established by the authority in pursuance of any regulations under section 16,

(d) where the request was made under section 6(2)(b) or 10(4), inform the person who made the request of the right under section 18(1) to refer the decision to a Tribunal, and

(e) where the request was a placing request, inform the person who made the request of–

(i) the right under paragraph 5 of schedule 2 to refer the decision to an appeal committee, or

(ii) the right under section 18(1) to refer the decision to a Tribunal,

(as appropriate).

4. It is clear that the Respondent did not comply with any part of s.28(2). In addition, it is clear that the Respondent did not comply with the obligation to inform the Appellant of their decision in writing (2004 Act, Schedule 2, paragraph 4(1)). However, in our view, these provisions do not apply in this case. Although the obligations in s.28(2) apply: “Where an education authority decide not to comply with any request made to them under this Act..” it is clear to us that these provisions do not apply in a case where a deemed decision occurs. To explain this further, we need to set out our view on the nature of a deemed decision under paragraph 3 of the 2005 Regulations. The purpose of such a decision framework is obvious. If a decision on a placing request was not, in certain circumstances, deemed to have been made, an education authority could simply fail to respond to a placing request (which is what occurred here). That failure could continue right up to and beyond the start of the academic year to which it relates. If this was permitted to occur, there could arise a situation in which a decision was never made. Given the terms of the 2004 Act, if this happened, a reference to this Tribunal under s.18 could never occur. Also, if a decision on a placing request by an education authority was made, but was unduly delayed, this could lead to a delay in the placing of the child or in the determination of any reference based on that placing request, so that the question of where the child is to be educated could be delayed beyond the start of the next academic year. Turning to the applicable paragraph in the 2005 Regulations (paragraph 3(b)) it should be noted that the emergence of a deemed refusal is related to the failure to inform the parent in writing of the decision within two months of receipt of the request. This is a reference back to the 2004 Act, Schedule 2, paragraph 4(3). It seems to us that there are two events which might lead to a deemed refusal under paragraph 3 of the 2005 Regulations: (1) a failure by the education authority to make a decision on the request at all within the two month time period; or (2) a failure by the education authority to inform the parent in writing of a decision within the two month time period, where a decision has actually been made. In this case, event (2) occurred. The Respondent indicated that a decision was made to refuse the placing request around the end of November or early December 2011. We are prepared to accept that this means that a decision was made to refuse the request prior to the two month timescale set out in paragraph 3(b) of the 2005 Regulations. However, since the Respondent did not inform the Appellant in writing of the outcome of that decision within the two month (see the final part of paragraph 3 of the 2005 Regulations), this made the decision a deemed one. Turning to s.28, it is clear to us that this section applies to a situation where a placing request is dealt with in the normal course of events. Although the Respondent had made a decision not to comply with the request, that was a decision which had not been formalised (and the deemed decision intervened before it could be). The nature of a deemed decision is that the law assumes that an actual decision has not occurred, and deems one to have occurred. The nature of a deemed decision is such, in our view, that it is not a regular decision in the ordinary course of events. For this reason, the obligations in s.28(2) of the 2004 Act are inapplicable in this case. We are reinforced in this view by consideration of the fact that situation (1) above could occur in another case – in other words where there has been no decision at all within the two-month period. In such a case s.28(2) could not conceivably apply, since reasons cannot be given for a decision which has never taken place. In such a case, compliance with s.28(2) would not be possible. It seems to us that s.28(2) must either apply to any situation involving a deemed decision or not at all. In our view, the latter is the position. Turning to the 2004 Act, Schedule 2, paragraph 4(1), it is clear that this provision does not apply in a case such as this either. Under paragraph 4(3), Scottish Ministers have the power to make deemed decision regulations (the 2005 Regulations cite this provision as one of the enabling provisions). This power is provided under paragraph 4(3) in the event of a failure to inform a parent of the decision in writing under paragraph 4(1). This reinforces our interpretation that deemed decisions occur where there has been no written decision intimated within a certain period; the choice is between a written decision, with reasons and other information as required under s.28 on one hand and a deemed decision on the other.

5. This is sufficient analysis for us to reject The Appellant’s Representative’s procedural point. We should add, however, that even if we were persuaded that s.28(2) applies here, and that the Respondent failed to comply with it, this would not have led us to the conclusion that we should overturn the deemed refusal decision. The only basis on which we could take such a decision would be that in all of the circumstances it would not be appropriate to confirm the decision (s.19(4A)(a)(ii), and assuming s.19(4A)(a)(i) applies). We would not have been so persuaded. The result of such non-compliance (if it had occurred) would have been a delay in the decision, with reasons, reaching the Appellant. We note that the Appellant’s reference was submitted on 18^th January 2012. Thereafter, the hearing was fixed in the ordinary way. The reasons for the refusal of the request upon which the Respondent sought to rely were intimated on 16^th February 2012, following a direction of the Tribunal issued upon the request of the Appellant. The Appellant’s Representative was in possession of the ground of refusal to be relied upon in advance of the hearing. He did not ask for the hearing to be postponed for more time to consider the ground of refusal. During the hearing, he was able to cross-examine the relevant witnesses and deliver full submissions. In short, had we been persuaded that the Respondent had failed to comply with s.28(2), there would have been no material prejudice caused to the Appellant by that failure. There is no good reason, therefore (on this basis alone) to decide that it would not be appropriate to confirm the deemed refusal decision. We note here the approach taken by the sheriff in an unreported case, referred to by The Respondent’s Representative in her submissions, namely Hamilton v Strathclyde Regional Council, Hamilton, 27^th August 1991, where the sheriff described procedural irregularities as irrelevant to the appeal. In doing so, he rejected the argument that the education authority had not produced sufficiently full reasons for their decision, and that as a result, it was appropriate to refuse to confirm the decision of the education authority. Indeed, he stated that this argument “seems to me to be going much too far” (page 7 of the judgement). We do not accept that, no matter what has happened in the lead up to the hearing, it can never be said that it is not appropriate to confirm a decision due to an earlier procedural impropriety or failure on the part of an education authority. However, it seems to us that any such failure would have to be a significant one, and one which led to material prejudice to the parent in the presentation of the reference.

