ASNTS_D_14_2011_15.03.11

 

 

DECISION OF THE TRIBUNAL

 

Reference:      D_14_2011                

 

Gender:           Female

                       

Aged:               10                   

 

Type of Reference:     Placing Request         

 

 

 

 

1. Reference

 

This reference is in respect of the Appellant’s request for a placing request to the specified school, for her daughter. The reference was refused by the education authority on 26 November 2010. The respondent’s letter, refusing the placing request, purported to rely on paragraph 3 (1) (f) of Schedule 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended). It is against that decision that this reference is made.

 

2. Decision of the Tribunal

 

The reference is refused and the decision of the respondent refusing the placing request is confirmed pursuant to subsection 19 (4A) (a).

 

3. Preliminary Issues

 

A telephone case conference was held on 9 March 2011. On the motion of the respondent, the Convener permitted the respondent to call a third witness. The decision and reasoning for the same is recorded in the Convener’s decision, dated 9 March 2011.

 

Both parties made motions to submit late evidence on the first morning of the hearing. Neither party opposed the other’s application. The appellant sought to admit an HMIE report in relation to School A, dated 2009. Respondent Representative, solicitor, appearing for the respondent, raised no objection. The Tribunal was satisfied it was fair and just in all the circumstances to admit the document given it would be assisted by an independent assessment of the quality of the education provided at School A.

 

Respondent Representative applied to admit an HMIE update report dated August 2010. This was a follow up report to the 2009 report. It was produced in response to the appellant’s motion to admit the earlier HMIE report. Appellant Representative, lay advocate, appearing for the appellant had no objection. The Tribunal was satisfied it was fair and just in all the circumstances to admit this document given it provided an updated assessment of the quality of the education provided at School A.

 

Respondent Representative also applied to admit minutes of an annual review meeting, dated 2 March 2011. Appellant Representative had no objection. The Tribunal was of the view this document should also be admitted, it was fair and just in all the circumstances to do so given it provided a recent assessment of the relevant professionals views of The Child’s needs.

 

It became apparent to the Tribunal during the course of the evidence on the first day of the reference hearing that there were likely to be further reports relating to The Child’s  needs. The Tribunal indicated on the first day of the hearing it may be useful if the respondent verified the records held in relation to The Child and to bring copies of any further reports on the second day of the hearing. As a result Respondent Representative produced speech and language update reports from the speech and language therapist, L, dated 2005, 2006, 2007, 2009 and 2010. A short letter report from The Child’s general practitioner, Dr T, dated 28 July 2010, was also produced.

 

Neither party objected to these documents being provided to the Tribunal. The Tribunal was more than satisfied it was fair and just in all the circumstances to admit these documents. The Tribunal considered, particularly with regard to The Child’s speech and language needs, insufficient evidence had been presented before the Tribunal. It was necessary for these reports to be admitted to assist the Tribunal to form a view in relation to The Child’s needs and progress. The Tribunal also considered, given the lack of up to date medical evidence, it was necessary to admit the GP’s letter.

 

At the end of the hearing it became apparent to the Tribunal no evidence had been provided in relation to the costs of overnight respite care and transport to the same and also transport for The Child between her home and School A. The Tribunal directed the respondent to produce costs for this provision after the hearing. This was duly done by an ‘e’ mail (a not entirely appropriate manner for evidence to be given). The appellant was provided an opportunity to comment on this ‘e’mail and had no comments to make. It was plainly disproportionate to continue the hearing to another day in order for the Tribunal to receive this evidence orally. In the circumstances it was the proportionate response to ensure the Tribunal had the information it required before it.

 

The Tribunal also clarified at the outset, that the Respondent’s Additional Support Needs Manager, could attend throughout the hearing as the party to the reference. The Tribunal, pursuant to Presidential Guidance, required her to give her evidence first.

