ASNTS_D_11_2011_17.06.11

 

 

3. Preliminary Issues

 

The Tribunal consented to some items of late evidence and to an additional supporter for the appellant and an additional witness for the respondents.

 

 

4. Summary of Evidence

 

The Tribunal had regard to the bundle of papers T1 – 93, R1 – 240 and A1 – 69. The views of the young person taken by an advocacy worker appear at T92 - 93.

 

In addition the Tribunal heard oral evidence, in the following order, from

• Witness A, Education Officer on issues of the authority’s procedures
• Witness B, School B
• Witness C, Teacher (ASN) School C
• Witness D, Educational Psychologist
• Witness E, Head of Care, SCHOOL A
• The appellant, The Child’s mother
• Dad, The Child’s father

 

 

5. Findings in Fact

 

1. The child, was born in 1998 and currently attends School B having repeated year 6. The Child has the diagnoses of autistic spectrum disorder, attention deficit hyperactivity disorder, learning difficulties and developmental co-ordination disorder.
2. There is no co-ordinated support plan in place but he has an Integrated Support Plan (“ISP”) which appears at T25 to T29 and an Individualised Education Plan at T70 to T90. He receives speech and language therapy through the consultative model reinforced by direct input as and when required from nursery to the present time. (R148 – 149).
3. The Child lives primarily with his mother, and his sibling who is aged 10.Sibling is a high achieving child. The Child and his sibling also spend time with their father, who resides quite nearby, on variable nights during the week. Both parents have new partners who also have regular contact.
4. The Child has attended School B (“SCHOOL B”) since 2005. From the end of first year he has been supported by the support for learning unit within the school. T30 to 33 indicate his progress. His attendance has been excellent as indicated at T67.
5. The Child is tactile and lively. He has good health and enjoys physical activities. His best days are when he has a clear schedule or structure which is followed and the appellant ensures that this extends to weekend activities such as cycling, playing football and running. He is very good at mimicking voices such as cartoons and has a good sense of humour. He plays games on the computer and the Wii. He is more comfortable with his own company. He would not initiate a task such as reading and needs prompted to carry out activities. He attends piano lessons on a Monday evening but needs to be reminded to practice. He has learned to touch type using Dancemat, a BBC programme. He has a mobile phone which he can use. He is able to send text messages and make a phone call. He has just started using e-mail and it is hoped this will advance as his literacy improves.
6. The school specified by the authority as the school which the child should attend from August 2011 is School C High School, (“SCHOOL C”), which is situated in the child’s town of residence.
7. The nominated school, SCHOOL A, is situated about 40 miles from the child’s home. A residential placement in this school was sought by way of a placing request application dated 13/01/2011. This was refused by letter dated 10/03/2011 (T22 -23).
8. The child has been happy at primary school. It was suited to his additional support needs. He has identified with peers in the base and in his mainstream class but has not formed friendships from among his peer group. He has also attended after school clubs.
9. The Child’s understanding of language is such that he is able to engage in planning for his future using a person centred planning tool. He has basic reading and writing skills consistent with his developmental age.
10. It is difficult for the child to express himself and accurately process the meaning of what others are saying to him. He has limited understanding of other people’s feelings and lacks the skills needed to solve problems with which he is confronted. His self care skills are limited and he requires monitoring and constant reminding.
11. The Child’s behaviour has, at least in the years 2006 – 2008, been very challenging when he had great difficulty dealing with his emotions. A clinical psychologist report sets this out at T34 – 36. This period coincided with an unsettling period when there were significant changes in his home situation. The deterioration in his behaviour had originally been addressed by prescribed medication of different types over  two year period but this appeared to exacerbate his condition since, although achieving more focus he also became angry and aggressive. All medication ceased in 2008 coinciding with a more settled period.
