DE
Reference: R/13/0042
Gender: Male
Aged: 14
Type of Reference: Placing Request
1. The Reference
1. This is a reference to the Tribunal under the Education (Additional Support for Learning) (Scotland) Act 2004 (‘the 2004 Act’), s. 18(1) and 18(3)(da)(ii). The notice of the Reference was made on 2nd August 2013. A hearing on this reference took place over three days in November and December 2013. Thereafter, written submissions were directed, the final submissions having been received on 4th February 2014. Thereafter, the Tribunal panel members deliberated and reached a decision. A Summary Decision (under Presidential Guidance 12 of October 2010, paragraph 6) was issued on 12th February 2014. The decision itself and the full reasons for it are noted below.
2. In reaching our decision, we took into account the evidence of all seven witnesses (named above) and all of the documents in the bundle (numbered T1-T20; A1-A111; R1-R180 and a DVD). Written submissions were exchanged, consisting of a total of five documents, plus one e-mail from the Appellant dated 4th February 2014. These submissions consisted of main submissions from each party (including a separate submission from the Respondent on the transport costs issue) plus response submissions from each party.
3. There were no significant issues relating to the credibility or reliability of the witnesses who gave oral evidence during the hearing. The case revolves around an interpretation of the evidence, and of the application of the evidence to the relevant statutory tests. Witness A is the Head of Education at School A. She is a teacher and has been involved in teaching for 19 years. Prior to this, she spent 15 years as a speech and language therapist. Witness B is a clinical psychologist with Community Health and Care Partnership, Learning Disability – Child and Adolescent Mental Health Team (LD-CAMHS). He has been with that team for 13 years. He has significant experience in assisting children with autism and is widely published in the area. Witness C is a speech and language therapist with the NHS. She has been qualified for 38 years and has dealt with children with a learning disability for over 20 years. Witness D is S’s Principal Teacher at School B. She is responsible for pupils in years 1-3 at the school, and holds various other roles at School B, including health and wellbeing for the whole school and monitoring and evaluating teaching and learning in the school. She is in her seventh year as a class teacher and has been a Principal Teacher for four years. She holds a Postgraduate Diploma in Support for Learning. Witness E has been Area Principal Psychologist for the Respondent since August 2013. She has been an educational psychologist for 23 years. Witness F is an educational psychologist with the Respondent, and has held that post for five years. Prior to this, she was a teacher for 11 years. We took account of the evidence of all of these skilled witnesses, who all offered a mixture of factual and opinion evidence. Together, they represent a significant body of experience in the disciplines of clinical and educational psychology, teaching and speech and language therapy. All of these witnesses have had direct contact with S in an educational environment. The Appellant gave her evidence in a very clear and open manner. She clearly has S’s best interests at heart. It is clear also that she disagrees with the views expressed by several witnesses on the effectiveness of S’s education at School B.
4. The Respondents submitted copies of case law in support of its submissions, namely SM, Appellant 2007 Fam LR 2; S v The London Borough of Hackney 2001 WL 825614; K v North Ayrshire Council 2012 SLT 381; City of Edinburgh Council v ASNTS [2012] CSIH 48; and M v Aberdeenshire Council 2008 SLT (Sh Ct) 126.
2. Summary of the Decision
The Tribunal confirms the decision of the Respondent to refuse the Appellant’s placing request, in accordance with s.19(4A)(a) of the 2004 Act.
3. Findings of Fact
- The child in respect of whom this decision is made is S.
- S has additional support needs (ASN), as defined in s.1 of the 2004 Act. A Coordinated Support Plan (‘CSP’) has been issued for S (R25-29). S has Autistic Spectrum Disorder (ASD) causing associated learning difficulties, intolerance of others around him, limited ability to understand and relate to his environment, unpredictable behaviour and communication difficulties. As a result of S’s ASN, he requires (and receives) input from educational psychologists and speech and language therapy services. In addition, he requires (and receives) intensive support in the classroom.
- Since 27th February 2012, S has attended School B School, (‘School B’), a school managed by the Respondent. Prior to attending School B, S attended School C where he started in 2008, until leaving that school in June 2011. Between leaving School C in June 2011 and attending School B from 27th February 2012, S did not attend school.
- The School B school roll includes a high percentage of children with ASD (around 46% - R150, paragraph 2). S is educated in a class in School B with two other children, both of whom also have ASD. S’s class is staffed by one teacher and two support workers. The pupil:staff ratio in S’s class is 1:1. The teaching experience for S includes the use of magnetic letters, counting techniques, books, money and ICT equipment. The latter equipment includes laptops and ipads, which are available to S as he needs to use them. A number of teaching techniques and tools suitable for children with autism are used in School B with S and other children with ASD. S’s curriculum at School B is flexible and is mainly sensory-based. S is following a broad curriculum at School B including Expressive Arts/Communication/Drama, ICT, Art, Literacy, Maths, Music, Home Economics, Physical Education, Sensory Activities, Health and Wellbeing, Swimming, money workshops and International Education. S has benefitted from each of these subjects/activities at School B. He also participates in local weekly outings.