 

The Tribunal also clarified with Respondent Representative the exact grounds for refusing the placing request. The case statement for the respondent stated “The Education Authority did not consider School B [the specified school] to be suitable as a placement for The Child”. Respondent Representative clarified that the respondent was not seeking to rely upon paragraph 3 (1) (b) of Schedule 2 of the 2004 Act. Rather the respondent would argue its school, School A, was more suitable than the specified school, School B.   

 

The Child’s grandparent, attended the hearing on both days as an observer.

 

4. Evidence:

 

The Tribunal had regard to the written document in the Tribunal bundle, the late evidence admitted and the oral evidence of the witnesses.

 

The Tribunal heard from the following in the order laid out:

 

Witness A, Additional Support Needs Manager

Witness B, head teacher of School A

Witness C, educational psychologist

Witness D, social worker and manager with the respondent.

 

Witness E, The Child’s aunt

Appellant and The Child’s mother.

 

The Child did not attend the hearing and was not able to provide her views in relation to the placing request.

 

5. Findings in Fact:

 

1. The Child was born in 2001, she is ten years old. In June 2003 she was the subject of a detailed multi-disciplinary assessment. The assessment was led by Dr P, specialist registrar. A report was produced, dated 24 June 2003. The assessment team diagnosed autism and global developmental delay. The Child also has hypotonia.

 

2. The Child has attended School A, a public school under the management of the respondent, since August 2003. She has attended the school continuously since then. She lives at home with her mother, her step-father and two siblings. She spends one weekend a month with her birth father.

 

3. The Child had a coordinated support plan (CSP) between November 2007 and September 2009. It was closed because the speech and language therapy service was the only agency working at that time with The Child.

 

4. The Child has considerable communication needs. Her autism and her global developmental delay impair her ability to communicate. Her difficulties with communication can lead to frustration and poor behaviour. Her behaviour is challenging at home. Recently she has begun to dig her nails into her arm. It is not clear why she does this. Some concerns have been raised in relation to the affects of her puberty on her behaviour.

 

5. The Child has received speech and language therapy for a number of years. She previously saw the speech and language therapist, L, individually, on a weekly basis but this stopped in July 2010. The reports evidence she has made progress in relation to her communication needs. She uses PECS and her ability to communicate with PECS has become more sophisticated. Previously she was unable to formulate short sentences using PECS and can now do so. She is also developing the skill of using numbers/quantities in her communication requests. The Child has verbal language, but her speech is limited to one or two words at a time. It is not clear the extent of her vocabulary.

 

6. Autism and global developmental delay have had a pervasive affect on her learning. Her learning needs are severe and her learning is and will be slow.

 

7. The Child has communicative intent and can interact and play with her peers. At times she plays alongside her peers rather than with them. She can initiate contact, but generally this is on her terms. She needs assistance with most aspects of her personal care, she cannot toilet or change herself independently. She wears pads.

 

8. Despite her hypotonia The Child has not been assessed recently by an occupational therapist. She does however follow a physical education programme.

 

1. The Child is placed in a class with four other pupils (one currently attends on a part time basis). Two pupils are on the autistic spectrum. One pupil is a wheelchair user and has cerebral palsy. The pupils are aged between 6 and 10. Three of the pupils have some verbal language. None have significant behaviour problems.

 

10. School A is a special school and has 27 pupils, all of whom have significant needs. It is under capacity. Around 14 -16 pupils are on the autistic spectrum. Four pupils have profound and multiple difficulties, around 7 have severe difficulties and 3 children have cerebal palsy.

 

11. The Child’s class teacher is Mrs H. She has worked in special schools for over 6 years. She has a graduate diploma in autism studies. She has been trained and has experience in using Makaton, multi-sensory approaches, PECS, technology and switches. She is assisted in The Child’s class by 2 auxiliaries, both of whom have experience and training in autism. There is also a nursery nurse and a further part time nursery nurse in the class. All the support staff have been in the school for at least 5 years.

 

50. No specific autism approach is used with The Child or in the class. The Child follows a curriculum based on her individual needs with a focus on communication and independent living skills. The school staff have tried toileting programmes with her. She is often taken into the community to develop her independent living skills. She has made progress in this area, and recently was able to hand over money when buying something in a shop.

