ANONYMISED DECISION OF THE TRIBUNAL
**This decision was appealed to the Court of Session. The opinion of the Court was issued on 21/12/2006. The appeal was allowed. **
Type of Reference: Placing Request
In June 2006 The Appellant (“the father”) lodged a reference under section 18 (4) of the Education (Additional Support for Learning) (
The reference was in respect of the decision dated Mid 2006 where the authority refused a placing request made by the father in early 2006 under paragraph 1 of Schedule 2 of the Act, for the child to attend an independent special school; where the authority had agreed that the child should have a Coordinated Support Plan and one was being prepared when the placing request was refused; this refusal was made in terms of paragraph 3(1)(f)of Schedule 2 of the Act.
2. Decision of the Tribunal:
The Tribunal confirmed the decision of the authority.
3. Preliminary Matters:
The reference was received mid 2006. The President issued a direction in terms of rule 8(6) (a) of the Additional Support Needs Tribunals for
An application for a direction in terms of rule 15(1) (b) on behalf of the father for the authority to produce the child’s file was refused as unnecessary after access to the file was offered by the authority.
The authority submitted 9 pages of late evidence. On a direction of the Convener, treating it as an amendment to the response in terms of Rule 10(5) of the Rules that it be received though late, and be distributed to the parties, the appellant’s representative having indicated that they did not oppose the late lodging, at the start of the hearing, the Tribunal allowed three documents to be lodged as productions in terms of Rule 34 of the Rules. One other production, as a duplicate of other documentary evidence lodged was rejected as unnecessary. The authority had included two pages in their response which did not relate to this reference. These were withdrawn from the bundle.
At the start of the hearing the authority moved to substitute a representative from ‘Visiting Teacher & Support Services’ as a witness in place of witness 1 (also from ‘Visiting Teacher & Support Services’). This was not opposed and the Tribunal allowed this in terms of Rule 34.
In addition the authority sought to lodge additional evidence being a report by an independent source in communicating with children with severe communication impairments. The appellants representative opposed the lodging of the report on the basis that it was late, that they had not had the opportunity of studying it having not received it until the morning of the hearing, and that they would wish to contact the author of the report, or alternatively seek to call an additional witness to respond to the content of the report. The Tribunal considered the representations, and directed that, after an adjournment to allow the father and his representative to consider the terms of the report, to contact and call if so advised an additional witness from the independent specialist school, and for the Education Authority to call the author of the report, as an additional witness, the report would be allowed to be lodged in terms of Rule 34, as it was fair and just that the report be admitted and the attendance of further witness be permitted.
Following the adjournment, the appellant’s representative did not seek to call a further witness, and the authority was permitted to call the author of the report as an additional witness. The additional evidence was allowed to be lodged and numbered accordingly.
4. Summary of Evidence:
The whole bundle (excluding the pages not relating to the reference) and the additional documents and evidence admitted, was considered by the Tribunal. Apart from the Response to the Case Statement and the Case Statement and sundry letters and directions from the ASNT Secretariat, the bundle contained reports, letters, photographs and documentation relevant to the reference. Oral evidence from the deputy head teacher, the independent source on communicating with children with severe communication difficulties, a representative of ‘Visiting Teacher & Support Services’, the education authority representative, the nursery nurse and a parent counsellor was heard. The father and mother gave oral statements of their concerns and wishes for the child’s development and education needs. The deputy head teacher and ’Visiting Teacher & Support Services’ representative spoke of the provision available at the local authority special school. The independent source on communicating with children with severe communication difficulties spoke of their organisation’s input with the staff and pupils at local authority special school and with staff and pupils of the independent special School. The local authority representative spoke of the decision making of the Education Authority and the calculations regarding costings contained in the response to the Case Statement and in the additional productions. The nursery nurse spoke of their knowledge of the child as her key worker in the nursery, and the opportunities for education and development afforded to the child there, as well as the child’s response to their experiences at the nursery. The parent counsellor of the private special school spoke of the provision available at the independent special school, relating to the child’s needs as a member of the panel who had assessed the child for placement there.
5. Findings in Fact:
(1) The child is almost five years old. She was born in 2001. She lives with her parents. She has the following conditions: neonatal encephalopathy, infantile spasms, myoclonic seizures, progressive microcephaly, quadriplegic cerebral palsy, and scoliosis. She also has severe cortical visual difficulties and is registered blind.
(2) The child attended a nursery from January 2004. Latterly she attended for six half day sessions and two further sessions along with her mother each week.
