ANONYMISED DECISION OF THE TRIBUNAL

 

**This decision was appealed to the Court of Session. The opinion of the Court was issued on 28/02/2007. The Tribunal decision was reduced. **

 

 

 

Reference:              d/03/2006

 

Gender:                   Male

 

Age:                        15

 

Type of Reference: a) CSP not required b) Placing Request

 

 

 

 

 

1. Reference:

The Appellant (“the mother”) has referred to a Tribunal a decision of the respondent (“the authority) refusing a placing request made in respect of her son (“the 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 confirms the decision of the authority.

 

 

3. Preliminary Matters:

 

Parties consented to the presence of an observer at the hearing,

 

 

4. Summary of Evidence:

 

The Tribunal considered a substantial bundle of evidence containing case statements for both parties and supporting documents, together with Children with Disabilities Assessment. The Tribunal members viewed a video lodged by the appellant

 

The Tribunal heard oral evidence from the child’s head teacher, the child’s Social Worker, and the mother

 

 

 

5. Findings in Fact:

 

1. The child was born in 1991 and is now aged 14 years. He lives with his mother, and stepfather. His natural father lives locally.  His mother has four other children living with her; they are aged 13, 12, 8 and 10 months. The child’s natural father continues to fulfil parental responsibilities towards the child and plays a positive, albeit a necessarily somewhat restricted, role in his care.

 

2. The child has Tourette’s syndrome (for which he is prescribed Risperidone); moderate developmental delay, with associated learning difficulties; muscular weakness disorder (dyspraxia); and autistic traits with associated behavioural challenges.

 

3. In March 2001 the child’s family moved from England, where he had attended a special school, to Scotland.   He was enrolled in a Special School, where he has remained ever since. The child was the subject of a Statement of Special Educational Needs prepared by the English Education Authority in 1996.

 

4. The child has a reading age of 11 years, although his understanding of what he reads is limited. His number capabilities are at the very lowest level of the population. He has poor hand skills but can write better on a computer. His attention span is very limited and he needs a lot of direction. In addition to Maths and English he studies Home Economics, PE, Music and Art and has taken part in swimming, riding and enterprise.

 

5. The child is regarded by his teachers as a likeable and popular boy. He has though, displayed intermittent behavioural difficulties at school. From time to time he hits out at other children. He dislikes change, noise and confrontation. There are limitations in his ability in relation to his peer group.

 

6. The child needs to develop self care skills; to develop independence and learn new skills; and opportunities to develop his social skills within his peer group.

 

7. At home, the child regularly intervenes in family situations that have nothing to do with him. He is anxious about doors and windows. He needs assistance and prompting with self care skills. One of his brothers also has additional support needs and can display intense and demanding behaviour. There are times, particularly if he is frustrated by his siblings, when the child will interfere and hit out at others.

 

8. The appellant lives in a tied house but will have to move to local authority or housing association accommodation when suitable accommodation becomes available.

 

9. The appellant has no family support close by. The child and his brother require close supervision. The youngest child is still a baby. It is therefore difficult for the family to get out and about and for the appellant to form supportive friendships. As a result, each of the children, including the child is missing out on opportunities of integrating with wider family and community.

 

10. Residential respite would enable the child to participate in activities with his peers and develop new skills, developing his own interests independently of his family. That would also create more opportunity for the rest of his family to participate more in activities outside the home.

 

11. By letter dated February 2006 the appellant requested a placement for the child  at a private special school, stating that they had offered him a place provided the necessary funding was made available.

 

12. By letter dated March 2006 the authority intimated to the appellant their decision to refuse her placing request. They stated, inter alia, “We are able to make provision for the child’s additional support needs in the local special  school ” and that it was not reasonable to place the child in the private special School in preference to the local  special school

 

13. The Special School is purpose built school, opened in 1993, for pupils with additional support needs. It provides for pupils from pre-5 to 19 years. It has a wide range of indoor and outdoor facilities. The school is well placed for access to local facilities, e.g. a swimming pool, and transport.  Specialists attend for sessions on one or more days of the week.  The school seeks to maintain links with local residents and the local secondary school.

 

14. The child is considered by School staff to be a generally happy child. He is considered to be making reasonably satisfactory progress at the School.

 

15. If he continued to attend the local School, the child would be subject to existing arrangements until 2007-08, when it is hoped that he could attend a one day per week course at a local College, with the aim of attending two days in the following year, possibly moving on the full-time further education after that.

 

16. The private Special School provides inclusive, comprehensive and holistic education for some 80-90 pupils, all of whom have additional support needs. The school offers residential places for full term or weekly boarders and day places for local pupils. For pupils aged 16-19 there is an extended programme which offers a more individualised programme geared towards preparation for the future. An additional wing offers further training for up to 12 young adults from 16-25 years.