12. SCHOOL C is a large school with about 1800 pupils across 6 year groups situated in a rural setting. It has recently had a positive HMIE inspection report but the unit for pupils with additional support needs which has 15 pupils was not mentioned. The head teacher has a particular interest in developing Additional Support Needs facilities. The school has a well established Department of Additional Support (DAS). It is situated in a quiet area of the school with easy access to the grounds outside. It is part of the SCHOOL C Support Faculty. There are two teachers in the DAS and 5 learning assistants. Class teachers link with this provision for specific subjects. In mainstream there is curricular differentiation. A key person is appointed to each child. Each pupil in the DAS has an individual programme tailored to their needs which include a mix of small group teaching within the DAS, teaching in the mainstream and attending mainstream classes supported by a learning assistant. Parents are involved with the planning process and efforts are made to meet their needs. The DAS has extensive experience of pupils with a wide range of complex needs including those with ASD and ADHD. The IEP includes social and emotional wellbeing and skills for independent living as well as maximising attainment through the curriculum.  There are opportunities for pupils to work in outdoor educational experiences such as the John Muir Award Scheme in relation to environmental conservation and a New Forest initiative is about to be developed. There are also links with a special school and some pupils attend their activities on Friday afternoon. There is a speech and language therapist attached to the DAS who works with the staff to support appropriate strategies.  The cost of placing The Child at SCHOOL C has been estimated at about £17,313 per year for pupil assistant staffing and premises. Transport costs to SCHOOL C would be £3,800 per year. SCHOOL C is able to meet The Child’s educational needs.
13. SCHOOL A is a school for children who are “educationally fragile” and who fail to thrive in mainstream schools.  It has 36 pupils of secondary school age of whom only 6 attend as day pupils. The 8 oldest pupils live in the lodge where they can prepare some of their own meals.  It is not aimed as a specific facility for pupils with ASD but about 20 of those attending are on the spectrum. The school provides a very intimate, safe and nurturing environment for its pupils. There is focus on partnership with parents. SCHOOL A is housed in a large Victorian house set in extensive grounds. Most children attend on a residential basis and it is proposed that The Child attends on a weekly boarder basis. He has been assessed as requiring one to one support. The cost of a residential placement for one year would be £39,678 plus £31,500 for the one to one support. The appellant has offered to provide transport to and from the school or this might be shared with other pupils who attend the school.  If this were not the case then transport costs would add another £13,260 per year. If the SCHOOL C transport costs were deducted this would produce a total cost of £80,638 per year.   SCHOOL A is able to meet The Child’s educational needs.
14. SCHOOL C has not managed communications well with the parent in relation to the transition arrangements. This was partly due to staffing changes. The DAS has a very low profile in relation to the school’s public presentation. No reference appears to it on the website and there is no specific representation from its constituent on the parent council. There have been allegations of bullying from other children in the school. A newspaper report from October 2010 appears at T57 indicating some issues in this regard.
15. The appellant has supported her child’s learning by employing a tutor for one and a half hours each week for literacy and maths. The appellant also followed the Door programme with The Child to support better outcomes.
16. The authority fund a number of children to attend independent specials schools, including SCHOOL A, where they do not thrive in education which can be provided by the authority.

