ASNTS_D_01_2015_04.08.14

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

 

1. Reference

 

The reference is brought by the Appellant for her son, (“the child”) in terms of Section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) on the basis of a refusal of a placing request for a special school, namely School A (“the specified school”). The placing request was refused by the Respondent on two grounds, firstly, schedule 2 paragraph 3(1)(b) of the Act, that the education normally provided at the specified school is not suited to the age, ability or aptitude of the child  and, secondly,  schedule 2 paragraph 3 (1)(g) of the Act, that placing the child in the school would breach the requirement in Section 15 (1) of the Standards in Scotland’s Schools Act (“the 2000 Act). The requirement in Section 15 (1) of the 2000 Act being commonly referred to as the presumption of mainstream.

 

In reaching our decision we took into account the evidence of the six witnesses (named above) and all of the documents in the bundle (numbered T 1-29; A 1-81; and R1-105). The Tribunal also took the views of the child into account, those views having been taken for the Tribunal by an independent advocacy worker and contained at T 19-24 & T26-28 of the bundle. Both parties were ably represented with submissions substantially submitted in writing but supplemented orally.

 

There were no significant issues relating to the credibility or reliability of the witnesses who gave oral evidence during the hearing. The case rests on an interpretation of the evidence, and of the application of the evidence to the relevant statutory tests. Very broadly the witnesses gave evidence on the following matters.

 

Witness A, Head of curriculum, learning and teaching is the line manager to the head teachers of the nominated and specified schools as well as the primary school the child attended.  Witness A gave evidence regarding the educational provision available at both the specified and nominated schools and the pupil composition of both schools. In particular she spoke to the more limited curriculum available in the specified school and the lack of an appropriate peer group for the child in that school. She gave evidence of how the school role at the specified school had changed since the introduction of the presumption of mainstream. She also spoke to the benefits of mainstream education and the support available to the child in the nominated school.

 

Witness B, is a Clinical Nurse Specialist and Nurse Team Leader. She gave evidence of her involvement with the child which stemmed from the parents raising concerns regarding his behavior and learning and which resulted in reports being prepared by occupational therapy, speech and language therapy and neuropsychology. 

 

Witness C, Head Teacher (and former depute head) of the mainstream primary school the child had attended. Witness C spoke to the child’s primary school experiences and the support provided at the school.

 

Witness D, Education Psychologist for both schools gave detailed evidence on the curriculum in both, the ability of the nominated school to meet the child’s needs and the pupil make up in both schools. She gave particularly clear evidence on the advantages of the presumption of mainstream education, describing them as “social inclusion, being part of society, belonging, building resilience, having access to opportunities, access to peer role models and for long term life beyond school.”

 

Witness E is Principal Teacher in Support for Learning and Behaviour at the nominated school. Witness E’s evidence was contained in her statement (R87-91) and oral evidence. She gave detailed evidence of the transition process to the nominated school, the child’s experience in the school, the support and strategies in place for the child and the ongoing monitoring of the child’s progress, needs and support.

 

The appellant, the child’s mother gave some evidence on the child’s experience in primary school and current experiences at the nominated school.

 

Witness F, the child’s father, gave evidence of the child’s experience at primary school and at the nominated school. He gave evidence regarding the child’s ability to cope with the work at the nominated school and of the difficulties the child has in retaining learning and undertaking homework.

 

 

2. Summary of the Decision

 

The Tribunal confirms the decision of the Respondent to refuse the placing request for the specified school, in accordance with s 19(4A) (a) of the 2004 Act.

 

 

3. Findings of Fact

 

 

In coming to our decision we found the following facts established.

