ASNTS_D_01_2007_17.06.07

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/01/2007

 

Gender:                   Male

 

Age:                        6

 

Type of Reference: Placing Request

 

 

 

 

 

 

1. Reference

 

The mother (“the appellant”) made a reference to the tribunal in January 2007 under section 18 (3) (e) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) in relation to the refusal by her Council (“the authority”) in November 2006, of a placing request made on behalf of her son (“the child”).

 

 

 

2. Decision of the Tribunal

 

The Tribunal overturns the decision of the authority and requires the authority to place the child in the school specified in the placing request in terms of section 19 (5) (b) (i) of the Act.

 

In terms of section 19 (b) (ii) of the Act, the Tribunal requires the authority to amend the co-ordinated support plan for the child to the extent that (1) the nominated school shall be that on the placing request with details of address, contact number and head teacher being amended accordingly, and (2) the placement will be “residential”.

 

 

 

3. Preliminary Matters

 

The appellant sought to introduce two items of late evidence being a report dated March 2007 and draft Guidance on the Use of Physical Intervention by the authority. There being no objection, these documents were received.

 

The authority sought to introduce two items of late evidence being a Minute of Review Meeting of March 2007 and a report on PEP-R Assessment. There being no objection, these documents were received. It was noted that the appellant has not had sight of the draft Minutes before.

 

The appellant made a motion to lead an additional witness, the Depute Principal from the school named in the placing request. It was submitted that the Depute Principle would be able to give evidence restricted to behaviour management strategies and training of staff within the placing request school. The authority objected to the motion. Having heard parties, the motion was allowed on the basis that the evidence of the Depute Principal would be in relation to the restricted areas only.

 

 

 

4. Summary of Evidence

 

The Tribunal considered a substantial bundle of evidence containing the case statements for the appellant and for the authority and the items of late evidence referred to above.

The Tribunal heard the oral evidence of the witnesses who attended. The Tribunal also heard directly from the appellant and the child’s father during the course of the hearing.

 

 

 

5. Findings in Fact:

 

1. The child is 6 years old having been born in December 2000. He lives with his mother and his sister, aged 3. The child’s father is presently living outwith the family home. Strain has been placed on the relationship of the child’s parents as a result of the family situation. The child attends Primary School where he is in Primary 2.

 

2. The child is severely autistic and suffers from severe learning disabilities. He was diagnosed with childhood autism in September 2005. He is currently functioning at the level of an 18 month old child. He has difficulties feeding. He is not toilet trained. He requires assistance dressing. He suffers from sleep difficulties. He is an extremely active boy. He can be aggressive. He is prone to nipping people. He does not understand the meaning of “stop” and “start”. He has no awareness of danger. When he is outside, the child needs to be accompanied by two adults.

 

3. Prior to attending primary school, the child attended Playgroup Nursery.

 

4. The child’s primary school is a mainstream primary school. Children with additional support needs are fully integrated within the school. There is a learning centre which is used for precision teaching. There is access to a Sensory room, and a low stimulus room. It draws on support from another school.

 

5. The child has full time individual support in school. During the school day, the child spends time within the classroom and within the learning centre. At the start of the school day he spends time in the gym before going to class. He eats in the dining hall where a chair with tray top is available to him.

 

6. Over a period of months, the child was seated for part of the school day in the classroom in a chair with a lap strap. The appellant and her husband objected to the use of the chair. Notwithstanding their objection the school continued to use the chair. The chair is not in use at the present time.

 

7. A draft co-ordinated support plan was produced in March 2007. The CSP remains in draft form.

 

8. The child travels to and from school by bus. The journey to school takes 10 to 15 minutes. The return journey involves the bus travelling via another school. The journey takes between 1 and 1 hour 30 minutes. The child spends 30-40 minutes waiting in the stationary bus.

 

9. The child attends respite at a Saturday club each week for 4 hours.

 

10. On 3^rd March 2006 an emergency referral was made to the social work department for support. The Children with Disabilities social worker started working with the child in October 2006. An assessment in terms of section 23 of the Children (Scotland) Act 1995 was carried out. Following assessment, a report was produced identifying the support needs required. As yet, the proposed care package has not been put in place.

 

11. In September 2006 the appellant made a placing request to the authority. The appellant wished the child to attend the specified school on a residential placement.

 

12. The specified school is not a public school. It is an independent, residential and day, autistic specific school managed by The National Autistic Society.