- School A is an independent school. The school is administered under the National Autistic Society, and caters for a broad range of children with ASD. There are currently 28 pupils at School A, 26 of whom attend on a residential basis, the remaining two on a day placement basis. There are five teachers at School A in addition to a number of day support staff members. Each child attending School A has a personalised education programme. Each teacher is allocated six pupils. The teachers are supported by pupil support workers. The provision at School A is described and assessed by the Care Inspectorate report of 22nd May 2012, at R82-R92. The needs of the current pupils at School A are different to, and more significant than those of S.
- S attended School A twice, once in June 2013 and once in October 2013, with the Appellant. The purpose of these visits was for the Appellant to consider the suitability of School A for S and for School A staff to informally meet S with a view to considering if School A could meet his educational needs. The activities carried out by S on the second visit are outlined in the account by the Advocacy Worker, who accompanied S during that visit (A105-A106). No formal assessment of S’s suitability to attend School A has been carried out. In the event that S were placed in School A, a formal assessment period of six months would begin.
- School B school pupils with support needs can be identified as falling within one of three broad groupings. The first group consists of pupils in two classes who have very profound, complex learning needs. The second group consists of three classes where the pupils have complex autistic needs. The third group contains four classes where the pupils have a variety of learning needs. S is within the second of these three groups. There are other children at School B working at a higher level than S. The class arrangements in School B are flexible, allowing pupils (including S) to be considered for movement to a different class group if his abilities improve.
- The Appellant did not wish S to attend School B. The Appellant made a placing request seeking a place for S at School D, a school managed by the Respondent. This placing request was refused and that refusal was upheld by the Tribunal in a decision issued on 9th December 2011 (R164-R173). Following that decision, the Appellant relented and allowed S to attend School B. During the period between the start of academic year 2011-12 and S’s attendance at School B from 27th February 2012, the Appellant attempted to educate S at home.
- S settled well in School C and his educational progress was good from 2008 until he left in June 2011. On joining School B in February 2012, some difficulties were encountered in educating S there, including instances of challenging behavior. These difficulties abated during academic session 2012-13, but persisted to some extent, including some challenging behavior and difficulty in concentration. S is generally happy at School B and is performing adequately across all main curriculum areas.
- S performs better in certain literacy and maths tasks at home than he does when attempting similar tasks at School B. The professionals involved in S’s educational progress are currently investigating the reasons for this, with a view to transferring the performance of those skills to a school environment.
- The educational provision for S at School B is adequate, given current knowledge and understanding of S’s needs.
- School B is more suitable for the provision of S’s ASN than School A.
- There would be no additional cost to the Respondent in continuing to educate S at School B. If S is placed in School A, the annual fees which would be charged by School A to the Respondent for S’s education there are likely to be in the region of £65,000.
- School A is not a public school. The Respondent has offered S a place at School B.
4. Reasons for the Decision
1. The burden of proof rests on the Respondent, both as regards the ground of refusal and the appropriateness in all of the circumstances question (the two branches in s.19(4A) of the 2004 Act). This is clear from the wording of the 2004 Act, and was the view of Sheriff Tierney in M v Aberdeenshire Council 2008 SLT (Sh Ct) 126. This seems to be conceded by the Respondent (see its response submission, penultimate paragraph). The two branches of s.19(4A) of the 2004 Act will now be considered in turn.
A: Ground of refusal of placing request (s19(4A)(a)(i))
2. The ground of refusal relied upon by the Appellant is the one set out in Schedule 2, paragraph 3(1)(f) of the 2004 Act (see the Respondent’s letter intimating refusal of the placing request, at T19-20). It is clear that we are required to consider whether the ground ‘exists’ (s.19(4A), confirmed by M v Aberdeenshire Council 2008 SLT (Sh Ct) 126) and so we must consider the ground of refusal on the basis of the current evidence; we are not reviewing the Respondent’s decision to refuse the placing request.
3. There are four conditions which must apply in order for that ground to exist, set out in sub-paragraphs (i)-(iv) of paragraph 3(1)(f). Each will now be considered.
Conditions (i) and (iv)
4. The specified school in this case is School A. It is accepted by both parties that this is not a public school, and it is clear from the evidence that it is not. The condition in paragraph 3(1)(f)(i) is therefore met. The Respondent has offered to place S in School B (indeed, he attends there) and so the condition in paragraph 3(1)(f)(iv) is met. Neither of these conditions is in contention.