6. The Respondent’s Representative does indicate in her submission that it is not clear whether or not there is a continuing obligation on an education authority to fulfil the obligations under s.28. However, in our view, the obligations under s.28 apply only at the point when the decision is intimated (in cases where it is intimated). The giving of reasons for that decision must be given, under s.28(2)(b), at the time of the intimation of the decision (see the words “in so doing” there).

7. Of course, there are certain intimations required under s.28(2) which would benefit a parent in receipt of an actual decision as much as one where a deemed decision arises. However, Parliament has not extended s.28(2) to deemed decisions, and in the absence of such an extension, and given the wording of s.28(2), we cannot apply the terms of s.28(2) here.

8. Turning to The Appellant’s Representative’s competence point, he argued that the confirmation or overturning of the deemed decision to refuse “has now become a practical impossibility. Simply put: how can the Tribunal “confirm” a decision, a crucial component of which is simply missing?”. (Case Statement of the Appellant, paragraph 15, A2). The “crucial component” he refers to here is the lack of reasons for the decision. However, we do not accept that this is a crucial component of a deemed refusal in the circumstances of this case. We have explained why we consider that the obligation in s.28(2) does not apply. However, we have a more fundamental concern about The Appellant’s Representative’s analysis: in a case where an actual decision has not been made within the two-month time limit, how can reasons for such a decision be provided? In our view, they cannot. After the deemed decision emerges, written reasons for that decision may only be provided afterwards. Further, if The Appellant’s Representative’s point was correct, this would mean that no deemed decision could ever be confirmed, which would give rise to an absurdity.

9. During his oral submissions, this argument was adjusted a little: The Appellant’s Representative suggested that the ground of refusal relied upon by the Respondent (the one in the 2004 Act, Schedule 2, paragraph 3(1)(f)) could not have been the basis of the deemed decision, since the criteria in that ground were not met at the date of the deemed decision. This raised the issue of the date upon which the ground of refusal must apply: the date of the refusal of the decision (here, the deemed decision date) or the date of the hearing.

10. In our view, the question of the date at which the establishment of the ground of refusal must be considered is not determinative of The Appellant’s Representative’s point. The proper position, in our view, is that a deemed decision does not have any reasons attached – it is not a decision at all (in the ordinary sense of the word). It is a statutory device designed to force an outcome within a particular period, to enable any process of challenge to that outcome to take place, and take place in good time.

11. Even if we accept that reasons may exist for a deemed refusal where no decision has been intimated within the two-month period, we do not accept that the time at which they must exist is at the time when the deemed decision occurs. At a basic level, this is not possible. The reasons must follow the decision, where the decision is a deemed one, even where the decision has already been made, but not intimated. In our view, it makes no sense for reasons for a decision to have to exist before that decision has legally occurred. This must then mean that the ground(s) for refusal must exist at the date of the hearing (since no other reference date was mentioned or is indicated). Further, the wording of the legislation makes the answer to the timing issue clear: the decision to refuse may only be confirmed if one of the statutory grounds of refusal “exist or exists” (s.19(4A)(a)(i)). This is expressed in the present tense, and is a reference to the time when the Tribunal’s decision is being made.

12. In addition, this is the position from an examination of the authorities. Although these authorities do not relate to deemed decisions, it seems to us obvious that if the reference point for the determination of the existence of a statutory ground of refusal in a non-deemed decision case is the date of the Tribunal’s decision, then that must also be the case where there is a deemed decision. We can think of no reason to distinguish between the two decision types, and the legislation does not seek to do so. Turning to those authorities, The Appellant’s Representative relied on Lord Glennie’s comments in UT-H v City of Edinburgh Council [2012] CSOH 8 at paragraph [19] (reproduced at para 14 of the Appellant’s Case Statement, A2) for his argument that the correct reference point is the date of the decision to refuse. However, consideration of Lord Glennie’s opinion does not bear out The Appellant’s Representative’s argument. At paragraph [19] of his decision, Lord Glennie is providing his view on the nature of the hearing before a sheriff (in an equivalent case). In doing so, he indicates that the hearing is an appeal against the decision to refuse, or, a review of the earlier decision. It is clear even from the passage quoted, however, that the reference point for the decision in such an appeal (or review) is at the date of the sheriff’s decision. He says:

“The focus is on the education authority’s decision, and the question is whether, in light of all of the evidence up to and including the appeal hearing, that decision should be confirmed” (our emphasis).

At an earlier point in his judgement, paragraph 8, Lord Glennie states the position in explicit terms:

“It is a matter of agreement that an appeal to the sheriff [under the relevant legislation] is a complete re-hearing of the case…Indeed, the education authority may rely on different grounds for refusal than those on which it originally made its decision: Dundee City Council, Petitioners 1999 Fam LR 13 at para 13-16. The sheriff must consider whether one or more of the statutory grounds for refusing a placing request exists or exist at the time he determines the appeal; and if so whether to confirm the decision of the education authority.”

In expressing this view, Lord Glennie referred to Sheriff MacPhail’s decision to similar effect in Coates v Lothian Regional Council 1999 Fam LR 8. This approach is also supported by the sheriff in the unreported case: Hamilton v Strathclyde Regional Council, Hamilton, 27^th August 1991.

13. The Respondent’s Representative referred us to a number of decisions on this matter of timing, namely Hamilton v Strathclyde Regional Council, Hamilton, 27^th August 1991, unreported; Glasgow City Council, Petitioners 2004 SLT 61; and Vattenfall Wind Power Ltd v Scottish Ministers 2009 SC 444. We have referred to Hamilton, above. The other two cases are useful, but in our view the position is plain from an examination of placing request case law (UT-H, Coates, Dundee City Council and Hamilton, all referred to above) so that we need not look to non-placing request cases for assistance.

14. The Appellant’s Representative refers, in his submission, to the case of City of Edinburgh Council v W 2002 Fam LR 67 (see paragraph 15 of the Appellant’s Case Statement at A3). We have to say that we are not persuaded that this case bears any relevance to the question of competency here. The legislation there is different to the legislation we are considering here. Also, in that case, the main point in issue was the failure, both in the adoption agency report and in the oral evidence of social workers, to refer to the correct statutory test, leading to the dismissal of the freeing for adoption application. While The Appellant’s Representative is correct in saying that the discrepancy between the correct statutory ground and the one incorrectly referred to was narrow, it clearly went to the heart of the test to be applied. In this case, the failure to comply with the statutory provisions (if there was one, which we do not accept) related to a procedural requirement to give reasons for the refusal of a placing request, where proper statutory reasons were later advanced to no material prejudice. In these circumstances, the W case is some considerable distance away from being relevant here.