 

13. The specified school confirmed that they are able to meet the needs of the child and that there is a place available to him.

 

14. In  November 2006 the authority refused the placing request “on the grounds that:

 

• • The specified school is not a public school and the education authority would be able to make provision for the child’s support needs in the current primary school, and
  • It is not reasonable having regard both to respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support need of the  child in the specified school and in the current school, to place the child in the specified school in preference to the current school, and
  • The education authority has offered to continue to place the child in the current school.”

 

15. The authority is able to make provision for the child’s additional support needs at the current primary school.

 

16. The specified school is able to make provision for the child’s additional support needs

 

17. The provision for the child’s support needs at the current school is not suitable. The authority has failed to put in place an appropriate package towards enabling the child to receive an adequate and efficient education.

 

18. The provision at the specified school is suitable for the child’s additional support needs.

 

19. A place is available at the current primary school. The additional cost of placing the child there is the cost of providing one SEN assistant (£9,906). The cost of the proposed community care package has been estimated at £46, 532.

 

20. A place is available for the child at the school specified in the placing request. The additional cost to the authority of placing the child there would by £169,527. This figure takes into account costs associated with travel.

 

 

 

6. Reasons for decision:

 

The Tribunal considered all the evidence before it which included all the productions and the oral evidence of the witnesses in the course of the hearing. The Tribunal also considered the submissions made orally and in writing on behalf of the parties.

 

Section 19 of the Act provides:

 

“(5) Where the reference relates to a decision referred to in subsection (3) (e) of that section, the Tribunal may-

 

1. 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.

2. overturn the decision and require the education authority to-
   
   1. place the child or young person in the school specified in the placing request to which the decision related, and
   2. make such amendments to the co-ordinated care plan prepared for the child or young person as the Tribunal considers appropriate by such as time as the Tribunal may require.”

 

Paragraphs 2 and 3 of Schedule 2 of the Act provide the basis on which the Tribunal must determine the reference.

 

Schedule 2, paragraph 2 of the Act (headed “Duty to Comply with Placing Requests”) provides:

 

 

“(1)     Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.

 

2. Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being-
   
   1. a special school the managers of which are willing to admit the child,
   2. a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs, or
   3. a school at which education is provided in pursuance of arrangements entered intounder section 35 of the 2000 Act,

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.

 

3. A request made under sub-paragraph (1) or (2) is referred to in this Act as a “placing request” and the school specified in it is referred to in this schedule as the “specified school”.
4. Where a placing request relates to 2 or more schools being-
   
   1. schools under the management of the education authority to whom it is made, or
   2. schools mentioned in sub-paragraph (2) (a), (b) or (c) the managers are willing to admit the child in respect of whom the request is made,

the duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) applies in relation to the first mentioned such school, which is to be treated for the purposes of this schedule as the specified school.”

 

 

Paragraph 3 of Schedule 2 of the Act (headed “Circumstances in which duty does not apply”) provides:

 

 

“(1)     The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply-

1. if placing the child in the specified school would-
   
   1. make it necessary for the authority to take an additional teacher into employment,

(ii)    give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,

(iii)   be seriously detrimental to the continuity of the child’s education,

4. be likely to be seriously detrimental to order and discipline in the school,
5. be likely to be seriously detrimental to the educational well-being of pupils attending the school,
6. assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at the school, or
7. though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers,

2. if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,
3. if the education authority have already required the child to discontinue attendance at the specified school,
4. if, where the specified school mentioned in paragraph 2 (2) (a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,
5. if the specified school is a single sex school (within the meaning of section 26 of the Sex Discrimination Act 1975 (c.65)) and the child is not of the sex admitted or taken  (under that section) to be admitted to the school,
6. if all of the following conditions apply, namely-
   
   1. the specified school is not a public school,
   2. the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,
   3. it is not reasonable, having regard to 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 school and in the school referred to in paragraph (ii), to place the child in the specified school, and
   4. the authority have offered to place the child in the school referred to in paragraph (ii), or
7. if, where the specified school is a special school, placing the child in the school would breach the requirement in section 15 (1) of the 2000 Act. 

 

2. An education authority may place a child in the specialised school notwithstanding sub-paragraph (1) (a) to (e).

 

3.       The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply where the acceptance of a placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the education authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school.

