FTS/HEC/AR/23/0031

Additional Support Needs

Decision

The tribunal confirms the decision of the respondent to refuse the placing request, in terms of section 19(5)(a) of the Education (Additional Support for Learning)(Scotland) Act 2004 (‘the 2004 Act’), being (firstly) satisfied that one or more grounds of the refusal specified in paragraph 3(1) of Schedule 2 of the Act exists, and (secondly) that in all the circumstances it is appropriate to do so. This means that we do not require the respondent to place the child in the specified school.

The decision of the tribunal is unanimous.

Process

A hearing took place over 4 days, with a further date allocated for deliberations. The hearing was of a hybrid nature. The appellant and Witnesses C, D and E attended in person. Witness B appeared by video conference (WebEx).

Prior to the hearing, case management calls took place and directions were issued to regulate the hearing and pre-hearing processes. Documents, including an Educational Psychologist Report, Witness statements, a Joint Minute of Agreed Facts [T072-074], a second Joint Minute of Agreed Facts [T075] and outline written submissions, were lodged. Further documents were allowed to be submitted during the course of the hearing, including updated timetables for the child. Final written submissions were lodged after the oral evidence had been heard.

The child's views were set out in a report and an updated report from an independent advocacy service. [T056-060, T066-069].

During the hearing witnesses gave evidence by adopting their witness statement followed by supplementary questions and cross-examination.

A supplementary statement of Witness E [R230-232] was allowed late, under reservation.

Before reaching our decision, we considered the oral and written evidence and written submissions [in the bundle numbered T001-075, A001-119 and R001-233].

Findings in Fact

We made the following findings in fact, material to our decision:

General Findings

The appellant is the mother of the child. The child lives with the appellant and his sister. The child was 14 years at the date of the hearing. The child is in year S3 at the current school.

Additional Support Needs of the Child

The Child’s Educational Needs

The child has borderline intellectual functioning and benign microcephaly. The child does not meet the criteria for a learning disability. [A037 – A039]

The child has been assessed as functioning below the level of his same age peers. The child has basic numeracy and literacy skills but finds writing difficult [R110] and is estimated to be working at First Level within the Curriculum for Excellence in most areas. Typically, children would be expected to complete First Level by the end of their P4 year. [R162]
With a significant level of support, an ambitious target for the child would be to attain National Level 3 by the end of S4. [R184]

The child has a diagnosis of dyslexia. [R097, R107] The child struggles to engage with written work, even when involved in activities he is interested in. The child has a fear of failure, and this is a significant barrier to his learning. [R085 – 086]

It is reported that the child can engage in deep philosophical conversations verbally. He has a keen spatial awareness, and his recall has been highlighted as a strength. [R110]

The child can access written communication through technology, including WhatsApp. [A115 – 117]

The child has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) [A037] The child has sequencing challenges, social skills challenges and difficulty following instructions. The child has concentration and attention difficulties both at home and at school.

The child has been referred to the Neurodevelopmental Pathway for assessment for autism spectrum disorder (‘ASD’). [R097]

The child requires a curriculum highly differentiated by task, pace and expectation, and a differentiated approach with support from key trusted adults, to engage and proceed in learning activities tailored to his needs and interests. The child requires access to a peer group requiring similar supports in which to develop age-appropriate social skills, with opportunities to develop positive peer relationships with adult support. [R101]

The Child’s Health and Social and Emotional Needs

The child has a diagnosis of Type 1 Diabetes. The child’s diabetes is controlled with the assistance of an insulin pump. [A065 – 066]

The child needs to constantly monitor his glucose levels and adjust the insulin level being introduced by the pump. In particular, he needs to adjust the insulin level to account for his activity levels and the food and drinks taken during the day.

The child has a wearable glucose monitoring device to assist in controlling his diabetes. [A078] The device comes with an app which allows for remote monitoring of the child’s glucose levels. This would allow those with access to the app, such as the appellant and the teaching staff, to monitor the child without having to engage his co- operation. [Part of this paragraph has been removed by the Chamber President to maintain 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)]

The child does have some understanding of his diabetes and use of his insulin pump and glucose monitor but is not yet able to manage these autonomously. In the early years of his diabetes, the child had excellent control, but this started to become more erratic. This is a common pattern seen in young people with type 1 diabetes at adolescence. [A065]
The child’s management of his diabetes is variable. The child requires prompting and support to manage his condition at school. At home, the appellant oversees the management of the child’s diabetes.

