ASNTS_D_08_2010_13.09.10

 

 

DECISION OF THE TRIBUNAL

 

Reference:                              D_08_2010

 

Gender:                                   Female

 

Aged:                                       17

 

Type of Reference:                 Placing Request                                 

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1. Reference

 

The reference received on 16/04/2010 is brought by the appellant for her daughter, in terms of Section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”) on the basis of a refusal of a placing request for the specified school, in respect of the school year 2010 to 2011.

 

2. Decision of the Tribunal

 

1. The appeal is allowed in terms of the Tribunal’s powers under Section 19(5)(b)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”) in that the respondents are required to place the young person in the school specified in the placing request to which the decision relates.

 

2. The respondents have discharged the onus of establishing that the grounds of refusing the placing request come within the circumstances of paragraph 3 (1) (b) of Schedule 2 of the 2004 Act.
3. The circumstances also relied upon by the respondents in Paragraphs 3(1) (c) and 3 (1) (d) of Schedule 2 of the 2004 Act are not established.
4. Notwithstanding the above, in terms of Section 19(5)(a)(ii), in all the circumstances, it is appropriate to grant the placing request with effect from 20/09/2010 for the period to October 2010.  The former date is the date from which independent funding of the current placement at the specified school will have ceased. The latter date is the date when the relevant person ceases to be a “young person” in terms of the Tribunal’s jurisdiction under the 2004 Act.

 

Note appended to summary decision:

 

­­­­­­­­­­­­­­­­­­­­­­This decision is issued pending the issue of a full statement compliant with Paragraph 14(1)(b) of Schedule 1 of the Education (Additional Support for Learning) (Scotland) Act 2004 which it is hoped will be issued within 10 working days.

 

In view of the timescales applying to this reference, it is just to notify parties in this summary decision form that the reasoning relied upon by the Tribunal in relation to the applicability of section 19(5)(a)(ii), “in all the circumstances”, is based solely upon the need to have regard to the arrangements to be made for the young person’s transition into an appropriate destination or destinations and is heavily influenced by the fact of the young person’s current placement at the school. It is appreciated that the transition period available is now very short but this is due to factors which are outside the Tribunal’s control.

 

The expectation of the Tribunal is that parties will now endeavour to meet this exacting timescale having regard to the need to manage the young person’s post school destination. If this includes any element of a continuing placement at the specified School it is acknowledged that this will be a provision made by Adult Services of the respondent’s Social Work Department and not as a result of the application of the 2004 Act.

 

3. Preliminary Issues

 

Reference is made to the decision of the Convener on the Preliminary issue of competence appearing at T46 to T59 of the bundle.

 

There was a subsequent conference call with parties on 8 September to ensure that the hearing on the merits arranged for 13 and 14 September proceeded as planned. During the course of the call the appellant’s representative advised that the young person had returned to the specified school on the basis that the school was itself bearing the cost of the young person’s attendance until 17 September. The convener indicated that in the circumstances she would endeavour to issue at least a summary decision by that date and this undertaking was complied with.

 

At the outset of the hearing the appellant’s representative produced a copy of a summary application made by the Appellant against the Education Authority to the sheriff court in terms of sections 21B and 21 F of the Disability Discrimination Act 1995 (as amended) including a crave to ordain the respondents to make payment of the fees in respect of the specified school until the end of the academic year 2010/2011.  She advised that this application was to be heard on the afternoon of the following day. The respondents were unaware of the application and it was copied and handed to them for their information by the case officer.

 

 

4. Summary of Evidence:

 

The Tribunal had regard to the bundle of papers T1 – 65, R1 – 76 and A1 – 79 together with the views of the young person taken by an advocacy worker which appear at T60 –T65. In addition the Tribunal heard oral evidence from the 5 witnesses and from the Appellant over the two day hearing.