Condition (ii)- the Respondent’s ability to make provision for S’s ASN in School B
5. This condition is in contention. The Appellant argues that it is not met, the Respondent that it is. It is clear to us that this condition is met.
6. The Appellant argues that the Respondent has not managed to identify the ASN of S (main submissions, page 3). She goes onto assert that the Respondent does not understand S’s needs (main submissions, page 4). The Appellant further suggests that the needs of S have not yet been properly settled in the minds of those who have responsibility for S’s education (see submissions in e-mail of 4th February 2014). We disagree. The Appellant relies in particular on the evidence of S’s skills as demonstrated at home, which, it is argued, are far greater than the skills displayed by S in school. We agree that there is a disparity in the evidence in this area; S seems to manage to perform to a higher level at home than in comparable tasks at school, including in literacy and numerical exercises (see the reports of educational psychologist with Respondent at R57-R60; of Witness F, at R154-R159 and of Witness C, at A110-A111). However, this does not, in our view, mean that the Respondent is not able to meet S’s needs at School B. S’s needs are well defined in his CSP (R25-R29) and there is evidence to suggest that those needs are being met in the classroom (see below). The fact that the environment within which certain tests takes place appears to influence how S performs has been accepted by the Respondent. It is also the case that the Respondent is investigating the reasons for this. Indeed, this has been the subject of some discussion, for example at a Multi-Agency Planning Meeting which took place on 7th November 2013 (see minute at R174-177). Witness B, (called by the Appellant as a witness) sets out three considerations around this issue (R175). That meeting concluded with an agreement for a follow up meeting. That follow-up meeting took place on 20th November 2013 (minute at R179-180). The minute of that meeting discloses a number of steps that are to be taken in order to seek to resolve that issue. Witness C made a number of practical suggestions at that meeting as to how matters are to be progressed. It is clear that this matter is being fully considered.
7. One point which might be made is that these steps could have been taken earlier, given what appears to be identification of the need for transfer of skills from home to school by xx during a home visit in October 2012 (see his report at R57-R60). This need is also identified in the Respondent’s 2013-14 Additional Support Plan for S (R34-R38 at R36). Further, Witness B and Witness C identify this issue at a multi-disciplinary meeting held on 21st August 2013 (see the minute at R56). It could be said that there was a gap in dealing with this issue between October 2012 (when it is first professionally identified) and October 2013 (when the issue appears to have started to gain momentum). However, even if this criticism is reasonable, this issue was identified and concrete steps are now being taken. We emphasise here the nature of this condition – it requires evidence that the Respondent is able to meet S’s needs at School B. It does not require a critical review of the provision for S at School B. The Respondent can only be expected to meet the needs of S as those are currently identified. It is clear to us that a flexible approach is required to the education of a child with ASN; indeed, the Respondent is required to keep S’s needs under review in particular via regular review of his CSP. This is an indication that the legislation in this area envisages that a child’s identified needs may change over time, requiring an adjustment to the educational support provided to meet those needs. It may be that additional needs will be identified as a result of the current investigations into the transfer of skills from home to school. In our view, the correct analysis is to see the Respondent as being willing to develop S’s education as his needs are identified. It is also important to note that all of the skilled professionals whose evidence is available to us are in agreement that more work needs to be done in this area, and that this is a work in progress. It is also noteworthy that S could be moved to a different class to cater for his needs, if he is identified as being more able, as indicated by Witness D.
8. Turning from the issue of transference of skills from home to school, there is ample evidence to suggest that S is being educated to a good standard at School B, such that his needs (as currently identified) are being met. It is clear from all three school reports issued during S’s time at School B that he is progressing appropriately, bearing in mind his ASN (see R11-R24). There is a very high pupil:teacher ratio in place, higher than the minimum for someone like S as suggested by Witness B (he suggests a minimum of 3:1 pupil:teacher ratio). The targets set out for S in each of his school reports from School B (A47-A58) are clear, and according to the terms of these reports, S appears to be making good progress. This is the view taken by Witness D, as expressed in her oral evidence. We accept that the educational experience for S at School B has not been entirely smooth. However, given S’s needs and the fact that he did not join School B until well into the 2011-12 academic year, having missed out on the transitional period, this is not surprising. Despite this, there is strong evidence of progress across all main subject areas, as indicated in his school reports. Further, Witness F was clear in her oral evidence that School B is meeting S’s educational needs. This is significant, given the observations of Witness F of S both at home and in School B (see her report at R154-R159). Witness E was also clear in her evidence that S’s educational needs are being met at School B, and that she felt they would continue to be met there. The condition does not require that School B provides the perfect educational experience for S, only that his needs are able to be met there. No skilled witness who gave evidence (whether for the Appellant or Respondent) suggested that S’s currently identified needs are not being met at School B.
