ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/012/2008
Gender: Male
Age: 12
Type of Reference: Placing Request
1. Reference
The father, (‘the Appellant’) made a Reference, [dated 5th May 2008, received 7th May 2008] under Section 18(3)(e) of The Education(Additional Support for Learning)(Scotland) Act 2004 (‘the Act’) against a decision by the Education Authority (‘the Authority’) dated 28th March 2008 to refuse a placing request made by the Appellant in respect of his son, (“the child”).
2. Decision of the Tribunal
The Tribunal is not satisfied, in terms of Section 19(5)(a)(i) of the Act, that one or more of the grounds specified in paragraphs 3(1) or (3) of Schedule 2 to the Act exists or exist, and in terms of Section 19(5)(a)(ii) in all the circumstances it is appropriate to do so, accordingly,
(a) the Tribunal OVERTURNS the decision of the Authority;
(b) requires the Authority to place the child in the school specified in the placing request in terms of Section 19(5)(b)(i) of the Act;
(c) requires the Authority to amend the CSP prepared for the child with the name of the school, together with its address, telephone number and the Head Teacher’s details being amended accordingly, further stating that the nature of the placement shall be ‘day placement’ in terms of Section 19(5)(b)(ii) of the Act, and
(d) all said amendments to be implemented within 21 days of the Tribunal’s decision.
The decision of the Tribunal is unanimous.
- Preliminary Matters
Late Evidence was received in this case. The Tribunal sought the views of both parties who confirmed that there was no objection to either party lodging Late Evidence.
In view of the nature of this evidence, the representations from both parties, their mutual consent and agreement to late lodging, and the relevance of said evidence to this Reference, the Tribunal was satisfied that, in all the circumstances, it would be fair and just to allow all Late Evidence pursuant to Rule 34 of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (‘the Rules’).
The Tribunal requested further productions and information during the hearing and we thank both Parties for their very full cooperation in providing same.
All additional Late Evidence was therefore allowed to be lodged and numbered accordingly.
A Case Management Conference Call took place in respect of this Reference on 23rd June 2008.
4. Summary of Evidence
The Tribunal considered a bundle of evidence (including the Late Evidence) comprising:
(a) Appellant’s Case Statement
(b) Authority’s Case Statement
(c) All letters from the Appellant
(d) Speech and Language Therapy reports
(e) Co-ordinated Support Plan dated 20th February 2008
(f) All school attendance reports and records
(h) The child’s written views
(i) All photographs
(j) DVD
(k) History of educational psychology
(l) All review meeting minutes
(m) Psychologist report
(n) Physiotherapist and Occupational Therapy reports
(o) All other reports
(p) Academic articles relied upon
(q) MARG documentation
(r) Targets and IEP’s
(s) All correspondence and literature about the school specified in the placing request
(t) A demonstration of the child’s Dynavox
[The above is not an exhaustive list of all the documentary productions lodged by both parties]
In addition to the above, the Tribunal heard oral evidence from the child’s parents and a number of witnesses. Detailed submissions from both Parties were also carefully considered including references to relevant case law and to academic writings.
5. Findings in Fact
1. The child is a twelve year old boy who resides with his father, the Appellant, and his mother. The child is an only child.
2. The child has quadriplegic cerebral palsy and global developmental delay which presents significant barriers to learning and communication.
3. The Authority accepts that the child has significant additional support needs arising from the above condition.
4. The child is dependent on equipment and adult support for all aspects of positioning, mobility and physical care.
5. The child has not developed functional spoken language. His ability to express himself without a communication aid is significantly limited.
6. The child presents himself as a lively, friendly and sociable young person.
7. The child uses a Dynavox DV4 (a high tech communication device/machine) to express himself. It is accepted by the Authority that this has been very beneficial in supporting the child in his communication and his development of language. He has been using this communication device for over a year now.
8. The Authority confirms that the child demonstrates an understanding of conversational language within the class, inferring language and exhibiting a sense of humour. Furthermore the Authority confirms that the child shows a good understanding of pictures and symbols, and is showing an interest in letters and words.
9. The specified school is not a public school. It is a grant aided special school run by a charity, providing specialist education for children with complex physical support needs. The school has both primary and secondary provision for pupils from age 5 years to 18 years of age. The school provides both school education and residential accommodation.
10. The child had a Record of Needs opened in May 2001 and now has a Co-ordinated Support Plan. He has been known to the Authority through psychological services since 1998.
11. The child attended a school in another Authority (as a result of a previous placing request with the agreement of the Authority) since commencing primary education in August 2001, following a deferred entry and an additional year within nursery provision. The child has recently finished P7 at the school and is due to move to secondary education in August 2008.
12. The Authority’s policy and practice is to educate children within their own Authority schools wherever possible. Only in exceptional circumstances would children be placed in a school out with the Authority.
13. School A, a unit/base within a local High School, is the Authority’s designated secondary school provision for children with severe and complex additional support needs.
14. School A is a purpose built provision set in the High School’s new building which opened in April 2008, providing specialist facilities and education for pupils from S1 to S6 within a mainstream school which is fully DDA compliant.
15. The sixteen children who currently attend School A have Co-ordinated support plans flowing from the level of co-ordinated input from physiotherapy, occupational therapy and speech and language therapy.
16. The mainstream facilities are fully accessible with specialist equipment provided in practical classrooms. The corridors and outside learning spaces have been designed to allow the children to move around the school and outside areas as independently as possible. This includes opportunities to use specialist equipment including wheelchairs and power chairs. The school also has a state of the art hoisting system to ensure safe, comfortable and efficient transfers between specialist equipment. Inside the school there is a large breakout/recreational area, and outside a garden area is designed for easy access. The school has a swimming pool and a sensory room is available. The Appellant visited the new school and was highly impressed by the facilities on offer at School A.