 

 

6. The Child’s Views

 

The authority and the Tribunal must have regard to the views of the child in any placing request application. Those views will not be determinative and it is acknowledged that the views may not be consistent and are likely to be influenced by many factors.  The Tribunal sought to obtain The Child’s views shortly before the hearing and these are found at T92 - 93. The Child expresses satisfaction with both options but marginally chooses SCHOOL C. The thought processes behind this choice were not recorded.  In other contexts The Child has expressed a preference for SCHOOL A.

 

 

7. Submissions of Respondents

 

The respondents’ response at R4 – R7 summarises the basis on which the reference is resisted. The respondents submitted that there were three statutory grounds for refusing the placing request.  They made an oral submission followed up by a hard copy which has been abbreviated to reflect their position.

 

On 13^th January 2011, the parents of The Child made a placing request that he be educated at School A.

 

On 10^th March 2011, that request was refused by The Respondent in terms of Paragraph 3(1)(f) of Schedule 2 to the Education (Additional Support for Learning)(Scotland) Act 2004, namely:

 

1. The specified school, School A, is not a public school
2. The authority is able to make provision for the additional support needs of the child in a school other than the specified school, i.e. at School C High School,
3. It is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and the school referred to in paragraph (ii), to place the child in the specified school, and
4. The authority has offered to place the child in the school referred to in paragraph (ii), i.e. School C High School,

 

It is recognised that a local authority bears the burden of satisfying the Tribunal that there is both a statutory ground for refusal of the placing request and that refusal is appropriate in all the circumstances.

 

Paragraph 3(1)(f)(i) and (iv) are not in dispute.  The specified school – School A – is not a public school and the authority have offered to place The Child in a school other than the specified school. 

 

The Tribunal are, however, required to consider whether the authority are able to make provision of the additional support needs of The Child in that other school and the respective suitability of the two schools and the respective costs of attendance at the two schools.

 

There is no dispute between the parties that The Child has additional support needs. 

 

The factors giving rise to these additional support needs are set out in a number of documents, including within Witness D’s report (at R15), and they are as follows:

 

Autism Spectrum Disorder; Attention Deficit Disorder; Developmental Co-ordination Disorder and Learning Difficulties.

 

The additional support required at School B is set out in the Integrated Support Plan – at T28.

 

It is submitted that The Child’s additional support needs are being met there.  The parents of The Child, at A3, paragraph 13, indicate that they have generally been satisfied with The Child’s primary school.  The assessment of, the independent educational psychologist, is (at A64) that School B is able to meet The Child’s needs as they arise in education.  In fact, the Appellant, at A63, summarises the assessment as being that the primary school did an excellent job.  The Appellant at the outset of her statement today said that she had been delighted with The Child’s primary education.

 

The Respondent contend that they are able to make provision for The Child’s additional support needs at School C.  In making that contention they rely on the evidence of their three witnesses, two of whom, Witness B and Witness D, have known The Child for a considerable period of time.  In addition, the other witness, Witness C, has 15 years’ experience at School C.  All three witnesses were able to speak about the provision which exists at School C.  The evidence was that in many respects what had been provided at School B would be repeated at School C. 

 

Witness B was very clear in her evidence that children with additional support needs flourish at School C.  Even very challenging children have done very well.  When asked whether she thought there were any needs that The Child had which School C would have difficulty meeting, she said ‘No!’  This evidence did not appear to be challenged by The Appellant when she was questioning Witness B.

 

Witness C indicated that she had no concerns that School C would not meet The Child’s needs.  What The Child needed had been provided to others in the past.  Again, that evidence was not challenged by The Child’s parents when given the opportunity to question Witness C.

 

Witness D had knowledge of the provision at both School B and School C.  Although as an educational psychologist she had challenged the decisions of the education authority in other cases, she agreed that The Child’s educational needs, set out by her in her report (on pages R16 and R17) could be met.  She had no concerns.  School C could meet all his needs.

 

The independent educational psychologist, at paragraph 2.3 on page A64 concludes:  ‘I do not think that a professional argument could be made that as things stand School C would be unable to meet The Child’s needs adequately and efficiently’.

 

Accordingly, it is submitted that the condition found within paragraph 3(1)(f)(ii) applies, namely the authority are able to make provision for the additional support needs of The Child in a school other than School A.

 

The remaining condition to be proved by the Education Authority is that within paragraph 3(1)(f)(iii), that it is not reasonable to place The Child at School A.  Such is to be established by having regard to the respective suitability and to the respective cost.

 

As far as the costs are concerned, these are set out at R197.  Cost is to be assessed on the basis of the additional costs incurred by the Authority were The Child to attend School C and the additional costs incurred by the Authority were The Child to attend School A. 