 

1. The child is twelve years old. He lives with his parents and siblings.
2. The child has significant learning difficulties. These are manifested in difficulties with concentration, processing and retaining information. He also has difficulties with his motor skills. The child has additional support needs within the meaning of the 2004 Act.
3. The child attended School B primary school prior to the summer break at the end of June 2014. School B is a mainstream primary school.
4. The Appellant made a placing request on 1 March 2014 for the child to attend School A Secondary School. School A secondary school is a special school for pupils who have additional learning needs.
5. The Respondent refused the placing request by letter dated 10 April 2014. The grounds for refusal were paragraphs 3(1) (b) and 3(1) (g) of Schedule 2 of the 2004 Act.
6. The Respondent’s nominated School C (“the nominated school”) for the child. The nominated school is a non-denominational mainstream secondary school. The child has attended the nominated school since commencement of the new school year in August 2014.
7. The role of the specified school formerly included children with similar needs to the child, however in recent years, particularly following the introduction of the presumption of mainstream, the school’s role has changed to comprise pupils with more severe obstacles to learning than the child.
8. Children attending the specified school have a range of barriers to learning which include children with autistic spectrum conditions, social, emotional and behavioural needs and, in some cases, children who have suffered trauma such as sexual abuse. Many of the said children have involvement with Social Work Services and CAMHS (“Child and Adolescent Mental Health Services”).
9. No children who had previously attended a mainstream primary school were admitted into the first year of the specified school for the academic year 2014/15.
10. The nominated school has an additional learning needs provision (“the ALN”) which is located in separate accommodation within the school. This is a district resource and, for a pupil to access the resource, approval of Respondent’s Joint Support Group and, if successful, of the City Inclusion group is required. The child has been referred to the Joint Support Group in order that he may access the support provided by the ALN for literacy and numeracy difficulties. There are places available in the ALN provision and the Respondent advises that it is likely his referral will be successful.
11. If the child obtains a placement within the ALN unit he will remain within his current class for the remainder of the curriculum and will remain on the role of the nominated school.
12. The nominated school has a Support for Learning base where Support for Learning staff work with small groups of pupils.
13. The first year intake of the nominated school for the school year 2014/15 comprised 55 pupils of whom 26 had additional support needs. Around 200 pupils in the nominated school have additional support needs. 
14. Strategies are in place to support the child in the nominated school as described in Witness E’s statement at R89.
15. The child is placed in a first year class which included 2 children who attend the ALN for some of the school week.
16. The child has been supported by a pupil support assistant in many of his classes. His needs are assessed and reviewed on an ongoing basis.
17. The child is isolated at the nominated school during break times.
18. The child does not have a peer group matching his own ability and aptitude in the first year at the specified school.
19. Both the nominated school and the specified school are suited to the child’s age, ability and aptitude.
20. The specified school does not provide as much access to the subjects in the secondary curriculum as the nominated school.
21. The nominated school is better able to educate the child.
22. The child’s attendance at the nominated school is not incompatible with the provision of efficient education for the children with whom the child is educated.
23. The child’s attendance at the nominated school would not result in unreasonable public expenditure being incurred that would not ordinarily be incurred.

4. Reasons for the Decision

 

We considered the Respondent’s grounds for refusal in turn.

 

Schedule 2 Paragraph 3(1) (b)

 

The evidence on this ground was contradictory. The Respondent’s representative placed reliance primarily on the evidence of Witness D, who gave evidence regarding the changed profile of pupils at the specified school since the child’s parents attended. The pupils in the specified school having a range of barriers to learning with more significant and complex needs than the child. The subjects available to the child would be fewer. Witness A also gave evidence that many of the children who formerly went to the specified school would now be educated in a mainstream school following the presumption of mainstream.

 

However, the Respondent’s representative, Witness A, gave evidence explicitly contradictory to the Respondent’s reliance on this ground  when directly asked by Appellant’s solicitor whether School A was suited to the child’s age, ability or aptitude she responded that “School A is suited but School C is more suited.” As Appellant’s solicitor suggested in considering this ground we are not concerned with comparing the respective suitabilities of each school for the child but whether the education normally provided at the specified school is suited to the age, ability or aptitude of the child. It seemed to us that this concession by the Respondent’s senior witness with line management responsibility for both schools made it impossible for us to uphold this ground notwithstanding there was significant evidence, particularly from Witness A and Witness D, suggesting the child is likely to receive a better education at the nominated school. Accordingly the Tribunal did not find the ground of refusal specified in schedule 2 paragraph 3(1) (b) of the Act established.