17. The child’s current total journey time to his primary school is 2 hours. The total journey time to the specified school would be approximately 3 hours. School A is a local provision for the child and his journey time would be a relatively short time.
18. The child has been offered a place at School A. On 28th March 2008, the Authority refused the Appellant’s placing request on the basis that:
(i) the specified school in the placing request is not a public school,
(II) the Authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,
(iii) it is not reasonable, having regard to the respective suitability and respective cost of the provision for the additional support needs of the child in the specified school and in the school at which the Authority can make provision, to place the child in the specified school,
(iv) the Authority have offered a place to the child.
The Authority therefore sought to reply upon Paragraph 3(1)(f) of the Schedule 2 of the Act. Subsections (i) and (iv) are not disputed between the parties.
19. As of 17th June 2008 the child has been offered a day place at the specified school from August 2008. The specified school has a school roll of 38 pupils. The child’s primary school has a roll of 32 pupils. School A can facilitate up to 30 pupils but currently has 18 pupils.
20. The child has visited the specified school. He has not visited the new building of the local High School and has not visited School A. The child did however visit the old building of the local High School.
21. When considering the ‘respective cost’ of the child attending School A, the only additional cost to the Authority is transport.
22. The daily transport costs (with escort) for the child to travel from home to School A is currently estimated to be £65 per day. Therefore the additional cost will be £12,675 per annum [subject to any future increases].
23. The cost to the Authority of a place at the specified school is £26,403.39 for 39 weeks. In addition to this, the daily taxi transport costs (with escort) of the child travelling from his home the specified school will be £175 per day. This will be a total minimum cost of £34,125 per annum. This cost is likely to be higher in the next academic year due to rising fuel costs. The total costs of sending the child to specified school which are additional for the Authority include both the aforementioned fees for said school and the transport costs.
24. The child’s principal method of communication is through a high tech communication device (sometimes referred to as an AAC device/ DV4) called a Dynavox. During the last year he has made excellent progress with his communication skills. This is due to the child’s own personal motivation to use his Dynavox and the support given both at home and daily specialist input at his primary school. The child initiates communication using his vocalisations and his Dynavox.
25. None of the children anticipated to be attending School A in August 2008 use the Dynavox. Approximately twelve other children at the specified school will use AAC devices similar to the child’s.
26. None of the school staff or the therapists in School A (or indeed within mainstream at the High School), have current practical knowledge, training or experience in using the Dynavox. The staff at the specified school have substantial practical knowledge, training and experience in using Dynavox. All of the individual subjects at the specified school have had their own device pages created onto the Dynavox, and all teachers, support staff and therapists are well acquainted in their use. The specialist IT personnel who may be able to fix problems with the Dynavox on site within School A is presently on maternity leave until March 2009. The equivalent personnel at the specified school are available whenever required within the school.
27. The total projected school roll at the mainstream High School for August 2008 is 930 pupils. It is anticipated that there will be two S1 pupils in School A (not including the child) – one boy and one girl. They are described as being both ambulant with no input from Speech and Language Therapy, Physiotherapy and Occupational Therapy. The majority of the anticipated pupils are described as being ‘ambulant’.
28. The first educational objective highlighted within the child’s Co-ordinated support plan is to ‘extend his expressive communication using AAC device’.
30. The child will potentially have direct access to Speech and Language Therapists two days per week at School A, as the Therapists are available on a part time basis.
31. The child will potentially have direct access to Speech and Language Therapists five days per week at the specified school, as the Therapists are employed full time by said school. All other Therapists are also employed full time within the specified school.
32. In 2008 the child’s views were sought by his class teacher. He was asked to comment on three schools: his present school, the specified school and the local High (the old building). Two areas featured in the personal comments made by the child across all three schools, namely (i) Friends and (ii) the use of his talker.
33. The Speech and Language Therapist produced a report dated 7th March 2008. She stated therein that the child has good understanding of spoken language evidenced by observation. He has a good sense of humour and can make inferences and deductions from spoken language. She stated that the child’s expressive language is developing quickly with the use of the Dynavox. The Therapist is of the opinion that the child will ‘continue to need adult support throughout the school day in order to meet his full potential using this device.’ The Report further states that ‘The child has had a high level of support during the last three academic years at his primary school to develop his communication skills. He has also been in a class where there has been a huge focus on developing his understanding and use of symbols and sentence structure, his social use of communication and his skills using the DV4 communication aid’. The class teacher has been following a ‘structured programme, led by the class teacher, to develop his understanding and use of vocabulary; clothes, food, animals etc and develop; his sentence building skills on the Dynavox.’ The Report confirms that ‘this work has been done using 1;1 activities and interactive activities with his peers’.
34. The child is dependent on both equipment and adult support for all aspects of his positioning, mobility and physical care.
35. The Educational Psychologist produced a Report dated 10th March 2008 in which she stated that a ‘clear focus within the child’s education package has been the development of methods to support his ability to communicate’. She confirmed that there had been a recommendation in January 2006 that the child would ‘benefit from a high-tech communication device (Dynavox DV4). Within the recommendation it was recognised that this communication aid would ‘provide a range of opportunities for supporting the child’s communication, literacy development and overall learning’. The Educational Psychologist acknowledged that the child has ‘benefited from using the DV4, however he has required a high level of teacher support to do this’. The Report concluded that ‘it is proposed that the DV4 will continue to be the main medium in which the child will access the curriculum during his secondary education’. She stated that it is important that ‘teaching staff access appropriate training to support the child in using the DV4’. The Report considered the child’s barriers to learning and one of the important factors to be included when planning the child’s secondary provision is ‘supported opportunities for the child to interact with his peers, using the DV4’.
