DECISION OF THE TRIBUNAL

 

 

Reference:                              D_11_2010

 

Gender:                                   Female

 

Aged:                                       12

 

Type of Reference:                 Placing Request

 

 

1. Reference

The Appellant has referred to a Tribunal a decision of the Respondent (“the education authority) refusing a placing request made in respect of her child. The reference is under section 18 (3) (e) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

 

2. Decision of the Tribunal

 

The Tribunal Overturns the decision of the authority; Requires the authority to place the child in the Specified School; and Requires the authority to amend the child’s co-ordinated support plan so as to specify the Specified School, as the nominated school and to specify that the placement will be residential, all in terms of section 19(5)(b) of the Act.

 

3. Preliminary Matters

 

At the start of the hearing I explained the procedure which the Tribunal proposed to adopt and in particular that the authority would be invited to present its case first.

 

The Tribunal agreed to hear oral evidence from additional witnesses, namely the Family Officer of the National Deaf Children’s Society, for the authority, and the Clinical Psychologist, for the authority.  Later, in the course of the hearing, the authority’s representative told the Tribunal that he did not propose to lead the Clinical Psychologist as a witness.

 

4. Summary of Evidence

 

The Tribunal had before it a substantial bundle of evidence containing case statements for both parties and supporting documents.

 

At the start of the hearing the Tribunal allowed further documents to be lodged late.  These were T 103-113, inclusive, for the Appellant, and RL 98-104 inclusive, for the authority.  Later, in the course of the hearing, the Tribunal allowed parties to lodge further documents, AL 142-144, inclusive, for the Appellant, and RL 105-108 inclusive, for the authority.

 

 

The Tribunal heard oral evidence.  Witnesses for the authority were the Principal Teacher, Hearing Impaired Pupils, and the Depute Head Teacher, the Nominated School.  Witnesses for The Appellant were the Social Worker, Association for the Deaf; the Family Officer, National Deaf Children's Society; and the Education Audiologist, the Specified School.

 

The Tribunal offered the Appellant the opportunity of making a statement to the Tribunal on behalf of herself and her husband, which she did at the conclusion of the evidence.  The Tribunal was asked to see the child and agreed to do so.  She was asked questions by one member of the Tribunal and gave answers through a signing interpreter.

 

5. Findings in Fact

 

1. The child was born on in 1998.  She lives with her parents and three siblings.  She has a twin sister and two brothers.

 

2. The child is a cheerful, pleasant and sociable 12 year old who has consistently shown great strength of character in dealing with her numerous difficulties.

 

3. The child has additional support needs within the meaning of the Act.  The factors giving rise to her additional support needs include profound deafness; oral or language dyspraxia; and learning difficulties.  In addition, the child has suffered and continues to have numerous medical difficulties, including VACTERL association abnormalities.

 

4. The child had a cochlear implant when she was about 4 years old.  She wears a processor throughout the day. In school, she has the benefit of a radio aid (an “FM”) to give her clearer access to her teachers’ speech. She has undergone numerous surgical interventions, including cardiac surgery, for VACTERL association abnormalities. She has only one kidney and may require further cardiac surgery.  She requires daily medication and supplementary feeding, by means of a jejunostomy tube.

 

5. The child has very restricted language skills. Her ability to reproduce sounds is very limited, at least partly as a consequence of her profound deafness and verbal dyspraxia.  In practical terms, she is virtually without intelligible speech. She can recognise sounds by means of her processor but cannot discriminate words by audition alone. The child is keen to communicate and happiest with others who sign. British Sign Language (BSL) is, and will continue to be, the best linguistic means of communication between the child and others.

 

6. The child finds it difficult to recall and process information.  As a result of her learning difficulties, the child’s signing skills are limited and much delayed for her age.  Assessments suggest that her non-verbal reasoning skills are below average.

 

7. The child’s paramount educational need, for the development of her personality, talents and abilities, is to learn a language.  For her, that language is BSL.  She needs to be placed in a learning environment that is conducive to learning that language in particular.

 

8. The child’s other additional support needs include the need to make good relationships with other children for whom signing is the preferred or only mode of communication.   She needs support to minimise the social isolation to which she is likely to be exposed.  She requires a curriculum that can be delivered mainly by means of sign rather than spoken language.  She needs appropriate communication support throughout the school day.  She needs access to appropriate technology and ongoing speech and language therapy and support.

 

9. The authority is responsible for the child’s school education.

 

10. A co-ordinated support plan for the child was prepared and has not been discontinued.  Her latest amended plan was made on 16 June 2010 (A 29-33).