 

The evidence was that the only additional costs which would be incurred were The Child to attend School C would be transport costs.  These have been estimated at around £3800 per annum.

 

In contrast, the additional costs which would be incurred were The Child to attend School A would be considerable - £71,178 plus possible transport costs of £13,260.  If the estimated transport costs proved to be accurate, then the annual cost to the Authority of a place at School A would be £84, 438.

 

A comparison between the two figures shows a difference of £80,638 – a considerable figure.

 

The two schools also require to be considered in terms of suitability.  The parents argue that School A is more suitable.  In fact, it can be argued that School C is more suitable in that it offers exposure to mainstream education, better links with College A as The Child progresses up the school and crucially it enables The Child to remain at home, in his local community and among children he regards as his friends.

 

It is recognised that the 2004 Act was amended by the 2009 Act so that the definition of additional support now includes non-educational support.  However, the non-educational support must be additional support to enable a child to benefit from school education.

 

It is not clear in what way a residential placement is required for educational purposes.

 

School C has been said not to offer an individualised programme.  That is denied.  Witnesses yesterday spoke about individualised elements.

 

Although the parents of The Child obviously know him best, their view about what he needs cannot be regarded as conclusive.  In The Child’s early education, they seemed to want mainstream education and had to be persuaded to allow The Child to be transferred into the Additional Support Needs Department at School B.

 

Reference has been made to The Child’s views.  There is evidence that he enjoyed his visits to School A.  There is evidence that he has enjoyed his visits to School C.  The current situation, expressed by his father this afternoon, is that The Child is comfortable with both schools.

 

It is submitted that having regard to respective suitability and respective cost, it would not be reasonable to place The Child at School A.

 

The Tribunal Case of d/017/2008 quoted Code of Practice – Chapter 3 – paragraph 63 – in a case where the extra cost incurred would be completely out of scale with the possible benefit to the young person.

 

On that basis, it is submitted that a ground of refusal has been established.

 

In addition, the Tribunal must be satisfied that in all the circumstances it is appropriate to confirm the refusal of the placing request.

 

There could be a case where despite holding that a ground of refusal existed, a Tribunal were not satisfied that in all the circumstances it was appropriate to confirm the decision of the Education Authority.

 

The recent case of Miller v The Respondent (Kirkcaldy, 16^th May 2011) was such a case.  Despite the Sheriff holding a ground of refusal existed, he was not satisfied that it was appropriate for him to confirm the decision of the Education Authority.  Interestingly, the specified school was School A.  The Sheriff found that it was more suitable than Madras, but because the difference in costs would be around £60,000 per annum, he was not satisfied that it was not reasonable for the child to attend Madras.  However, because the child had been at School A for a number of months and had settled there and because he was in the crucial fifth year, the Sheriff refused to confirm the decision of the Council.

 

It is submitted that there is nothing in this present case that would make it inappropriate for the decision of the Education Authority to be confirmed – and the Tribunal are so invited to hold.

 

 

The authority indicated that at the outset of the consideration of the placing request the instruction from the Head of Education was that if School C were not considered suitable for The Child, then the authority would meet the cost of provision elsewhere.  That remains the authority’s position and they give that undertaking.

 

 

8. Submission of Appellant

 

The appellant relied on a number of grounds to argue that the authority had failed to make out its statutory case for refusing the placing request. The arguments put forward (and these also reflect the evidence of Father) are as follows:

1. Size of school. It was submitted that School C was too large in size to enable the child to become well known but that the ASN base is too small in size to permit sufficient social interaction. It was submitted that DAS made up less than 1% of the 1800 student population. The numbers in the base were too small to permit a meaningful peer group whereas the small size of School A with 40 pupils and 20 staff mean that he will be known to all of them.
2. Educational provision. It was submitted that small group teaching at SCHOOL A was ideally suited to The Child’s needs and that his social needs and development could be better catered for in a small school setting. Father’s position was that investment in The Child’s education at this stage would pay dividends in future.
3. Specified school’s standardised approach compared to nominated school’s tailored approach. It was submitted that SCHOOL A carries out its assessment process earlier to ascertain the pupils needs whereas SCHOOL C relies on the primary school assessments. SCHOOL C simply assumes that it can meet the child’s needs without explaining exactly how this can be achieved. The transition planning had begun too late to be meaningful. SCHOOL A treated parents as a valuable resource who should be listened to in contrast to SCHOOL C where the role of the parent was not clear and they did not appear to be valued. The first time appellant met with SCHOOL C was in May due to staff changes and there had been no effort made to mitigate these. Key staff in DAS had not met with parents. SCHOOL A are very accessible to parents in relation to all aspects of child’s needs.
4. Nominated school’s holistic approach in rural setting opposed to specified school’s generic approach.   The “24 hour curriculum” at SCHOOL A was more suited to The Child’s needs and his ability to fulfil his educational potential than the education offered at SCHOOL C which did not appear to have any coherence. The residential element may break a dependency where he requires continual prompting. He is not a natural self-starter and may develop these skills more in a residential setting.    Lack of a suitable after school care facility at SCHOOL C was a matter of concern as there was no after school care offered nearer than anon which was not convenient. The quality differential for The Child attending SCHOOL A outweighs the cost considerations. The Child attending SCHOOL A represents a life investment and although the cost is greater is it less than many equivalent provisions.
5. Peer Group. There was not a well-developed peer group at SCHOOL C whereas SCHOOL A has good prospect of establishing peer groups where The Child could be accepted as he is. He would have less chance of being bullied in a small environment where he is known.
6. Enivronment. The Child’s anxiety is lessened in a rural environment. SCHOOL C is not as rural as it is on the edge of a bustling market town. SCHOOL A is wholly rural and that environment makes him calmer. He is comfortable riding his bike in rural locations. It would help him to be outside between classes and the opportunities for this are less at SCHOOL C.
7. Underestimation of risk at specified school. SCHOOL C has not carried out any risk assessment. It is not clear that Witness D has carried out any assessment.  The assessment made of The Child’s needs are not consistent with the views of others who know him such as his piano teacher, his grandmother and his after school care assistant. The Child is inclined to react in an immature way and he can provoke hostile reactions. He is susceptible to be led astray by others. Risk of attending SCHOOL A is negligible as he integrated easily there when he attended for assessment whereas SCHOOL C overwhelmed him. The Child’s positive comments about SCHOOL C were unduly influenced by peer response. 
8. Value of home community to residential provision.  The view of The Child as being integrated with his local community is misleading. He spends time at two different houses after school; he does not identify with his locality. He would not be disoriented or feel separated from his community by attending SCHOOL A.

 

 

9. Reasons for Decision

 

The powers of the Tribunal are set out at Section 19.  

 

Section 19(4A) of the 2004 Act specifies the circumstances in which a Tribunal may confirm or overturn the decision of the education authority to refuse a placing request referred to in section 18(3)(da) of the 2004 Act.  In terms of section 19(4A)(a) the Tribunal may confirm the decision if satisfied that:

 

“(i) one or more grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exist or exists, and

 

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

 

In terms of section 19(4A)(b) the Tribunal may overturn the decision and require the education authority to place the child in the school specified in the placing request by such time as the Tribunal may require.

 

Section 19(4A)(a) imposes a two part test, and the Tribunal considered each part in turn. 

 

Firstly, the Tribunal considered whether or not one or more grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exist or exists.  The paragraph of schedule 2 of the 2004 Act relied on by the education authority is paragraph 3(1)(f).  The duty in paragraph 2 of Schedule 2 to the 2004 Act to comply with the placing request does not apply if all of the four conditions in paragraph 3(1)(f) apply. 