36. An Options paper was produced for the Multi Agency Resources Group (MARG) meeting in March 2008 following upon the parental placing request. The following points are noted therein:
(a) The cost per annum for the primary school placement is £34,258,
(b) Both School A and the specified school are described as providing specialist provision – School A being mainstream,
(c) The specified school is described as providing a ‘high ratio of SALT, Physio and OT provision within school’. School a is described as providing ‘Input from specialist resources, (i.e. OT, SALT, Physio) as part of Authority level agreement’.
Further Advantages are listed for School A, namely:
(i) ‘
(ii)
In respect of the specified school two further Advantages are highlighted, namely:
(i) School also have a Post Sixteen Unit and links with college,
(ii) The child appeared to enjoy visiting the school’.
37. One additional advantage is listed for the specified school, namely:
‘A number of young people with the school use communication devices, such as, the Dynavox. Therefore teaching staff have a high level of experience of delivering the curriculum through this medium’.
This Advantage is directly linked in with two of the listed disadvantages for School A, namely:
(a) ‘No other young person in school, at present, using a high-tech communication aid (Dynavox),
(b) Teaching staff unfamiliar with communication device, however staff training can be accessed’.
A third disadvantage is listed namely:
(c) ‘Parents do not accept School A as an appropriate placement’.
38. Three Disadvantages are stated within the Options Paper for the specified school, namely:
(i) ‘travelling to and from school (approximately three hours each day),
(ii) does not enable links to be made within local community in relation to adult services and peers,
(iii) limits the child’s opportunity of interacting with peers who do not use a high-tech communication aid’.
39. The child has a manual wheelchair. He also has a power chair which he is learning to control.
40. The specified school is able to make adequate and efficient provision for the additional support needs of the child. The Authority is unable to make adequate and efficient provision for the additional support needs of the child.
41. The provision of education at the specified school is suitable for the additional support needs of the child. School A is not able to provide suitable education for the additional support needs of the child.
42. It is reasonable, having regard both to the respective suitability and to the respective cost (including incidental expenses) of both schools, to place the child in the specified school.
43. In all of the circumstances, it is appropriate for the child’s father’s wishes, in respect of his education, to be adhered to and for the child to be placed in the specified school.
6. Reasons for Decision
The Tribunal considered all the evidence within the productions initially lodged, together with all the late productions lodged, and the oral evidence of the witnesses who attended over the three days. The Tribunal also considered the submissions made on behalf of both parties on the third day. We also viewed the DVD provided by the Respondent and the demonstration of the child’s Dynavox.
It is not practical, appropriate or necessary to narrate every aspect of the evidence in this written decision.
The Statutory Provisions
The Authority moved the Tribunal to confirm the Authority’s decision in terms of Section 19(5) of the Act which provides:
‘(5) Where the reference relates to a decision referred to in subsection (3) (e) of that section, the Tribunal may-
(a) confirm the decision if satisfied that-
(i) one or more of the grounds of refusal in paragraph 3(1) or (3) of schedule 2 exists or exist, and
(ii) in all the circumstances it is appropriate to do so.’
The Appellant argued that the Tribunal could not be satisfied in terms of Section 19(5) (a) (i) or (ii) of the Act, and that in those circumstances the Tribunal ought to overturn the Authority’s decision and place the child in the specified school in terms of Section 19(5) (b) of the Act which provides:
‘(5) Where the reference relates to a decision referred to in subsection (3) (e) of that section, the Tribunal may:
(b) overturn the decision and require the authority to -
(i) place the child or young person in the school specified in the placing request to which the decision related, and
(ii) make such amendments to the Co-ordinated support plan prepared for the child or young person as the Tribunal considers appropriate by such time as the Tribunal may require.’
Section 22 of the Act is the relevant section in so far as it states that Schedule 2 makes provision about placing requests in relation to children and young people having additional support needs.
Turning to Schedule 2 of the Act this deals with firstly, the Education Authority’s duty to comply with a placing request. Paragraphs 2 and 3 provide the basis on which the Tribunal must determine the reference.
Schedule 2, paragraph 2 of the Act (headed “Duty to Comply with Placing Requests”)
provides:
‘(1) Where the parent of a child having additional support needs makes a request to an Education Authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.
(2) Where the parent of a child having additional support needs makes a request to the Education Authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being-
(a) a special school the managers of which are willing to admit the child,
(b) a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young person) having additional support needs, or
(c) a school at which education is provided in pursuance of arrangements entered into under section 35 of the 2000 Act,
it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child’s attendance at the specified school.
(3) A request made under subparagraph (1) or (2) is referred to in this Act as a “placing request” and the school specified in it is referred to in this Schedule as the “specified school”.
(4) Where a placing request relates to 2 or more schools being-
(a) schools under the management of the Education Authority to whom it is made, or
(b) schools mentioned in subparagraph 2(a),(b), or (c) the managers of which are willing to admit the child in respect of whom the request is made,
The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) applies in relation to the first mentioned such school, which is to be treated for the purposes of this schedule as the specified school.’
Paragraph 3 of Schedule 2 of the Act (headed “Circumstances in which duty does not apply”) provides:
‘(1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply-
- if placing the child in the specified school would-
- make it necessary for the authority to take an additional teacher into employment,
- give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,
- be seriously detrimental to the continuity of the child’s education,
- be likely to be seriously detrimental to order and discipline in the school,
- be likely to be seriously detrimental to the educational well-being of pupils attending the school,
- assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at the school, or
- though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers,
- if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,
- if the education authority have already required the child to discontinue attendance at the specified school,
- if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,
- if the specified school is a single sex school (within the meaning of section 26 of the Sex Discrimination Act 1975 (c.65) and the child is not of the sex admitted or taken (under that section) to be admitted to the school,
- if all of the following conditions apply, namely-
- the specified school is not a public school,
- the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other that the specified school,
- it is not reasonable, having regard both the respective suitability and to the respective cost (including incidental expenses) of the school and in the school referred to in paragraph (ii), to place the child in the specified school, and
- the authority have offered to place the child in the school referred to in paragraph (ii), or
- if, where the specified school is a special school, placing the child in the school would breach the requirement in Section 15(1) of the 2000 Act.