 

1000. The Child’s behavior in school improved significantly in the autumn of 2010 when two older boys were removed from her class. The class also became grouped around age and focused on communication skills.

 

14. School A is supported by the speech and language therapist, occupational therapists (both of whom attend the school every week) and the educational psychology service which attends frequently.

 

• A social services assessment of The Child’s social care needs was carried out in September 2010. It noted The Appellant was struggling to meet The Child’s care needs without support. A care plan was produced shortly thereafter. Since then The Child has received three 1.5 hour respite sessions after school each week and one 6 hour Saturday respite session each fortnight. The repondent’s Children With Disabilities Team has decided overnight respite care is necessary for The Child and her family. This will be provided from April 2011. No discussion has yet taken place as to exactly how many nights will be provided but it is likely to be one night per month, subject to review. Respite will be provided at the respite centre. The Appellant has declined the offer of respite care for The Child with a family.

 

16. The Child’s behavior at home is difficult. The Appellant has tried to use PECS at home but The Child refused and pulled the PECS box of symbols off the wall. At times The Child has screaming episodes. She is rigid and demanding when it comes to watching particular television programmes. She can hit out and requires to be restrained if she is not permitted to watch what she wants. Infrequently it is necessary to lock her bedroom door at night.

 

17. An annual review meeting took place in relation to The Child at School A in early March 2011. The Appellant, the head teacher, the class teacher and Witness D, who works for the social care team, all attended.

 

18. School B is not a public school. It is a special school and is accredited by the National Autistic Society. The Appellant and Witness E visited the school. They liked it. A teacher interacted well with The Child when they attended. The Appellant considers The Child would benefit from doing work beyond the normal school day. The Child was briefly assessed and offered a place.

 

19. The cost of a weekly placement at School B School for five nights accommodation (excluding night attendant) is £ 1925 per week.

 

20. The cost of a pupil attending School A is £ 36, 598 however the school is not full and there are no additional costs to The Child’s attendance. The cost of the existing day respite provision amounts to £ 7740.72. The cost of an overnight place at the respite centre is £ 169. 26 plus a waking night attendant cost which would cover two children of £ 96 per night. Parents would be expected to undertake transport to and from the unit. The cost of transport between home and School A is £ 23 per day. This is provided by way of a bus which takes eight other pupils and is supervised by an escort. The cost of transport between home and School B is £ 170 per week.

 

 

6. Submissions From the Parties:

 

Respondent Representative submitted there was no dispute School B School was not a public school and that a place was offered at School A. He argued the issue for the Tribunal was the suitability of School A to meet The Child additional support needs and the respective suitability of School B school and School A having regard to cost and suitability. Respondent Representative argued it was plainly not ‘unreasonable’ for the authority to take the view the placing request should be refused having regard to the statutory test. He also argued having regard to all the circumstances (applying s. 19 (4A) (ii) of the 2004 Act) it was better for The Child to remain at home with her family and to be educated in her local community. He also referred us to the financial burden on the respondent should The Child be placed at School B.

 

Appellant Representative argued we should over turn the respondent’s decision on the placing request. She argued School A could not meet provision for The Child’s additional support needs and pointed to a lack of progress.

 

7. Reasons for the Decision:

 

1. At the heart of this placing request are The Child’s additional support needs and whether these can be met at School A. The Tribunal heard evidence from three professional witnesses who are involved in making provision for The Child’s needs: Witness B, head teacher, Witness C, educational psychologist and Witness D, social worker. Each gave evidence that appropriate provision was provided for The Child’s needs. The head teacher and educational psychologist, both of whom have first hand knowledge of The Child and had seen her recently, gave evidence that The Child was making progress at School A and that the school placement was suitable to meet her needs. Whilst the Tribunal was considerably assisted by Witness E’s and The Appellant’s evidence, no professional evidence was led by the appellant which suggested The Child’s needs were not being met by way of the placement at School A. It was not clear both on the documentation and at the hearing how or why it was said The Child’s needs could not be met at School A.  It is against this background that the Tribunal approached its task.