 

17. Classes at the private Special School are grouped according to age.  In addition, individual therapies, to meet specific needs, include speech formation, physiotherapy, movement, art, riding, music, massage, play and counselling. There are also group therapies. Parents are encouraged to keep in touch with the school as much as possible. If the child attended the private Special School the authority would monitor his progress there.

 

18. In a letter to the authority dated April 2006 the appellant requested that the child be assessed for a co-ordinated support plan. In a letter dated June 2006 the authority informed the appellant that it had been decided that a co-ordinated support plan should be opened for the child.

 

19. The Social Worker completed Children with Disabilities Assessment of the child in August 2006.

 

20. The authority now proposes to provide 5 hours per week of one-to-one support for the child. In addition, they propose to provide 15 days (24 hours per day) of residential respite support every 26 weeks. The level of support to be provided would be reviewed at least every 6 months.

 

21. The cost to the authority of the one-to-one support would be £9.50 per hour. This could enable the child to attend a local youth club. The cost of the residential support would be about £6,000 over each 26 week period. The child would attend, at times and for periods that would be negotiated with the appellant.

 

22. The estimated annual cost of transport to and from the private Special School would be £1,448.

 

23. The annual cost of a place for the child at the private Special School would be £47,100.

 

24. Transfer of the child to the private Special School would not enable any significant savings to be made in the authority’s expenditure on the local authority special school. The removal of one pupil from the school roll would not result in a reduction in staff.

 

25. The child is not capable of contributing views on whether it would be better for him to be placed at the private Special School. In the course of the last year, he has spoken of wanting to go back to his old school (the one he attended before he came to Scotland in 2001).

 

 

 

6. Reasons for decision:

 

1. The authority contended that it was able to make provision for the child’s additional support needs in the local authority Special School. When regard was had to the respective suitability and to the respective cost of the provision for the additional support needs of the child in the private Special School and in the local school, it was not reasonable to place him in the private Special School. It was appropriate in all the circumstances to confirm the decision to refuse the placing request. The question for the Tribunal was whether this submission is well founded.

 

2. The argument on costs in relatively straightforward. Placing the child in the private Special School would cost the authority an additional £48,548 per annum. Sums spend on additional support should be set against that figure. There would therefore be a saving to the authority of some £12,000 per annum, planned to be spent on residential respite care, plus some £2,500 per annum for the one-to-one worker. These figures could increase if it transpires that a greater level of additional support is needed. Nevertheless, there would be a substantial extra cost to the authority if the placing request were granted.

 

3. The authority’s plan for the child is to provide for his education at the local authority school and supplement that provision in the manner set out in findings 20 and 21.

 

4. The authority say that it is the view of experienced staff that community living, work and supported accommodation are realistic aspirations for the child

 

5. The appellant referred to a number of issues which she indicated had influenced her choice of school for the child.

 

6. The appellant agreed that her son’s behavioural problems were intermittent, but indicated that they persisted for some time when they occurred. She pointed out that they had become worse when the child returned to the local authority school after the holidays.

 

7. The appellant considered that the atmosphere at the private Special School was more likely to benefit her son. The private Special School offered a calmer, more relaxed, less clinical environment, which suited the child’s preference for quiet.  Appeared to offer a wider range of activity than Local Authority School, which offered a greater likelihood of identifying areas of skill he could use in future years. At private Special School, the child would enjoy out of school hours outings and activities that he could not have at home, because of the difficulties faced by her and her family in getting out and about. At private Special School, the child would experience continuity of care, with the same people working with the young people there on a 24 hours a day basis. She would miss the child if he went away to school, but private Special school encouraged as much parental involvement as possible. The appellant appreciated that there was no guarantee that the child could remain at the private Special School once his compulsory education was over, but in her view the child would have a better chance, from the private Special School, of progressing to a residential placement on leaving school, which would be better for him than having nothing to do for most or all of his time. She envisaged that he would require residential care as an adult.

 

8. The authority pointed out that the curriculum at private Special School, with its “alternative therapies and practices” was no more than one of a range of possible approaches. There was no evidence that it was uniquely suited to young people with the child’s profile of learning or behaviour. Some of the activities there would not be suitable for the child in view of his motor difficulties. The authority accepted that the child would benefit from a programme of out of school activities such as the private special school offers but maintained that there was no evidence that the child needed such a programme to achieve educationally. A residential placement for the child could be counter-productive if it communicated to him the idea that he was a problem without which his family would get on better. The authority did not consider that they should accept at this stage that the child could not progress to independent living.

 

9. The education officer for the authority conceded that the “therapeutic” aspect of the private Special School curriculum might be relevant for pupils with family difficulties but stated, rather surprisingly, that he had no knowledge of the child’s family circumstances. He was afraid that if the child was deemed an appropriate candidate for a residential placement it would be difficult for the authority to refuse it to a number of other children with similar levels of difficulty. The authority’s contention was the additional support needs identified in the social worker’s report could be met by the provision of the package proposed by her.

