ASNTS_D_03_2010_18.06.10

 

ANONYMISED DECISION OF THE TRIBUNAL

 

Reference:                              D_03_2010

 

Gender:                                   Male

 

Aged:                                       12

 

Type of Reference:                 Placing Request

 

 

1. Reference:

 

The reference is in respect of the appellant’s application for a placing request for the Specified School, for his son, made on 16 October 2009. The request was refused by letter dated 10 December 2009 on the grounds set out in Paragraph 3(1)(f) of Schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”) and it is against this decision that the appeal is made.

 

 

2. Decision of Tribunal:

 

The reference is allowed.

 

The decision of the respondents to refuse the appellant’s placing request application is overturned.

 

The respondents are directed to:

 

1. Place the child in the Specified School, with effect from the commencement of the autumn term 2010.
2. Amend the co-ordinated support plan to reflect this relevant change of circumstances.

 

3. Preliminary Issues:

 

The appellant submitted a reference received on 25 February 2010 in respect of the refusal of a placing request dated 10 December 2009 where the letter issuing the decision wrongly informed the appellant of their appeal rights. The time limits for lodging a reference to the Tribunal were extended on 1 March 2010.

 

The hearing was originally arranged for 5, 6 and 7 May but was postponed on application of the appellant’s representatives on 16 April 2010 when further directions for the hearing of this reference were made.

 

The Tribunal directed that the child views be sought on the placing request by the Tribunal instructing independent advocacy in view of his age and the obligation to seek his views.

 

A final case conference call was held on 8 June to finalise the arrangements for the hearing in view of the two days allocated, the additional late evidence and the need to hear the witnesses expeditiously with minimal inconvenience.

 

 

4. Evidence:

 

Substantial documentary evidence was produced in a bundle with papers T1 – 63; R1 – 202 and A1 – 65.

 

Oral evidence was heard in person from the witnesses.

 

The child did not attend the hearing but the Tribunal had regard to the child’s view taken by the advocacy worker at T39 – 40.

 

 

5. Findings in fact:

 

1. The child is a twelve year old boy who is currently attending Primary School. He deferred his entry and started school aged five and a half. He has an autistic spectrum disorder with receptive and expressive language difficulties and social communication problems.
2. The child has three brothers, aged 18, 14 and  8.
3. At primary school the child needs a significant degree of additional support with a differentiated curriculum and a well-rounded package of individualised support. There is a support for learning assistant in his classroom who provides him with substantial support and also received help from a special needs teacher for two 30 or 40 minute periods a week. He generally enjoys primary school but there have been instances of bullying but will not discuss when this happens and is self conscious about being different from the other pupils. As he gets older this has become a bigger problem. There is a pending referral to an NHS autistic team. The respondent’s psychological services have not been involved since 2006.
4. The child’s parents have generally been satisfied with the child’s primary school but he has not made significant academic progress. He is working almost at level D for maths and under level C for reading and writing. He tends to become fixated on particular areas of interest but these change from time to time. His attainment is set out in detail at documents A29 to A31 and these findings are incorporated into this decision.
5. The child needs to follow a routine. Unexpected changes can cause him anxiety. He is accompanied home from school by his older brothers who both attend the Nominated School. He has not established any friendships which exist outside the context of school. Any school trips require a substantial amount of preparation. 
6. The Nominated School has been identified as his school of destination in his transition year. The school roll is about 1200 with an annual intake of 180 in 9 classes of 20 pupils.  It has a base for pupils with additional support for learning needs as a result of ASD or associated difficulties. Currently the base has 7 pupils who engage in mainstream education but may be withdrawn for certain classes according to need. Awareness of the difficulties encountered by pupils with ASN in such a busy environment is dealt with by escorting those pupils around the school between classes and at lunchtime supported clubs are available. The child would also be supported by a Support for Learning teacher or assistant in each class. He would have a registration class of twenty pupils and he would have 14 separate subject teachers. The NHS Authority currently does not provide direct support in mainstream secondary schools.
7. The Specified School is an independent special school situated within easy daily travel distance from the child’s home. The child has been offered a place at the school. It currently provides education for 35 pupils mostly boys aged between 12 to 18 years. A substantial number are boarders but several pupils commute daily and a bus is provided by the respondents for their pupils who currently attend. The school is situated in a rural environment. Most pupils stay for the whole of their secondary education and move on to transition, mostly to further education. Staffing is stable. The school is opened 37 weeks a year but this may be extended in the near future.
8. The Specified School was originally established for vulnerable pupils who had found it impossible to cope with mainstream education. Most of the pupils have social, emotional and communication difficulties. Half also have an autistic spectrum disorder (ASD). Some have a co-ordinated support plan and all have individualised education plans.
9. Age is only one factor in establishing learning groupings. The child has already attended the school for a total of six assessment days and staff have been able to form initial views on possible class mates. There are likely to be five in the child’s class. Pupils follow a core curriculum aimed at developing skills for education, work and life. The more able pupils take qualifications and can take vocational courses at Further Education colleges. An HM inspection of the school in 2002/03 identified weaknesses but impressive progress has been made since then and a recent Care Commission report is positive.
10. The child has had a co-ordinated support plan since 2007. He had been receiving direct speech and language therapy (“SLT”) input at his primary school but latterly this has been indirect.
11. At the Nominated School it is proposed that SLT be delivered by teachers with SLT involvement on a consultative basis. There is minimal engagement with the head of the base at the Nominated School who may meet with colleagues from SLT every six months.
12. When placed under any pressure the child becomes overwhelmed and reacts by withdrawing.
13. The child has expressed the view that he wishes to attend the Nominated School together with most of the children from his primary school.