15. To conclude on this matter, we answer question 8 in The Appellant’s Representative’s written submission in the affirmative – the deemed decision is capable of being confirmed.

16. The only other preliminary matter involved a request by The Appellant’s Representative to lodge an e-mail of 1^st March 2012 from Witness C to The Appellant’s Representative, accompanied by an IEP for an anonymous 14 year old child who has autism and who is in the class at School A ahead of the one THE CHILD would attend. We refused to admit this additional evidence for a number of reasons. Firstly, we do not know who the child who is the subject of the IEP is, and no one could give evidence about his/her needs as compared with THE CHILD’s – by the time this additional evidence was offered, both Witness C and Witness A had given their evidence. Secondly, we do not feel that the admission of the IEP would assist us in considering the issues in this case. Thirdly, the admission of this evidence would mean allowing Witness A to be recalled to discuss a comparison of THE CHILD’s needs with those of this child (Witness A being the only skilled witness with direct, current experience of THE CHILD, School B and School A) and this would prolong and complicate proceedings. Any such comparison would be on paper (as far as the anonymous child is concerned) and therefore would be of extremely limited value.

4. Summary of Evidence and Proceedings

1. The bundle consists of: pages T1-T36 (Tribunal papers), pages A1-A66 (Appellant’s papers) and pages R1-R58 (Respondent’s papers). We took into account all of the information in the bundle in reaching our decision.

2. Evidence was led over the first four hearing days in relation to this reference and the associated disability discrimination claim (reference to papers from the bundle in that case are made to ‘the disability bundle’). Written submissions were delivered and a further hearing day, to allow the parties to respond to each other’s written submission (and to allow the Tribunal to raise points of clarification) took place. Since the hearing on these cases was consolidated, all of the witnesses who gave evidence have been listed above. However, the majority of the evidence relating to this reference came from the following witnesses: The Appellant, (‘The Respondent’), (‘Witness A’), (‘Witness B’) and (‘Witness C’).

3. We also took the views of THE CHILD himself into account. He attended and spoke directly to the Tribunal members, in the presence of his Advocacy Worker. We canvassed with the parties our provisional views on the appropriate procedure and it was agreed that hearing from THE CHILD in the presence of only his Advocacy Worker was the best way to proceed. We took the views of the parties on the questions we should cover and indicated to them in general terms what we intended to ask THE CHILD. Following the session, we fed back to the parties and their representatives the content of our questions and THE CHILD’s answers. This would allow the parties to raise any issues which emerged from THE CHILD’s views with any subsequent witness or during submissions.

4. We were impressed with THE CHILD’s open approach to the questions from the Tribunal panel member designated to ask them. THE CHILD stated his views clearly and confidently. The main points he made were as follows:

(a) When asked if the work at the pupil support base was going well, and if he liked the staff, he said “kind of”.

(b) THE CHILD volunteered to split his views on School B between the good and the bad points. The good points about School B were: he has a friend there who could help him if he got lost; until he was ready to go back to the classroom, he would be in the MICAS Base; more subjects are taught there; and he could go to the MICAS Base for lunch. The bad points were: School B is noisy; he would be moving around a lot and it looks like such a big place (although he thought he would probably get used to this).

(c) THE CHILD followed the same process for School A. The good points were: he feels good there; there are quiet rooms; and he will not need to move around much. The bad points were: getting there: he would have to wait a long time; and he would not know anyone there, but he thought he would get to know people.

(d) THE CHILD also spoke about School C and indicated that he liked it there until the incident on 31^st August 2011. He provided an account of that incident, which was similar to the one in his written statement (T20). He stressed the fact that he was trying to get to the Base, and felt that he was not able to do so. He felt that if he could have made his way to the Base on the day in question, he would have been able to calm down.

(e) THE CHILD stated that he was good at Maths and Drama, and liked these subjects.

(f) THE CHILD stated that he would prefer to attend School A rather than School B, since the former is quiet and the surroundings there feel good.

(g) The Advocacy Worker who accompanied THE CHILD during his evidence, indicated that THE CHILD had told her that likes his cushion and ‘fidget toys’ when he is in school, but had been told by staff at School C that he could not use them there. She added that THE CHILD had told her that the class before the one in which the incident of 31^st August had taken place was a Home Economics class in which THE CHILD has sensory problems, and this may have contributed to THE CHILD’s anxiety on the day. Finally, he had told her that he might like a ‘split placement’, spending some of his time at School A and some at School B.

5. The submissions of the parties

1. The Respondent’s Representative asked us to confirm the refusal decision, in terms of s.19(4A)(a) of the 2004 Act. She urged us to find that the ground of refusal in paragraph 3(1)(f) of Schedule 2 to the 2004 Act exists and that it is appropriate in all of the circumstances to confirm the refusal decision. Her reasons and the evidence she relied upon to support these reasons, are set out in detail in her submission from page 5 onwards, under the heading “Statutory grounds of refusal” and were supplemented during oral submissions.

2. The Appellant’s Representative urged us to find that the ground of refusal relied upon by the Respondent does not exist and that, if we find that it does, we ought to find that it is not appropriate in all of the circumstances to confirm the refusal decision. If he succeeded in either of these arguments, he reminded us that we would be obliged to overturn the refusal decision and place THE CHILD in School A.

The Appellant’s Representative’s arguments are summarised at paragraph 9 of his written submission and were supplemented during oral submissions.