 

10. The authority claimed that the Local Authority School had not attracted adverse comment by HMIe.  They pointed out that its new senior management team was working hard at continuing to develop its curriculum and ethos.

 

11. The Tribunal heard evidence about that from the recently appointed head teacher. She gave detailed evidence about the child’s strengths and weaknesses and her plans for his progress, with particular stress being laid at this stage of his education on his emotional and social development. She anticipated that he would be accepted for a college place in due course. She also described innovations she was making in the school, e.g. introducing accreditation and a behaviour support teacher, sending groups on educational outings and establishing links with respite facilities. The Tribunal formed the view that that the witness was an energetic and able head teacher and that if her plans for Local Authority School generally and the child in particular developed as she intended then the school could be regarded as providing suitable provision for the child’s additional support needs.

 

12. That said, the facts remains that the Local Authority School’s input is largely confined to school hours.  The appellant gave persuasive and at times moving evidence of the difficulties she had at home, which she appeared to the Tribunal to be coping with admirably. A particular problem was that the child needed so much attention, as a result of his various needs, including his behaviour (particularly in relation to his brother), that family life and opportunities for the child to get out and about were severely restricted. Her daughter was becoming a de facto carer of her brothers. She viewed the one-to-one support of 5 hours per week, now offered for the first time, as “a drop in the ocean”. It appeared that it would be delivered by a worker from a local help group, which had not suited the child when he attended there in the past. She spoke about episodes in the past when Local Authority School had been less helpful than they might have been, e.g. in relation to the child’s hygiene and clothing. She had made notes for the school which elicited no response. She thought the school was over sanguine in relation to the child’s future ability to survive in the community. Because of his extremely poor numeric skills he was quite unable to handle money.

 

13. The Tribunal formed the view that the appellant is an able, conscientious and loving parent whose views on the child’s educational needs and future development are carefully considered and well thought out. The Tribunal considered that the 24 hour holistic programme offered by the private Special School would be suitable provision for the child.

 

14. The question, though, is whether it is “not reasonable” to place the child in the private Special School. In the Tribunal’s view, the answer to that question, at this stage, must be in the affirmative. In coming to this view, the Tribunal has had particular regard to the following factors:

 

• The substantial extra cost to the authority if the placing request were granted.

 

• The fact that the Local Authority School can make suitable provision for the child’s additional support needs, provided (a) that the head teacher’s plans for the Local Authority School generally and the child in particular develop as she intends; (b) that the proposed support package is implemented forthwith and is modified and if need be extended as and when that proves necessary.

 

• The fact that although private Special School provision may offer certain advantages, particularly in the provision of continuity of care, it is not clear that these advantages are necessary to provide for the child’s additional support needs.

 

15. The Tribunal is satisfied that one of the grounds of refusal specified in paragraph 3(1) of the Act exists, namely that set out in paragraph 3(1) (f) of Schedule 2 to the Act, and that it is appropriate in all the circumstances to confirm the decision of the authority. The Tribunal therefore confirms the decision of the authority. The Tribunal wishes, though, to make the following observations on this case.

 

16. The child came to the current local authority area in 2001. The authority did not open a Record of Needs for the child, although he met the criteria for such a Record under the legislation then in force. They prepared no adequate Individualised Education Plan for the child. The Individualised Educational Plan (IEP) provided by the school did not contain short and long term targets for the child. It appeared to the Tribunal to be not so much an IEP as a report from an annual review of his progress.  The appellant said that she was not consulted in the preparation of the child's IEP. No social work assessment was undertaken by the authority until the social worker undertook that task in July/August 2006, despite a request for such an assessment having been made by the appellant at least as early as April 2005 and possibly as far back as mid-2004. The package of support set out in findings 20 and 21 was made known to the Tribunal a day or two before it sat and to the appellant only in the course of the Tribunal hearing. She was not aware, until she heard about it at the Tribunal hearing, that she could engage in mediation with the authority over their proposals. The Tribunal offered the appellant an opportunity of discussing the proposals with her advisers and of considering her position, which she took. The Tribunal also indicated that it would consider adjourning the hearing if she needed more time. Her representative indicated that an adjournment was not sought, as the appellant was keen to have the Tribunal’s decision as soon as possible. The authority’s witnesses acknowledged that there had been shortcomings in their systems in the past (as are documented, to some extent, in the minute of the child’s annual school review meeting held in January 2006). Things were now better. The authority now had new staff at Local Authority school. After years of staffing and other difficulties in their Social Work Department they now had a social worker with a dedicated remit for children with disabilities and improved budgetary arrangements for supporting such children and their families.

 

17. It follows from these observations that the child’s case should be kept under continuous and careful review and that no failures of the kind commented on should be allowed to occur in future.