FTS/HEC/AR/22/0115

Additional Support Needs

The first ground of refusal (2004 Act, Schedule 2, paragraph 3(1)(a)(v): placing the child in the specified school is likely to be seriously detrimental to the educational well-being of pupils attending the school)

This ground of refusal exists if there is a real possibility that placing the child in school B will be seriously detrimental to the educational well-being of the pupils attending there. The respondent relied on two arguments in relation to this ground. Firstly, they argued that no more than six pupils can be accommodated in the class identified for the child in school B as this would breach the guidance in the Scottish Negotiating Committee for Teachers – Handbook of Conditions of Service (SNCT Handbook). They argued this would give rise to the danger of industrial action and would overstretch the staffing and accommodation of the class and the school. Secondly, they argued that introducing an additional child into the class would be unsettling for the children already in the class.

Staffing

We consider that we may have regard to the SNCT Handbook guidance but that it is not binding either on the respondent or the tribunal. Further, we heard evidence from witness D that, although class C currently has 7 pupils, it has had 8 pupils in previous years. She has been in post since 2014 and conceded that the pupil ratio in the SNCT handbook had been exceeded most years since then. There was no evidence of current or proposed industrial action in relation to class numbers, despite the fact that all classes in school B currently exceed the guidance of no more than six children in a class (paragraph 32). We are not persuaded by the respondent’s submission that breaching the pupil ratio set out in the SNCT handbook would give rise to the danger of industrial action.

Witness D gave oral evidence that if the child was placed in school B she ‘might ask for another member of staff’ and later said that if a further pupil was added she would need another member of staff. However, she confirmed that the child would not require 1:1 support and did not give any details about what an additional member of staff would be required to do. Witness D’s evidence in relation to this point was vague. We formed the impression that witness D had given no consideration prior to attending the hearing, about what adjustments might be needed to the support the child if she was placed in school B. Further, there was no written evidence to support witness D’s oral statements on this point. For these reasons we did not consider her evidence on this point to be sufficiently convincing to allow us to conclude that the addition of the child to the class would overstretch the staffing.

Accommodation

We were not persuaded by the respondent’s argument that an additional child would overstretch the accommodation of the class or school B. Witness D accepted that each classroom is approximately the same size (paragraph 32). Her evidence was that the difference between the classes was that they have differing layouts. Witness D’s evidence was that the main challenge in class C relates to table workspace. She gave evidence that the two tables can accommodate a maximum of eight children and that currently one space is used by a member of staff to support one of the children. Witness D later conceded that the furniture would need to be rearranged to create a workspace for the child. Given that other classrooms of a similar size at school B can accommodate up to nine pupils, we were not persuaded that the physical layout of class C could not be adapted to accommodate an additional child. We did not consider that witness D’s evidence on this point was reliable in light of evidence about classroom sizes (paragraph 32). Witness D stated that an additional pupil would not impact on the use of other spaces at school B.

Impact of introducing an additional child on existing pupils

The evidence on this aspect rested entirely on witness D’s statement that ‘A further pupil in this class would mean more stress on the current class group and staffing. It takes time for our new pupils to settle into the school routine and this group are beginning to become more settled in school’ (R049). In oral evidence Witness D suggested that there would be a temporary period during which pupils in class C would be unsettled and might experience distress as a result of an additional child joining the class. However, this evidence lacked specificity. We are therefore not satisfied that there is a real possibility of serious detriment to the existing pupils in class C.

Overall conclusion

We are not satisfied that placing the child in school B is likely to be seriously detrimental to the educational well-being of pupils attending the school. We therefore conclude that the ground of refusal in Schedule 2, paragraph 3(1) (a)(v) of the 2004 Act does not exist at the date of the hearing.

The second placing request refusal ground (2004 Act, Schedule 2, paragraph 3(1)(g)): presumption of mainstream education)

This ground of refusal applies if placing the child in school B would breach the presumption of mainstream education in s15(1) of the 2000 Act. The presumption of mainstream education applies unless one of the exceptions in s15(3) of the 2000 Act applies, which it is assumed will arise only exceptionally. These are:

1. that to provide education for the child in a school other than a special school would not be suited to the child’s ability or aptitude;
2. that to provide education for the child in a school other than a special school would be incompatible with the provision of efficient education for the children with whom the child would be educated; and
3. that to provide education for the child in a school other than a special school would result in unreasonable public expenditure being incurred which would not ordinarily be incurred

If any of the three exceptions in s15 (3) of the 2000 Act apply, the presumption of mainstream education does not apply and the related ground of refusal does not exist. Therefore we must be satisfied that none of the exceptions apply to conclude that the ground of refusal exists. We deal with each in turn.

