DE
Reference: R/13/0050
Gender: Male
Aged: 14
Type of Reference: Placing Request
1. Reference:
The appellant lodged a reference under section 18 (4) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) against a decision of (“the authority”).
The reference was in respect of the decision dated 24 June 2013 where the authority refused a placing request made by the appellant under paragraph 1 of Schedule 2 of the Act, for The child to attend School A
2. Decision of the Tribunal:
The Tribunal confirms the decision of the Authority and refuses the request to place The child at School A.
The Tribunal confirms the decision of the respondents, in exercise of its power under section 19(5) of the 2004 Act. In terms of section 19(5)(a)(i) of the 2004 Act, the Tribunal is satisfied that the ground of refusal specified in paragraph 3(1)(f) of Schedule 2 of the 2004 Act exists. In terms of section 19(5)(a)(ii) of the 2004 Act, the Tribunal was also satisfied that in all the circumstances it is appropriate to confirm the decision.
Preliminary Matters:
This reference was made on 23 August 2013. On the application of the appellant, the case statement period was extended for a period of two weeks. A further two extension was permitted on the application of the authority. The authority sought to call an additional witness. None of these applications were unopposed and all were allowed. It was intended that a hearing would be arranged for December 2013. As there was to be a Children’s Hearing regarding The child in December, parties agreed to delay fixing the Tribunal hearing until suitable dates in the new year. A two day hearing was fixed for 20 and 21 February 2014. These dates had been fixed to suit the convenience of all parties and the Tribunal.
On 7 February 2014 the appellant’s representative requested that the hearing be postponed, pending a decision being made by a Sheriff on an appeal against a decision of the Children’s Hearing made on 16 January 2014. The authority opposed any postponement. After consideration the Convenor refused to postpone the hearing. A conference call took place on 14 February 2014 between the Convenor, the appellant’s representative and the authority solicitor. The representative again sought to postpone the hearing . The postponement was refused. It was confirmed during the conference call that the authority would lead evidence first.
The authority lodged additional papers numbered R256 to R258, and prior to the hearing the appellant lodged additional papers numbered A35 to A39. The hearing proceeded on 20 and 21 February 2014.
4. Summary of Evidence:
The Tribunal had regard to the bundle of papers and the oral evidence as follows:
Documents numbered:
T1 to T36;
R1 to R258;
A1 to A39.
Oral evidence for the respondents was heard from:
Witness A, Head Teacher, School B,
Witness B, Social Worker;
Witness C, Acting Deputy Principal Educational Psychologist.
Witness D, Service Manager ASN,
Oral evidence for the appellant was heard from:
TheAppellant.
5. Findings in Fact:
1. The child lives with his mother. His father sees him regularly and is supportive to him and the appellant.
2. The child has a diagnosis of Autistic Spectrum Disorder and Attention Deficit Hyperactivity Disorder. He has significant learning difficulties, sensory sensitivities and anxieties. The consequences of the diagnoses impact on all areas of his life. At his last formal assessment his communication skills were assessed as comfortable in Band 3 of the APEC (Assessing and Promoting Effective Communication) framework and beginning to use aspects of Band 4. He uses visual supports. His behaviour is challenging. He can be verbally and physically aggressive to those around him, particularly to the appellant. The child’s behaviour at school and at home became more challenging from early in 2013.
3. The child started at School C in 2005. He attended there until around December 2010. He began to attend School B in August 2011, after a period of some months absence from school and formal education. His attendance at School B during the session 2011/2012 was around 85% of possible attendance, and during the session 2012/2013 around 71%. He suffers a bowel problem with painful constipation which causes him to miss school some days. He remains on the roll of School B, although he has not attended classes since September 2013.
4. He has residential respite care, staying from a Monday to Friday every five or six weeks.
5. He has significant difficulties with change, in particular transition from home to school and from school to home.
6. By letter dated 23 August 2013 School A confirmed that The child was considered a suitable candidate to be admitted to the school.