- An education authority may place a child in the specified school notwithstanding sub-paragraph (1)(a) to (e).
- The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply where the acceptance of a placing request in respect of a child who is resident out with the catchment area of the specified school would prevent the authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school.
- Nothing in sub-paragraph (3) prevents an education authority from placing a child in the specified school.
- In sub-paragraph (3), “reserved places” means such number of places (not exceeding such number, or. As the case may be, such percentage of places at the school or relating to the particular stage of education as the Scottish Ministers may by regulations prescribe) as are in the opinion of the education authority required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1st August to which the placing request relates.
- In sub-paragraphs (3) and (5) “catchment area”, in relation to a school, means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of the 1980 Act.’
Accordingly, in terms of Paragraph 2(2) of the Act above, the Authority is required to meet the fees and other necessary costs of the child’s attendance at the specified school unless one of the circumstances in paragraph 3 is established.
The Authority have indicated in this case that they seek to rely upon Schedule 2, paragraph 3(1) (f) of the Act.
Section 19(5) of the Act (outlined above) provides that a two stage test should be applied.
At the first stage, the Tribunal is required to determine whether the Authority has established one or more of the circumstances provided in Schedule 2, paragraph 3(1) of the Act. If the Tribunal determined that the Authority has succeeded in establishing one or more of those circumstances then, and only then, the Tribunal is required to move to the second stage of the test.
At the second stage, the Tribunal is required to exercise its discretion and determine whether, in all the circumstances, it is appropriate to confirm the Authority’s decision.
The onus is on the Education Authority to establish that one or more of the grounds exists and to satisfy the Tribunal that in all the circumstances it is appropriate to confirm the decision of the Authority.
The First Stage
In this reference the Tribunal is only concerned with Schedule 2, Paragraph 3(1) (f) of the Act in determining whether the duty outlined in paragraph 2(2) of the Act applies or whether the first stage of the test is satisfied and the Tribunal requires to then move to the second stage.
In this case there was agreement between the parties that the conditions in Schedule 2, Paragraphs 3(1) (f) (i) and (iv) apply. Accordingly, the Tribunal was only required to determine, in terms of Schedule 2, Paragraphs 3(1) (f) (ii) and (iii), whether:
“(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school, and
(iii) it is not reasonable, having regard both to the respective suitability and the
respective cost (including necessary incidental expenses) of the provision for the
additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school.”
The Tribunal considered all the evidence before it of the ability of the Authority to make provision for the additional support needs of the child.
The Tribunal noted that everyone (including the Appellant) was agreed that the new facility at School A is an excellent one. The issue for the Tribunal is whether it is able to provide the child with an adequate and efficient school education.
The Tribunal consider the use of the child’s Dynavox (referred to by the Appellant as “Voxy”) to be critical to the child’s future success.
The Tribunal is in no doubt that the specified school can provide for the child and that their knowledge and experience of working directly with the Dynavox and with other children, over many years, is beyond question. School A are not able to currently argue such practical knowledge and experience.
School A have part time speech and language therapists.
School A staff, and the staff in the wider mainstream school, are currently unfamiliar with the operation of the Dynavox. Their IT specialist is currently on maternity leave until possibly February 2009. Whilst the school recognise that appropriate training will be required, the Tribunal recognise that the experience gathered over the years by all staff at the specified school is of great value and would undoubtedly benefit the child.
The Tribunal recognise that the child has been in his primary school for many years now and has built up friendships. The Tribunal further noted that two of the child’s male class friends will be joining the specified school in August 2008. Both friends are also users of the Dynavox.
Should the child go to School A he will be the only user of Dynavox. The Tribunal noted in the written productions that the child required stimulation from time to time to use his Dynavox. We noted that considerable input would be required from staff throughout the day. The Tribunal formed the view that the child will be disadvantaged if he were to go to any placement where he was the only user of the Dynavox, especially where the staff are not experienced in this high tech communication aid.
It is clearly obvious from both the Speech and Language Report and the Educational Psychologist’s Report that the use of the child’s Dynavox has been a great success and that with the appropriate encouragement, training and knowledge, peer group exposure within the school and continued support from the home, the child’s skills will undoubtedly develop. The Tribunal noted that the child enjoys communicating through his Dynavox, that he uses it at home and indeed becomes frustrated if it breaks down or may be required for a teacher to input vocabulary etc.
The Tribunal did not find itself persuaded by any argument made by the Authority that the child being the only user of the Dynavox in School A would be advantageous to the child’s education and his future development within the school. This is a critically important transition stage for the child and very careful consideration must be given to the prospect of the child being placed in a setting where his main method of communication is alien to all his peers and to a lesser extent to others within the school.
The Tribunal carefully viewed the DVD provided by the Authority. We noted that there was direct adult input throughout the session involving the Dynavox.
The Appellant argued that the level of provision of in house full time staff within the specified school – Physiotherapists, Occupational Therapists, medical staff, and Speech and Language Therapists, would be beneficial to the child throughout his time in the school.
The Appellant argued that the teacher/pupil ration is far superior at the specified school.
The Appellant recognised the increased travel time for his son to attend the specified school but stated that his son enjoyed travel and would not appear to be adversely effected.