 

 

6. Submissions from Parties:

 

Respondents

 

It was the respondent’s submission that the child’s needs could be accommodated within the Nominated School and that the issue for the authority was one of costs in terms of Paragraph 3(1)(f) of Schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).  It was submitted that both the Appellant and the Independent Educational Psychologist for the Appellant referred to issue which went beyond those of education in terms of the dicta of Lord Wheatley in SC v City of Edinburgh Council [2008] CSOH 60.

 

Reliance was placed on the clear evidence of the Service Manager and the Teacher at the Nominated School who indicated clearly the facilities available at the Nominated School as appropriate for meeting the child’s needs. It was submitted that the Independent Educational Psychologist for the Respondent was the most eminent of the expert witnesses available to the Tribunal and that weight should be placed on his assessment of the child’s needs and how they might best be met in relation to the desirability for placement in mainstream education. It was submitted that the Independent Educational Psychologist for the Respondent’s depth of knowledge and expertise was such that his opinion should be preferred that of the Independent Educational Psychologist for the Appellant.

 

It was submitted that the evidence of the Independent Speech and Language Therapist should be disregarded as neither credible nor reliable. In particular her admission that in seeking the child’s views on the Specified School, he may have interpreted this as referring to the Nominated School where most of his peers were to be placed.

 

It was submitted that the letter from the NHS Authority indicated that SLT provision could be made available at the Nominated School if the assessment indicated that this was appropriate.

It was accepted that the child’s parents are understandably concerned to do their best for their son but that their view lacked objectivity and the sole source of informed evidence to support the parents’ view was that of the Independent Educational Psychologist for the Appellant whose qualifications and expertise were inferior to the Independent Educational Psychologist for the Respondent.

 

Appellant

 

It was submitted that there were three issues to determine:

 

1. whether the authority were able to make provision for the child
2. whether that provision was reasonable having regard to cost
3. whether it was appropriate in all the circumstances to confirm the authority’s decision.

 

It was stated that the authority required to discharge the onus of proof in meeting all three aspects in any placing request reference otherwise the tribunal would be bound to find in favour of the appellant.

 

With regard to the first ground reliance was placed on the expert opinion of the Independent Educational Psychologist for the Appellant in terms of his report at A33 paragraph 8.1 and 8.2 and in his oral evidence where he expressed the clear view that the child’s needs could not be met by mainstream school education. It was submitted that at T61 the view of the NHS Authority SLT was that the child’s needs could be met through the consultative model rather than through any direct input in contrast to the evidence of the Independent Speech and Language Therapist whose assessment of the child’s SLT needs were not challenged in contrast to her school recommendation. At A15 the Specified School, indicated that the child would have access to direct SLT assistance on an ongoing basis and regardless of the quality of the Independent Speech and Language Therapist’s evidence in some regards her assessment was sound. The SLT model of delivery proposed by the respondents would be insufficient to meet the child’s needs and would be in direct breach of the contents of the co-ordinated support plan appearing at T13 where direct delivery fortnightly of up to 30 minutes is stated to be the additional support required. It was conceded that the co-ordinated support plan is some years old dating from 1 December 2008 but that is the iteration of the plan currently in force and the revision of the plan is a matter for the authority. Even the draft of the new plan at R151 includes one to one SLT “ 4 x weekly blocks of direct Speech and Language Therapy support”.

 

It was submitted that Section 1(2) of the Act  which 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 “ and confers duties consistent with the UN Convention on the Rights of the Child.