7. School B is a local authority school with a roll of 59 pupils aged from five to eighteen. Pupils have a range of additional support needs, with around forty per cent having complex autistic spectrum disorders (twenty four pupils) and around sixty per cent with complex cognitive physical and medical conditions. A number of pupils also exhibit traits of Attention Deficit Hyperactivity Disorder. The staff comprise a full time equivalent of sixteen qualified teachers, eleven nursery nurses and twenty four pupil support assistants. There are twenty two escorts who travel with the children and young persons between home and school. Staff turnover is low. The child has had the same core of three staff, a teacher, nursery nurse and pupil support assistant, since he began to attend School B. All staff are trained and experienced in dealing with children with autistic spectrum disorder. The child’s class teacher has a BEd in Physical Education and Human Movement, a SEN Advanced Diploma, and has undergone a number of short courses, obtaining relevant qualifications. His nursery nurse has a NNEB, and has undertaken further training in relevant areas. His pupil support assistant had been trained on an APEC course as have all the school staff. Various NHS therapies, including Speech and Language Therapy, Occupational Therapy and physiotherapy are available, as well as music therapy, hydrotherapy and rebound therapy. The building was built for persons with hearing impairment, and has baffles to absorb background noise. There is outside enclosed space with a sensory garden, summerhouse, sandpit and roundabout; a grass play area with climbing frame and swing; and an enclosed quiet area with trees. Since The child started there in August 2011, there has been ongoing building work on land next to the school. A new sports complex including a large swimming pool will soon be opening. The school is near University Campus and Sports Village, and the pupils use facilities there; pupils at present access swimming pool, a ten minute walk away. Pupils go with staff to the local post office, bank and bakers shop, and to the supermarket, and are taken to the area, where they visit the ice rink, leisure pool and bowling alley, and can ride their trikes. Pupils will walk with staff to these facilities, or are taken by shuttle bus. The school organises other regular trips and outings. There is incremental building of the curriculum across the school day and across subject disciplines, reinforcing next steps in learning. Core skills such as literacy and numeracy skills are used in a functional way, for example when counting and weighing in cooking, and for making up a shopping list and buying ingredients at the local shops. The school makes full use of the local community in providing a relevant, interesting and appropriately challenging curriculum. Careful and robust person centred planning is carried out with partner agencies to facilitate the young person’s transition from school to adult life, starting from around eighteen months before a school leaving date.
8. At School B, The child is in a class of four pupils for administration purposes. He is one of a group of six pupils, all fully ambulant and requiring similar management, with seven staff, who use two classrooms and one “breakout” room. He has a personalised work station. He sometimes works independently to carry out a task, or with the assistance of a staff member. He is usually taught individually, or with one other pupil. At most there may be three children in the classroom. The ages of these children range from P3 to S3 level. The child has his lunch along with his teacher and one other child in the home economic room, rather than in the dining hall. This was arranged as he did not like the noise and bustle of the dining hall. He goes swimming and trampolining. He takes part in wider school activities such as the music group. He does this by choice; he also chooses to take part in a dance activity with wheelchair bound children and P7 pupils from a local mainstream school. Around fifty per cent of The child’s school day is classroom or school based, the remainder in the wider community. This includes going out once each week for lunch in a cafe with a staff member and another child, as well as shopping and attending the various sports facilities and other outings. He agreed his timetable with his teacher to include a variety of tasks and rewards. School B is able to cater appropriately for The child and to meet his needs.
9. School A is an independent school situated on two closely located campuses. The school provides care, education and therapy services for children and young persons from three to nineteen years with additional support needs arising from autism and complex physical difficulties. A minority of pupils attend on a day basis. It is accredited with the National Autistic Society. When inspected by Education Scotland and the Care Inspectorate in 2012 the school was evaluated as “very good” in “improvements in performance” and “meeting learning needs”, and “excellent” in “learners’ experiences”; “the curriculum” was rated “excellent” and “improvement through self-evaluation” was rated “very good”. Children and young persons are placed in classes according to their age; The child would be in a class of approximately seven young people of his age. The first six weeks of attendance at School A is an assessment period to determine the level of support the pupil will require throughout the day. The school is situated in large peaceful and varied grounds, with forests and a small farm: there is a swimming pool and gym hall. A variety of therapies are available. There are craft workshops. Many pupils access learning through the outdoors and practical activities. Each pupil is assigned a house with between four to eight others: meals are taken in the house. All senior staff have a BA in Social Pedagogy, some staff have additional qualifications. Support staff include “co-workers” and “classroom assistants”. Co-workers are volunteers and may be gap-year students staying at the school for finite periods. All staff have an induction course which includes first aid, epilepsy, Autism, speech development, speech and language, law and history of additional support needs. There is on-going staff training.