The Appellant invited the Tribunal to consider the effect of the child being able to interact with other children in the school, at differing levels, who use AAC devices similar to the child’s. He argued that such integration and communication with other users would, in itself, assist in the child’s communication skills improving.
The Appellant expressed in his written evidence that his son can be easily distracted and can become nervous within busy environments. He further stated that during the child’s visit to the old School A he was unsettled and when he visited the specified school he seemed quite content.
The Appellant was concerned that the High School is a busy school and that the pace of life there would realistically be too hectic for the child. The Tribunal noted that many of the pupils at the specified school use power chairs whilst very few children at School A have them. The Appellant argued in written evidence that there is a strong emphasis on each child in the specified school being able to control their power chairs with safety and confidence.
The Tribunal carefully considered the Article, ‘Children with Learning Disabilities: Social Functioning and Adjustment in the School Setting’ Chapter Two (Dabie Nabuzola, 2000). At page 39 it states that;
‘The social ecology of the school has important implications for the social functioning and adjustment of children with LD [learning disability]. Research has generally shown integrated settings to be more beneficial than segregated settings for children with LD in terms of school and behavioural outcomes, and gains in social cognitive functioning.’
Nabuzola further stated that;
‘Such benefits may however, not be of sufficient magnitude for the development of positive social relations for these children’.
The Tribunal note that in the Summary and Conclusion, at page 39, it stated that;
‘One outcome of lack of peer acceptance and the resultant social isolation is the risk of being bullied and victimised by peers. Children with LD appear particularly vulnerable in this regard. These and other difficulties related to peer acceptance constitute adjustment problems generally faced by these children in mainstream settings. The problems may be manifested in loneliness, unhappiness and negative school attitudes, perceptions and feelings. Functional limitations and problems in social relations, which may be highlighted in integrated settings, may also undermine self-esteem as well as the emotional adjustment of children with LD. These adjustment problems need to be weighed against the benefits of integration’.
We note that Chapter Two describes a number of studies attempting to assess the social outcomes of integrated versus segregated settings. At page 30 they described the outcome of the studies to ‘appear equivocal’. Whilst there may be evidence to support, in certain circumstances, integration, the Tribunal note that none of the studies quoted assist us in the current real life situation, namely placing a child such as this child into a mainstream setting, albeit within a smaller specialist unit, where that child is the only child using a high tech communication device as his main method of communication and development of language, thus rendering him unique.
The Tribunal in reaching our decision attempted throughout to weigh up the possible benefits of the integrated setting of the child attending School A and the possible benefits of the child attending the segregated setting of the specified school.
The Tribunal carefully considered another Article referred to by the Authority’s Speech and Language Therapy expert witness, namely European Journal of Disorders of Communication, 31, 31-44 (1996).
The Article is titled ‘AAC Systems: Obstacles to effective use’. The paper attempts to investigate some of the issues which contribute to the lack of use of Augmentative and Alternative Communication (AAC) systems. This was a two year research study from the Department of Psychology,
The paper stated that ‘…for many people the potential offered by AAC systems has not been fulfilled and this has lead to frustration and disillusionment not only for the AAC users but also for those who work with and care for them’ (Page 32).
The paper also referred to a survey of ‘high-tech’ AAC system users carried out which found that 53% of the AAC users regularly used their voice output aids at home. This is in stark contrast of course to the enthusiasm shown by the child’s use of his own Dynavox at home.
Again at page 32 a demographic survey of AAC users with cerebral palsy showed that only 22.2% of those studied used their systems only in formal situations, such as therapy and teaching. The paper therefore concluded that;
‘…it appears that despite an increase in the provision of technological equipment to improve communication, AAC systems are not fully used outside the setting of instruction’. Once again this does not appear to reflect the actual experiences of the school and home life where the child appears to demonstrate enthusiasm to use his Dynavox.
The paper highlighted the importance of vocabulary. It states that ‘An AAC system may be available but if the vocabulary in it is either lacking or inappropriate the user will be reluctant to use it’. (Page 32)
The Tribunal do not seek to rehearse the whole paper but we did find it very informative in understanding the potential impact upon School A if a high tech AAC user were to be placed there. At page 43 the paper stated, when discussing sophisticated AAC systems – such as the Dynavox, that ‘learning to use them can be arduous and time consuming and must be supported by adequate therapy and training for users. More time is needed for Speech and Language Therapists to provide direct input to users and to train and support others who are involved with AAC users. There is a particular need for intervention which is not restricted to the clinical setting, but which is involved with the AAC user’s real communication environment’. It goes on to say that ‘Further research is required into the ways in which resources, such as personnel and time, are managed’.
At page 43 the paper again highlights ‘the choice of vocabulary is critical in introducing an augmentative way of communicating…..It is desirable that the process of selecting words and phrases for an AAC system should be unique to the individual, depending on age, gender, interests, culture and previous experience’.
The Tribunal carefully considered all the oral evidence from all the witnesses. [Only part of their evidence is recounted below].
The Educational Psychologist described the child as a lovely boy, a very motivated learner, very engaged in every task, and possessing a sense of humour.
She stressed to the Tribunal that ‘individual needs are what is important’.
She referred us to R24 (second box headed ‘Factors giving rise to additional support needs’). This document is the CSP. The Tribunal noted therein that ‘the child had not developed functional spoken language. His ability to express himself without a communication aid is limited.’
The Educational Psychologist advised us that School A is a brand new school with their own staff and resources. She stated that the facilities were good and that the needs of the children are central to every part of the planning process. We also noted that School A can provide for a maximum of 30 children (currently 18). The Tribunal carefully noted the teaching staff provision and training within School A. This is additional to the mainstream school. We also noted the various permutations for different tutor groupings. There is additional support during lunch. Speech and Language Therapists, Physiotherapists and Occupational Therapists are employed by the Health Board. We also noted that each child in School A has an individualised timetable. .