9. Taking all of the above together, we are satisfied that this condition is met.
Condition (iii)- reasonableness of placing S in School A
10. The test here is reasonableness – is it reasonable to place S in School A? This test requires to be considered on the basis of the evidence led at the hearing. The Appellant’s submissions on the proper approach to this condition is misconceived. The Appellant argues that no proper respective suitability analysis has been carried out by the Respondent. However, the approach we must take is to consider whether we (the Tribunal panel) are satisfied that this condition is met. This is clear from the wording of s.19(4A)(a) of the 2004 Act (where it states that we may only confirm the local authority’s decision if we are satisfied that one of the grounds of refusal exists). It is clear that the Respondent took the view that the ground in paragraph 3(1)(f) (including the condition in paragraph 3(1)(f)(iii)) existed at the time of refusal (as is evident from their letter intimating that refusal – T19-20). It is not the Respondent’s view which now matters, the Tribunal has to be satisfied that the ground of refusal exists. In order to be satisfied on the question of respective suitability, we need not be satisfied that the Respondent has carried out a proper suitability comparison; instead, we are tasked with that comparison (as part of the overall test of reasonableness). We repeat what we indicate above: we are not tasked with reviewing the decision to refuse the placing request. We now turn to make the relevant comparisons.
Respective suitability
11. It is clear that we must consider, as the Appellant points out (main submissions, paragraph 6) the respective suitability of the provision for the ASN of S in each of the two schools, School B and School A. The Appellant is also correct in stating that this exercise requires consideration to be given to S’s specific ASN. However, we do not accept, as asserted by the Appellant, that the material available to us does not enable that assessment to be carried out. It is clear, as stated above, that there is ample evidence of the suitability of School B for the provision of S’s ASN. School B is currently meeting those needs, and there is no suggestion that this is likely to change in the near future. Indeed, given the evidence of attempts to discover the reason for higher performance of S at home compared to school, it is clear to us that there is a desire to continue to do more to discover any needs that are not currently apparent and to provide for them. Given all of this, it is clear that School B is a suitable environment for the provision of the ASN of S.
12. On School A, Witness A, Head of Education there, indicated that she believed that School A could provide for the needs of S. This was based on two meetings with S at School A. However, we are not tasked with deciding whether School A can provide for the educational needs of S, we are tasked with considering the question of School A’s suitability for the provision of S’s ASN, and with a comparison of that suitability with the suitability of School B. The educational environment offered by School A is impressive, as indicated in the Care Inspectorate report of 22nd May 2012 (R82-R92). The only witness who could give skilled evidence of both School B and School A is Witness E. She had carried out an analysis of the two schools, producing a report on each: R150-R153 (School B) and R160-163 (School A). While it was clear from the evidence that the report on School A was carried out following a visit by Witness E, and with S in mind, the report is general in its terms. It does not mention S’s needs. The same is true for the School B report. The Appellant in her submissions indicates that this means that this suitability comparison is too general, and therefore not helpful to the Tribunal in considering respective suitability. However, we must consider all of the evidence and it is clear from Witness E’s oral evidence that she is of the view that School B is more suitable than School A for S’s educational needs. In any event, we need not rely solely on the evidence of one witness who has carried out a comparison (although such evidence may be sufficient); in many cases, such a skilled comparison is not available. We need to consider for ourselves, on the basis of all of the evidence led, the suitability of School A to meet S’s ASN.
13. There are three main indicators (aside from the view of Witness E) which suggest that School A would be a less suitable provider of S’s ASN than School B.
14. One indicator is the pupil:teacher ratio at School A, stated to be 6:1. Witness A explained that the teachers are assisted by day support staff. She also indicated that the teacher may not always be in the classroom and that he/she would normally be moving between classrooms. At School B, in S’s class, the pupil:teacher ratio is 3:1 (moving to 1:1 when support staff are taken into account). Although it is difficult to compare with precision the two ratios, it is clear to us that the arrangements in place at School B provide for a much stronger, continual staff presence for S than would be available to him at School A. This is an important factor, since there is a substantial body of evidence to suggest that S requires significant staff input. This is evident in, for instance, his School B school reports: “…S has required 1:1 support and encouragement to follow his lesson schedule and complete all tasks” (A48, on maths); “This term he participated in these lessons with significant support” (A49, Language); “S can be easily distracted at times but with 1:1 support he has been encouraged to stay on task” (A53-54, maths). There is also evidence of significant support being required for challenging behavior (see A50, under ‘Show’; A56 under ‘Outings’). The Appellant herself accepts that S requires 1:1 support (see the Parental Comments to the CSP, R28). In our view, given the evidence of support at School A, it is likely that S would not benefit from the level of adult support he currently has at School B, if he were placed in School A.