 

2. The reference made is in relation to a placing request, in circumstances where there is no CSP. The Tribunal must apply a number of statutory tests, which take the form of the following questions:

 

1. 1. is the respondent able to make provision for The Child’s additional support needs ‘in a school other than the specified school’ i.e. at School A as opposed to School B? (Schedule 2, para 3 (1) (f) (ii)); and
   2. is it not reasonable having regard to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of The Child at School B and School A(Schedule 2, para 1 (f) (iii))? thereafter;
   3. in all the circumstances is it appropriate for the Tribunal to confirm the respondent’s decision refusing the placing request? (s. 19 (4A) (a) (ii)).

 

3. The Tribunal reminds itself that as per s. 1 (3) (a) of the 2004 Act additional support needs means in relation to a child of school age “provision (whether or not educational provision) which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the same age in schools (other than special schools) under the management of the education authority..”

 

4. The Tribunal also reminds itself that section 1 (1) of the 2004 Act states: “A child…has additional support needs for the purposes of this Act where, for whatever reason, the child ….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..”

 

5. Section 29 (1) states: “ ‘additional support needs’ is to be construed in accordance with section 1 (1)”

 

6. Section 29 (2) states ‘school education’ has the same meaning as contained in section 135 (1) of the Education (Scotland) Act 1980.

 

7. Subsection 1 (2) of the 2004 Act states: In subsection (1), the reference to school education means, 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.

 

8. It is central to the question of whether the placing request decision is confirmed or overturned for the Tribunal to first identify (in circumstances where there is no CSP) The Child’s additional support needs within the meaning of the 2004 Act as amended. Once these have been identified, the Tribunal must consider whether these identified additional support needs can be provided for at School A.

 

9. What then is the definition of additional support needs? This is contained within section 1 of the 2004 Act which defines need as a requirement for provision. A child only has additional support needs if they require the provision of additional support to benefit from school education. It is clear additional support provision is not limited to educational provision (see the amendment to the 2004 Act contained in s. 1 (3) (a)). The Tribunal concludes a child has additional support needs if they require additional support provision which must be defined as:

 

1. 1. educational or non educational provision;
   2. which is additional to or different from educational provision made generally for children in schools;
   3. is provision other than would normally be found in a special school;
   4. provision, which in the absence of, the child would be or would likely be unable to benefit from school education.

 

10. The Tribunal must then look to identify additional support for The Child which is additional to or different from the provision normally provided in a special school, which is, or would prevent her benefiting from school education. This definition does not exclude additional support provision being defined as provision which is provided out with school. This is the Tribunal’s interpretation of s. 1 (1) taken together with s. 1 (3) taken together with s. 29 (3).

 

11. The Tribunal notes however that Schedule 2 at paragraph 1 (f) (ii) requires it to determine, in the circumstances of this case, whether the respondent is able to make provision for the additional support needs of the child in a school… other than the specified school. This creates a difficulty: how can it be the case that Parliament has provided for a definition of additional support needs that can be non educational and provided out with school but the focus of a placing request reference is the question of whether the additional support needs can be met “in a school”.

 

12. Either additional support needs provision is construed to be school based provision (which does not appear to be consistent with ss. 1 (1), ss. 1 (3) and s. 29 (3) of the 2004 Act) or “in a school” must be given a wide definition and not necessarily one consistent with the ordinary meaning of the words used. It is however not a question this Tribunal need address further for the reasons explained below.

 

13. The Tribunal has heard evidence that The Child benefits from, and in the view of the Tribunal needs, specialist teaching from a teacher with additional experience and training of autism, a visual timetable and visual approaches to learning, a small class size and considerable adult support in school.