 

5. Findings in Fact:

 

1. The young person, was born in October 1992. She will therefore attain the age of 18 years in October 2010 and cease to come within the definition of “young person” as laid down by Section 29(2) of the Act.
2. The young person lives with her mother, the Appellant, who is the young person’s sole carer. There are no siblings and no extended family support.
3. The young person has attended an independent special school, the specified School, as a day pupil in terms of Joint Minute as the result of a Sheriff Court appeal entered into in January 2009. The respondents have paid the school fees up until the end of the summer term 2010.
4. The specified School has, by letter dated 20 April 2010, made an offer of a place for the young person for a further year for the school year August 2010 to June 2011. The young person’s parent wishes to accept this offer.
5. The school is situated 13 miles from her home. Her mother takes her to and from school. The Appellant’s working hours fit in with this arrangement but the young person sleeps overnight at the school one day each week.
6. The young person has been happy at the school. It was suited to her additional support needs for her final school years 12 and 13.
7. There are 6 persons in the young person’s class all now aged 18 or 19 who have high level support needs. The two pupils she related most closely to have now left the school and gone on to other destinations. She has no peer group within the class with whom she identifies and she relates most closely to the teaching assistants who are very close in age usually around 18 or 19 years. The class she is in is a composite class and in the year 2009 to 2010 contained pupils in their 11th and 12th school years (on the specified School reckoning) equating to 12^th and 13^th school years as applied in the authority.
8. The specified School’s reckoning of school years may take a pupil into a 14^th year at school if they transfer from the state system into their school. In the past authorities have normally been prepared to accede to the cost of a further year’s education.
9. The young person’s developmental level is around 7 years. The factors giving rise to her needs and how these needs are met are set out in her co-ordinated support plan. The young person has moderate learning difficulties bordering on severe learning difficulties. She has a history of seizure disorder, although she has not recently suffered fits. She is diagnosed as having attention deficit hyperactivity disorder and features of an autistic spectrum disorder.
10. The young person’s understanding of language is such that she was able to engage in planning for her future using a person centred planning tool. She has basic reading and writing skills consistent with her developmental age.
11. It is difficult for the young person to express herself and understand the meaning of what others are saying to her. She has limited understanding of other people’s feelings and lacks the skills needed to solve problems with which she is confronted. Her self care skills are limited and require monitoring.
12. The young person is very close to her mother. She has found it particularly difficult to form or maintain any kind of relationship with persons of her own age and she bonds more readily to adults.
13. The young person’s behaviour has, at least in the past before her experience of the specified School, been very challenging and she has difficulty dealing with her emotions. She was excluded from the public special school she previously attended from time to time due to her uncontrolled behaviour. Since attending the specified School her behaviour has improved; she is more able to express herself and she has learned to manage her angry outbursts.
14. Although the young person has benefited from education at the specified School she expressed the clear wish to leave the school at the end of her 13^th year. 
15.  Since 2009 the young person has had a job at an ASDA store nearby. It was originally for four hours on a Sunday but is now for three hours. She stacks shelves and tears up boxes for which she is paid. She attends both school and her job regularly.
16. The specified School had undertaken to arrange a placement in their Kindergarten but the only space available was when there were no young children there and she was involved in cleaning duties. An attempted placement at Shelter broke down after a day and was not pursued as the young person did not want to go back. Her wishes were respected.
17. Pending this appeal the school has paid for the young person’s attendance up to and including 17 September.
18. The young person has already completed her thirteenth year in full time education. Some of her previous schooling was subject to interruption. She has now embarked on a fourteenth year. Had she remained at her special public school she would have left school in June 2010.
19. Planning for any post school transition has been delayed owing to changes in the authority to manage post school destinations and the establishment of a small Transitions Team which is not well resourced; The young person’s mother has been very reluctant for any member of the social work team to discuss the young person’s wishes direct with her; the fact that a work placement undertaken by the young person at Shelter was not successful and she left after a day; she has not expressed a preference to work with small animals or young personren but such placements are not readily available for her.
20. Development of any post school transitions subject to the young person and her mother’s co-operation is still ongoing. The young person’s eligibility criteria to access adult services still require to be fully assessed.
21. Meetings in respect of the young person’s transitions planning have however been held at various dates. Minutes of the meeting held on 16/03/2010 disclose that the “meeting agreed that the young person should stay at the specified School until summer 2011.” Letter from the specified School dated 20 April 2010 states that “The Education Department have indicated that they will cease to fund this placement upon the young person’s 18^th birthday.  The respondents’ position was always that education  would cease to fund the young person’s placement at the end of the term, i.e. 2 July 2010.
22. A co-ordinated support plan (CSP) was originally opened for the young person on 29 October 2007 and two subsequent reviews have been the subject of references.   
23. There are two related references lodged in respect of the authority’s failure to timeously review the CSP and the content of the CSP.