In November 2023 the child received a diagnosis of generalised epilepsy. Children with epilepsy are at a greater risk of learning and behavioural difficulties. They can be less focused and have a decreased capacity for taking in new information. Antiepileptic medications can also be associated with impaired concentration. [A040].

The child has struggled with establishing stable appropriate peer relationships. An initial friendship at the current school was proved not to be a positive one and led to behaviour that resulted in an exclusion. This was recognised by the staff at the current school, and they took steps to establish suitable, supported peer connections. No further periods of exclusion have been required.

The child finds transitions between schools unsettling and, on moving to the current school, became dysregulated until, over a period of months, relationships were built up with staff.

High School Education

The child started his secondary school education at DAS school B in August 2021 but this school did not meet his needs. In March 2022 the child left mainstream classes and was placed in the DAS, in a small class with up to 10 learners. Towards the end of S1 the child exhibited heightened and unsafe behaviours and inappropriate behaviour towards peers. The child experienced exclusion there.

The child suffers from low self-esteem and low self-confidence and has an awareness of when he is completing a different level of work from his peers. [R098]

He moved to the current school in November 2022 after a short transition period. Within the first few days of starting at the current school, his behaviour was heightened, and he demonstrated unsafe behaviours, including running around the school with another pupil and failing to comply with his health care plan. [Part of this paragraph has been removed by the Chamber President to protect the child’s welfare under rule 55(3)(a) of the First-Tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 (schedule to SSI 2017/366)]

After the unsuccessful start, the child spent time between a local library and Leisure Centres accompanied by pupil support assistants (‘PSA’s) or teaching staff. He now spends time between the current school (mainly in the afternoons) and at external Pupil Support Centres (‘PSC’) (mainly in the mornings).

It is common for the child to show an initial resistance before participating in an activity. The child does, nonetheless, remain present and engaged by talking to others before sometimes eventually joining in.
There has been a trend of increased positive engagement by the child since starting at the current school. [R165]

The child is working towards a range of Hi-5 Awards (Youth Achievement Awards recognised by the Scottish Qualification Authority). Achieving Hi-5 awards help him to recognise that formal learning does not necessarily take place in a classroom. [R110]

The child enjoys activities such as baking, basketball and volleyball. He enjoys being outdoors and engages much more positively in these environments. [R111]

The Current School and the Child

At the current school the child is enrolled in a class of 9 pupils, including the child, with a high number of adults, including a teacher and PSAs. [T025]

The class has pupils between S4 to S6. All of the pupils in this DAS class spend some time in mainstream classes. [R175]

In the child’s cohort at the current school, 11 out of 13 pupils are working at Level One.

An Individualised Plan and a Getting It Right for Every Child’s Plan are in place for the child, and reviews occur fortnightly.

Integrating the child into the current school has been a key target in the Child's Plan [R032-033] and the child's Co-ordinated Support Plan. [R117]

Staff supporting the child at the current school have received training in epilepsy. There is a draft epilepsy healthcare plan (EHCP) [R190-205) which is being worked on collaboratively between witness C, a children's epilepsy specialist nurse and the appellant. [ R176]

All staff have received diabetes training, and staff supporting the child regularly have enhanced diabetes training. One of the PSAs used to be a diabetes nurse. [R088]

The current school have an Education Health Care Plan for a Child with Diabetes, signed off by health professionals. [A054 – 058]

At school, the child often does not engage with teaching staff requests for information regarding his blood glucose levels. Despite these difficulties, the staff at the current school remain committed to supporting the child in the management of his diabetes.

The current school have obtained a device to download the Dexcom mobile app to monitor the child's glucose levels remotely and are awaiting the written form of consent from the appellant to start making use of it.
The appellant already makes use of the Dexcom app but sometimes loses the signal when the child is at school. [R025]

The child has a highly personalised individual timetable.

Education Reviews are held every two to three weeks. The Reviews are multi-agency and include the appellant. [R227] The timetable is reviewed on a regular basis. Updated timetables have been issued which reflect that, over time, the child is spending increasing time in the current school.

The child does not access a mainstream class. He works one-on-one or, increasingly, in a small group, with either a teacher or a PSA.

The current school identified an S5 pupil (‘child L’) who is working at a similar level to the child, as a suitable peer for the child. Child L has similar interests to the child. The child has formed a friendship with child L and has some contact with him outwith the school. The child and child L spend time together during breaks and the child has been introduced to child L’s friends.