 

14. The Tribunal paused carefully to consider whether these could properly be described as additional support needs/provision within the meaning of the 2004 Act. The Tribunal notes the definition provided for additional or different support from that found in special schools. The Tribunal found the use of the words “(other than in special schools)” significant. The Tribunal also had regard to the Code of Practice and in particular paragraphs 11, 12 and 13. The Tribunal also took into account the fact The Child does not currently have a CSP.

 

15.  On balance, and not without some hesitation, the Tribunal considers The Child does have additional support needs because she requires:

 

1. 1. to be taught by a teacher with experience and training of autism (the Tribunal heard no evidence an additional qualification was in fact necessary);
   2. requires a high level of adult support;
   3. requires opportunities to generalise her skills in different settings;
   4. requires a highly visual approach to learning.  

 

16. The Tribunal did not receive evidence as to whether or not this is provision generally found in special schools in Scotland. It seemed to the Tribunal it may be difficult for anyone one witness to comment upon the approaches used in special schools generally. The Tribunal is of course a specialist Tribunal and has two members who have specialist knowledge in this field. Having regard to the evidence and the Code of Practice, the Tribunal concludes The Child has additional support needs within the meaning of the Act because she requires different and additional support (even within a special school context) to meet her autism and global developmental delay.

 

17. There is no evidence before the Tribunal The Child continues to need direct speech and language therapy from a therapist. She receives a programme of speech and language support but this does not involve regular contact with the speech and language therapist. The Child has not received direct therapy since the summer of 2010.

 

18. The Child has no input from occupational therapy and there is no up to date occupational therapy evidence before the Tribunal (only a reference to motor problems in a 2003 report).

 

19. Given the evidence before us it cannot be said either speech and language therapy or occupational therapy are additional support needs. In the Tribunal’s view, given its specialist knowledge, it was surprised the respondent does not have a fuller understanding of both The Child’s speech and language and occupational therapy needs.

 

20. The Tribunal has considered very carefully whether the package of respite care amounts to additional support provision. The Tribunal accepts non educational provision can be an additional support need. There is no doubt The Child and in particular her family require this provision. There was however no clear evidence to suggest without this provision The Child would be unable to benefit from school education, even allowing for its wide definition. The assessment states: Currently Mr and The Appellant are presenting as struggling to meet The Child’s ongoing constant care needs and unless they are offered support the circumstances will only deteriorate. If the family are given some support and respite this will enable them to continue to care for The Child within the family home.” The care plan notes The Child craves attention and her parents find this difficult as they have other children. It also notes the respite is for both The Child and her parents.

 

21. The Tribunal considers whilst The Child benefits from respite provision, without this provision, she remains or would remain able to benefit from the school education provided to her. The Tribunal neither read nor heard clear evidence to the contrary. Indeed The Child continues to benefit from school education, despite the fact the overnight respite care is not in place.

 

22. The Tribunal considers The Child’s additional support needs are met at School A. There was clear evidence from both Witness B and Witness C of progress. It is clear The Child receives education from a specialist teacher with an appropriately modified curriculum. She is working on a curriculum appropriate to her needs, a curriculum which is focused on the development of her communication and independent living skills. Her needs for generalisation are met by the development of her independent living skills in a community context. Her need for a high level of adult support is met by the highly staffed class in which she is placed. The Tribunal was satisfied the school managed her behavior well and that school staff have the necessary experience to manage any changes to her presentation brought about by puberty.

 

23. No professional evidence was provided by either party that The Child required different provision. The Appellant told us she felt The Child would benefit from an extended school day. No clear evidence was provided to the Tribunal in relation to what provision would be provided at School B for The Child. No professional witness provided a rationale for an extended school day.

 

24. The Tribunal concludes therefore that The Child’s additional support needs can be met at School A. The Schedule 2 paragraph 3 (f) (ii) test is met.