6. Findings in Fact

1. The Appellant is the mother of THE CHILD, who lives with his mother and her partner.

2. THE CHILD was born in 1999. At the time of the hearing, he was 13 years old.

3. THE CHILD has additional support needs (‘ASN’) as defined in s.1 of the 2004 Act. A Coordinated Support Plan (‘CSP’) for THE CHILD was prepared and was effective from March 2012 (R50-R57). THE CHILD was diagnosed with Autism and Dyspraxia during the time he spent in nursery. While in Primary 2, a diagnosis of Attention Deficit Disorder was reached. THE CHILD also has complex sensory issues. As a result of these conditions, THE CHILD has difficulties in the following areas: communication, social interaction and rigidity of thinking. These difficulties have impacted on THE CHILD’s education, making school a challenging environment for him and leading to, on occasions, THE CHILD becoming angry and aggressive. THE CHILD receives support from a number of health and social care professionals, as outlined in the ‘Profile’ section of his CSP (R51). A full list of the factors giving rise to THE CHILD’s Additional Support Needs can be found in his CSP, page 3 (R52). Despite these difficulties, THE CHILD managed (with support) to remain in mainstream education while in School D, and was not a member of the ASN Base at that school, although he was excluded on a number of occasions from School D on a temporary basis, some on a formal basis, some informally.

4. THE CHILD was a pupil at School D Primary School until the summer of 2011. At the start of the new school term in August 2011, THE CHILD attended School C. A transition process was put in place for THE CHILD’s move to School C. The detail of the main part of that transition process is outlined by, a teacher working in School C’s MICAS Base in her statement dated 17^th November 2011 (R8-10 of the disability bundle). THE CHILD attended at School C, but an incident occurred on 31^st August 2011 during which THE CHILD lashed out, kicking, punching and biting staff members. Following that incident, the Headteacher carried out investigations and a number of incident reports were compiled by the teaching staff who were present (PSA - R43-R44;, teacher – R45-R47; and, teacher – R48-R49, all in the disability bundle). THE CHILD’s account of the incident can be found at T20. As a result of that incident, Headteacher, on completion of her investigations, made the decision to exclude THE CHILD. This exclusion was not for a fixed period of time, and was not a permanent exclusion. Following further meetings and discussions, Headteacher took the decision to request THE CHILD’s removal from the School C school roll (which equates to a permanent exclusion from the school) in a letter to the Quality Improvement Officer employed by the Respondent, on around 28^th September 2011. The Appellant was informed of this decision on that date (T57, disability bundle). On 25^th October 2011, the Appellant and Quality Improvement Officer met to discuss Headteacher’s request. At that meeting, Quality Improvement Officer decided to remove THE CHILD from the School C register (permanently exclude him from that school). This decision was intimated by Quality Improvement Officer to THE CHILD on 26^th October 2011 (R55-56). The main reasons for Quality Improvement Officer’s decision were the refusal of the Appellant to engage with the possibility of THE CHILD’s return to School C, leading to her refusal to consider his return there and the breakdown of the relationship between the Appellant and School C.

5. The Respondent is a Service Manager and has held this post since August 2010. In this role, he has day to day responsibility for the management of the additional support needs educational provision for the Respondent. He has worked in the education sector for over 25 years. The Appellant made an application to the Respondent to place THE CHILD in a secondary school with a MICAS base, on account of his needs. That application was made on 23^rd November 2011 and was completed by, Depute Head Teacher at School D on behalf of the Appellant. That application is at T14-15 of the disability bundle. In that application a “Parental Preference” is stated in order of preference, with the most preferred being School B MICAS Base, the second preferred being School E MICAS Base and the third choice being School B ASN Base. THE CHILD’s application was considered by a multi-disciplinary professional panel in a two-stage process which ended in around February 2011. The Respondent received 19 applications for their MICAS Base places for the 2011/12 academic year. There existed five such places. THE CHILD was considered by the panel as a high priority for a MICAS Base place, and the panel decided that he should be placed in the MICAS Base in School C. This decision was based on THE CHILD’s needs and on the proximity of School C to THE CHILD’s home.

6. Witness C is employed by School A School, Aberdeen (‘School A’). He is a member of the Council of Management at School A. That Council delegates the day to day running of the school to a number of coordinators. Witness C is also one of those coordinators. The pupils in the school (both residential and day pupils) are split into a number of ‘House communities’. Witness C is a ‘House parent’ and as such he helps to run a House. He has held that role for around 25 years. He has spent around 20 years as a coordinator and has been on the Council of Management for around 15 years. Witness C teaches on a BA in Social Pedagogy course, the predecessor qualification of which he holds. He also holds an HND in Business and Social Administration, a Youth and Community Certificate, and a Registered Managers Award. He has completed a Leadership Scotland course, Child Protection Training and trauma training (the latter as a foster parent). School A is an independent school providing care, education and therapy services for children and young people. It caters for a wide range of pupils both in terms of age (from pre-school to late teens) and ability. It provides services to pupils with autism and with a range of physical disabilities. The fee structure at School A is flexible, and will vary according to the educational needs of the child. The practice in fixing the appropriate fee is for a questionnaire to be completed by the parent, and any other relevant person involved in the child’s care, to identify an initial ‘ball park’ figure, which would be adjusted. Following the first three month assessment period, the questionnaire would be completed again, and at that stage a final fee would be agreed, since the needs of the child would by then be clear. The Appellant had completed an initial questionnaire for THE CHILD, and an initial ‘ball park’ figure of £34,400 per academic year (£860 per week for 40 weeks) had been calculated. There has been no dialogue or correspondence between School A and the Respondent about THE CHILD. This estimated fee is based purely on the questionnaire completed by the Appellant. THE CHILD attended an interview at School A on 6^th October 2011. Thereafter, by letter of 12^th October 2011, School A confirmed that THE CHILD would be a suitable candidate for that school (T16). School A has since confirmed that a place would be available there for THE CHILD. The Appellant has visited School A on three occasions – once for the interview on 6^th October, and on two other occasions.