The Educational Psychologist suggested that the child’s move to secondary ‘should be seamless’.
She stated on several occasions that her role is ‘consultative’ and that she has not worked directly with the child.
The Tribunal carefully considered the Educational Psychologist’s report dated 10th March 2008. We note that the manufacturers of Dynavox were contacted to find out what would be required for the child if he were to attend a school in the Authority (as they have no other child currently using the high tech communication device in School A).
The child’s requirements for his secondary placement are listed by the Educational Psychologist at R47. She argued that School A would provide all of these. She stated that the child enjoys interaction with others and that there would be opportunities for mainstream interaction which she stated would be ‘beneficial’. She stated that a wider peer group is an advantage and that there is a ‘drive to inclusion’.
As a direct result of the child’s parents not wishing their son to go to the High School, the Educational Psychologist stated, that after seeking advice from the Authority’s own in house lawyers, formal ‘transition planning ceased in March 2008’. Other less formal work continued including looking at staffing needs, timetables and potential groupings within School A.
The Educational Psychologist stated that it was critical to have a positive working relationship with the parents and to keep the child’s needs central.
The Educational Psychologist stated that when she contacted the manufacturers of Dynavox they stated that you did not require a lot of experience to use the equipment and that once trained in it, ‘it should be alright’. The Tribunal noted at this point in the evidence the child’s mother, she stated that training was an ‘on-going’ process. She stated that the child was teaching them new things even now and that this equipment is not as simple to use effectively as stated in the evidence. She further advised that the child used his Dynavox every evening. She finally described it as ‘a very important part of his life.’
The Respondent’s representative stated that the Authority accepted how important training would be (in respect of the Dynavox) and that a ‘collaborative approach’ with staff, SALT and parents would be required. She stated that this would be explored very carefully and that it would be appropriate perhaps for a ‘key teacher role’ to implement, monitor and review this training.
The Respondent’s representative referred to different levels of training for different personnel. She also referred a ‘buddy level’ of training for older pupils. Nothing has been put in place thus far due to formal transition planning ceasing earlier in the year. Dynavox Training would not therefore be considered again until the school staff development day (18th August 2008) if the child is placed at School A.
The Tribunal noted the direct input time of both SALT and Physiotherapists to School A. We were advised by the Educational Psychologist that the amount of input is in accordance with the assessed clinical needs.
She stated that there are positives and negatives when looking at ‘peer grouping’. She clearly stated at the outset that there are occasions when a young person should be educated alongside similar children. She argued however that mainstream opportunities can be beneficial – e.g. an increase in self initiation of interaction, more complex use of communication skills, greater use of independence in school.
The Educational Psychologist provided the Tribunal with additional information and indicated in conclusion that ‘careful consideration should be given to the child’s needs’ and the appropriate ‘targeted support’ required.
The Tribunal noted that the Educational Psychologist did not seek an opinion from any of her professional colleagues about the importance, relevance, or effect of peer grouping for individuals with high tech AAC communication devices. [Reference has already been made to the academic writing submitted to support mainstream education for the child].
The Appellant visited School A and described it as a ‘lovely school’. He stated that the facilities appeared to be better than the specified school. He said the equipment provision was excellent.
His principal concern focussed upon the distinct absence of a practical working knowledge and experience within the High School and all the key personnel within School A of the Dynavox. He was also very concerned about the child being split up from his two friends who currently use the same communication device and being placed in an environment where he alone uses the Dynavox. He was therefore clear in expressing his concerns (and that of the child’s mother) about there being a lack of an appropriate and specific peer group for the child within School A which he considered to be very important for his son. . The Appellant expressed no such concerns in respect of the specified school. The Appellant stated that the Dynavox is ‘a whole part of the learning process [for the child]. What you can do with these is tremendous’. He argued that if no other child or young person used the Dynavox there would be insufficient peer group stimulation for the child to communicate and develop his skills. He suggested that seeing others using the device, and seeing others more proficient than he, would serve as stimulation for the child to improve his own skill level.
The Educational Psychologist stated that she recognised that the Dynavox is the child’s ‘communication to the world’. She acknowledged that the child is motivated by seeing others. She commented however that perhaps the child’s predominant interaction at this time is with adults who do not use the device.
The Appellant recounted his visit to the High School. He stated that they confirmed that they use a lot of ‘low tech’ communication devices. He formed the clear impression that they did not fully understand the importance of the Dynavox for the child. He expressed concern about their attitude to the use and application of the Dynavox. The child’s parents consider the Dynavox to be their child’s main medium of communication and that this must be the way he is supported at school.
The Tribunal noted that the Respondent’s representative stated that the child’s needs can also be met by the specified school. She stated that this is also the view of the Educational Psychologist.
The Respondent called an expert Speech and Language Therapist as a witness. In 1998 she commenced research within the Alternative and Augmentative Communication (AAC) Research Unit in the Department of Psychology in the
The expert Speech and Language Therapist stated that she did not know the child.
She confirmed however that the Authority acknowledge that the child has substantial speech and language therapy (SALT) needs and in transferring to secondary school the transition process is critically important.
She stated that the child required his high tech AAC device as an ‘alternative to speech…. not to augment his speech.’
She stated that the any school would need support from SALT commenting that this would require ‘huge ownership by the school.’
She stated that ‘communication is key for every child’ and added that ‘we can always do better.’