The current school have created a small group with Child L, who attends some classes with the child. They are sometimes joined by an S3 pupil. Both pupils have a diagnosis of ADHD and require a level of support due to their additional support needs. In addition, the child spends lunchtimes with Child L and has been introduced to some other pupils from mainstream and DAS. [R174]

The small group learning provides opportunities for the child to identify with peers and to increase his self-image as a learner. Some of the work undertaken in these small groups is contributing to the child obtaining a Personal Achievement Award [R139, R226] thereby supporting him to obtain SQA qualifications and to experience success in learning.

When the child first began reintegrating into the current school, he made little eye contact, often looked at his phone and kept his hood up. He now no longer walks about with his hood up. He is more confident and no longer requires direct adult supervision during unstructured lunchtimes.

The current school maintains contact with the appellant daily by sending updates by email with comments on the child’s activities during the day, comments on his engagement and notes regarding their management of his diabetes. [A059 – 064, A118 – 119] [R216 – 217]

At the current school the child is assisted in producing written work by way of a scribe. The child can answer questions verbally through conversations. These differentiations ensure that the child can engage in each task at the appropriate pace and at the right level [R180].

The Specified School

The specified school offers residential and non-residential places to boys between the ages of 9 and 17. There are currently twenty-two pupils enrolled at the specified school, seventeen of whom are aged between 12 and 14. [A072].

The specified school has gained Autism Accreditation. The specified school is also experienced in supporting children with a wide range of additional support needs. [T026]

The specified school received its most recent renewal of autism accreditation in October 2022. The areas of particular strength noted in the last inspection were:
1. The outstanding outcomes achieved by pupils who attend the specified school in terms of attendance, academic qualifications, successful transitions to chosen future destinations and exclusion.
2. The specified school offers a broad and balanced curriculum with appropriate focus on the promotion of academic excellence and the teaching of key life skills.
3. A strategic approach and careful consideration of service development, including considerations for developments relating to autism practice. [T027]

All pupils at the specified school are at the high-functioning end of the autism spectrum. The difficulties associated with the social functioning component of the ASD or ADHD diagnosis mean that it is not possible for them to access a standard National Curriculum in a larger school or large class environment. [T031]

The school has access to a central clinical team that includes Occupational Therapists, Speech and Language therapists, Child Psychologists and Educational Psychologists, all organised by a Wellbeing Coordinator.

All pupils have a current SHANARRI Care Plan, a Pathways Plan (where appropriate) and a Learning Journey. All pupils' progress is subject to a 3/6 monthly review, as required. [T037]

Class sizes at the specified school are small. The classes focus on a topic that motivates and inspires, and many curriculum subjects are covered within that theme. The full class works on the same theme and there are differentiations through specific tasks or expectations. Classes come together for whole school activities such as P.E. Pupils regularly experience transition of activities and peers. [T032 - 033]

Moving into the senior phase, all pupils are successfully achieving SQA awards, and, over the last two years, the specified school have presented pupils in awards from National 3 to advanced Higher. All current S4 and S5 pupils are on target to obtain National 4 to Higher awards, with a choice between levels of 12 academic subjects including Maths, Biology, History and Chemistry.

All pupils at the specified school work under the mainstream Curriculum for Excellence. [A72]. The specified school also offers an elective element to the weekly timetable that includes subjects such as Japanese, German, Italian, coding and enterprise. [A073]

Additionally, the specified school recognise achievements through the use of national governing body awards, which is an elective programme. The pupils can choose from options such as Cabin construction, Photography, Curling, Rock Climbing, Paddleboarding and Cycling. [T033]

At the specified school the class where the child would be placed has four peers, three aged 13 and one aged 14. Two of the peers are residential and two are day pupils. The peers within the class are neurodivergent, with diagnoses including ASD, ADHD and other additional support needs such as dyslexia. [A072]

In the class identified for the child, all the pupils are working between the Second and Third Levels of the Curriculum for Excellence across different subjects. [A072]

A second class of similar peers are also working between Second and Third Levels but are at a slightly higher level in that they are all edging more towards Third Level.

Each pupil in the specified school has their own level of differentiation to support their particular ASN. Differentiations capable of managing academic differences included the use of physical aids such as angle boards, the use of ICT and adapting teaching based on whether a pupil is a visual or an auditory learner.
A high degree of differentiation would be required at the specified school to allow the child to access the mainstream curriculum. The staff at the specified school would require to work with professionals such as the Educational Psychologist in order to identify and provide the appropriate support.