 

4. Nothing in sub-paragraph (3) prevents an education authority from placing a child in the specified school.

 

5.       In sub-paragraph (3), “reserved places” means such number of places (not exceeding such number or, as the case may be, such percentage of places at the school or relating to the particular stage of education as the Scottish Ministers may by regulations prescribe) as are in the opinion of the education authority reasonably required to accommodate pupils likely to be become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1^st August to which the placing request relates.

 

6.       In sub-paragraphs (3) and (5) “catchment area”, in relation to a school, means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B (1) (c)  of the 1880 Act.”

 

Accordingly, in terms of paragraph 2 (2) of the Act above, the authority is required to meet the fees and other necessary costs of the child’s attendance at the specified school unless one of the circumstances in paragraph 3 of the Act is established.

 

Section 19 (5) (a) of the Act provides a two stage test. At the first stage, the Tribunal is required to determine whether the authority has established one or more of the circumstances provided in schedule 2, paragraph 3 (1) of the Act. If the Tribunal determines that the authority has succeeded in establishing one or more of those circumstances then, and only then, the Tribunal is required to move to the second stage of the test. At the second stage, the Tribunal is required to exercise its discretion and determine whether, in all the circumstances, it is appropriate to confirm the authority’s decision.

 

 

First Stage

 

The Tribunal was only required to consider in terms of schedule 2, paragraph 3 (1) (f) (ii) and (iii), whether

 

“(ii)     the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,

(iii)      it is not reasonable, having regard to both 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 school and in the school referred to in paragraph (ii), to place the child in the specified school”.

 

On behalf of the appellant the Tribunal heard evidence from the head teacher of the school specified in the placing request. The school is an independent, residential and day, autistic specific school managed by the National Autistic Society. There are 59 pupils, 50 of whom are residential. There are 24 pupils on the senior campus and 35 pupils in the junior campus. A new campus will give the school a capacity of 79 pupils. It offers a 24 hour curriculum. The school is registered for pupils from age 5 to 19. The appellant contacted the school and on the basis of a meeting between the child and their educational psychologist, and a review of the child’s records, it was decided that the school would be able to accommodate the child in a suitable house and class. The head teacher indicated that the child would be the youngest pupil at the school. On the information available to her, the head teacher was of the view that the child would be supported on a one to one basis.

 

Both the head teacher and the deputy head teacher gave detailed evidence about the curriculum and the training received by staff within the school. IEPs are established for a year but are subject to six weekly reviews. The school follows a 5-14 elaborated curriculum. There are regular reviews to parents including telephone calls, notebooks and communication with care staff on a weekly/daily basis. Parents are able to visit and there is a log cabin available to them. IEPs and Behaviour Support plans are sent home along with guidance by Speech and Language Therapy to use within the home environment.

 

 

The Tribunal considered the evidence before it of the ability of the authority to make provision for the child’s additional support needs at the current school. The Tribunal heard from the head teacher of the child’s current school. The teacher has been the head teacher for 13 years and for the last nine years the school has been open to received children with ASD. Additional staff has been made available over the past 6-7 years to cater for children with additional support needs. The head teacher described the school as a mainstream school with a “virtual” learning centre. The school has a number of learning assistances and ASN assistants. There is access to a sensory room, a low stimulus room and gym. The head teacher described his staff as young and enthusiastic.

 

The head teacher of the child’s current school outlined the types of training that staff members have undertaken in relation to ASD and those who have participated in the TEACCH course. All the learning assistants have, and the child’s class teacher was due to undertake the training. A specific teacher based at the school had been working with the child and is available for additional support. The school was described as a high tariff special school catering for a variety of needs, not autistic specific.

 

The head teacher of the child’s current school outlined the school input specifically available to the child. This included physical education, attendance at the learning centre where a 6 week IEP was used. The head teacher stresses the need to secure the support of the parents and to this end he operated an “open door policy” where the head teacher, the deputy, or the staff were available to parents without the need for an appointment. The head teacher referred to the progress that the child had made at the school. It was the view of the head teacher that the school could continue to meet the needs of the child for the next year and referred to the Pep R Assessment which indicated that the child was making some progress. The head teacher described the regime in place in relation to toileting and indicated if asked to do so the school would secure expert help in relation to toilet training.