 

The terms of Section 1(5) of the Education (Scotland) Act 1980 (“the 1980 Act”) define “school education” as “progressive education appropriate to the requirements of pupils in attendance at school, regard being had to the age, ability and aptitude of such pupils, and includes ..(ii) special education.” It was submitted that this definition needs to be coloured with the refinements made by the 2004 Act which does not set out outcome focussed objectives but establishes educational provision directed to that goal.

 

A careful reading of Paragraph 3(1) (f) of Schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”) discloses that the test is not whether only some needs can be met but not all. Paragraph 3(4) does not preclude an authority from placing a child in a Nominated School notwithstanding the provisions in 3 (3).

 

It was important to evaluate the respective suitability. A34 paragraph 9.1 of the Independent Educational Psychologist for the Appellant’s report was referred to as highlighting that “there is no ideal education placement and that the matter is not perfectible.” The evidence of the authority’s witness, the Service Manager was that if the cost had been just £100 then the authority would place the child in the school of his parent’s choice; that there was no dispute on the fact the Specified School had good provision. This was also consistent with the Independent Educational Psychologist for the Respondent’s view at T55 that “I view the Specified School, as offering a good quality of provision to pupils with additional support needs.”

 

It was observed that the reference was unusual in that it revealed very divergent views from two educational psychologists, both of experience and distinction. It was submitted that the evidence of the Independent Educational Psychologist for the Appellant was to be preferred because:

 

1. His report was scrupulously balanced and fair
2. He had had the opportunity of meeting the child
3. It proceeded on an individual based assessment rather than a policy and generalised basis assuming the child to be in the same category as pupils “with a similar profile” as the Independent Educational Psychologist for the Respondent’s report disclosed.
4. The Independent Educational Psychologist for the Respondent had nothing to add or subtract from the factual basis of the Independent Educational Psychologist for the Appellant’s report. The divergence was based wholly on the conclusions.
5. The Independent Educational Psychologist for the Respondent did not meet with the child or his parents or class teacher.
6. The Independent Educational Psychologist for the Respondent’s report reveals partiality to the objectives of the authority. He conceded that his first thought was to consider the position of those instructing the report, the education authority.
7. The Independent Educational Psychologist for the Respondent’s evidence disclosed pejorative terms such as “segregated” to describe the educational provision at the Specified School despite acknowledging its negative connotations and the fact that segregation may also occur in mainstream.
8. At T50 of his report, the Independent Educational Psychologist for the Respondent had quoted selectively from the HMIe 2010 Report on the Nominated School by failing to include at T50 paragraph 3 “targets, however, need to be improved”; “in a few classes there is a need to challenge young people more and maximise their progress” and at page 5 of the report “staff working in H1” was omitted.
9. In addition to evidence of the expert witnesses and professionals the evidence of the Appellant should be relied upon. He and his wife had taken steps to familiarise themselves with both schools; he described the child and his needs and how these were unlikely to be met at the Nominated School.

 

The ground of respective cost had not been sufficiently addressed in the respondent’s case. Potentially the reference is all about the cost of the Specified School and the fees of £31,000 per year. There were, by agreement minimal transport costs as other children from the area also attended the Specified School.

 

R202 indicates that the costs of the child attending the Nominated School were restricted to transport costs of £8.00 per day, about £1440 per annum. The evidence of the respondents was that the education costs would be zero but it was submitted that this evidence lacks credibility. The authority had carried out an evaluation exercise allocating the resources of 13 support for learning assistants at the Nominated School and the evidence from the authority was that a teaching assistant or a Support for Learning teacher would be assigned to every class for the child. It was simply not credible that there would be no cost associated with this provision or that there would be no saving if the child did not attend the Nominated School. It was submitted that there would be a saving to the authority if the child attended the Specified School instead. It was immaterial that the identified Support for Learning Assistant would continue to be employed by the authority. That was a matter for them if another child could benefit from their assistance. The cost of employing a support for learning assistant and/or teacher was not quantified but it would be substantial.

 

Document A17, the child’s transition plan, confirms that “[the child] would be supported with literacy numeracy and social skills in all his classes by a Support for Learning Assistant”. In addition “He would also be escorted to classes and supported at interval and lunchtimes through the clubs run by the ASN department.”

 

It was conceded that if the SLT provision was as set out at A17 (indirect provision) there would be no additional cost to the respondents. However the authority had made an undertaking to provide additional direct support for SLT if needs could not be met by the consultative model and the additional cost of so doing had not been quantified. The appellant’s case statement at A5 paragraph 12 calls on the authority to provide evidence of costs and except in regard to taxi fares no costs have been provided.