 

25. The Tribunal then considered the Schedule 2 paragraph 3 (f) (iii) test. Having concluded The Child’s additional support needs are as set out in paragraph 15 above the Tribunal must consider the ‘cost (including necessary incidental expenses) of the provision for the additional support needs of the child’ in both School A and School B. Given the conclusion in relation to additional support needs the Tribunal must look at the cost of the placements at the respective special schools. Given the statutory language and the finding that the social care provision is not an additional support need, should the cost of social care be included under the statutory test? The Tribunal concludes it cannot be considered the cost of ‘provision for additional support needs’. The Tribunal does however conclude, given the social care package is needed, it is a necessary incidental expense and should form part of the balancing act required under paragraph 3 (f) (ii). It is not possible to be clear as to the exact cost of the respite package given it is not yet all in place. The Tribunal was told The Child could receive up to one nights respite each month.

 

26. School B costs at least £ 73, 150 (38 weeks x £1925) plus £ 6460 (£170 x 38). Some respite care may be required during the week, at weekends and overnight during the holidays. Plainly a reassessment of The Child’s care needs would be carried out if she were to attend School B.

 

27. The cost of the school place at School A is nil, given there is no additional cost to the respondent, see SM v Edinburgh City Council [2006] CSOH 201. Transport costs to and from the school are £ 4370 (although it may be there is no additional cost to the respondent given the school bus may run anyway). The weekly respite package is £ 7740.72. There will be a cost to the overnight respite care.

 

28. The Tribunal also notes on the second day of the hearing the respondent sought to rely on the additional cost of a waking night attendant at School B. Reference is made in the social care assessment to The Child’s needs and difficulties at night. No proper assessment has been carried out by School B in relation to the need for night supervision. Both parties should have properly and fully assessed this issue. It was not helpful for it to be raised for the first time on the second day of the hearing. The respondent clarified it did not seek a finding on the need for and cost of waking night supervision. 

 

29. Without arriving at a final cost for either placement it is clear to the Tribunal there is a very significant additional cost to School B whether or not overnight attendance is required. The Tribunal did not find it necessary to make a finding in relation to waking night attendance at School B. The costs difference is already significant and to have investigated this matter further would have resulted in the continuation of the hearing which would have been disproportionate to that specific issue, given what is known about the respective costs of the placement.

 

30. The Tribunal heard little evidence in relation to what is offered at School B. The Tribunal did consider requiring or at least asking a representative of the school to attend. The Tribunal concluded however its enabling role can only go so far and it is for the appellant, supported by the Advocacy Service (which includes legal assistance) to make out her case. Given School B is National Autistic Society accredited it is likely to be a good placement for an autistic pupil. Witness C, educational psychologist, who had experience of NAS accreditation told us the only likely additional feature of NAS accreditation, as opposed to what is offered at School A, would be that all staff would have autism training. The Tribunal were also assisted by written documentation about the approaches and therapies used at the school, contained in the bundle.

 

31. Given the Tribunal’s conclusions in relation to the extent of The Child’s additional support needs, and given paragraph 3 (f) (ii) calls upon the Tribunal to weigh up the respective suitability of the additional support provision, the Tribunal is of the view it is reasonable to refuse the placing request (this is the Tribunal’s own view, it has not simply exercised a review of the respondent’s decision, rather it has carried out its own merits assessment). School A can meet The Child’s additional support needs and she is making progress. The Tribunal heard no evidence of any particular feature of provision available at School B that would assist the Tribunal to conclude it was more suitable than School A, given the significant cost difference. The Tribunal also had regard to The Appellant’s clear preference for School B, but did not consider this made the placement more suitable.

 

32. The Tribunal then considered the s. 19 (4A) (a) (ii) test and concludes it is appropriate in all the circumstances to confirm the respondent’s decision to refuse the placing request. The Tribunal considered The Child was better educated and cared for with her family (with support) and in her local community. The Tribunal was satisfied the assessment of care needs and the care plan were appropriate. The Tribunal saw no particular benefits to a residential placement in relation to either education or social care provision, although it accepted and understood the very significant demands made upon The Appellant and her family. Caring for a child with autism is a challenging and difficult experience.