 

6. The young person’s Views

 

A recurring theme in this appeal concerned taking the young person’s views. This was considered to be especially important where the reference was for a placing request at a school for a young person aged 17 years and 10 months at the date of the hearing. Understanding the young person through the evidence became an important element in the hearing and in our deliberations.

 

The Appellant had very strong views on the matter and it is appropriate that we deal with this aspect in our decision at the outset.  It was evident from the original bundle that the young person’s views of any continued placement at the specified school were strongly opposed and that it might be futile for the Tribunal to consider a reference where the young person would simply refuse to accept any placement even if funded by the authority.  In order to explore this issue more thoroughly the convener directed that an expert in child advocacy be appointed in order to act as an intermediary to obtain the young person’s views. 

 

Despite the wording of the child Advocacy Expert’s report at T60, it was the convener who made the direction for the young person’s views to be obtained. In addition it is appropriate to observe that no decision was made on whether the advocate should attend the hearing until after the report was received. The advocate has not stated the dates of the meetings in the report but it is clearly stated that “All of these meetings have been in the presence of her mother and a family friend” and all five meetings took place in between a date after 6 August when the referral was made and 9 September which is the date of the report. The dates are important as by this time the young person had recommenced the specified School after the summer holiday period on 10 August.  The Appellant gave evidence that she had gradually withdrawn to the kitchen during the interviews and then eventually closed the door as the young person became more familiar with the advocate but this is not indicated anywhere in the report which states “All of these meetings have been in the presence of her mother and a family friend.”. We consider that the written evidence of the advocate to be more reliable than the Appellant’s description.

 

We fully accept the comments by the child Advocacy Expert at T61 that the young person finds it hard to articulate any reasons for her opinions and the views of the young person will never be absolutely determinative.

 

It is noted that the Appellant took steps to be formally appointed as her daughter’s guardian. The way in which she exercised this appointment did not seem consistent with the principle of “least restrictive intervention” which is recognised as good practice where persons with significant disabilities are now encouraged, where possible, to take their own decisions. The Appellant appears to have used the fact of this appointment to seek to restrict access of others to speak to her daughter. This appears to be a misperception of her position. It was not, in the view of the Tribunal, reasonable for her to object to members of the social work team speaking to the young person about her preferred post school options when they were trying to explore what post school transitions could be considered. It was an inescapable conclusion that the Appellant was unduly concerned to prevent direct access to the young person for fear that the young person expressed views which were not in accordance with her own views and which may result in outcomes which she did not support. Whatever the motivation, it seems to the Tribunal that this was an unreasonable infringement on the young person’s rights to speak her own mind in an uninhibited way and this is a freedom which cannot be compromised simply because her mother has become her guardian. It is not correct to assert that the young person cannot be interviewed by anyone outside her mother’s presence simply by virtue of the power of guardianship. The respondents were correct in submitting that the power was analogous to that of a parent and in many circumstances it is entirely proper for a young person, even where there is a power of guardianship, to be interviewed separately from their parent. In some circumstances this is highly desirable.

 

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.

 

The primary ground was under Paragraph 3(1)(b) of Schedule 2. It was submitted that the evidence of the Educational Psychologist supported the assertion that the education normally provided at the specified school was not now suited to the young person’s age, aptitude or ability.  The evidence of the curriculum followed as indicated in the IEP was such that it was not appropriate for a pupil in their 14^th year at school. The young person was now at the age when she required education suited to acquiring life skills. The curriculum which was being followed by the young person was not one to which she could relate as most was not within her own personal experience.