 

11. By letter dated 8 March 2101, the child’s parents made a request to the authority to place their daughter the child at the Specified School  (T 37-38).  It was indicated that the placement would be residential (5 days and 4 nights during term-time).

 

12. The authority informed the parents that the placing request had been refused in a letter to the parents dated 18 May 2010 (T 25-26).

 

13. The child is a pupil in S1 at the Nominated School.  Until this school year, she attended her Primary School, the authority’s supported primary school for hearing-impaired children.

 

14. The Nominated School is located in a modern building and had a major redevelopment in 2009.  It is attended by a number of hearing impaired children, including four or five in S1.  The provision for such children was upgraded in the course of 2009. 

 

15. Staff provided by the authority specifically for the education of hearing impaired children, currently consists of a principal teacher, three teachers of the deaf (“ToDs”), two special learning assistants (“SLAs”) and two communication support workers (“CSWs”).  There is also a retired audiologist who assists part-time as an SLA at the Nominated School. 

 

16. The Nominated School has one full-time ToD, who will complete her training next year and will then be qualified in BSL level 1.  This teacher will have to complete a further course to qualify in BSL2.  BSL 2 is regarded as the minimum competence in sign language for a ToD. Another ToD, with a BSL 2 qualification, comes in for three 50 minute session to work one-to-one with the child to work on her BSL, speech and listening skills.  Apart from the retired audiologist, the school has two SLAs, one of whom has BSL 2, the other BSL 1. .  There is one CSW, who has BSL 2, who also works in a primary school, and there is a prospect that another CSW may be recruited, although that may in part depend on whether the child remains a pupil at the Nominated School.  Speech and language therapists visit the school.

 

17. The provision for hearing impaired children at the Nominated School includes comprehensive loop and sound field systems more or less throughout the school, radio aids or “FM” systems, and a multi-talker network.

 

18. Within the Nominated School hearing impaired children have the use of a unit known as “the hub”, part of the premises within the school dedicated to additional support for learning.  Hearing impaired children keep equipment and can access staff there; they are there for part of their time-table and can spend free time there both with other hearing impaired children and others who are not.  

 

19. The Nominated School facilitates contact between hearing impaired pupils and hearing impaired role models in the community.  All members of staff have had deaf awareness training.

 

20. The child’s time-table (R 70), which is subject to ongoing adjustment, is such that she spends about half her time in mainstream classes and the other half either in one-to-one sessions or in small groups of children having similar additional support needs to hers.   The child has an individual learning plan (RL 105-110).  She needs a CSW at all times for mainstream classes and activities.

 

21. Since starting at the Nominated School in August 2010, the child has appeared to the school to have made progress, showing herself to be more mature, responsible and independent and to have formed good relationships with staff and pupils.

 

22. Of all the hearing impaired children in the Nominated School none has as little speech as the child.

 

23. The authority is able to make provision for the child’s additional support needs at the Nominated School.

 

24. The Specified School is not a public school, but is a special school the managers of which are willing to admit the child.

 

25. The Specified School, is for pupils aged 2 ½ to 19 years who are deaf or have severe speech and language difficulties.  The Specified School is a purpose built school, opened in 2008. It promotes the Curriculum for Excellence.  Each pupil has an individual education programme and a communication profile. 

 

26. The staff includes an educational psychologist, an educational audiologist, teachers of the deaf, speech and language therapists, a visual specialist, an occupational therapist, a physiotherapist, subject teachers, classroom assistants and residential care staff. About 14 members of staff are profoundly deaf BSL users.

 

27. The Specified School offers a bilingual environment that can be adapted as required to the needs both of children with speech and those for whom sign language is the principal or only means of communication. It has a Deaf Studies Department, dedicated to teaching of BSL.

 

28. The Specified School has working links with other schools and the community. 

 

29. If she went to the Specified School, The child would be in a group of about 20 in S1 and S2, some with speech, others having BSL as their main means of communication.  The school as a whole has about 65 pupils, some 50 of them in the secondary school.  Three or four staff have BSL3.  The teaching staff must have or be training for BSL2 as a minimum.

 

30. The child would be resident at the Specified School for four nights per week.  About 20 pupils are resident, including two girls in S1/S2.

 

31. The provision for the child’s additional support needs at the Specified School is appreciably more suitable for her than the provision therefor at the Nominated School.

 

32. The annual cost of a place for the child at the Specified School would comprise fees of £25,801 and residence charges of £16,377, a total of £42,178.