(3) She has severe and complex physical difficulties, including severe visual impairment. Her learning abilities have not been fully or formally assessed. She is thought likely to have learning difficulties.
(4) She requires to attend a school where the staff has expertise in the education and management of children with severe and complex difficulties. She requires access to a stimulating environment specifically for children with multiple physical needs. She needs to have access to a coherent broad and balanced relevant curriculum delivered at a pace and level matched to her profile of strengths and difficulties. She needs a programme to develop language and communication skills. She needs a programme to develop her visual skills. She needs the opportunity to develop her communication through the use of communication aids. She needs strategies and activities to develop her fine and gross motor skills. She needs a programme of occupational therapy and physiotherapy. She needs individual attention when engaged in an activity and close attention in a small group. She is reliant on others for all her care needs, and requires a high standard of care.
(5) The independent school has a place available for the child if requested by the authority. The costs of the placement are £32,832 per annum.
(6) All pupils who attend the independent special school have a visual impairment as well as multiple disabilities. The School is a purpose built school for MDVI pupils both primary and secondary age. It has hydrotherapy facilities. It has small classes and a high staff pupil ratio. One third of teachers have a diploma in visual impairment, one third are presently training for the diploma. The class teacher of the class earmarked for the child is close to completion of the diploma. All staff has experience of children with visual impairment. Occupational therapy, physiotherapy and speech and language therapy are available from therapists at the independent special school. IT specialists and mobility specialists are available.
(7) The local authority special school is a school for primary and secondary age pupils with severe and profound developmental delay. Many of the staff have many years experience with children with severe and complex difficulties including those with sensory/ sensory processing impairment. Around one third of the current pupils have a visual impairment and six pupils are registered blind. The school building has generous accommodation and is well-equipped but has some significant limitations. At the end of December 2006 the school will move to a new purpose built school. All the children attending the local authority special school will be assisted with the transition to the new school. Until the move, pupils at the local authority special school have access to hydrotherapy facilities having to travel a ten minute minibus journey there and back. At the new school there will be hydrotherapy facilities on site.
(8) The costs of a pupil attending the local authority special school are £23,590 per annum. This is calculated by the authority having regard to the running costs of the school divided by the number of available pupil places, plus a sum to account for central costs which include therapy services as well as central services administration costs. In preparing these figures the authority has had regard to CIPFA guidelines.
(9) Both the independent special school and the local authority school are able to make suitable provision for the child’s additional support needs. There is negligible difference between the two provisions for the child’s additional support needs.
(10) There is a significant difference in the cost of the two schools.
6. Reasons for decision:
The Tribunal considered all the evidence indicated above and were satisfied that there was sufficient evidence available for the Tribunal to reach a fair decision on the reference.
The issue in dispute was the respective suitability of the provision available at the independent school and the local authority school, and the respective cost of the provision, for the additional support needs of the child.
On behalf of the parents, it was submitted that the local authority special school was not sufficiently specialised in the field of visual impairment to meet the child’s needs, having regard in particular to the qualifications of the teachers at the independent special school, the experience of all the staff and therapists with visually impaired children, the specialised signing system of communication used, the presence on staff of mobility officers and IT specialists. Further, the physical environment of the independent special school as a purpose built school with hydrotherapy facilities on site was superior to the present local authority special school building which was not suitable to provide a quality service. It was irrelevant to the decision that the new school would be purpose built; the issue was the existing premises. In any event, it could be disruptive for the child to move after she had got to know the existing surroundings. In future there may be a need for residential respite care, and there was residential provision at the independent special school which could be accessed by the child where she would be with pupils and staff with whom she would be familiar. There was no such provision at the local authority special school.
With regard to the costs, it was submitted that the authority had not provided a true costing of attendance at the local authority special school. The independent special school fees included the input of therapy and nursing services. The costings produced for the local authority school did not take account of the costs of such therapy and nursing services. The local authority school could not meet their pupil’s needs without such services and accordingly the annual cost of £23,590 was not a true figure.
In conclusion, it was submitted that in terms of the Act and government policy, very great weight should be given to the preference of parents and unless there was very good reason the local authority should honour that preference. In the view of the parents the provision at the independent special school was far better, and in the short and long term would be more effective for the child to enable her to maximise her potential.
The authority submitted that they had fulfilled all the statutory requirements in considering the placing request, that they had considered all the information and fulfilled their duty under the legislation. That authority, on the basis of their assessment, had not considered that the child should attend a school specialising in visual impairment.