7. School A was inspected by HMIE in early 2012, leading to a report dated 17^th January 2012 (A7-A18). The school also holds accreditation from a body Autism Accreditation. That accreditation was reviewed in March 2011, leading to an Autism Accreditation Review Report (A19-64). Although there are no staff members at School A who are qualified to teach children at secondary education level, all of the teaching staff at School A have completed the BA in Social Pedagogy course and all are registered with Education Scotland. Some of the teaching staff hold other degree-level qualifications. The lesson plan for pupils at School A will vary according to the needs of the pupils. Pupils are organised in classes, usually according to their age, not their abilities. Very few pupils at School A would attempt standard grades. Some pupils would go onto College level education, but this would be a challenge for them. There is no evidence of any pupils from School A having recently attended university. Where a secondary school age pupil at School A requires education which cannot be provided in the school, arrangements can be made for that provision to be met by local secondary schools. Pupils may take Maths and English at School A up to Access Level 3 only. More information on the School A policies on School Fees, Curriculum, Staff Training and Referrals may be found in the Statement of, coordinator at School A (A5-6).

8. Witness A is an Educational Psychologist and is currently employed by the Respondent. She has held this post for around 2 and a half years. She holds a BSc(Hons) in Educational Psychology, an MSc in Educational Psychology and the British Psychological Society Award in Educational Psychology. She is registered with the Health Professionals Council. She is responsible for the educational psychology needs of a number of schools, one of which is School C, which has been included in her remit since August 2009. School D (THE CHILD’s primary school) is not one which is included within Witness A’s remit; the educational psychologist whose remit covers School D is anon. A summary of THE CHILD’s assessed needs and previous educational psychology input between 5^th and 17^th September 2011, prepared by Witness A, is at R20-R23. The meeting on 8^th September 2011 (R20) took place between Witness A and anon. Witness A first became involved in THE CHILD’s education on 5^th September 2011 when she attended a risk assessment meeting at School C (see first entry, R20). Since then, Witness A has been involved in cognitive assessments of The Child, meeting him on a regular basis. She has been involved in a number of meetings with specialist staff working with The Child and with other relevant professionals. Following THE CHILD’s exclusion from School C on 31^st August 2011, he received support, assessment and tuition at the Pupil Support Service. Sessions with this service took place at The anon, a facility at Primary School. These sessions started on 29^th September 2011 and continue to date. THE CHILD’s psychological abilities were assessed by Witness A on 10^th November 2011 (see entry against that date on R21). A very successful meeting took place on 20^th January 2012 at The anon, where THE CHILD performed his tasks very well. By this stage, Witness A had built up a good relationship with THE CHILD. THE CHILD seemed happy and willing to engage with the tasks set. Thereafter, Witness A completed a formal assessment of THE CHILD’s educational psychology needs, recorded in her report at R45-46. This report would contribute to the preparation of THE CHILD’s CSP and to THE CHILD’s IEP for his new school. Reports on THE CHILD’s activities at the Pupil Support Service, prepared by anon, one of THE CHILD’s teachers there, can be found at R11, R48-49 and R57-58 (latter in the disability bundle). Witness A has experience of the educational provision at School A. She has visited the school and observed classes there. She is familiar with the general outline of provision at the school. She is responsible as educational psychologist for two pupils who attend School A, one of whom started there in May 2011, the other in June 2011. Witness A has considered the range and content of curriculum provision at School B and at School A, and how the curriculum is organised at these schools.

9. Witness B is the Headteacher of School B, and has held that post for around 2 and a half years. Prior to his appointment as Headteacher, he was a Depute Headteacher in anon for five years. He has spent 16 years in the teaching profession. School B is a relatively new school. The school was built to take in pupils from the former anon and anon Special School. From the latter school, 96 pupils joined School B’s Additional Support Needs Wing. In the non-Wing part of the school (the ‘mainstream school’), there is a MICAS Base for youngsters with Aspergers-related additional support needs and an ASN Base for youngsters who have global learning difficulties but who, by and large, can access the mainstream curriculum. These two Bases are situated together in a Support for Learning Suite. The pupils who attend the Bases have access to some of the specialist facilities in the Wing, such as a sensory room (a purpose built room with items to touch, light sensory and hearing sensory activities, and a relaxing area), a hydrotherapy pool and a soft play area. There are a further four rooms situated around the Base area for the use of Base pupils for 1:1 teaching, small group teaching and other activities. A MICAS teacher left the employment of School B in December 2011. Until a replacement was found, a supply teacher was engaged. The new MICAS teacher replacement took up her post on 27^th February 2012. She formerly worked in the School B ASN Base and so has a lot of experience in dealing with children with Aspergers or who are on the Autistic Spectrum. She holds a Postgraduate Certificate in Inclusion and Autism. Also, in the MICAS Base there is one additional teacher who has been appointed to work there recently. An additional teacher has been appointed in order to cater for the expected transition to School B by THE CHILD. There are two pupil Support Assistants who work in the MICAS Base. They also provide support for pupils who attend the Base when they attend in mainstream classes. There are currently 7 pupils in the MICAS Base; THE CHILD would be the 8^th pupil there. The Base has a capacity of 7 pupils in the absence of additional staffing. This is the reason for the employment of an additional member of staff for the Base in anticipation of THE CHILD’s transition there. Within the MICAS Base, there are tables configured for small group work. In addition, each child has an individualised area. The purpose of the MICAS Base, as it operates at School B, is to allow the pupils attending there to access the mainstream curriculum as much as possible according to their needs. For some MICAS Base pupils, that can involve assisting them to access the curriculum up to and including Higher Level and Advanced Higher level subjects. These pupils will normally spend very little time within the MICAS Base. Other pupils will access five or six of their subject areas in the MICAS Base and at other times might be given support in developing social and interpersonal skills in MICAS Base. The level of attendance in the MICAS Base is flexible. At one end of the spectrum, some pupils will spend almost 100% of their time in mainstream classes (one pupil is in this position at the moment, attending for a specialist ASDAN group in the MICAS Base plus for lunch and break-time support) and at the other end of the spectrum, pupils might spend 70% of time in mainstream classes and 30% in the Base. These percentage figures are very rough and will vary depending on the child and will vary for each child from time to time. The usual practice in the School B MICAS Base is that a child is not based there as a default position, being introduced to mainstream classes as required. However, this is the practice which would be adopted for THE CHILD, given his difficulties at School C leading to his exclusion; there are concerns that THE CHILD might worry about a similar incident occurring at School B, and more time in the Base would allow work to be done to reduce this anxiety. There is no typical timetable for a MICAS Base child – it is individualised and flexible. Pupils in the MICAS classes have access to examinations from Access 1 though to Advanced Higher. There are also individualised courses available for MICAS Base pupils (for example ASDAN, an alternative qualification).