The second ground was that the authority’s refusal to fund the place was analogous to the provision of “require the young person to discontinue”. It was submitted that the authority had not even been informed of the fact that the young person would be returning to the school at the start of the new term. There had been an assumption that once funding ceased the young person’s attendance at school would “discontinue”.  It was accepted that this had, in fact, not happened.

The third ground relied upon was that the young person does not have additional support needs which require the special facilities normally provided at the school. This was on the basis that the young person’s additional support needs no longer require the sort of support which is offered in a school environment.

 

The respondents also relied on the fact that the young person herself did not wish to return to the school and that they were bound to give due weight to her views given her chronological age and direct experience of the school.

 

8. Submission of Appellant

 

The appellant relied on a number of grounds to argue that the authority had not discharged their onus under the Act. They submitted that since the young person had been attending the specified school as the result of a joint minute entered into in January 2009 it would be perverse to argue that such a school which they had agreed to her attending did not offer education normally suited to the age ability and aptitude of the young person.

It was submitted that the second ground argued was erroneously relied upon as the notes to the predecessor legislation (A72) had indicated that this ground was appropriate , for example where “an authority will not be bound to re-admit a pupil whom they had already excluded from school.”

With regard to the third ground relied upon it was submitted that the argument made in respect of the first ground apply equally because the respondents had previously accepted that the school did meet the young person’s needs and they could not now seek to argue that it did not.  

 

9. Reasons for the Decision:

 

The Tribunal first considered whether the grounds of refusal submitted by the respondents could be sustained in law.

As indicated in the decision recorded above the Tribunal was satisfied that the respondents have discharged the onus of establishing that the grounds of refusing the placing request come within the circumstances of paragraph 3 (1) (b) of Schedule 2 of the 2004 Act in that “the education normally provided at the specified school is not suited to the age, ability or aptitude of the young person.”

In particular the Tribunal had to consider whether, as she approached 18 years, the nature of the school education offered was appropriate or whether she would be better placed in a college or work placement or some other facility where she would develop life skills within the community.

In coming to this view the Tribunal considered the following as supporting the conclusion that a further year at the specified School was not suited to her age, aptitude and ability:

1. The young person had already completed 13 years at school and no basis for arguing that she was or should be entitled to a 14^th year at school was established therefore the school could not be suited to her age when she had already attended school for the normal span of 13 years.
2. Peers in her class had graduated from school in June 2010 and had gone on to other destinations. It was clear that the young person had related more closely to the peer group which had left.
3. She did not relate to any peers within her class whose needs were greater but related to the classroom assistants who were virtually her age.
4. The curriculum proposed for her 14^th year at school was not sufficiently differentiated to deal appropriately with transitions or best meet the need for a differentiated curriculum where this could relate to the young person’s own experiences.

 

The Tribunal heard from the teacher, a co-ordinator and member of the management council from the specified School. He spoke eloquently about the “whole person” ethos of the school and we did not doubt his commitment to the benefits of this approach to education. He almost implored the Tribunal not to deprive the young person of a proper graduation from the school at the end of the school year in 2011. It seemed odd that the school should not have arranged for the young person to graduate in 2010 on the basis that her return to the school was by no means certain.  It was regrettable that the school placed the young person in a class where they made the assumption that the authority would simply pay for a 14^th year of education without any certainty of this in view of the consequent uncertainties for the young person and her mother.