10. Fees at School A for a day pupil range from £11,220 to £65,360 per annum. Travel costs on individual transport with an escort if The child were to attend the campus of School A would be £450 to £475 a week, and if he were to attend the Estate, would be £550 to £575 a week.
11. Travel costs for The child to School B with an escort are £325 a week. No additional costs will be incurred by the authority for the attendance of The child at School B.
12. It is not reasonable having regard to the respective suitability and the respective cost of School B and School A to place The child in School A.
.
6. Reasons for decision:
1. The Tribunal considered all the evidence and were satisfied that there was sufficient evidence available for the Tribunal to reach a fair decision on the reference.
2. The issue in dispute was the respective suitability of the provision available at School B and School A, and the respective cost of the provision, for the additional support needs of The child.
3. There is a presumption of parental choice, and the authority has a duty to comply with the appellant’s request to meet the fees and other necessary costs for The child to go to School A, unless one of the grounds in Schedule 2 of the Act was satisfied.
4. Paragraph 2(2) of Schedule 2 of the Act provides:
"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 –
(a) a special school the managers of which are willing to admit the child
...
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 specified school."
5. Paragraph 3(1) of Schedule 2 of the Act provides that this duty does not apply:
"(f) if all the following conditions apply, namely –
(i) the specified school is not a public school;
(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not under their management) other than the specified school;
(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 specified special school and in the
school referred to in paragraph (ii), to place the child in the school, and
(iv) the authority have offered to place the child in the school referred to in paragraph (ii).
6. Section 19(5) of the Act provides:
"Where the reference relates to a decision referred to in subsection (3)(e) of that section, the Tribunal may –
(a) confirm the decision if satisfied that –
(i) one or more of the grounds of refusal specified in paragraph 3(1) or (3) of Schedule 2 exists or exist, and
(ii) in all the circumstances it is appropriate to do so;
(b) overturn the decision and require the education authority to
(i) place the child or young person in the school specified in the placing request to which the decision related ...
7. The authority solicitor submitted that in this case the conditions in Schedule 2 para 3(1)(f) applied and that the placing request should be refused. She maintained that School B was more suitable for The child than School A. She commented on the lack of information available from School A, and the refusal of the school to permit the authority Educational Psychologist to visit and observe classes, and delays in providing details of staff training and qualifications and the curriculum. She contrasted the very low turnover of trained staff at School B to School A’s use of “co-workers” who were volunteers, were likely to spend only one year at the school, and would have limited training and experience of Scottish education and children with additional support needs. She contrasted the close interaction of the pupils at School B with the wider community locally within the city to the setting of School A, and the issue of transition into adult life. Further, there were additional costs incurred were The child to attend School A. There was a wide band of possible fees: it was likely that costs for The child, who requires considerable one to one support, would be greater than the minimum fees quoted. Transport costs to School A were also higher than to School B. It was appropriate for the Tribunal to confirm the decision to refuse the placing request.
8. On behalf of the appellant, her representative maintained that School B could not provide an appropriate environment for The child, particularly due to his sensitivity to noise: the noise of the building works next door was likely to cause anxiety and upset. The challenging behaviours exhibited particularly towards his mother were due to his anxieties in attending School B. School A offered a large open and peaceful environment. There was family support available from the school. The recent inspection report was very positive. The child would have the opportunity to make friends of his own age. The child had indicated that he wished to go to School A. The authority had failed to properly consider if School A was suitable for The child before the decision to refuse the placing request was made. No visit had been made to the school until October 2013, four months after the decision had been made. School B was not suitable for The child, and therefore the additional cost of a placement at School A was justified and reasonable: there was no other suitable provision than School A. No grounds for refusing the placing request had been established. The child was refusing to attend School B, and to enable him to access education it was necessary to provide a placement that he was happy to attend, and where he would most easily make the transition between home and school. It was not appropriate in all the circumstances to uphold the decision of the authority to refuse the placing request.