S15 (3)(a) – would not be suited to the child’s ability or aptitude

The appellant argued that school A is not suited to the child’s ability or aptitude. They argued that the child is isolated from her peers and that her needs would be met more appropriately in school B, relying on evidence of the appellant and witness B. The respondent argued that school A is suited to the child’s ability or aptitude. In particular they argued that school A provides the child with an opportunity to develop language and social skills through interaction with children who are better able to model and reciprocate than children in school B, that the child’s behaviour is generally well-regulated in school A and that the curriculum taught in both schools is the same.

We heard evidence from witness C that the child has a highly individualised and differentiated timetable that is primarily delivered 1:1, and that although at times she appears to listen to wider class teaching, she does not participate. The child’s peers are working at Early Level of Curriculum for Excellence and the majority are expected to achieve it by the end of primary 1 (paragraph 21). Witness C described the child as working within the ‘very early stages of Early Level’ at a similar level to nursery. Witness C gave evidence that the child’s work is self-directed and play-based. We conclude that there is a significant gap between the child and her peers at school A, both in her level of learning and the manner in which she is able to learn.

The child will transition to primary 2 in August 2023. Witness C expressed concern about how the child would cope as she moves up the school to larger class sizes. In addition, the sensory architecture of the school will change in primary 2 (paragraph 19) and the child would not be in the ‘infant building’, which witness C described as ‘more suited’ for her needs. As the child progresses she will be exposed to busier environments with a greater number of children. This is likely to result in increased levels of dysregulation. Further, in primary 2 there is an expectation that work will be more adult-led. Witness C was not hopeful that the child would manage the transition to primary 2. Witness C also expressed uncertainty about whether she would be able to maintain full-time 1:1 support for the child, since it detracts from what other children in school A may need (paragraph 29).

Witness C expressed concern that the child would become more socially isolated from her peers as she progresses up the school due to her communication and social difficulties. Witness C gave evidence that the child is not developing social skills at the same rate as her peers. The child’s current social interactions are very limited and any that do take place with other children are initiated only by them (paragraph 25). The child does not seek out other children. It is likely that the child will become more isolated from her peers as she progresses through school.

There are elements of mainstream education, including assemblies, access to the dining hall and PE, and outdoor learning which the child is unable, or only marginally able, to participate in (paragraph 24). There are safety issues associated with these aspects of school life which mean that the child’s day-to-day involvement is limited and must be closely monitored. The main safety risks relate to the child running off and the risk of choking. She also likes to climb. The level of risk is currently managed with 1:1 supervision however, even with that high level of support, there have been several risky situations (paragraph 26).

We heard evidence from the appellant and witness B that the child continues to display distressed behaviour since starting at school A and there has been an increase in risky sensory seeking behaviour such as placing things in her mouth. We also heard evidence that the child is not eating sufficiently at school A. Witness C was concerned that this would have an impact on the child’s ability to learn. We heard from the appellant that the child eats a variety of foods at home. The appellant has provided the same food for the child to eat at school, but she has not eaten it. School A staff have tried different strategies to support the child’s eating including the child eating alone with a PSA in a classroom and eating with a small group of peers in a nurture class. Neither has resulted in improvement. We accept the appellant’s submission that the child’s behaviour is a form of communication and that these factors are relevant to our consideration of whether the environment in School A is meeting the child’s needs.