 

The class teacher, whose e-mails appears at A 12 was to attend to give evidence but was substituted by the teacher shortly before the hearing. The teacher knew the young person but had not actually been involved in teaching her and had only passing contact with her. Attempts at any post school experience facilitated by the school seemed relatively perfunctory given her age and existing out of school experience at ASDA, almost wholly consisting of her working on site when there were no children in the nursery. She has also been on outward bound courses. He explained that failure to make time to meet with the Transitions Team during the last two weeks of term was due to pressure of demands during this period. The evidence of the social worker was that they had not experienced such problems in relation to other children and it appeared that the school was less willing to be flexible in order to facilitate post school discussions about the young person. Whilst the teacher was at pains to point out the very positive report from HMIE on the specified School’s post school transitions planning, this did not appear very evident in relation to the young person.  This is surprising as he indicated that the specified School was aware that her school funding would end in June 2010 and said “we knew there may be difficulties about class 12” and contrasted the respondent’s attitudes to a further year in schooling compared to other authorities. He was well aware that the Education Authority had recently stopped paying for the additional year 12 at the specified School.  He did say that they had prepared the young person for the fact that she might have to leave after a few weeks in year 12. The teacher had not attended any of the meetings at the school to discuss planning for the young person but he agreed that it was important not to be so unrealistic about post school transitions that the person was bound to fail.  He also agreed that it was not right to try and keep a young person in the school environment beyond an appropriate age. He was aware that the young person had indicated she wanted to leave the specified School but was not clear why this was her preference but said that she might find school difficult as it was challenging. The teacher indicated that he could not really comment in any detail about how appropriate the curriculum indicated in the IEP was for the young person. He accepted that much of it was based on classical education. He said the use of phonics which the Educational Psychologist had indicated was inappropriate for the person of the young person’s age was based on advice from Speech and Language Therapy.

He agreed that the communication between the Appellant and The class teacher  (A 12 – 14) was inappropriate but that it had been a private e-mail.

 

The Tribunal did not consider that the other two grounds relied upon in Paragraphs 3(1) (c), “the authority have already required the young person to discontinue  attendance at the school”  and 3 (1) (d), “the young person does not have additional support needs requiring the education or special facilities normally provided at that school”  are established. Paragraph 3 (1)(c) did not seem in the least applicable as any parent may have sought to fund the placement through private funding or other means and the authority did not have the power to insist on discontinuance at an independent special school. We considered that the argument put forward by the appellant on this point was wholly applicable.

 

Having regard to the third ground, although it appears as the obverse of Paragraph 3(1)(b) it relates to the facilities of the school rather than the needs of the young person and we could not be persuaded that this ground was strongly argued in support of any exception.

 

Therefore in addressing the exceptions to the general presumption that a placing request should be granted, we are satisfied that the respondents could rely on exception in paragraph 3(1)(b) in refusing to place the young person, in the specified school for a further year on the basis of our findings and the respondents’ arguments on this aspect which it is not necessary to repeat.

 

However the Tribunal is bound to apply a two part test and the second part relates to the additional provision in terms of Section 19(5)(a)(ii), “in all the circumstances,” and applying this additional test, on balance, it is appropriate to grant the placing request for the limited period remaining within the Tribunal’s jurisdiction namely with effect from 20/09/2010 for the period to October 2010.  The former date is the date from which independent funding of the current placement at the specified school will have ceased. The latter date is the date when the relevant person ceases to be a “young person” in terms of the Tribunal’s jurisdiction under the 2004 Act and it would therefore be incompetent for the Tribunal to purport to make a decision with an applicability which extends beyond the period for which we have jurisdiction.  This does not necessarily mean that the authority, if they were so minded, could continue to fund the place at the specified school beyond the period indicated but the basis of our decision in relying on this provision is to ensure that the short period available is used for putting in place an appropriate transitions plan.

 

In view of the history in this appeal it is appropriate for the Tribunal to make some observations on the authority’s responsibilities in this regard. A transition plan should not be a plan imposed on a young person without discussion with the young person and their parent but where the parent is not minded to engage in a discussion of this process and where the young person cannot be spoken to outwith the presence of the parent, it may not always be possible for the respondents to engage in meaningful transitions planning. The views of the parent and the young person may be such that they are not willing to accept any of the options available. That is a matter for them. For instance, in this case it was suggested that the young person’s desire to work with small animals or young children may be difficult to achieve due to health and safety considerations. All the authority can be expected to do is make the young person aware of the possibilities, facilitate assessments and visits and provide guidance and assistance where this is sought. It may be that the ideal facility sought by the parent and young person is simply not available but every authority and every user ultimately has to make choices based on the possible options and not insist that one which is not achievable will be the only one accepted.