15. The second main indicator is the pupil profile at School A. We accept the evidence of Witness E where she states that School A is a placement option for children and young people “with very significant needs in relation to ASD such that their behaviours constituted a risk to themselves through self-injurious behaviours or to others through carrying out behaviours or who have extreme sensory/anxiety based issues and very high levels of distress” (R160-163 at 163). While Witness A took issue with some of the wording of Witness E’s report at R160-163, it is clear from her (Witness A’s) evidence that the pupils at School A have needs which are different from and more significant to S’s needs. Witness A indicated that the pupils who attend School A had been very problematic in their previous school and that the two current day placement pupils had been excluded from school. She indicated that most School A pupils attend there due to their physical behavior. She accepted that those pupils attending School A with the least significant problems (around 30% of the school population) would be regarded as at the high end of the scale in most state schools. We also note the conclusion of Witness E that security at School A is ‘tight’ (R160). In this context, we note that S is in the middle of three groups, according to the significance of support needed, at School B. Further, we note that the challenging behavior by S has been improving at School B, with less instances in the academic year 2012-13 than previously. Given all of this, it is clear to us that the pupil group being accommodated at School A is dissimilar to S. This makes it less likely, in our view, that School A will be a suitable educational environment for S.
16. The third main indicator relates to the effect a move to School A might have on S. It is clear that S struggled to settle into School B following his move there from home in February 2012. He exhibited challenging behavior more often than when he became more settled. There is a clear difference in tone between S’s end of year report for session 2011-12 (A47-A51) and the equivalent report for 2012-13 (A52-A59) with the latter report painting a picture of a child who is more settled at school. The oral evidence suggests that A is continuing to be settled in the current academic session. There is a risk that a move from this relatively settled environment into a new environment with new teachers, classrooms and pupils will unsettle S, as happened with his move to School B. Of course, it is not possible to predict with any certainty how any transition to School A would work for S. We have no doubt that every effort would be made to try and ensure that the transition would be as smooth as possible. Also, we appreciate that where there is evidence that indicates that a child’s educational needs are not being met at his/her current school, and that they would be likely to be met at another school, the risk of a disruptive transition is one worth taking. However, this is not the case here. This risk is not a major factor in our consideration, but it does feature. In our view, it is appropriate to consider such a factor in considering School A’s suitability, since it is not the suitability of the school in the abstract we must consider but its suitability for the provision of S’s ASN. This question can properly, in our view, involve contextual matters, such as the transition process as this might impact on suitability to meet S’s ASN. It is clear that a transition process might impact on S’s education at a new school, as it did following his move to School B. Further, there is skilled opinion to support this risk; Witness E expressed concern that if S moved to School A, he might lose the progress he has made at School B. Witness E spoke very highly of the relationship between S and the teaching and support staff at School B, and that the staff seemed ‘attuned’ to S, and that their teaching was appropriate for his needs. This view was formed following her observation of S in the classroom environment. While the Appellant doubts that such progress has been made, as indicated above, we disagree, and S’s end of year reports and the oral evidence are clear on the level of progress.
17. These indicators must be considered alongside the evidence that is available about School A. It is clearly an ‘autism specific’ school, since all pupils there have a diagnosis of ASD. Witness B indicated in his evidence that children with ASN like S would be better catered for in an autism specific school. School B is not such a school, since less than half of its pupil population has a diagnosis of ASD. However, Witness B made it clear that he could not comment on school placement issues, and so his evidence does not directly assist either party on the question of respective suitability in relation to S. Further, there was no evidence to suggest that School B was an unsuitable environment for any child with ASD; indeed, there was plenty of evidence of the contrary position.
18. We accept that there is little specific evidence of the ability of School A to meet S’s needs. Witness A conceded that an assessment of S’s suitability had not been carried out; this would only begin if funding for a place was made available. The Appellant suggests that this represents a weakness in the Respondent’s case: that there is a lack of evidence as to School A’s suitability, and so the respective suitability of the schools cannot be compared. We disagree. By this standard, there would never be evidence of the suitability of an independent school like School A sufficient for the Tribunal’s purposes. The Appellant’s analysis presumably would mean that all placing request refusals in which this ground of refusal had been employed would require to be overturned since a proper assessment of the suitability of a school in the independent sector like School A would only, paradoxically, be carried out following the placement of a child there. This is, of course, an absurdity.
19. This is not a matter which, however, concerns us in this case. Here, we have evidence from skilled witnesses about the suitability of School B on the provision for S’s ASN, and skilled evidence of the unsuitability of School A in this regard. In addition, we refer to the three indicators mentioned above.
20. Taking all of this together, we are satisfied on the balance of probabilities that School B is more suitable on the provision for S’s ASN than School A.