The respondent argued that there was evidence of ‘significant progress’ in literacy and numeracy since the child commenced primary school and asked us to accept the evidence of witness C and in particular to prefer this over witness B’s evidence. By contrast the appellant asked us to prefer the evidence of witness B to that of witness C in this regard. Witness B described the child as having made no progress over an 8 month period on the targets she was working on with her, in contrast to other children on her caseload. Witness B and witness C observe the child in different environments with differing intensity of contact. Witness C is not directly involved in the child’s learning or teaching and relies on feedback from other staff, while witness B has carried out direct assessment work with the child over an extended period of time, has observed the child in different settings, and has worked with the child both prior to and after starting primary school. Witness C was vague about some detailed aspects of the child’s ability, such as whether she has an understanding of 1:1 correspondence between numbers and objects, as opposed to rote recitation of numbers learned through song. In contrast witness B’s assessments have included detailed observations of the child as well as analysis of her behaviour, for example why the child struggles to complete a shape puzzle task. This led witness B to conclude that the child’s understanding is limited to knowing that a shape piece can go in a hole, but not that there is differentiation be between the shapes and holes. Her view was that the child would need considerable physical guidance to complete such as task, but becomes distressed when this is offered. Witness B impressed us with her detailed analytical descriptions of the child’s social interactions and abilities. For these reasons we gave the evidence of witness B more weight than that of witness C in relation to the child’s ability and aptitude.

There is no up-to-date report from SALT, but we accept there was evidence of a marginal improvement in the child’s language and communication skills: she is using more single words and can indicate when she needs to go to the toilet by gesture. However, we reject the respondent’s argument that this is likely to be due to modeling of language by the child’s peers. Given the limited interaction between the child and her peers, we consider it more likely that this is due to 1:1 support and modeling of language by adults. The only evidence we heard of the child using a word to communicate was from the appellant who stated that the child says ‘tickle’ when she wants her mother to tickle her. Apart from that there is no evidence about whether the child understands all of the words she is using and whether she uses them to communicate or is simply echoing words as described by the appellant.

We are satisfied that the exception in s15(3)(a) of the 2000 Act arises and that to provide education for the child other than in a special school would not be suitable to the ability or aptitude of the child. School A have made significant adjustments and adaptations to accommodate the child within a mainstream school, but these are unlikely to be sustainable. The child is making very slow progress and the distressed behaviour she displays is an indication that the mainstream environment is not suitable for her. The child’s needs are such that they make education other than in a special school unsuited to her. Her needs are of such an intensity and complexity that they can be said to be of a nature which arises only exceptionally.

S15(3)(b) – would be incompatible with the provision of efficient education for the children with whom the child would be educated

The appellant argued that placing the child in school A is incompatible with the provision of efficient education for the children with whom the child would be educated. They argued that her risk-taking behaviour puts her and others at risk of harm and that the level of support she requires draws resources from other pupils. We did not hear evidence that would allow us to conclude that this exception applies. The child has 1:1 support which minimises any impact of her behaviour on her peers. The child does display distressed behaviour at times when her needs are not met, she cannot make herself understood or there is something she wants from another child (paragraph 28). The appellant submitted that other pupils in the child’s class have to be removed for their safety during these incidents. We were satisfied from witness C’s evidence that this was not the case: as Depute Head Teacher she would have been aware if it was. Witness C accepted that the child’s distressed behaviour could be upsetting for her peers however the PSA is now more able to successfully distract and redirect the child. There was no evidence from witness C that the child’s distressed behaviour was having a negative impact on the provision of education to other pupils.

Given that the circumstances set out in s15(3) can arise only in exceptional circumstances, we conclude that providing education for the child in school A is not incompatible with the provision of efficient education for the children with whom the child would be educated.

S15(3)(c) – would result in unreasonable public expenditure being incurred which would not ordinarily be incurred

The appellant argued that the placement of the child in school A results in unreasonable public expenditure on the basis that she is allocated a 1:1 PSA. The respondent disputed that the expenditure incurred is unreasonable. Witness C told us that the cost of a 1:1 PSA for the child was having ‘quite a large impact’ on the discretionary budget the school is allocated to provide additional support needs across the school. Although she could not quantify the exact proportion of the budget used to support the child, she described the impact on the availability of PSAs further up the school and expressed concern about whether the level of support currently provided to the child could therefore be sustained (paragraph 30). She gave evidence that some children who previously had 1:1 support from a PSA are now no longer able to have this and the school is having to be creative with their use of other supports. However, given that at least two other children in primary 1 are allocated the same level of 1:1 PSA support, we conclude that the cost of the child’s PSA support is not unusual.

Given that the circumstances set out in s15(3) can arise only exceptionally, we conclude that providing education for the child in school A does not result in unreasonable public expenditure being incurred which would not ordinarily be incurred.

Overall conclusion

We are not satisfied that placing the child in school B would breach the presumption of mainstream education. This is because we are satisfied that one of the circumstances in s15(3) of the 2000 Act exists, namely that providing education for the child in a school other than a special school would not be suited to the ability or aptitude of the child. We therefore conclude that the ground of refusal in Schedule 2, paragraph 3(1)(g) of the 2004 Act does not exist at the date of the hearing.