She stated that the child’s requirement for this AAC device is ‘part of his communication system.’ She stated that the child needs a ‘multi-modal approach and other back ups’. She stated that it is critical to know when to use it and that there is some evidence that people ‘overplay an AAC machine’. She advised us that bright light and noise can effect the operation of the AAC device and that it was not the best aid for an emergency or to get attention. She suggested that where possible ‘vocalisation is best’. She also stated that another problem is that she understood that high tech AAC machines ‘go on the blink’. She therefore questioned their reliability.
She stated that the Authority ‘…need to do the best for a child- to meet all our children’s needs.’ She also referred to the importance of the ‘assessed clinical needs’ of the child and that these needs must be met.
The Respondent’s representative advised the Tribunal on day three about the importance of training for everyone in the use of the Dynavox (which we noted has in fact been replaced by a newer model fairly recently). The child’s personal machine will follow him no matter where he goes with all the information still stored therein. She stated that it was critically important for the child that the High School ‘create communicative opportunities to allow the child to always communicate.’
The Respondent’s representative also commented that there would be an ‘ongoing need for people to understand [the child’s] language development and communication.’ She again referred us back to her earlier evidence about ‘peer buddying’. She suggested that perhaps as part of the service element for a senior pupils Duke of Edinburgh award someone could interact with the child using his high tech AAC device. We refer to this again in our decision.
The Respondent’s representative commented further on previous evidence suggesting the possible ‘overplay in the use of AAC’. She stated that staff would require to be flexible in their responses and view communication and interaction as the primary goal for the child. She therefore suggested that the school would require to ‘encourage the use of AAC and any other skills in other situations.’ She stated that this would be ‘covered in training’. She also highlighted the importance of seeking advice regarding the input of vocabulary to the child’s machine. She was anxious that this be ‘vocabulary for life’ and to ensure all the words we regularly use are inputted. She was also of the view that staff ‘must be able to do the physical programming.’
The Appellant commented at this stage that the initial training is really very basic. He stated that after leaving training you quickly forget what you have been taught. The primary school had real experience from working with other pupils. He argued that properly trained experienced ‘hands-on staff’ is required every day.
The Tribunal also noted that in the event of a technical breakdown which cannot be remedied by a phone call to the helpline offered by the manufacturers, School A will not have a trained IT member of staff until around March 2009 as the only person qualified to do this is currently on maternity leave.
The Speech and Language Therapist in her evidence accepted that ‘friendships are very important.’
She also accepted that for any child moving to a new secondary school is a challenge. She commented that this would be a greater challenge if you have a ‘limited communication system’ – like the child. She stated that for the child this would be ‘a very difficult’ challenge and that ‘transition is a greatly anxious time.’
The Speech and Language Therapist, commenting on her previous experience of working with Capability Scotland, commented that there ‘seemed to be the possibility to create a dependency culture.’ She explained that ‘they never had the necessity to discharge a child’ – referring to the need for SALT.
She however was of the professional view that ‘Communication is so fundamental for life that we need to embed this with everyone involved in that person.’
She argued that a school like the High School would perhaps be ‘more enabling’ than the specified school and that there is a difference in philosophy in the two schools. She agreed however that the High School ‘cannot compete with the specified school with the amount of therapy.’
The Speech and Language Therapist referred the Tribunal to an academic piece entitled ‘Obstacles to Effective Use’ [referred to above]. She stated that she was not aware of any research on whether DV4 users are more motivated to use their machine by being with other DV4 users.
She did however accept that the Dynavox is ‘extremely important to [the child]’.
She stated that it would be very important to ‘build networks at school’ and that it is important to have ‘as wide a network as possible.’
The Tribunal noted evidence in respect of two organisations – PLUS and Circle of Friends.
The Speech and Language Therapist stated that in reading the reports on the child it was clear that he was using his machine to develop language structures and the machine may in fact be helping the child to develop language. She stated that this would require support and that at this stage ‘it looks quite an important tool for his development.’
The Tribunal were given examples throughout the three day hearing of ways in which the child communicates using his own Dynavox. We also requested to see the child’s personal machine and had a short, but helpful, demonstration by the Appellant. The Tribunal also had regard to the DVD lodged by the Respondent. We noted that the child can become very frustrated when he cannot access his machine for any reason. The Appellant advised us that the child is using it ‘more and more’ and that you constantly need to update it with words. He described this as an ‘ongoing process.’
In response the Educational Psychologust stated that the child’s Dynavox is ‘a really useful tool for his language development and communication.’
The Tribunal also heard evidence from two witnesses from the specified school – from one of the Depute Head Teachers and from one of the three full time Speech and Language Therapists within the school.
The Depute Head Teacher provided the Tribunal with background information about her school. She met with the child on 13th June 2008 for the informal assessment.
She described the child’s Dynavox as an advanced aid requiring detailed vocabulary for the class subjects, e.g. for sciences and English - characters from a novel or a play etc.
She stated that all classroom staff programme the device and can react quickly in the event of a problem. She confirmed that within the specified school, Speech and Language Therapy, Occupational Therapy and Physiotherapy operate closely within the class.
She stated that all the staff (and of course many of the current pupils) have been working with similar high tech AAC devices for several years and are therefore highly experienced and confident in its use and applications. She stated that communication is a priority. She also stated that the class will have other power chair users.
The Depute Head Teacher stated that all the various therapists are in and out of the class throughout the day. The Tribunal noted carefully the experience of the staff, staff to pupil ratios, the availability in house of a specialist in IT should problems occur with the child’s device all within the specified school.
We noted that nearly all the current staff originally came from mainstream education and therefore have experience of such provision.
The Tribunal noted that if the child were to attend the specified school he would be expected to even use his Dynavox at lunchtime to ask for his food. Other examples of when it could be used included school assemblies and the school nativity play.
The Speech and Language Therapist from the specified school stated that she had met the child on two occasions this year.