10. Witness B became aware of THE CHILD around the time of his difficulties at School C. He was asked by The Respondent in around September 2011 if there was any space for THE CHILD at School B. He replied that there was not since the Base was full. At that point, the MICAS Base was staffed by one Base teacher and two PSAs. Witness B held a later conversation with The Respondent, perhaps in October or November (he could not remember which). The Respondent asked him if THE CHILD could be accommodated at School B in the event that more teaching resources for the MICAS Base could be provided. Witness B indicated that this would be possible; however, he stated that this could not happen at that time, even if additional resources were available, since he was aware that a MICAS teacher had applied (or would be applying) for another job in a different school, and he could not consider taking another pupil into the Base until the vacancy which would be created could be filled. The departing MICAS Base teacher left School B at Christmas 2011. A supply teacher was engaged, and the new MICAS teacher replacement took up her post on 27^th February 2012. As part of the transition process for THE CHILD to School B, THE CHILD has been spending some time in the MICAS Base, accompanied by his Pupil Support Service teachers. THE CHILD had been attending School B for two hours each afternoon during week commencing 27^th February 2012, as part of his transition process. Apart from the completion of enrolment forms, THE CHILD is now treated by the school as being part of the School B community. The plan for the introduction of THE CHILD into mainstream classes would be to focus initially on areas of strength, such as Maths and Drama. Witness B is of the view that THE CHILD would, given his needs, be suitable for a place in the School B MICAS Base.

6. Reasons for Decision

1. We should note here that we accepted the evidence of all of the witnesses as being credible and reliable. This was not a case where any of the central facts were disputed; our decision involved an interpretation of the facts and circumstances before us.

(a) The placing request refusal ground (2004 Act, Schedule 2, paragraph 3(1)(f))

2. This ground contains a number of constituent parts, numbered in paragraphs (i)-(iv). The Respondents must satisfy us that each of the paragraphs apply, in order that we may be persuaded that the ground of refusal exists. The Respondent bears the burden of proof in this case overall (at both stages of the exercise). We will deal with each sub-paragraph in turn.

Paragraph 3(1)(f)(i)

3. This paragraph requires that the specified school (School A) is not a public school. We are satisfied that this is the case, and this was not disputed (see Finding in Fact 6, above).

Paragraph 3(1)(f)(ii)

4. This paragraph requires that the Respondents are able to make provision for THE CHILD’s additional support needs in a school other than the specified school. In this case, that other school is School B. We are satisfied that School B can make such provision, and we refer to the evidence of Witness B and Witness A to this effect: both felt that School B could meet THE CHILD’s needs and Witness A was of the clear view that School B was a more suitable school than School A for THE CHILD’s needs. The application of this paragraph was not disputed.

Paragraph 3(1)(f)(iii)

5. The application of the condition in this paragraph is disputed. This paragraph requires us to have regard to both the suitability and cost of the provision for THE CHILD’s additional support needs at School A and School B respectively. Having carried out these comparison exercises, in order for this paragraph to apply, we must conclude that it is not reasonable to place THE CHILD in School A. It is clear that we must have regard to both cost and suitability, and in considering both, to reach one decision on the reasonableness of placing THE CHILD in School A. In other words, this ground does not require us to consider cost and suitability separately and apply a reasonableness test to each, with the result that, in relation to each of the two factors, it must be not unreasonable to place THE CHILD in School A for the paragraph to apply. This approach could lead to a decision that the paragraph in the round does not apply as a result of reasonableness being found to exist on one factor, but not on the other. If Parliament had intended each factor (suitability and cost) to be judged separately against a reasonableness test with the result that reasonableness requires to exist on both before the ground could exist, each factor would be contained in a separate paragraph within 3(1)(f). Further, this interpretation, as well as being clear from the words and structure adopted, is sensible. It would be absurd if the way in which this paragraph is interpreted could mean that a child must be placed in an affordable but completely unsuitable school. The reasonableness question must be viewed from the Respondent’s standpoint, and this approach was confirmed by Sheriff Tierney in the case M as Parent of RM v Aberdeenshire Council, Aberdeen, 2^nd September 2008, unreported, where he says at paragraph 54:

“The matter in respect of which a decision on reasonableness is required is the placement of the child in the specified school. That placement would be made by the defenders’ education authority and accordingly it seems to me that the question is whether it would not be reasonable for the education authority to place the child in that school, not whether it would be reasonable for the parent to seek to have him so placed. The two factors which have to be taken into account are suitability and cost. It seems to me that suitability involves an assessment of the respective qualities of the provisions from which [the child] will benefit in each of the two schools. The respective costs, on the other hand, are the costs in respect of each of the two schools which the local authority will bear.”

We agree that this is the correct approach.

6. Dealing with the respective cost issue, the evidence on the cost of placing THE CHILD in School B came from The Respondent, who indicated that an additional teacher would have to be employed at School B to cater for THE CHILD’s needs. The annual cost to the Respondent of the employment of such a teacher would be £45,000. The Respondent’s Representative pointed out that The Respondent explained that the Respondent plans to expand the MICAS base at School B, so that the additional teacher employed in the MICAS Base, currently for THE CHILD, would become part of the core staffing of the newly expanded base. We do not doubt that this is the intention. However, we have to consider the evidence before us on cost. We do not know the extent to which the base will become expanded, nor is it clear the extent to which the additional teacher will become part of the core provision (as opposed to provision for THE CHILD alone). We have to bear in mind that the onus of establishing that the ground exists is on the Respondent. On incidental costs, we did not hear any evidence about the transport costs either in respect of School B or School A. From what we did hear, the difference between the two would be marginal, and so we discount these. In these circumstances, we find that the cost for the purposes of paragraph 3(1)(f)(iii), as regards provision at School B, is £45,000 per year.