It is unusual for the specified school to have a pupil who has a learning disability who requires such an intensive level of differentiation.

Should the child be placed at the specified school, staff would undertake courses in diabetes management prior to his enrolment. All staff are medication trained under the guidance of a medical coordinator. The medical coordinator is not a medically qualified member of staff. Their role is procedural to oversee matters such as the provision of training and correct storage of medication.

The specified school would be able to download the Dexcom app.

At the specified school, pupils are not allowed to have mobile phones with them.

Costs

The Current School

The annual cost of a place at the current school is £21,521. There is no additional cost associated with the child’s attendance at the PSCs outwith the school. [T074]
The cost to the respondent for a taxi to transport the child between his home and the current school (including his attendance at the Pupil Support Centres), in accordance with his current timetable, is £9,079 per year. [T075]

The Specified School

The cost of a placement at the specified school is £1,198 per week. The school has 39 weeks per school year, bringing out an annual cost of £46,722. [A074]

The Cost to the Respondent for a taxi to transport the child from his home to the specified school and back is estimated to be approximately £15,200 per year. ([T075]

The Views of the Child

The first advocacy report gathered the child’s views in June 2023. [T056 - 060] When asked about the current school, the child stated, “It’s terrible”, and (I) “felt really stressed there and I was always in trouble. The environment is too big and there’s too many people. Even in the classes, it's noisy.” The child explained that he was now attending a place like a Community Centre, not the school. He was unhappy at being there rather than in a school environment. He described feeling lonely and bored and that he was learning nothing. There were other children there, but he didn’t see the point in speaking to them as they were from other schools.

The child describes the specified school as “like something out of Harry Potter”. He had visited the school and had seen rooms with couches and tables and the lunchroom. He did not meet the other pupils there but stated, “I think I would get on ok with them because they’ve gone through what I’ve gone through.” He felt he could do the subjects there because the classes would be small, and he would get more individual attention.

An updated report was obtained in October 2023. [T066 – 069] The child described being between three places, the PSCs and the current school. He was in the PSC with a PSA. He described the PSC as being cold and he did not like working by himself. He enjoyed a Thursday morning with the PSA, witness C, and child L. He still expressed that he would prefer to be in a classroom in school. He enjoys his Friday afternoons at the current school. He concluded by saying that he was still unhappy with how things were and did not want to go back to the current school.

Witness E spoke with the child in preparation for this hearing. The child described his ideal school as being like a modern-day castle. He described the adults within his ideal school as wearing expensive aftershave, enjoying playing anime and allowing pupils to talk about it whenever they chose. The child stated that he does not want to complete work and has no interest in qualifications as he does not need these to become a YouTube streamer. The child knew that his mother wished to move him to a new school and stated that he would not complete schoolwork there either. [R100- 101]
As the timetable at the current school was adjusted to provide the child with more time in the school and more opportunities to work in small groups, witness C noted in a discussion with the child that he didn’t want to work with other people and preferred being on his own. [R218]

Witness D spoke with the child about the changing timetables after the appellant raised concerns that the child was not coping with the changes. The child stated that things had gone well so far. The child also stated that there were things going on in the family, and the change to his timetable was just a bit of stress on top. [R219]

Snapchat messages from the child to the appellant dated 1 December 2023 [A115-117] showed that the child did not want to go to school, and he spoke negatively about the current school.

Reasons for the Decision

General remarks on the evidence.

Witnesses C and D had a close knowledge of the child and worked with him on a regular basis. Witness E had met with him and carried out investigations in preparation for the Educational Psychologist Report. [R097 – 103]

The appellant is the child’s mother with full caring responsibilities. She knows him extremely well but does not see him while he is at school.

Witness B spoke mainly in general terms and not specific to the child.

The contentious statement of witness E [R230–232] spoke to her visit to the specified school shortly before this hearing. Witness E spoke with the Head of Education there, Mr C who was not called as a witness and had not been asked to provide a written statement. Mr C was asked questions about the specified school in general terms, and about exclusions that had taken place. Mr C had no knowledge of the child or this placing request, which predated his appointment at the specified school. Mr C had not been told that his words would be presented as part of evidence for the tribunal.

While we allowed this statement into evidence, we do not place a great deal of weight on it in reaching our decision.

Overall, we found that the witnesses were credible and reliable.