She stated that her colleagues are constantly updating themselves in respect of working with equipment such as the child’s Dynavox. Reflecting upon communication with the child’s peers, she stated that this is very important as it ‘improves their self confidence and self esteem.’ She stated that research has shown that children ‘benefit from having individual therapy in terms of learning new skills and the DV4.’
The SALT staff are all full time – 3 therapists for 38 pupils. She stated that this allowed for a lot more training.
She stated that if the child were to go to School A, it would be very isolating for him as the only user of such a device. She stated that the child can become ‘quite upset’ if he cannot use his device. She stated that most problems with such a device can be resolved ‘very rapidly’ without sending the device back to the manufacturer within the specified school due to their extensive experience of working with the Dynavox.
The Tribunal also noted that the Speech and Language Therapist from the specified school was of the view that even after training it will take ‘some time to be proficient’. She stated that it takes a ‘lot of time to input.’
She stated that the child would hopefully become ‘very competent and very confident’ in using his device. She stated that this would give him ‘very high esteem,’ eventually allowing him to ‘communicate with anyone.’
The Speech and Language Therapist from the specified school was invited to consider the disadvantages to the child being placed in School A where no one else used a similar AAC device. She stated that the child could feel very isolated, that there would not be the same high level of technical back up from staff, that there would not be a culture of AAC use, and that there would be no other role models to help the child get motivation to use his device. She also considered the lack of skilled trained staff to be a distinct disadvantage. She stated that experience and knowledge about the Dynavox was a ‘key factor on how successful’ the device would be for the child.
She stated that a ‘lot of therapy and support within the classroom’ would be required to help the child to be ‘the best communicator he can be.’ In conclusion her professional view was that the specified school is best placed to provide maximum input for the child of Speech and Language Therapy, to provide many varied opportunities for the child to use his device, and that this skill will be improved and enhanced if there are other children with similar devices around the child.
The Tribunal considered all other evidence from all the witnesses including both schools contacts out with school – e.g. colleges, other schools, work experience etc.
The Respondent’s representative, in her final submission, stated that only in exceptional circumstances would the Authority place a child out with the Authority. The Tribunal having considered all the oral evidence, all the written evidence and the final submissions concluded that the child is such an exception and that School A is not able to meet the child’s needs. We noted that whilst the current Speech and Language Therapist has a great deal of experience working with high tech devices including the DV4, she will only be available on a part time basis and is due to leave approximately one week after the new term commences. The replacement therapist has not had recent experience of working with the Dynavox. None of the other therapists, class teachers, support staff etc within School a have practical experience and knowledge of using the Dynavox. No other pupil in the base, or indeed in the whole school, will personally use the Dynavox as their principal method of communication and development.
The Respondent’s representative also stated in her final submission that the Authority wished to encourage inter communication between DV4 users. She stated that the Authority recognised this skill and wished to construct opportunities for the child to develop these skills at a time when this is appropriate.’ She predicted from younger children they are ready to move onto high tech devices - two children may be starting to use such a device in March/April 2009 – they would be 7/8 years old. She stated that consideration could be given to bring these children and the child together. She also suggested that the child’s two school friends from his primary school (who are going to the specified school in August 2008) could perhaps be linked up at some point in the future. The Tribunal is not satisfied that these, and other suggested opportunities for the child to develop his skill of communicating with other DV4 users, are either adequate or efficient, or realistically of any qualitative benefit to the child.
She argued that the High School can provide ‘better for [the child’s] needs.’ She argued that they have the experience and the advantages.
The Appellant stated that the move to the specified school would be ‘very seamless’ for the child as this school is ‘very similar’ to his primary school. He is in no doubt that the specified school can meet all of his son’s needs and is of the view that School A cannot. The Appellant accepted all the evidence in respect of respective costs. He invited the Tribunal to also note the cost of the primary school placement for the child.
On suitability the Appellant stated that he currently resides in a village and is rather isolated. He stated that most of the child’s friends are from school. He confirmed that the child already attends PLUS once a month on average, with a few sessions over the holidays. He recognised the additional travel time but stated that the child enjoys travelling. The Tribunal formed the impression that the Appellant had carefully considered the possible impact on his son travelling to and from school and had concluded that it would still be in the child’s best interests to attend the specified school.
The Appellant invited the Tribunal to consider the importance of the staff being on site on a full time basis to respond to anything that arises. He stated that having an appropriate peer group is very important. He stated that it is ‘a very important factor that he learns along side other children using these devices.’ He argued that the Authority’s suggestions were not appropriate – namely the two very young children identified by the Respondent’s representative, or adults, or older pupils for their Duke of Edinburgh awards. He stated that he did not wish to see his son become ‘part of a project.’ He stated that proper peers should be able to share the ‘same interests and experiences.’
The Appellant stated that in his opinion the specified school is unique offering a ‘very specialist facility.’ He concluded that the specified school is best placed to deliver ‘an overall package to prepare the child for later life.’ He stated that he was simply a ‘dad who wants the best for his boy.’
The Second Stage
If the Tribunal is not satisfied with the First stage there is no requirement to move onto the second stage of the test, namely the appropriateness of the decision. At the second stage, the Tribunal is required to exercise its discretion and determine whether, in all the circumstances, it is appropriate to confirm the decision of the Authority.
In this case the Tribunal is not satisfied that the First Stage has been established and therefore the Tribunal do not require to consider the appropriateness of the Authority’s decision. For the sake of clarification the Tribunal can confirm that we do not consider the decision appropriate.
Accordingly, when determining the respective suitability and the aforesaid respective costs of the provision for the additional support needs of the child at both schools, there are significant differences which, when considered in total, lead the Tribunal to unanimously conclude that the specified school is the more suitable school for the child, and that it is reasonable to place the child there.
14 July 2008