 

33. There is a limited number of well qualified people in the field of education for hearing impaired children in Scotland, which makes recruitment of staff with good BSL a difficult exercise both for the Specified School and local authorities. 

 

34.  The child has visited the Specified School and is positive about moving there from the Nominated School.

 

 

6. Reasons for decision

 

1. Schedule 2 to the Act deals with placing requests. [1]

 

2. The authority’s position was that each of the conditions specified in paragraph 3(1)(f) applied.

 

3. The condition in paragraph 3(f)(i) clearly applied.  The Specified School is not a public school.  And the condition in paragraph 3(f)(iv) clearly applied.  The child has a place in the Nominated School.

 

4. In relation to paragraph 3(f)(ii), The Appellant’s representative submitted that the authority had not shown that they were able to make provision for the child’s additional support needs.  It was soon apparent, though, that neither she nor the child’s parents were questioning the ability of the Nominated School to make provision for deaf pupils in general (which it was accepted was exceptional).  Where they took issue with the authority was in relation to the suitability of the provision there for the child’s particular and, it was submitted, exceptional needs. 

 

5. Tribunal noted that paragraph 3(f)(ii) speaks simply of the authority being “able” to make provision for the additional support needs of the child in a school, in this case the Nominated School.  The paragraph does not contain any reference to the suitability of the provision made, which becomes a consideration only when one turns to paragraph 3(iii). 

 

6. The Tribunal had therefore no difficulty in holding that the authority is able to make provision for hearing impaired children in general.  Indeed, the Tribunal was impressed by the work that the authority has put in and continues to put in to make such provision.  The child appeared to have benefited, as she has made progress, showing herself to be more mature, responsible and independent and having formed good relationships with staff and pupils.  In this regard, the Tribunal had the benefit of careful evidence from the authority’s principal teacher of the deaf and the assistant head teacher with responsibility for additional support for learning.

 

7. On the evidence, therefore, the Tribunal found that the authority was able to make provision for the child’s additional support needs in the Nominated School.

 

8. As the conditions in each of paragraphs 3(f)(i), (ii) and (iv) applied, the Tribunal required to consider whether the condition in paragraph 3(f)(iii) applied.  It had to have regard to the respective suitability of the provision for the additional support needs of the child in the two schools, and also to the respective cost thereof, in reaching a view on whether it was, as the authority maintained, not reasonable to place the child in the Specified School.

 

9. The Tribunal sought to establish what the child’s additional support needs were before considering the respective suitability of the provision therefor in the two schools. [2]

 

10. The Tribunal’s findings on this matter are set forth in findings in fact 7 and 8.  These findings are based largely on the evidence of three witnesses for the Appellant.   Each of them approached the matter from a different angle but they were unanimous in their views.  Each of them has considerable experience of working with hearing impaired children.  The Audiologist, in particular, a very experienced educational audiologist and teacher, appeared to the Tribunal to speak with authority.

 

11. In the Tribunal’s judgement, the provision for the child’s additional support needs in the Specified School is appreciably more suitable, for her, than the provision in the Nominated School.

 

12. The Tribunal accepted that the child was an exceptional child in that she alone of the deaf children in the Nominated School was virtually without speech.  The prospects of her now becoming oral, to the extent that as a result she could benefit significantly from the curriculum, seemed to the Tribunal to be remote. The Specified School offered an environment where she would have a much better chance (quite possibly her only chance) of learning a language, in her case BSL.  She would have the benefit there of being immersed, as it were, in a signing environment.  She would have a peer group to whom she could relate and a better chance of making progress in learning.  She would have more teachers with BSL2 and above.

 

13. The Tribunal appreciated that there was a chance that even at the Specified School the child might not develop sufficient language skills to benefit significantly from the curriculum.  Her verbal dyspraxia and difficulty in processing information could continue to make it difficult for her to develop language skills. The Audiologist has experience of similar problems in other children and thought the child might have a problem with visual memory. He pointed out the the Specified School had a visual specialist.  In this regard, too, it seemed to the Tribunal that the child’s chances were appreciably better at the Specified School than at the Nominated School.  But even if it turned out that her learning difficulties, or other factors, effectively prevented her for making progress in learning BSL, it would be possible for her to return to the Nominated School.  The deaf community in Scotland is not large.  It was evident that there are good relations and ongoing contacts between mainstream schools, like those in the Education Authority’s area, and the Specified School and bodies such as the National Deaf Children’s Society.  There was evidence that these contacts were an aid to monitoring and managing the progress of individual pupils such as the child.