9. In the circumstances of this case, in terms of paragraph 2(2) set out above, the authority is required to meet the fees and other necessary costs of The child's attendance at School A unless one of the circumstances in paragraph 3(f) is established.
10. There is a two stage test in terms of section 19(5) (a) as set out above: firstly the Tribunal requires to determine if the authority has established any of the circumstances in paragraph 3(1)(f); then, the Tribunal has to consider whether in all the circumstances it is appropriate to confirm the decision of the authority.
11. Para 3(1)(f)(i) and (iv) are not in dispute. School A is not a public school, and the authority have offered to place The child in School B: indeed he has a place and is on the roll of School B.
12. The Tribunal considered the evidence before it of the ability of the authority to make provision for The child’s additional support needs in School B. We had regard to the evidence of the Head Teacher Witness A who had been working with children with additional support needs since 1993. She had been appointed Head Teacher of School B in July 2009, having held various posts within the school and worked there since 1997. We accepted her evidence of the training, qualifications and experience of the staff. We were impressed with her description of the efforts made to minimise The child’s anxieties, for example the strategies they had identified in easing the transition from school to the taxi to take him home. She had a very good knowledge of The child, and we noted, for example, her description of how staff had learnt, with the assistance of his mother, to pick up subtle signs of The child’s moods, as well as more overt signals such as how he wore his hat. We noted the close contact the school staff had with The child’s mother, and the efforts that had been made to be flexible and adaptable to ease The child’s anxieties. We accepted the evidence that The child had a good relationship with the staff, that he had made progress at school, and that much of the time in school he was settled and worked well, and that he was able to enjoy the activities outwith the school premises. We had regard to the school’s part in the multi-disciplinary group providing support to The child and his mother, and the arrangements to administer medication for The child. We were satisfied that the school offered as much support as was possible for The child and the appellant.
13. We accepted the evidence of the Educational Psychologist of her direct knowledge of The child, and her knowledge as supervisor of the current psychologist attached to School B that School B was able to meet The child’s needs. We concluded that it was clearly established that the authority was able to make provision for The child’s additional support needs in School B. Para 3(1)(f)(ii) is satisfied.
14. The Tribunal required to consider the respective suitability and respective costs of each school in respect of the provision for The child's additional support needs in terms of para 3(1)(f)(iii).
15. There was limited information about School A, the curriculum and the qualifications and experience of the staff including the co-workers. Although the inspection report had described the curriculum as “excellent”, there was little information as to the relevance of the curriculum for a child with The child’s needs. The Educational Psychologist told us that she had been responsible for six or seven placements at School A over the last sixteen years, none of which she thought were for educational reasons, rather, they were in situations where there were children or young persons with very complex needs, and where there was a requirement for residential care; the placements were usually arranged between the education and social work departments. She was of the view that School A would not provide The child with the right support and challenges both socially and educationally. The curriculum, as far as she was aware, was very different to the Curriculum for Excellence used by School B. The academic content was in the first part of the morning, and then the pupils did a practical activity such as art or craft; in the afternoon there was a quiet time and then more activities. When she had questioned the Head of Education he had said that if a child was having difficulty in a classroom with counting, an alternative could be outside, counting sticks to build a fire. At School B, in contrast, everything that was taught was directly relevant to the outside world and was continually reinforced in all activities throughout the school day. The education included and reinforced social and life skills.