 

The Tribunal’s views in relation to the applicability of the conditions in paragraph 3(1)(f)(i) to (iv) are as follows:

 

• 3(1)(f)(i) the specified school is not a public school

 

It was not disputed that SCHOOL A is not a public school.

 

• 3(1)(f)(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,

 

Additional support needs:

 

Section 1(1) of the 2004 Act specifies that “A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.” 

 

Section 1(2) states that “the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential”. 

 

Section 1(3)(a) defines “additional support” as meaning, in relation to a child of school age “provision which is additional to, or otherwise different from, the educational provision made generally for children … of the same age in schools (other than special schools) under the management of the education authority for the area to which the child or young person belongs”. 

 

The appellant’s main argument was that the general provision of education at SCHOOL A was superior in quality to that available at the specified school, SCHOOL C. The Tribunal was satisfied that it had sufficient information before it to identify the child’s additional support needs and these were not a matter of dispute. 

 

The child’s additional support needs arise from his Autistic Disorder, significant learning disability and associated sensory sensitivities, anxieties and phobias and hyperactive behaviour.  He requires a considerable amount of individual support from an adult in order to benefit from school education.  He requires clear and consistent boundaries.  He needs to be in an environment where there is an understanding of his difficulties and how best to manage them.  He requires assistance and techniques to enable him to communicate to his full potential.  This may include input from speech and language therapy.  He requires assistance to sustain attention and concentration.  His impulsivity requires to be addressed.  He requires particular support with transitions and any changes. He needs to be supported in appropriate interactions with his peers to develop friendships.

 

The Tribunal considered that the authority are able to make provision for the additional support needs of the child in SCHOOL C  We find that the school has extensive experience in meeting the needs of pupils with autism and have experience in supporting and teaching children with similar additional support needs to the child.  Whilst there are aspects of the way in which the transition process has been handled and the communication with the appellant in particular, that are less than ideal and do not represent good practice, the Tribunal considered that these issues did not amount to an inability to make provision for the child’s needs.  They are not in themselves specifically relevant in the assessment of the respective suitability of SCHOOL C with SCHOOL A, as outlined below but we understand how, if not well managed, they can affect parental confidence. In addition the appellant produced statements from other parents with children in the DAS expressing some concerns about aspects of the operation of the department. These were not formally admitted in evidence (and the appellant did not insist in this) since it was not considered appropriate in the absence of evidence relating to these children and their circumstances to take these into account. Nevertheless we are mindful that, for instance the existence of the DAS does not appear on the website relating to the school and the existence of the DAS was not even referred to in the HMIE inspection report on the school appearing to confirm its low profile. This is an aspect which the school will doubtless wish to consider. Allegations of bullying are not uncommon in any school environment and there was not reason to suppose that SCHOOL C was any less vigilant in respect of such allegations than any other school particularly where children in the DAS might be concerned.

 

• 3(1)(f)(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school, and

 

As explained above, the Tribunal concluded that the education authority could make provision for the additional support needs of the child in either SCHOOL C or SCHOOL A.  Paragraph 3(1)(f)(iii) requires the Tribunal to balance the respective suitability and respective costs of the nominated school, SCHOOL A and the schools proposed by the education authority, SCHOOL C.

 

Respective costs:

 

We have set out the respective costs in the findings in fact above. These were not the subject of any dispute. The figures may not be entirely accurate in respect of the SCHOOL C costs in particular but the disparity in costs to the authority was very marked amounting to at least  £60,000 additional costs for SCHOOL A.