 

14. A factor in the authority’s decision to refuse the placing request was what they refer to as “the presumption of mainstreaming” set out in section 15 of the Standards in Scotland’s Schools etc. Act 2000.  Of course, section 15 relates to the duty of education authorities to provide school education and as such is not strictly relevant to the matters a Tribunal has to consider in relation to paragraph 3(f)(iii).  The Tribunal did, however, consider the advantages and disadvantages of “mainstreaming” in the child’s exceptional case.  The Tribunal heard evidence about her time-table and how she spent her day in school.  It appeared to the Tribunal that the child was not likely to benefit as much from mainstreaming as one would wish, particularly as she got older, because of her deafness and difficulties with communication.  The evidence of the Family Officer, in particular, pointed to the fact that the child’s best chance of “inclusion” is to be included in the deaf community, with signing as her principal means of communication.  She would have more of a peer group at the Specified School than in mainstream.  It seemed that as a non-oral deaf person her future was more likely to be primarily within the deaf community. 

 

15. The authority’s representative also maintained that in the Nominated School, as in her primary school, the child would benefit from a “total communication strategy”, i.e. one that involved a mix of signing and English language and other modes of communication.  The Audiologist pointed out that the Specified School attached primary importance to the individual needs of each child. Some pupils there have BSL as their entry to learning; others have speech and use English in their learning.  It appeared to the Tribunal that it was not a matter of choosing between a “total communication strategy” and something else.  Rather, it was a matter of comparing the provision generally in the two schools to see which was likely to give the child in particular the better chance of reaching her fullest potential.

 

16. Some reference was made to the fact that the child would be away from home several night a week during term time.  The Tribunal noted that the child had already become familiar with aspects of the routine at the Specified School and that she had reacted positively.  The Tribunal was entirely satisfied that the child’s parents would continue to be fully supportive of the child, wherever she was, and would be alive to, and cope with, any problems that might arise from her being away during the week.

 

17. For the foregoing reasons, the Tribunal considered that there was an appreciably better prospect of the child’s additional support needs, as identified by the Tribunal, being met at the Specified School than at the Nominated School.

 

18. The "cost" referred to in paragraph 3(1)(f)(iii) of Schedule 2 to the 2004 Act is the cost to the education authority rather than to the public purse generally. 

 

19. If the child is placed in the Specified School, a fee paying school, the school fees (and other necessary incidental expenses) to be paid by the education authority will be the measure of the cost to the education authority of making that provision; whereas if the child is placed in the Nominated School, the cost to the local authority of making that provision will be measured in terms of what further expenditure is necessary to enable it to meet the child’s needs.

 

20. There was some suggestion that if the child went to the Specified School it would be less likely that the authority would appoint another CSW.  The authority did not accept that this was so, and it was not possible for the Tribunal to make any finding on that matter.  There was therefore no satisfactory evidence of additional costs to the authority in respect of the child in the Nominated School.  The cost to the authority if she went to the Specified School is as set out in finding 32.

 

21. The Tribunal had then to consider whether it was shown to be “not reasonable” to place the child in the Specified School.

 

22. A comparison of the respective suitability of the provision for the child’s additional support needs in the two schools was appreciably in favour of the Specified School.   A comparison of the respective costs thereof was appreciably in favour of the Nominated School.

 

23. The authority’s representative referred to the Code of Practice under the Act, where it is stated, in relation to the duties of education authorities under the Act, that “expenditure may be unreasonable where the cost incurred would be completely out of scale with the benefits to the child or young person or where suitable alternative provision is available at a significantly lower cost.”  He could have gone on the refer to a further passage in the same paragraph (chapter 3, paragraph 70), where it is emphasised that “Cost should not be the primary consideration in determining what provision is to be made.”

 

24. The Tribunal was satisfied that the child’s best chance of having her paramount educational need met was in the Specified School.  It seemed that the probability of that paramount need being met in the Nominated School was remote, and significantly less than the probability of it being met in the Specified School.  In the Tribunal’s view, the provision for all of the child’s additional support needs at the Specified School was appreciably more suitable for her, as an individual, than the provision therefor at the Nominated School.

.

25. The Tribunal therefore concluded that the development of the child’s personality, talents and abilities, to their fullest potential, was much more likely at the Specified School than at the Nominated School.  Accordingly, it did not seem unreasonable (or did not seem “not reasonable”) to place the child there, notwithstanding the considerable cost that the authority would have to meet.  In the Tribunal’s judgement, the condition set forth in paragraph 3(f)(iii) did not apply.  It follows that the authority must now give effect to the Appellant’s placing request.

 

26. The Tribunal would like to express its thanks to the representatives of both parties for their assistance.