The third placing request refusal ground (2004, Schedule 2, paragraph 3(1)(b): the education normally provided at the specified school is not suited to the age, ability or aptitude of the child)

This ground of refusal is established when there is sufficient evidence for us to conclude that the education normally provided at school B is not suited to the age, ability or aptitude of the child. The respondent submitted that this ground of refusal exists. They argued that the child has made significant progress since the placing request had been refused. The appellant disputed that this ground of refusal had been established and that school B is suited to the child’s age, ability and aptitude. [Part of this paragraph has been removed by the Chamber President for reasons of privacy under rule 55(3)(b) of the First-Tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 (schedule to SSI 2017/366)].

All of the children in class C have language and communication difficulties and, with exception of 1 pupil, all have a diagnosis of ASD. They all struggle with transitions, emotional regulation and require ongoing sensory support for their needs (paragraph 34). The child’s profile of needs matches this (paragraphs 11-14, 17).

[This paragraph has been removed by the Chamber President for reasons of privacy under rule 55(3)(b) of the First-Tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 (schedule to SSI 2017/366)]..

In oral evidence witness D stated that all of the children in school B have a diagnosed learning disability and that this is a pre-requisite to attend school B. Whereas in written evidence she states that ‘the needs of leaners are primarily associated with learning disability and ASD’ (R049). We also heard conflicting evidence from the appellant whose son attends school B and received a learning disability diagnosis a year after his enrolment. Witness D described a learning disability as meaning that children are delayed in their development and function at a lower age than their actual age: the child fits this description. It is within the tribunal’s knowledge that a learning disability diagnosis cannot always be made in the pre-school years. We do not accept that a learning disability must be diagnosed prior to enrolment at school B and do not accept that a lack of such a diagnosis means that school B is not suited to the child. In any event the child’s genetic condition means that she is likely to have a mild to moderate learning problems (paragraph 10). We accept the appellant’s submission that the profile of the child’s needs aligns with those of children in school B.

Children in class C are working on milestones at pre-Early Level of Curriculum for Excellence (paragraph 36). Witness C said that the child’s literacy and numeracy skills would be ahead of children in class C. This was in response to questions by the respondent who summarised witness C’s evidence by suggesting that the child can count to 20, read a word and do a jigsaw puzzle. However, having now considered the evidence in full we do not agree with this summary of the child’s literacy and numeracy skills as it was put to witness D. In any event witness D has no direct knowledge of the child and was not aware of her genetic condition. She lacked a thorough understanding of the child’s ability and aptitude which means that we cannot rely on her opinion on this point. We do not consider the gap between milestones and the very early stages of Early Level of Curriculum for Excellence to mean that school B is not suited to the child’s ability or aptitude. The main barriers to the child’s learning are her social and communication needs. The environment at school B is a total communication environment, an all- encompassing environment in which the child would be able to access the full range of the curriculum including PE and life skills such as eating, dressing and cooking. Whilst she would have an individual learning plan, she would be able to participate in class teaching on the basis that this is adapted for the children at school B who have significant social and communication needs similar to the child’s.

Overall conclusion

We are not satisfied that the education normally provided in school B is not suited to the child’s age, ability or aptitude. We therefore conclude that the ground of refusal in Schedule 2, paragraph 3(1)(b) of the 2004 Act does not exist at the date of the hearing.

Stage 2: Appropriateness in all of circumstances (s.19(4A)(a)(ii) of the 2004 Act).

Where we conclude that one or more grounds of refusal apply, we need to be satisfied that it is appropriate in all of the circumstances to confirm the decision to refuse the appellant’s placing request. As we have concluded that the respondent has not shown that a ground of refusal exists at the date of the hearing, there is no need for us to consider the stage 2 appropriateness test.

The first ground of refusal (2004 Act, Schedule 2, paragraph 3(1)(a)(v): placing the child in the specified school is likely to be seriously detrimental to the educational well-being of pupils attending the school)

The second placing request refusal ground (2004 Act, Schedule 2, paragraph 3(1)(g)): presumption of mainstream education)

Stage 2: Appropriateness in all of circumstances (s.19(4A)(a)(ii) of the 2004 Act).

Needs to Learn