 

When the Tribunal addressed the grounds set out in Section 19, whether in all the circumstances the placing request should be granted there were further relevant factors to be taken into account. In addressing this ground it was impossible for the Tribunal not to give due consideration to three important factors.

 

The first was the fact that the young person had attended the specified school on the basis of a previous placing request which had gone to an Education Appeal Committee and then onto the Sheriff Court on appeal which had settled by way of joint minute contained at A of the bundle.  The young person had therefore been placed at the specified school by the respondents. We accepted, in evidence, that it was their expectation that the young person would leave the school in the summer of 2010 when she had completed 13 school years. The Joint Minute was silent on any end date of the placement. The fact that the specified school placed her in Year 10 according to their assignment of school years meant that from the outset they anticipated that she would complete two and a half years in the school from January 2009. From at least November 2009 they were aware that the respondents anticipated that funding through education would cease in the summer of 2010. There was some discussion as to whether this funding would then be picked up by the Social Work Department to enable her to continue but this was never resolved. As indicated in our findings it was clear that Social Work might have considered this option but were not able to complete their own assessment to permit them to make any recommendation to the relevant committee. Whatever the initial expectation of the Appellant she was very well aware that the authority did not intend the funding from education to continue and that the area of transitions ought to be considered. She was clearly highly resistant to this approach.

 

The second relevant issue is the fact that the specified school, had, for whatever reason, seen fit to bear the cost of the young person’s continuing attendance at the specified school from 10 August to 8 October. The Tribunal was unaware of the term dates for the young person’s school and had assumed that these would follow the public school dates. The hearing arranged for 17 and 18 August was to coincide with the start of the new school term but, in fact, the specified School’s term had commenced on 10 August. The Tribunal endeavoured to arrange an early date for the hearing to accommodate the representative of the appellant who had been ill at the time of the original hearing and had only been able to return to work from 13 September.  Whatever the circumstances, the young person remained in the specified school.  We did invite parties to address the Tribunal on whether it would be competent for the Tribunal to make a decision which could compel the authority to pay the fees for the specified school from a date which pre-dated the decision on the placing request. It was agreed that this was, so far as we were aware, uncharted territory.  The preliminary decision held that it was competent to make a placing request in respect of a school where the pupil was already attending in respect of a further term or school year.

 

If the Tribunal accepted the argument   (and in fairness this was not comprehensively addressed by either party) that a placing request could be retrospective then it would mean that any parent wishing their young person so placed could place their young person in the specified school and then hope that this fact alone would strengthen their argument that the young person should remain in view of the undesirable interruption of school education and the difficulty finding any alternative placement.  It would be a fait accompli, or in modern parlance, a “done deal”.

 

The decision reached by the Tribunal indicates that no party could possibly seek payment of school fees for any period before the date of the Tribunal decision regardless of the circumstances of any delay in the hearing or any other factors. We were told, and accepted, since it was not disputed, that the school would cease to pay the young person’s fees from Friday 17 September. This is entirely a matter for them. The date is obviously not co-incidental and we considered carefully whether the circumstances had been contrived to deliberately place the Tribunal under pressure to accede to the placing request. It was significant that the Appellant denied in her evidence that she had made any alternative plans for any other onward destination for the young person in the event that the placing request did not proceed. This seemed at least a very passive attitude and at worst detrimental to the young person’s best interests. It was impossible to avoid the impression that the Appellant was seeking to manipulate circumstances in order to achieve her goal of the young person remaining in the specified school.

The Appellant had been aware from at least the date of issue of the preliminary decision that the Tribunal did not have jurisdiction beyond October.  It is fortuitous that the young person’s birthday falls during a mid term period which commences from 8 to 27 October when she would not be attending school, even if she was involved in other specified School activities.