7. Turning to the cost of a placement of THE CHILD at School A, Witness C estimated that the annual fees would be £34,400 per academic year (£860 per week for 40 weeks) and that the fees would be reviewed following an initial 3 month assessment period. We have no way of knowing what the outcome of that review might be, and so we cannot take the review intention into account. Our conclusion on transport in paragraph 6 above applies here. In these circumstances, we find that the cost for the purposes of paragraph 3(1)(f)(iii), as regards provision at School A, is £34,400 per year. It seems to us than a comparison of the annual costs between the two schools is the most appropriate approach, since if we overturned the decision to refuse the placing request, we would be requiring THE CHILD’s placement in School A for the rest of his secondary education, not just for the rest of the current academic year. In any event, it is the only way we can compare the costs of THE CHILD’s attendance at both schools on an equal footing.

8. To conclude on the issue of respective costs, on the evidence led, the cost to the Respondent of THE CHILD being placed in School A would be lower (by around £10,000 per year) than the cost of his attendance at School B.

9. Turning to the respective suitability factor, the main evidence on this matter came from Witness C and Witness A. Much of Witness C’s evidence consisted of an account of the merits of School A School, and how the school had been independently assessed as being of an excellent standard. Much reference was made to the HMIE and Autism Accreditation Reports (A7-18 and A19-64 respectively) during his evidence. However, the question we must consider is not whether School A is a better school than School B, but whether School A is a more suitable school for the provision of THE CHILD’s additional support needs than School B. We do not doubt that School A is an excellent school, and Witness C presented as a very committed and enthusiastic member of the school’s management. We note that Witness C has never met THE CHILD, nor has he observed him in an educational environment. Anon (who did not give oral evidence, but who provided a written statement as to his involvement – see A5-6) had only met THE CHILD for one interview. Neither Witness C nor anon could provide any comment on the provision at School B or its suitability for THE CHILD. Witness C readily recognised that he could offer no comment about the suitability of School B for THE CHILD; he could only comment about the School A provision.

10. By contrast, Witness A, an educational psychologist, had had contact with THE CHILD in an educational environment, namely the Pupil Support Service sessions which took place from November 2011. She had assessed THE CHILD’s educational needs. She is familiar with his needs, and by January 2012, she had built up a good relationship with THE CHILD, in which he was happy to engage with her. She is familiar with the provision at both School B and School A. In the case of School B, she had examined their curriculum. In the case of School A, two of the children she deals with are pupils at School A, and she has visited the School and observed classes there. In our view, she gave her evidence in a professional, responsible and credible manner. In these circumstances, the evidence of Witness A is of particular interest to the Tribunal on the question of respective suitability. She expressed the view that School B was a suitable school for the provision of THE CHILD’s additional support needs, from the point of view of the qualification framework available there (from Access courses up to Advanced Highers) and the educational environment of the MICAS Base there (which she indicated was organised similarly to the environment at the PSS classes THE CHILD had been attending). She regarded School B as a suitable school for THE CHILD, given his educational attainment levels (Level E for literacy and numeracy and within an average range for perceptual reasoning, working memory and processing speed and below average for verbal comprehension) and his needs. She approves of the system at School B where THE CHILD would start in the MICAS Base there and would be gradually integrated into the mainstream provision at the right pace to suit THE CHILD’s academic, social and emotional needs.

11. Witness A expressed a number of concerns about the suitability of School A for THE CHILD. Firstly, she explained that there are no qualified secondary teachers at School A. This was confirmed by Witness C in his evidence. Although Witness C pointed out that pupils at School A who required input which could not be provided there could attend local secondary schools, he was not able to say how many pupils currently benefit from this arrangement, and in any event, it seems to us that it is preferable for all of the educational provision for a pupil to be provided in one place. Secondly, she expressed concerns about the possibility of THE CHILD’s interest dipping as a result of the likelihood of THE CHILD not being sufficiently challenged by the curriculum at School A, since THE CHILD could attain a higher level than was being taught at School A; examples are in English and Maths, where the provision at School A was up to Access Level 3. She referred specifically to some observations of the Autism Accreditation review panel, at page 37 of their report (A55), following observations of certain classes (see under ‘Observations’ on page 36 of the report A54). Witness A was concerned at the observations listed against the first three bullet points in A55, and that such an environment would not be suitable for THE CHILD who responds well to a challenging, structured and non-repetitive learning environment. Thirdly, she referred to a ‘rest hour’ following lunch (referred to by Witness C as ‘free time’) and expressed concern about how THE CHILD would occupy himself during this time. Fourthly, she indicated that the delivery of teaching at School A was not structured in a way which THE CHILD could benefit from. Fifthly, she expressed concern about the configuration of classes, where pupils with different cognitive levels would be in the same class (as acknowledged by Witness C) and she was concerned about this from THE CHILD’s perspective. Sixthly, Witness A was concerned about School A’s ability to provide THE CHILD with an appropriate pupil peer group. Witness C was unable to comment on whether such a group would exist for The Child at School A. Further evidence of THE CHILD’s suitability came from Witness B, who was aware of THE CHILD’s educational provision following the cessation of his attendance at School C and was of the opinion that THE CHILD was a suitable candidate for the School B MICAS Base.

12. The Appellant accepts that a placement at School A is not a suitable long-term solution for THE CHILD. She suggests that THE CHILD should go there in the short term, until he is ready to go to School B. The Appellant is clearly impressed with the facilities at School A, and feels that this is the best solution for THE CHILD at the moment. However, we can only confirm the deemed decision on the placing request or overturn it. If we decide to overturn it, we must require the Respondent to place THE CHILD at School A within a specified timescale (s19(4A)(b) of the 2004 Act). We do not have the power to order the Respondents to place THE CHILD in School A for a temporary period; nor may we order a ‘split placement’ (involving THE CHILD spending part of his time at School B and part at School A) as was also suggested by the Appellant.