Respective Cost
21. In considering the reasonableness of placing S in School A, we must also consider the cost of doing so, when compared with the cost incurred at School B. The courts have made it clear that what we must have regard to is the additional cost (see Lord Glennie’s views in SM, Appellant 2007 Fam LR 2 as approved by the Inner House in JB(AP) v Glasgow City Council [2013] CSIH 77 at paragraphs [18]-[19]).
22. In the context of considering the cost of S’s attendance at School B, it is clear that no additional costs will be necessary. All of the support that S currently requires is in place. The CSP provides the framework for providing that support. The teaching staff and other provisions at school, as well as input from Witness B and Witness C, are in place. As we conclude above, S’s needs continue to be met at School B, and there is no evidence of any additional resource which is not currently being provided and which, in the foreseeable future, is likely to be. This means that, for the purposes of this condition, the cost of providing for S’s ASN at School B is nil.
23. By contrast, the additional cost to the Respondent of placing S in School A would be significant. Witness A indicated that it was difficult to estimate the precise level of fees which the Respondent would be charged if S attended School A, but she estimated that the cost would be around £65,000 per year. This is a significant cost by any estimation.
24. The cost differential between School B and School A (if S were placed there) is therefore £65,000 per year. We do not include here the incidental travel costs, for reasons explained below. The Appellant appears to concede that the issue of respective costs is perhaps less difficult for the Tribunal than the issue of respective suitability (main submissions, paragraph 6). In our view, this is a sensible concession.
Conclusion on respective suitability and costs
25. The test is reasonableness of placing S in School A. In our view, it would not be reasonable to do so, having regard to the questions of respective suitability and respective cost. It would be unreasonable for S to be placed in School A at significant additional cost, when provision which is more suitable for S’s ASN is currently available at no cost in School B. This condition is therefore met.
Conclusion on ground of refusal
26. Since all of the conditions in paragraph 3(1)(f) of Schedule 2 of the 2004 Act are met, we are satisfied that a ground of refusal as referred to in s.19(4A)(a)(i) exists.
B: Appropriateness in all of the circumstances (s19(4A)(a)(ii))
27. Although we have decided that a ground of refusal exists, we may only confirm the Respondent’s decision to refuse to place S in School A if we are satisfied that in all of the circumstances it is appropriate to do so. This involves taking all of the evidence into account (including the evidence referred to above) and considering it in the context of the appropriateness of placing S in School A. We have reached the view that it is not appropriate, in all of the circumstances, to place S in School A. There are a number of reasons for this.
28. Firstly, S’s education is being adequately met in School B. If S were to attend School A, this would involve an element of unacceptable risk. Such a placement would involve moving S, with all of his needs, from School B, where the evidence suggests he is settled, to the unfamiliar environment of School A. Given our concerns around the pupil profile and the staff:pupil ratio, there would be a likelihood that the placement at School A would not be successful. Given S’s needs, taking a risk with such a move would be unwise.
29. Secondly, the cost of placing S in School A would be a significant one for the Respondent, and we do not feel that it would be appropriate to compel the Respondent to expend significant public funds on a placement where S’s needs are being adequately met at no additional public cost.
30. The Appellant raises a number of issues for consideration at this stage, focusing on the evidence of The Appellant herself. We should make one general point here. Our task is not to conduct a general review of School B School. Our task is not to apportion blame for any mistakes. Our task, at this stage in the exercise, is to consider the appropriateness of placing S in School A. Of course, part of that consideration will involve an assessment of School B with regard to S’s education there, but the limitations of our task should be borne in mind.
31. The Appellant refers to the progress at School C School and contrasts this with the progress at School B (Appellant’s main submissions, paragraph 9); this was a significant theme in her oral evidence. We agree that the evidence discloses that S fared better at School C than in his initial spell at School B. However, we do not accept that there is any evidence to suggest that this is due to failings of the staff at School B. We note that S did not have the advantage of the usual transition process from primary to secondary school (a challenging transition for any child) and that he missed out on almost six months of attendance at School B. These factors may well have contributed to the less than ideal start to S’s secondary education. On the other hand, it is difficult to be certain about how S would have coped with a move from primary to secondary school even if he had started at School B in August 2011. The situation now is that School B is meeting S’s needs adequately (as indicated above). This is a key consideration in the appropriateness question. We do not think it is productive to compare the provision at School C with School B when we are considering the appropriateness of a placing request to a different school, namely School A.
32. The Appellant points out the lack of action on the transference of S’s abilities from home to School B following the recommendations of educational psychologist, in his report at R57-R60, following a visit to S at home on 24th October 2012 (see Appellant’s main submissions, paragraphs 10 and 11). Although there was some evidence that some of what was recommended in that report had been implemented for S (from Witness D), we do feel that there was a time lag following that report until Witness C’s home visit in July 2013 (see the summary of speech and language involvement prepared by Witness C at A110) and further discussions in November 2013. From July to November 2013, there is what might be described as a flurry of activity on this point. However, even if this is a criticism of the Respondent for failing to act formally for a number of months, this does not assist us in considering the appropriateness of S’s placement at School A. It is clear that action is now being taken. Placing S at School A will not allow the clock to be turned back. We have to consider the current position.