 

The head teacher of the child’s current school described the teaching chair that had been sourced by a Quality Improvement Officer (Additional Support Needs). The officer thought it would be a useful device for steadying the child whilst undertaking focussed activity. The head teacher described the chair as having a lap strap, akin to a car seat belt. The head teacher proffered a number of reasons that the chair remained in use, against the wishes of the parents. These included safety – to protect him from touching hot radiators, or darting from his seat; to aid concentration; sense of comfort. The head teacher indicated that the chair was no longer in use given that the heating was now switched off for the summer. At a review in March 2007 there was discussion in relation to the use of the lap strap and it was noted that it was no longer in use.

 

The head teacher of the child’s current school is to retire at the end of the academic year. There will be a new head teacher and possible changes within the learning centre in the coming year.

 

The head teacher of the child’s current school was unable to provide information in relation to the transport arrangements; these were outwith his remit. It was accepted by the authority that on the return journey from school the child was required to travel in a bus which stopped at another school to collect other children. As a result the journey home was extended. It was submitted that the travel arrangements could be looked at.

 

The Tribunal heard from a Social Worker in relation to the care package being put together. In order to address the needs of children with disabilities in the authority, a team had been set up. The evidence was that an emergency reference had been made to the social work department in March 2006. This was passed to the social worker in June 2006 as the social worker for the Children with Disabilities team. An assessment was commenced in October 2006 and the report was not produced until early 2007. It was the evidence of the social worker that the family was in a very fragile state. The appellant had suffered 2 miscarriages; her mother had died earlier this year after being diagnosed with cancer; the child’s father had moved out of the family home due to the stresses surrounding the family situation. The child requires a high level of support. He has no awareness of “stop” and “start”. The social worker concluded that the child required a team within the house to address eating, sleeping and appropriate behaviours. A package had been devised providing 2 carers each weekday from 3pm until 9pm and on Sunday from 12pm until 4pm. It was envisaged that these carers would collect the child from school, undertake an activity before returning to the home where they would remain until 9pm. In addition, respite would be available one weekend in four. The package had not been put in place because suitable carers had been difficult to secure. An organisation has been approached and they have been given training and the social worker now requires to discuss the package with the appellant. The social worker was unable to provide details of the nature of training given.

 

The Tribunal also considered the evidence from a witness and the terms of the witness’s report. The witness had come to the conclusion that the provision at the child’s current school was neither adequate not efficient in terms of meeting the child’s needs. It should be noted that the witness’s report was prepared following one visit to the school. The witness saw the child briefly, and spoke with a number of staff members.

 

Having considered all the evidence the Tribunal is satisfied that each school is able to make provision for the child’s additional support needs. The Tribunal then went on to consider the respective suitability of each school.

 

In relation the school specified in the placing request, the Tribunal was satisfied the school would offer suitable provision for the additional support needs of the child. It is an autistic specific special school and offers a 24 hour curriculum which would allow a high degree of support for the child. The Tribunal considered the age of the child in the context of a residential placement. The child is currently 6.5 years old. The school is registered for pupils aged 5 upwards. As at February 2007, one 8 year old child is attending the school and one 7 year old pupil is due to enrol. A house has been identified which would be suitable for the child. The school would be able to provide him with a totally individualised programme. The school is equipped to meet the additional support needs of the child through a 24 hour curriculum.

 

The Tribunal considered the provision at the child’s current school. It was the evidence of that head teacher that the view expressed by an educational psychologist, that the child’s placement at the school, was one which pushed the boundaries of mainstream education. Whilst the Pep R assessment indicates that the child is making some progress, the Tribunal is required to give consideration to the whole package available to the child in relation to the placement. The transport arrangements in place for the child involve an unnecessarily long journey and a lengthy period of sitting in a stationary bus. Since March 2006 the authority has been aware that the child’s family situation has been in crisis. The process of assessment and putting together a suitable support package has still not been achieved 15 months later. Whilst carers have now been identified, they required to be trained. There was no information before the Tribunal in to the nature of the training given. The information in relation to the carers had not been discussed with the appellant and her husband. The appellant indicated to the Tribunal that she was aware of the proposed care firm and that they were involved in geriatric care. This information was not contradicted by the authority. The Tribunal did not have information available to consider how equipped such carers might be to support a child with such sever autism and learning difficulties. The care package envisaged that two carers would give 6 hours care each week day from 3pm until 9pm and would involve carers working within the home. It was accepted by the social worker that this package would be intrusive. If the proposed carers were unacceptable to the appellant and her husband there was no alternative care giver identified. Any care package would be subject to constant review. Despite the care providers having been identified by the authority some weeks before the continued hearing, it emerged that the appellant had not been advised with regard to this and that arrangement has been made to discuss the proposal with the appellant and her husband. The social worker indicated in evidence that she would be arranging to see the appellant and her husband. The Tribunal was concerned about the length of time the process of assessment has taken and about the ongoing delay in putting an appropriate package together.