 

Paragraph 3(1) (f) of Schedule 2 refers to “respective costs” but the authority has not provided the Tribunal with the evidence on which to make an informed finding.

Accordingly it was submitted that with regard to the statutory test of “respective cost and respective suitability” the authority had not discharged their burden of proof.

 

The final matter for the Tribunal to address is the appropriateness of the authority’s decision in terms of the third test to be met. It was submitted that the child’s views can be considered at this stage and that the evidence of the child’s ability to form and rationalise his views meant that little reliance could be placed on his view as a determinative factor. The Tribunal was bound to take a broader view and overturn the authority’s decision.

 

7. Reasons for decision:

 

The Tribunal was greatly assisted by the fact that both parties were represented by solicitors who engaged in the hearing process in a manner consistent with the overriding objective in Rule 3 of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (“the Rules”) by dealing with the hearing proportionately and seeking informality and flexibility in the proceedings.

 

There was little, if any, dispute on the facts in this reference which are set out above in our findings. The sole issue was whether the respondents had discharged the onus of proof in establishing that one, or more, of the circumstances in which the authority’s duty to place a child in the school of the parent’s choice do not apply.

 

Paragraph 2(2) of Schedule 2 to the 2004 Act sets out the duty:

 

Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being –

1. a special school the managers of which are willing to admit the child
2. [not applicable]
3. [not applicable]

It is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child’s attendance at the Nominated School.

 

There was no argument in this reference that there was any other applicable ground of refusal other than Paragraph 3(1) (f) (iii) of Schedule 2 which provides

 

(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 Nominated School and in the school referred to in paragraph (ii), to place the child in the Nominated School.

 

In reaching this decision the Tribunal found the submission advanced on behalf of the appellant compelling.  In particular we found the evidence of both the Independent Educational Psychologist for the Appellant and the child’s father informed, balanced and persuasive. Ultimately this was not about the method of delivery of speech and language therapy support and how this was most appropriately provided for the child, although we accept that such continued input is necessary and desirable. Had this been the sole issue then the undertaking of the authority to ensure that one to one provision would be made available, if required, might have provided sufficient assurance about the suitability of the Nominated School.  Ultimately the most important issue was ensuring that the context of the child’s learning could be in an environment where he is able to develop his abilities “to their fullest potential”.

 

The Independent Educational Psychologist for the Appellant was an impressive witness. He indicated that out of 8 approaches in the past two years of a similar nature this was the first where he had actually recommended an independent special school. He was of the view that in most cases mainstream education was the most appropriate. He was clearly not a “hired gun” in this regard and demonstrated in his evidence the careful way in which he had evaluated the child’s needs and come to the conclusion contained in his report. He did not characterise the school as a panacea for the challenges of the child’s learning but he did recognise that the child’s personality means that he is most likely to flourish in a small supportive school environment where he does not feel intimidated by the size and complexity of the school. The difficulties which the child has faced in his primary education will be magnified in a school of over 1200 pupil and 14 different teachers. Even with learning support it is difficult to imagine how the socialisation and learning issues can be satisfactorily addressed. In answer to the questions from the Tribunal he characterised the negative aspects of the Nominated School from the child’s perspective as too busy, too much movement between classes, frequent changes and too much variety. He considered that a smaller environment such as at the Specified School, provided a better opportunity for the child to avoid being overwhelmed by his situation. He explained the risks and benefits and accepted that they may be difficult to predict. At the Nominated School the degree of differentiation in the curriculum would require to be very significant. He did not consider that the child’s high anxiety levels had come through the papers he had received in advance of meeting the child.

 

The Independent Educational Psychologist for the Appellant stated he had not sought the child’s views and he was aware that Independent Advocacy was to seek his views and he assumed that the child would indicate a wish to attend the Nominated School. He did not consider that the child’s views could or should be determinative.

 

Likewise the Appellant is realistic about the child’s potential but is committed to ensuring that his learning potential is harnessed to give him the best possible chance to lead an independent life. He exemplified the ways in which the child has problems understanding language and in many ways described a relatively socially isolated child despite his three brothers and the care of his parents. His default position is to retreat such as hiding if any strangers visit the house. The more stimulating the environment the more difficulty he has in coping or understanding. The ability of the child to socialise and learn in a complex demanding environment would currently be too demanding and confusing. The more intimate and supportive environment which can be offered at the Specified School, would undoubtedly offer the environment where the child can develop his skills to their full potential. The Parents were very familiar with the Nominated School with two sons already attending the school but they also visited the base to see what this could offer for the child and visited the Specified School.