33. The Appellant refers to the report of Witness F, educational psychologist (R154-R159) and offers a number of criticisms of this and her evidence (Appellant’s main submission, paragraph 12). Firstly, there is a suggestion by the Appellant that Witness F seems (from her report) to be ‘sceptical’ about how S is performing at home. During her evidence, it was put to her that one suggestion in her report seemed to be that there was some form of deception being employed during the observation of S at home, involving direct physical contact between S and (in particular) his sister. We agree that there are sections of Witness F’s report which might be interpreted as displaying scepticism on this front; we refer in particular to the paragraph on R157 under ‘Paul is taking the dog for a walk’ where physical contact between S and his sister is described. However, in her oral evidence, Witness F indicated that she had meant to convey that she was simply unsure why S was not able to replicate his performance at home in the classroom. It is clear to us, from the evidence as a whole, that S is able to perform at home to a much higher standard in certain literacy and numeracy tasks than he is able to perform in the classroom. It is equally clear that the reasons for that disparity are unknown. However, the evidence discloses a clear effort by a number of professionals to discover the reason for this disparity, and to resolve this issue (see minutes of meetings at R174-177 and R179-180, as commented on above). In fairness to Witness F, she does indicate in her report (in a different part of the same page, R157, but dealing with the issue of physical contact during her observation) that “no interpretation has been conjectured about the purpose or intent of what was seen. The use and structure of this strategy has still to be explored.” This matches with her oral evidence to the effect that there is some uncertainty around the reasons for this disparity. The Appellant also criticises Witness F’s report since she did not record everything that she found (there were some examples of mathematical problem solving observed, but not mentioned). However, the Appellant does not suggest that Witness F was behaving in a biased way against the Appellant, and we certainly do not think that this is the case, having heard her oral evidence. We do not, therefore, need to comment further on that observation. Still in paragraph 12 (Appellant’s main submissions), the Appellant suggests that a reasonable interpretation of Witness F’s evidence is that “Effectively she conceded that the staff were out of their depth and they would need input from Witness C and Witness B.” We do not agree with this interpretation of her evidence. The evidence of reliance on Witness C and Witness B is, in our view, simply a recognition that they have expertise that is relevant and valuable to assessing and advancing S’s educational provision. Indeed, formal recognition of the need for LD-CAMHS and Speech and Language Therapy input is clear from the CSP, framed in September 2012, around five school months following S’s first attendance at School B. There is no evidence that at that early stage, School B staff were struggling to educate S adequately. It is difficult to see any serious or justifiable criticism of School B in these comments, and certainly none that would offer a material consideration on the appropriateness of placing S at School A.
34. The Appellant suggests that the relationship between her and the School B staff is hampered due to lack of communication (Appellant’s main submissions, paragraph 13, first paragraph). The examples cited there, however, are not significant in the context of the whole evidence. It is clear from the evidence that the Appellant has been included in many meetings at which key discussions about S take place, and her views have been recorded regularly. Later in her submissions (Appellant’s main submissions, paragraph 13(iii)) the Appellant alleges that there is no partnership between home and school and that there is a lack of trust between her and School B staff. We are aware from the Appellant’s evidence that she is very frustrated at what she considers to be a lack of progress with S’s education, especially given the performance he delivers at home, even when observed by professionals. However, as indicated above, efforts are being made to transfer these abilities to School B. In our view, this is the appropriate course of action, and placing S in School A is unlikely to accelerate this process. The Appellant asserts that the lack of trust and partnership is detrimental to S, but there is no skilled evidence to support this.
35. The Appellant suggests that S has regressed at School B when compared with School C (paragraph 13(i), Appellant’s main submissions). However, this runs contrary to the evidence of good progress of S at School B as disclosed in his school reports and in the oral evidence. As indicated above, we are not tasked with comparing School C and School B, and we have concluded that School B is meeting S’s needs, as currently identified.
36. The Appellant suggests that School A offers a better peer group for S than School B, closer to that which S has at home (Appellant’s main submissions, paragraph 13(ii)). It would not be appropriate to compare the school and home environment, and we have indicated above how the Respondent is attempting to discover how to transfer performance at home into school. There is no evidence available which would suggest that if S attends School A, those efforts would be any more effective. There is little evidence of how S would react with his peers at School A, if he were to attend there, especially as he has not met or been observed with them. By contrast, S is making adequate educational progress with his peers at School B.