 

In the case of Anon as legal guardian to Anon v A Decision by the Additional Support Needs Tribunal on 12 August 2006 to uphold the refusal of a placing request for Anon at School  [2006] CSOH 201 it was held that “cost” in paragraph 3(1)(f)(iii) of Schedule 2 to the 2004 Act referred to cost to the education authority rather than to the public purse generally and if a child was placed in a state school under the authority’s management, the cost to the local authority of making that provision would be measured only in terms of what further expenditure was necessary to enable it to meet the child’s needs.  Using this definition of cost, it was at least arguable that no additional costs would be incurred in placing the child at SCHOOL C except the cost of providing the learning assistant. It was noted that a residential placement at SCHOOL A would also provide after school care which had not been taken into account in relation to The Child attending SCHOOL C but we resolved that the cost for such provision could properly be taken into account.

 

The cost of placement at SCHOOL A is indubitably significantly greater than the cost of placement at SCHOOL C and this was not subject to dispute.

 

Respective suitability:

 

The Tribunal was satisfied on the evidence before it that SCHOOL A could make provision for the child’s additional support needs and that it would be a suitable placement for him.  It is noted however that the school does not, in its Student Handbook at A69 claim any accreditation by the National Autistic Society or indicate specifically that it specialises in education for children with autism.  The profile appears more consistent with children who experience social emotional and behavioural difficulties but the evidence was that many children with ASD do attend the school and the individualised approach would be equally suitable for such children. Additionally Witness D expresses “huge reservations” about The Child attending a residential school as she felt that The Child needed the emotional security of contact with his mother or father every evening and that this could not be underestimated in terms of his emotional well-being. She also expressed concerns that SCHOOL A was not linked to any mainstream school to permit a wider education community and in additional she felt that The Child’s inclination to copy inappropriate behaviour might not be well served by his attending SCHOOL A as there may be shortage of positive role models.

 

The environment of SCHOOL A is calm and tranquil.  A range of therapies are available and are used depending on the needs of each child.  The holistic approach of SCHOOL A is likely to assist the child to benefit from school education but the school does not offer the child the same opportunities for access to mainstream education and integration. 

 

The appellant introduced some evidence to indicate that SCHOOL C had a history in not consistently meeting the needs of children with additional support needs.   The appellant believes that the provision at SCHOOL C is not adequate and she does not want her son to go there partly in view of these concerns. 

 

The Tribunal was satisfied that SCHOOL C was capable of delivering the type of educational provision that will be most suitable to meet The Child’s additional support needs in future. 

 

In considering respective suitability the Tribunal did not place weight on the appellant’s account of the child’s response to a visit to SCHOOL C contrasted with his response when she took him to SCHOOL A.  The Tribunal accepts that the child may respond positively to the tranquil nature of the surroundings of SCHOOL A and the novelty of a residential school.  Equally it is evident that The Child has enjoyed his visits to SCHOOL C and he is aware that peers with whom he identifies will attend mainstream classes there which he is likely to access. With regard to The Child’s own views, we considered that the indications were that these were equivocal in that The Child is understandably influenced by the views of the pupils with whom he is in direct contact and by his positive reactions to visits to both schools. The Tribunal’s attempt to obtain The Child’s views through an advocacy worker were, to some extent, unsatisfactory as the reasons for The Child’s preference were not explored. (T92 – T93).

 

The Tribunal concluded SCHOOL C was as suitable to meet the child’s needs as SCHOOL A.

 

Conclusion:

 

Paragraph 3(1)(f)(iii) requires the Tribunal to have regard to the respective suitability and respective costs of the schools in order to determine if the authority are correct in their contention that it is “not reasonable” to place the child in SCHOOL A.  For the reasons outlined above the Tribunal concluded it is not reasonable to place the child in SCHOOL A as the provision at SCHOOL C is as suitable for the child as placement at SCHOOL A and the cost of placement at SCHOOL C is considerably less than the cost of placement at SCHOOL A.  The Tribunal is also satisfied that the provision at SCHOOL C would be more suitable to meet the child’s additional support needs than the provision at SCHOOL A and having balanced this with the fact that placement at SCHOOL A would cost considerably more than placement at SCHOOL C, consider that the specified school is the appropriate school.