16. The appellant told us that she had visited School A on a number of occasions She had attended seminars there. She had attended open days. She had friends whose children were pupils. One child was aged thirteen and had been at School A since 2006/07, the other aged nine who had been at the school since 2008. Both these children were thriving at School A, and the families felt well supported. She believed that The child would benefit from the calm open spaces, and he wanted to go there. He said that he wanted to go there. He called it the “animal school”. She thought this may be because he had seen rabbits in the woods, they had horses and there were guinea pigs. She felt that he would be happy there, he would have the opportunity to make friends with young persons of his own age; when he had visited School A his mannerisms had indicated he was relaxed there. She felt that the school would treat him as a whole person, and not just focus on education. There would still require to be a taxi escort service to take him to and from School A, and there may be some difficulty with this transition, however School A was accredited by the National Autistic Society, and they would have the experience to deal with any difficulties. There was never any problem with transition from one place to another when The child was with his family, he did not show any of the same anxiety or stress. The problems all stemmed from the stress and anxiety that The child experienced from attendance at School B.
17. We found the appellant’s evidence to be inconsistent and lacking in reliability. She stated that she found it “disturbing” to hear evidence that The child had limited verbal communication as “he’ll talk for hours”. She said that she was not aware that the school considered his language to be so limited. “He does not talk in school but he has always talked to us”. This was despite the references to communication in the CSP (page T14-15) and in the Social Background report (page R136) prepared for the Children’s Hearing, which included reference to the objective APEC testing, and despite her own evidence of her realising that The child was unhappy at School B because of his behaviour as “he didn’t have much speech”. The appellant told us that noise of the building work being carried out near School B was a major issue in The childs’ anxieties, but this was not referred to in any of the contemporary notes such as the home/school diaries, nor commented on in the Social Background report. Staff were well aware of his noise sensitivity (although he appeared to enjoy the “Mak a Din” activity where children deliberately make a lot of noise) and the Head Teacher did not consider that the building work had been a problem for him. Had this been an ongoing issue we thought it would have been noted in the extensive discussions about The child’s behaviours and difficulties in leaving home to come to school. Further, we wondered at the appellant’s description of The child as an “outdoorsy sort of boy” when the Social Background report (page R136) noted “Appellant reported that she will frequently take The child out but the extreme fear of dogs continually impacts on The child ability to leave the safe environment of the car ... The child will not voluntarily venture outside, choosing to stay in his room with the curtains drawn.” Whilst she did accept that there may be problems with the transition between home and School A and vice versa, she minimised the potential difficulties of managing such problems.
18. The child’s advocacy worker had produced a report (T32 – T26) of her meetings with him in an attempt to ascertain his views on the issue. We had regard to the evidence of the Head Teacher of her views on the appropriate way to ascertain The child’s opinions, using a “talking mat”, and noted that she had discussed this with the advocacy worker and recommended that she used that process. She did not consider that the description of the 7th meeting showed the optimum manner of communicating with The child.
19. The evidence of the three witnesses for the authority was consistent, thorough and independent. We concluded that their evidence, rooted in different professional perspectives, confirmed that School B was a successful school environment, and that The child had made progress there, with the broad social and educational curriculum. Our only suggestion would be that the school should perhaps give consideration to using ICT tools specifically to increase The child’s communication given his obvious interest in technology. The evidence relating to School A was general and lacked specification. There was clear and reliable evidence of staff consistency, qualifications and experience at School B, in particular of the core group of three staff dealing with The child. There was no evidence that School A could provide comparable support, particularly with turn-over of co-workers. A particular issue with The child was the consistency of personnel who worked with him. The curriculum at School B was designed to challenge the pupils in incremental steps as a precursor to planning for adult life in the community. There was no evidence of the level of challenge expected at School A.
20. We were satisfied that School B was suitable for The child. There was no reliable evidence to support any assertion that School A would be as suitable for The child’s additional support needs.
21. There is a significant difference in the costs of placement of The child at School A rather than School B.
22. We are required to carry out the exercise of weighing and balancing the respective suitability and respective costs. Having done so, we conclude that it is not reasonable that The child be placed at School A.
23. Having reached that conclusion, we had regard to the second stage of the test set out in section 19(5)(a) of the Act. Although The child has not attended school since September 2013 and there will be significant difficulties and work to be carried out to return him to formal school education, we were not satisfied there he should be placed as a day pupil at School A. In all the circumstances, it is appropriate to confirm the decision of the authority to refuse the placing request.