37. The Appellant suggests that there is a division of opinion with regard to the source of S’s educational barriers (Appellant’s main submission, paragraphs 5 and 13(iv)). She suggests that the NHS professionals (Witness B and Witness C) believe that S’s main barrier to learning is his autism while the educational psychology professionals do not accept this. We agree that there appears to be a difference of opinion on this point, but we do not accept that it is significant. The professionals all agree on S’s educational needs and how they should be provided. There is ample evidence of collaboration between all professionals on progressing S’s education, not least from the minutes of the two most recent multi-disciplinary meetings (minutes at R174-R177 and R179-180) as well as earlier meetings and the content of S’s CSP.
38. The Appellant relies upon the view expressed by S during his second visit to School A that he wants to attend there (main submission, paragraph 13(v), referring to the account of the Advocacy Worker, at A105-A106 at 106, penultimate paragraph). We take account of that view. However, this view was expressed by S during a visit to School A, a visit which was short. We have to weigh this up against all of the evidence of the suitability of School B, and the risks of a move to School A, and in this context it has some, but not substantial, weight. The Appellant also relies on S’s expression of dislike at being at School B (R58, part of xx report, see main submission, paragraph 13(v)). However, this stands in contrast to the numerous references to S being happy at School B in his end of year school reports (A47-A58) and as referred to in oral evidence from professionals working with S. It also conflicts with the fact that S willingly goes to school each morning. Again, S’s negative comments about School B, as noted by xx, have been considered in the context of the evidence as a whole, which in our view paints a picture of a child who is happy at school.
39. The points made by the Appellant in the main submission, paragraph 13(v), insofar as they are relevant to our task, are dealt with above. In addition, main the points made by the Appellant in her response to the Respondent’s submission, and in her final e-mail, are sufficiently addressed above.
Conclusion on appropriateness
40. In our view, while the Appellant has made some criticisms of School B, and while the issue of transfer of performance from home to school remains under consideration, in all of the circumstances, it would not be appropriate to place S in School A. His needs are being adequately met in School B, and to disturb his education there and transfer him to a school where his needs may not be met, at considerable cost to the public purse, would not be appropriate.
Transportation cost issue
41. The parties made written submissions on the taxing question of whether or not the phrase “(including necessary incidental expenses)” in paragraph 3(f)(iii) of Schedule 2 of the 2004 Act includes transport to and from school costs. Essentially, the question is whether, in a case where a placing request is granted (by the local authority or, following a reference, by the Tribunal) the local authority requires to meet the transport costs of the child to and from the school in which he/she is placed. In the current case, such costs would be significant (see the estimate at R178, where the total annual cost, based on 40 weeks, would be £26,623.20). The Appellant asserts that such costs are included in the ‘necessary incidental expenses’ of the cost of placing the child, the Respondent asserts that they are not mandatory where a placing request is granted, but are only discretionary.
42. A decision on this point is not necessary for the determination of this reference. The respective cost assessment, as indicated above, is clear even when all transport costs are ignored, and only the fees of S’s attendance at School A are considered. For this reason, there is no need to consider the relevance of the transport costs. If the Appellant’s submission on the transport cost point is accepted, the respective cost question becomes even more clearly one that favours the Respondent. One can imagine a case, however, where the respective cost position, aside from transport costs, is narrow and where therefore the question of whether transport costs are included in the definition of ‘necessary incidental expenses’ would require to be considered. Thankfully, this is not such a case; it is clear that there are cogent arguments on both sides.
43. For what it is worth (and since the point was argued in detail in written submissions), if we had been required to answer this question in this case, we would have favoured the position adopted by the Appellant. In our view, taking a purposive interpretation of the phrase ‘necessary incidental expenses’ it would include school transport costs, since the conveyance of the child to and from school is a necessary component of the provision of education there. In addition, the phrase ‘other necessary costs’ in paragraph 2 of Schedule 2 should be given a similarly wide interpretation. In our view, the provisions of s.51 of the 1980 Education (Scotland) Act do not conflict with the relevant provisions of the 2004 Act; the former provision deals with the obligation where there is no placing request, while the 2004 Act deals with the obligation where there has been a placing request. This is our view notwithstanding the decision in K v North Ayrshire Council 2012 SLT 381 where, as the Appellant points out, the current question was not squarely before the court. Essentially, the obligation is the same in both cases. It would seem to run contrary to the ethos and aims of the 2004 Act if a placing request has been granted (for example by a Tribunal following a reference) but where, in its discretion, the local authority could effectively thwart that placement by refusing to meet the transportation costs, with the result that the parent could not afford to convey his/her child to the school in which the child has been placed. We are not suggesting that the Respondent in this case would resort to such a measure, but an interpretation which leaves open such a course of action is, in our view, flawed. We offer our views on this question only on an obiter basis.