13. Witness A provided the only skilled evidence on the question of the respective suitability of School B and School A from the perspective of their likely provision for THE CHILD’s additional support needs. She is in a very good position to give an opinion on that matter: she is an educational psychologist, she has met and assessed THE CHILD over a period of a number of months; she knows the provision at School A from her experience as an educational psychologist and has familiarised herself with the provision at School B. Witness C did express some disagreement around some of the details of the provision at School A as described in some of the papers in the bundle, but Witness A’s core concerns were unaffected by any divergence of view. While we do not doubt that School A is an excellent school which has many strengths (as identified by the HMIE and Autism Accreditation reports to which, in particular, Witness C enthusiastically spoke) our proper task is not to compare School B with School A in order to adjudicate on which is the best school, even if such a direct comparison would be feasible. Our task is to measure the two schools against each other from the perspective of their suitability for the provision of THE CHILD’s additional support needs. We consider that while Witness C gave evidence in an open and credible manner, his evidence is of limited value since it was about the suitability of School A in isolation – not from a comparative perspective. In addition, it is evidence given without any direct experience of THE CHILD. We accept Witness A’s evidence that School B would be more suitable for THE CHILD’s needs, based on her views about the provision there and her concerns about the provision for THE CHILD at School A. Her view on this matter is supported also by the evidence of Witness B, who has been involved in leading the transition process for THE CHILD to School B. In reaching our view on this paragraph, we accept, as The Appellant’s Representative suggests in his written submission, that the starting point is the importance of parental choice (Schedule 2(2)(1) of the 2004 Act on the duty to place) and that School A is an excellent school and would be a safe and comfortable environment for THE CHILD. However, Parliament has (in the context of the ground of refusal we are considering) indicated that the respective costs and suitability of the two schools is a factor to be considered, and this is a factor we have considered closely on the evidence led.

14. Considering respective cost and suitability factors in the round, we take the view that it is not reasonable for the Respondent to place THE CHILD in School A. While on the figures available, provision at School A would be cheaper on an annual basis than School B, it would not be reasonable for the Respondent to place THE CHILD in a school around which there are a number of concerns as far as the educational provision for THE CHILD is concerned, while there is a place in a school which is suitable for his needs. In other words, it is reasonable for the Respondents to incur the additional expense of placing THE CHILD in School B rather than taking the cheaper course of placing him in School A; indeed, we would go further: to place THE CHILD in School A would be an unreasonable course for the Respondents to take.

Paragraph 3(1)(f)(iv)

15. The condition in this paragraph is met – the Respondent has offered a place at School B to THE CHILD. There is no indication in that paragraph that the offer of a place must be made formally or in writing. The Respondent indicated in his evidence that an offer of a place was made orally in December 2011. In addition, the Appellant acknowledges that such an offer has been made, in her e-mail to The Respondent and others on 28^th December 2011 (R44) where she refers, in the penultimate paragraph, to a discussion with THE CHILD about an offer of a place at School B. It is clear from all of the evidence that the transition of THE CHILD to School B is what is intended, and Witness B confirmed that this is the case. The Appellant’s Representative refers to the absence of an offer at the date of the deemed decision and at the Respondent’s case statement date. In our view, the date by which the offer must be made is the date of the hearing, since that is the date at which we must be satisfied that the ground exists (see above). Even if this is wrong, the offer was certainly made before the Respondent’s case statement date. This would not preclude the possibility of an offer of a place earlier than the deemed decision, but it makes no sense to us to conclude that such an offer is necessary for the ground to exist. Further, The Appellant’s Representative in his submission seems to suggest that an offer of a place which might be contingent on staff recruitment might not qualify as an offer of a place under this paragraph of the ground of refusal. If this is what is suggested, we disagree. Parliament requires the making of an offer of a place, and that is what has occurred. In any event, there is no evidence to suggest that an offer of a place was made to the Appellant which was communicated as one which was dependent upon staff recruitment.

(e) Appropriateness in all of circumstances (s.19(4A)(a)(ii) of the 2004 Act).

16. Having concluded that a ground of refusal exists, we require to consider whether, nonetheless, it is appropriate in all of the circumstances to confirm the decision to refuse the Appellant’s placing request, or whether we should overturn the decision and place THE CHILD in School A.

17. In considering this part of the test, we must take account of all of the circumstances, including those which are relevant to the consideration of the ground of refusal.

18. It seems to us that the attempts by the Respondent to cater for THE CHILD’s educational needs following the decision to exclude THE CHILD permanently were reasonable, given the circumstances. The placement of THE CHILD into School B straight after that decision was not possible, since the MICAS Base there was full, in the absence of additional staffing. Although The Respondent indicated to Witness B in around November 2011 that additional staffing would be made available, Witness B felt that he could not admit THE CHILD at that point since the current MICAS teacher had applied to join another school. Until he could appoint a replacement MICAS teacher, he could not expand the Base population beyond the seven pupils who were at that time part of the Base (the full ratio being 1:7 staff:pupils). It seems to us entirely reasonable for Witness B to refuse to admit THE CHILD at that stage. Further, the replacement member of staff was appointed within around two months of the departing member of staff leaving (with supply cover being provided in the interim). This does not seem to us to be an unreasonable delay, and we were not asked to conclude that there was such a delay. We agree that it would not be appropriate (or wise) given THE CHILD’s difficulties at School C, and given his additional support needs, to introduce him to an environment where a supply teacher was in charge, only to change this when a fresh teacher was in post. In any event, a replacement teacher had to be recruited into the Base and that did not happen until 27^th February; until that time, there was an insufficient teaching staff complement for the education of an 8^th child in the Base. The introduction of THE CHILD earlier than that date into the MICAS Base would not, then, be possible. Given the plan to introduce THE CHILD into the MICAS base initially, with a view to then integrating him into some mainstream classes gradually, in our view it was imperative that an appropriate staffing arrangement was in place before THE CHILD could be admitted to School B.

19. Given our conclusion that it is not reasonable (from a cost and suitability perspective) for the Respondent to place THE CHILD in School A, and given our satisfaction with the way that THE CHILD’s educational needs were met between his exclusion from School C and the hearing, we have little to add. We take account here of the circumstances in which THE CHILD was excluded from School C. We also take account of the Appellant’s own view on the suitability of School A – she felt that THE CHILD should not attend there in the longer term. In considering THE CHILD’s own views, although he expressed a preference for School A, we did not feel that this was a strongly expressed preference. However, we have taken that preference (and the reasons for it) into account in considering the appropriateness question. The Appellant’s Representative did not (in his written or oral submissions) draw our attention to any particular matter which we have not considered above.

20. It is clear to us that it is appropriate in all of the circumstances to confirm the Respondent’s decision to refuse the Appellant’s placing request.

21. We therefore answer The Appellant’s Representative’s final question in the affirmative.

Needs to Learn