 

With regard to the child’s stated preference, The Appellant explained that the child views are transient and are likely to reflect his need to fit in with his peers. The transitional activities for going to the Nominated School have all been fun events and do not reflect the reality of being a pupil there. The Appellant had no doubt that the child would settle well at the Specified School and had enjoyed his visits there. He explained that he always appreciated that the Independent Educational Psychologist for the Appellant would provide an honest assessment of the best school for the child and had he recommended the Nominated School then they would have accepted this opinion from an educational expert.

 

In contrast the evidence from the Service Manager, the Teacher at the Nominated School and the Independent Educational Psychologist for the Respondent was highly generalised to the facilities of the Nominated School and the principle of mainstream education. We accept that for most children this is the ideal learning environment offering challenges, diversity and complexity. The Service Manager gave very clear evidence about the systems in place to support children with additional needs. She is the chair of the placing panel which deals with 12 – 15 placing requests each year. There are 31 or 32 children from the authority who attend independent special schools of which 13 attend the Specified School. She spoke well about supporting teachers to deliver indirect speech and language therapy. She spoke highly of the Teacher at the Nominated School who is Head of Support for Learning and also the person who is in charge of the base. Both hold specialist qualifications. She explained that at the Nominated School there would be a number of different Learning Assistants who would support the child in order to prevent “learned helplessness”. Although the Service Manager was unequivocal in the commitment of the authority to fund direct SLT and any other supports for the child it was apparent that there is very little contact between SLT and the Nominated School and we had some doubt as to whether this commitment would translate into any higher degree of support.

 

The Teacher at the Nominated School also gave good but general evidence in relation to the Nominated School and its provision. She explained that only two pupils in the child’s year would access the base. She explained how teachers received training on the needs of those children with ASD. She was aware of just three pupils with a co-ordinated support plan in the school. She referred to notes which she had made on meeting the child and assessing the transitional provisions. She was aware of the need for the child to leave classes early and be accompanied to the next class and also to participate in lunchtime clubs where he could be supported. She explained that the details of how the child would interact with the base needed to be done once the child was at the school as it could be a very variable model.

 

The Independent Educational Psychologist for the Respondent’s evidence was that the model of intervention at the Nominated School demonstrated best practice but he accepted there was a poor empirical base to support his opinion. He had not met the child but had read all the papers in the bundle and was confident that the child was “sufficiently far away from the threshold” to be confident that the Nominated School could meet his needs.  His view was that a child who was successful in mainstream primary school was likely to succeed in mainstream secondary education. He agreed that the child’s own views could not be the determining factor.

 

We cannot be persuaded that in assessing the opinion of the two educational psychologist experts that the Tribunal has inevitably to accord most credence, regardless of any other factors, to the expert who is the most eminent. We did consider that the Independent Educational Psychologist for the Respondent’s conclusions were flawed by his policy commitment to mainstream school education for all, his education authority centred approach in framing his report, his expunging of any negative comments from the HMIE report from which he quoted in respect of the Nominated School and the derogatory terms in which he referred to special schools.

 

The final witness for the respondents was the Independent Speech and Language Therapist, whose report had been commissioned by the appellant but paid for by the authority. Neither party sought to place reliance on her oral evidence. It is indisputable that the child does have the need for SLT input, however this is delivered. The profiling of the child’s needs in this regard were tested extensively in a short period of time which may cast some doubt on their reliability but consistency of result may be difficult to achieve for a child with ASD. Her conclusions as to the most appropriate school for the child had not been sought by those commissioning the report and they were based on an imperfect evidence gathering which discredited them to the extent that the Tribunal has placed no reliance on them in reaching their decision.

 

Weighing the respective cost against the respective suitability we are satisfied that the Specified School can offer the child an enhanced and an ability appropriate learning environment compared to the facilities at the Nominated School and adopt the opinion and reasons indicated by the Independent Educational Psychologist for the Appellant in reaching this conclusion. Even if we accept that the only financial costs associated with the child attending the Nominated School are those of transport, we consider that the educational advantages for him attending the Specified School outweigh the cost considerations. The respondents already have 13 children attending the Specified School. Furthermore we did not fully accept that there would not be cost implications of putting in place the support at the Nominated School which is envisaged.

 

We also considered whether the school was appropriate for the child in all the circumstances including his professed view that he wishes to attend the Nominated School. The report from Independent Advocacy was clear and helpful but we understood why the child would indicate his preferred choice as the Nominated School especially as he is now involved in transition activities. It was accepted by all the witnesses asked on this point that the child’s views could not be the deciding factor. We also accept that the child would have a limited ability to make any assessment of the respective schools himself and we could not identify any other factor which was relevant.

 

For all the above reasons we have reached the decision recorded above.