The Law - Education (Additional Support for Learning)(Scotland) Act 2004

Where the parent of a child having additional support needs makes a placing request, request, it is the duty of the authority to meet the fees and other necessary costs of the child's attendance at the specified school.
Paragraph 3 of Schedule 2 of the 2004 Act sets out the circumstances in which the duty does not apply. The respondent’s refusal of the placing request is based solely on schedule 2, paragraph 3(1)(f)(i-iv) of the 2004 Act.

This is a two-stage test. If (and only if) the Tribunal is satisfied that at least one of the specified grounds for refusal exists, then the Tribunal must determine whether, in all the circumstances, it is appropriate to confirm the respondent’s decision. (section 19(4)(a)(ii) of the 2004 Act)

The proper time for assessing whether the conditions contained in the grounds of refusal are met or not is at the time of the hearing.

The child's needs should be considered in a more general, all-encompassing and holistic way. For the child in this reference, his health and emotional needs are linked to his additional support needs to access education.

The onus of establishing the ground of refusal lies with the respondent.

It is a matter of agreement between the parties that section 3(1)(f) (i) and (iv) are satisfied.

Parties agree that the child has additional support needs (“ASN”) in terms of section 1 of the 2004 Act. Having considered the evidence, we are satisfied that this is the case.

We accept the submissions of the respondent that the child’s additional support needs can be placed broadly under the following headings:

Educational needs

Borderline intellectualfunctioning,
1. ADHD
2. dyslexia

Health needs and Social and Emotional needs

Type 1 diabetes and epilepsy.
1. Social and emotional needs.

Paragraph 3(1)(f)(ii) The Authority are able to make provision for the ASN of the child in a school other than the specified school

The Current School

The current school have assessed the needs of the child and have produced a detailed individualised Child’s Plan, a Getting it Right for Every Child Plan, a Healthcare Plan for a Child with Diabetes, a draft Epilepsy Healthcare Plan and a Coordinated Support Plan.

Borderline Intellectual Functioning, ADHD And Dyslexia

At the present time the current school have provided a highly individualised timetable with a high level of one-to-one support. The child has limited classes with very small groups of two or three pupils. The child’s progress is regularly reviewed, and amendments to his timetable increase his time in DAS and increase his interactions with peers.

The child has made progress at the current school. He is attending regularly, building relations, engaging in learning and is attaining and achieving, albeit at a rate which is slower than the appellant would like.
Overall, we are satisfied that the current school can make provision for the child’s educational needs.

Health Needs In Relation To Type 1 Diabetes And Epilepsy

At the current school, the staff have already had training in the management of diabetes and epilepsy. One of the PSAs is a former diabetes nurse. The appellant questioned the PSA’s qualifications gained outwith the UK. However, we did not hear any criticism of her knowledge or experience.

The current school has shown a commitment, despite the difficulties, to continuing to support the child’s health needs. They have shown a willingness to adopt the use of the Dexcom app to overcome the difficulties in managing his diabetes.

The main barrier for the school in managing the child’s diabetes is the child’s reluctance to respond to requests for information. We consider that this is likely to be the case at both schools.

We conclude that the current school can meet the child’s health needs.

Social And Emotional Needs

When the child first attended the current school, he struggled, and his behaviour resulted in an exclusion. The respondent changed their approach and concentrated primarily on building good relations between the child and the staff. Now that good relations are being established, the child’s behaviour has become more regulated, he is more self-confident, and he is more open to learning.

The respondent is addressing the child’s social needs by identifying an appropriate peer, child L, to befriend the child. This seems to have been successful. The appellant advised that the child “idolised” this peer. The child and child L have socialised outwith the school. The child has been spending time at lunchtime/breaks with child L and has been interacting positively with L’s friends, widening his social circle.

While, at the present time, the child is not learning with many peers, the respondent is increasing opportunities for interactions. For example, another child, S, has now been introduced into the baking sessions along with L.
The current school has a focus for the child on life skills, including independent living, self-care, preparing food, travelling independently, handling money, going into the community, travelling on public transport and ordering and purchasing items from shops and cafes.

We conclude that the current school can meet the child’s social and emotional needs.

Paragraph 3(1)(f)(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

We are satisfied that the respondent is able to make provision for the additional support needs of the child in the current school. We are therefore satisfied that this condition has been met. We turn to (iii) since we must be satisfied that all four conditions apply.

Paragraph 3(1)(f)(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 school and in the school referred to in paragraph (ii) (the current school), to place the child in the specified school.

Respective Suitability