 

• 3(1)(f)(iv) the authority have offered to place the child in the school referred to in paragraph (ii)

 

The child has a place at SCHOOL C.  He was offered a place at SCHOOL C and has attended on transitional visits. 

 

 

Having concluded that the grounds for refusal in paragraph 3(1)(f) of Schedule 2 to the 2004 Act apply in relation to SCHOOL A, the Tribunal went on to consider the second part of the two part test in section 19(4A)(a) of the 2004 Act; whether or not it was satisfied that in all the circumstances it is appropriate to confirm the decision of the education authority.

 

In considering this test the Tribunal took into account that section 28(1) of the Education (Scotland) Act 1980 provides that “In the exercise and performance of their powers and duties under this Act … education authorities shall have general regard to the principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents”.  In circumstances where suitable provision for the child’s additional support needs can be made at SCHOOL C and the grounds for refusal in paragraph 3(1)(f) of Schedule 2 to the 2004 Act exist, as outlined above, placement in SCHOOL A in accordance with the wishes of the appellant would involve unreasonable and unnecessary public expenditure.  More generally, the Tribunal was satisfied that in all the circumstances it is appropriate to confirm the decision of the education authority as suitable provision can be made at SCHOOL C.  We have no doubt that The Appellant was considering the best interest of her child and his educational development in making this reference.

 

We consider that The Appellant’ view of SCHOOL C has been unduly (and unfortunately) coloured by her experience during this sensitive transitional period. This contrasted with her response to the very personalised approach of SCHOOL A and this is understandable but these reactions are not necessarily sound indicators of the progress which The Child is likely to make at the respective schools. The Appellant was not confident that The Child would maximise his potential in SCHOOL C and clearly felt she had not been listened to as a parent in view of few opportunities to meet with the relevant teachers at SCHOOL C in the transition period. There is no doubt that The Appellant has given The Child’s education considerable and careful thought. She even commissioned a report from an independent educational psychologist, dated 06/04/2011 which appears at A 64 to A65. This was lodged by the appellant but prefaced by her own note appearing at A63 fairly indicating why she considered the report could not be given undue weight. The independent educational psychologist’s conclusion was that SCHOOL C could meet The Child’s needs and this further supports the Tribunal’s decision but has not been relied upon in reaching our own conclusion.

 

Finally, we had difficulty reconciling the residential element in the placement sought. There was no strong educational argument put forward specifically in relation to The Child’s educational needs. The witness from SCHOOL A was responsible for the care aspects of the school and was reluctant to give evidence on the educational advantages. The appellant expressed concern about the lack of convenient after school provision and while we accept that this can be important for working parents it is not a factor which we are bound to take into account. We also accepted Witness D evidence that there could be adverse emotional effects of a residential placement on the child. It appeared that The Child was perhaps just too far from the school to permit daily travel of 40 miles each way but the appellant did not seek a day placement option. Even if this residential element were discounted the decision of the Tribunal would remain the same since the costs would still greatly exceed the costs of the SCHOOL C provision.

 

The Tribunal is satisfied that the ground of refusal specified in paragraph 3(1)(f) of Schedule 2 of the 2004 Act exists in relation to SCHOOL C and that in all the circumstances it is appropriate to confirm the decision of the respondents to refuse the placing request.  In making this decision we were reassured by the respondent’s undertaking that The Child’s progress at SCHOOL C would be closely monitored to ensure that he was continuing to benefit from education in that environment and that if difficulties were encountered then other options could then be considered. We are conscious that not all children, especially those with additional support needs, make a successful transition from primary school to secondary provision smoothly and that considerable effort may be required to achieve optimal outcomes. We cannot predict with certainty how The Child will respond to attending SCHOOL C but we are satisfied that the weight of the evidence supports the respondent’s decision.

 

In reaching this decision we were greatly assisted by the evidence of all the parties and witnesses and we are grateful to The Appellant and to Witness A for the constructive way in which the hearing was conducted.