 

The third influential consideration was the absence of the identification of any post school destination.  The Tribunal cannot be insensitive to the desirability for making appropriate post school provision for pupils such as the young person who have additional support needs. Formal jurisdiction in transitions is not conferred on the Tribunal until 14 November 2010 which is now the implementation date of the amended legislation. Nevertheless we have to reach a decision based on the circumstances now pertaining to the young person. Although we accept that the timescales for finding the young person a suitable post school placement are short, we do not consider that they are impossible if there is goodwill and having regard to work already done. We have no doubt that the social work department assessment would have been completed had it not been for the Appellant’s stance on those seeking to speak directly with the young person considered above.

 

In reaching this decision we were also struck by a number of significant inconsistencies in the evidence of the Appellant which we could not satisfactorily reconcile. The first was her insistence that the young person needed to be prepared and warned about any change which she was likely to experience, even the event of meeting someone. This assertion was not borne out by the evidence of the Social Workers, who met the young person at the school on  June and found her to be happy to meet with them and willing to communicate her views. Any follow up meeting planned did not take place because of the Appellant’s reaction to this meeting as indicated by the e-mail exchange lodged by the appellant at A12 and 13.

It was also the Appellant’s evidence that the young person became so quickly attached to the advocacy worker, that the cessation of the visits to take the young person’s views  was regarded as a loss of a friend by the young person. Elsewhere in evidence the Appellant said that it was not good to tell the young person of impending events as she worried about them too much.

 

She stressed how poorly the young person coped with change and new people or environments and denied that The young person had experienced any changes where she worked for ASDA on Sundays and yet she had coped with considerable change in the past 18 months attending a new school, staying overnights and even going on school trips which were residential with which she had coped.

 

The Appellant asked the Tribunal to disregard the young person’s view on whether she wished to stay at the specified School but was quite willing for the young person’s views to be relied upon when she rejected the option of going on a college placement or any other destination which did not include working with young children or animals.  We could not quite rationalise the circumstances in which the young person’s views should be respected and others where they should be disregarded.

 

Similarly the Appellant indicated the very heavy responsibility which looking after the young person placed on her as she was virtually the young person’s only carer but indicated under questioning from the Tribunal that she did not want to consider the young person living in supported accommodation as  an ultimate goal for the young person as she would miss her too much. 

 

We accept that the Appellant is a caring mother and she was vehement in her resolve to act in what she considered to be in the young person’s best interests but at times we wondered whether her approach to making plans for the young person’s future were inflexible and appeared to set down goals with regard to post school destinations for the authority which she knew would be difficult, if not impossible, to meet.

 

Although parties did not cite any authorities to support their arguments, it is perhaps appropriate to refer to R(JW through DW as litigation friend) v The Learning Trust [2009] UKUT 197 (AAC) which concerns a placing request but was came before  the Upper Tribunal, sitting as a Tribunal of three, as a Judicial Review application for interim relief pending a decision of a First-tier Tribunal in a special educational needs case. Since it is a decision applying different legislation in another jurisdiction its decision is not binding, nor even persuasive, on this Tribunal but some of the observations on a jurisdiction, like this one, considering facts up to the date of the hearing are worth repeating. Paragraph 28 of the decision states

 

The legislature , in not providing any mechanism for interim relief, has in essence provided that the general position is to be that there will be a period of time between when an appeal has been lodged and when it is heard, when a pupil with a statement of special educational needs will not be getting the educational provision which those acting for him consider he should receive and depending on the circumstances, may not be getting any educational provision at all. That is despite the fact that the very existence of an appeal process must imply that some appeals will be successful, often entailing the view that the original decision, which has been effective in the interim period, was a wrong one. While such an intervening period is scarcely likely to help the educational progress of any young person with special educational needs sufficiently severe to warrant a statement, that is what the legislation envisages.

 

This decision is also in point to the extent that the boy who was the subject of that appeal was “entering Year 13 and thus his final year of schooling” and “the nature and extent of the claimant’s difficulties are such that he may well receive ongoing training and support in the future through (adult) social services, possibly even through Z College or through the day services which Z also provides.”

 

For all the above reasons we allow the placing request appeal conscious that it has a very short time to run in relation to the Tribunal’s jurisdiction in this matter.