 

Whilst the social worker has attended a number of review meetings held at the child’s current school, there appears to be little collaboration between the school and social work. The CSP remains in draft form. The draft does not take account of the input required from social work. The authority accepts that there are shared objectives which will form part of the CSP but has not included these objectives in the absence of the package being implemented. The social worker outlined the number of hours provided for in the package. Other than that, there was little evidence before the Tribunal which would suggest that any meaningful thought had been given to neither the objectives nor the implementation of the package. Reference was made to the availability of resources at another local school which would likely be open whilst the janitor was in attendance. The Tribunal did not gain the impression that any research had been done in considering this as an option. There was no evidence led as to whether carers were familiar with the facilities available at the other local school.

 

The Tribunal considered the need for a positive partnership between the agencies involved in order to meet the child’s support needs. The evidence from the child’s current head teacher suggested that this was not being achieved in relation to this child. When asked about the travel arrangements in place for the child, the head teacher indicated transport was not his remit. The Tribunal understood it to be the case that the current transport arrangements have been in place throughout the school year. The head teacher’s evidence in relation to the multi agency meetings tended to suggest that he viewed issues beyond school as out with his locus. The Tribunal further considered that there had been a breakdown in the relationship between school and home. The head teacher’s evidence in relation to the use of the chair with lap restraint was a matter for him. It appeared that he had given little weight to the views of the parents in relation to this matter. The head teacher indicated that it was only due to the heating being switched off that the school was prepared to comply with the parents’ wishes. Despite the “open door” operated by the head teacher it was clear to the Tribunal that there was little, if any positive engagement between school and home at the current time. The issue of the continued use of the chair with the restraint strap against parental wishes has exacerbated the position.

 

The Tribunal considered the reasonableness, considering the respective suitability and the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in his current school and the school specified in the placing request.

 

The Tribunal considers that the provision at the school specified in the placing request is more suitable than the provision at the current school for the reasons referred to above. The authority has failed to put in place an appropriate support package to meet the additional support needs of the child. The Tribunal considered whether the proposed package would meet the additional support needs of the child. Accordingly in determining the respective suitability of each school there is a significant difference between each provision.

 

The Tribunal considered the costs of the placement at the specified school being £169,527. The Tribunal heard that the provision at the current school would incur no additional cost other than the funding of a Learning Assistant at a cost of £9,906. In addition the proposed support package has been estimated to be £46,532. In determining the cost of the provision at both schools there is a significant difference.

 

The Tribunal considers that in taking account of the difference in the respective suitability of each provision and the significant difference in the costs which would be incurred in placing the child at the specified school; it would not be unreasonable to place the child at the specified school.

 

The Tribunal is not satisfied that all of the conditions in Schedule 2, paragraph 3 (1) (f) apply. Accordingly, the Tribunal is satisfied that the duty in Schedule 2, paragraph 2 (2) of the Act applies.

 

 

The Tribunal overturn the decision of the authority and requires the authority to place the child in the specified school. The child’s CSP requires to be amended to detail the nominated school as being the school specified in the placing request, with the appropriate contact details. The place offered to the child is a residential one and the CSP requires to be amended to reflect the nature of the placement.

 

Had the Tribunal come to the conclusion that in considering the respective suitability of each provision and the respective cost of the provision at each of the schools, that it would be unreasonable to place the child at the specified school, the Tribunal would have required to move to the second stage of the statutory test. The second stage requires the Tribunal to look at all the circumstances and exercise its discretion either in confirming the decision of the authority or refusing to do so. Had the Tribunal required to do so, having considered all the evidence before the Tribunal and the circumstances of the child, the Tribunal’s decision would have been that it was not appropriate to confirm the decision of the authority refusing the placing request. Factors that weighed heavily with the Tribunal were the failure to have in place a suitable package for the child, the breakdown in the relationship between the school and the child’s parents in relation to the use of the restraining chair, the failure of the authority to address the unsatisfactory travel arrangements, which required the child to remain in a stationary bus for an unacceptable period of time and the apparent lack of co-ordination of agencies in delivering a package directed to providing the child with an adequate and efficient education.