With regard to cost, the independent special school annual fees cost more than the cost of a child attending the local authority special school. The authority had an obligation to use public money effectively: if this outlay was made, it would not be available to support services in general.
In conclusion he submitted that the provision at the local authority special school was suitable for the child’s additional support needs, and that there would be no significant benefit for her attending the independent special school; there was a substantial difference in costs.
On the evidence accepted by the Tribunal, there was nothing to support the implicit assumption put forward on behalf of the parents that the child’s primary problem was her visual impairment, and she would thus be better served by receiving education at the independent special school.
The report at page 404-405 dated July 2006 stated “From a professional opinion I believe that the child would be best suited going to a school that is dedicated to visually impaired children as it offers the specialist support and peer group that the child needs in order to fulfil her potential”. This report was unsigned, and although there was some evidence that it was written by the head teacher of the nursery the child attended, there was no evidence of the qualifications or expertise which would allow the Tribunal to rely on the head teacher’s professional opinion. Accordingly the Tribunal did not give any weight to that opinion.
The nursery nurse, with many years experience, had a specific interest in and had studied as a teaching assistant for children with visual impairment and had been the child’s key worker. He described the child as having a severe visual impairment, severe physical disabilities and uncontrolled epilepsy. He thought that the visual impairment was the primary barrier to her education, that because learning is acquired through vision, her learning is severely compromised. He knew the child well and spoke with enthusiasm of her progress at the nursery, particularly using fluorescent light and paint to assist her vision and her ability to communicate. However although the ’Visiting Teacher and Support Services’ representative had never met or assessed the child the Tribunal preferred her evidence, given her qualifications and experience, that the child’s visual impairment (variously described as cerebral visual impairment, cortical visual impairment and cognitive visual impairment) cannot be separated and isolated from her other difficulties. She felt that the visual impairment has a very significant impact on her learning, but due to her range of problems, her use of vision could only hope to keep up with her cognitive ability. The Tribunal accepted that her evidence was based on many years experience of children with impairment in processing visual information. She explained that children will generally have that problem because of complex support needs; around 70% of children with cerebral palsy have such impairment. From the reports it appeared the child had a group of needs very familiar to her experience.
With the exception of one report, the Tribunal accepted the evidence in all the reports prepared by the various professionals. Nothing in those reports, nor in the evidence of the nursery nurse of the work which had been done with the child and the progress achieved by her at nursery, would suggest that the local authority special school could not offer suitable provision for the child’s needs. Having regard to the oral evidence of the Deputy Head teacher of the local authority special school, the representative from ‘Visiting Teacher and Support Services’, and the report and oral evidence of the independent source on communicating with children with severe communication difficulties, all of which were accepted by the Tribunal, and in particular the external report on the school, the Tribunal considered that the evidence strongly supported the school as a suitable provision for the child.
The Tribunal accepted that independent special school would be a suitable provision for the child. However they considered that the differences in the provision were negligible. On the evidence accepted (including that of the nursery nurse) they found no substance in the submissions that the communication system used there was or would be better for the child than the variety of communication systems used at the local authority special school; that the qualifications and experience of the staff (including therapists, mobility officers and IT staff) at that school would provide the child with more suitable provision for her needs than was available at the local authority special school. With regard to the physical environment of the school, the Tribunal accepted that the independent special school premises were superior to the existing local authority special school, but were satisfied on the evidence of the education authority representative that subsequent to the consultation documents put out in 2004 prior to the decision to build the new school, the local authority special school had been upgraded and additional accommodation made available. Whilst the premises had significant limitations, they did not accept that for the next term the school premises were unsuited to provide a quality service.
The Tribunal took account of the submission that the change of venue in December/January may be disruptive for the child. The Tribunal did not consider that this was a significant risk: they were satisfied from the evidence that the transition had been carefully thought out, and would be carried out with due consideration to the needs of the pupils including the child. There would be continuity of staff and other pupils and internally much of the same environment.
Although there is a residential facility at the independent special school, there was no satisfactory evidence that the child could access residential/respite care within the independent special school if required in future years. Accordingly the Tribunal did not accept that this was a relevant factor in the case.
The Tribunal accepted the costings produced by the authority as being the cost of the provision for a child at the local authority special school. As the comparison of costs between the two schools was favourable to placement at the local authority special school, the Tribunal were satisfied that in terms of paragraph 3(1) (f) of Schedule 2 of the Act the duty, imposed by paragraph 2 (1) of said Schedule on the authority to comply with the placing request, did not apply. Accordingly they confirmed the decision of the authority.