 

Schedule 2 Paragraph 3(1) (g)

 

The presumption of mainstream that this ground refers to applies unless one of the circumstances specified in section 15(3) of the 2000 Act applies, these circumstances are:-

 

 

“that to provide education for the child in a school other than a special school-

       (a)  would not be suited to the ability or aptitude of the child

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

  (c) would result in unreasonable public expenditure being incurred which would not ordinarily be incurred”

 

 

Prior to considering each of these grounds we had to consider an argument raised by Appellant’s solicitor that the Respondent could not rely on this ground to refuse a placing request if their own proposal is to place the child within the Additional Support for Learning provision (“ALN”) at the nominated school. Witness E gave evidence that a place was to be sought for the child in the unit for classes related to numeracy and literacy. The evidence was that the child would remain on the school role for the nominated school but attend ALN unit when most other pupils in his class would attend English, Maths and French classes. He would attend all other classes as part of his mainstream class. As the ALN provision was a district rather than a school resource a request would need to go to the Respondent’s Joint Support Group and, if successful, to the City Inclusion group. While a place could not be guaranteed at the time of the hearing the witness was optimistic the child would get a place given his needs and that there were places in the provision. Witness E referred to the ALN provision as “additionality” and we considered that the evidence indicated that the child would remain substantially within a mainstream provision.

 

Appellant’s solicitor’s authority for her position was derived from the definition of “special school” in the 2004 Act:-

 

“”special school” means-

1. a school, or
2. any class or other unit forming part of a public school which is not itself a special school, the sole or main purpose of which is to provide education specially suited to the additional support needs of children or young persons selected for attendance at the school, class or (as the case may be) unit by reason of those needs,”

 

Appellant’s solicitor submitted that the ALN unit is a special school in respect of the 2004 Act. She submitted that the ALN unit must be seen as separate from the mainstream school as the evidence was that it is not just the case that a pupil can be transferred internally between the two parts of the school, the two separate committees mentioned above make the decision.

 

Appellant’s solicitor was pressed on whether attendance for some of the school week was sufficient to remove the possibility of the Respondent relying on this ground she responded to the effect that any placement within the ALN unit would prevent the Respondent relying on the presumption of mainstream to refuse the placing request.

In response Advocate for respondent submitted that children placed in the ALN unit are on the role of the mainstream school, that a parent could not make a placing request to the ALN unit and that it would make an absurdity of the mainstream presumption were it not to apply if the child attended the ALN unit.

 

While we were not convinced that a parent could not make a placing request to the ALN unit, it seemed to us, in the absence of any specific case authority being put before us, that the question of whether a child is attending, or proposed to attend, a mainstream provision must be determined by looking at the facts of the placement. The child would remain on the role of the mainstream school and would attend the mainstream school for large parts of his timetable (Witness E). The articulated intention of the presumption (Scottish Executive Education Circular No 3/2002) is to establish the right of all children to be educated alongside their peers unless there are good reasons for not doing this. It seemed to us that the clear purpose of the presumption of mainstream is accordingly to ensure as far as possible that a child is educated in a mainstream environment. To find that presumption could not apply as soon as a child receives some additional support in an ALN provision like the one within the specified school would deprive the child of the advantages described by Witness D and make an absurdity of the presumption of mainstream. Accordingly we find that the Respondent is entitled to seek to rely on the presumption of mainstream in refusing the placing request.

 

We then considered the grounds where the presumption of mainstream might not apply.

 

Not suited to the ability or aptitude of the child

 

There was a wealth of evidence before us that mainstream education, and particularly the mainstream education available to the child at the nominated school was suited to the ability or aptitude of the child. Witness D had no concerns regarding the ability of the nominated school to meet The child’s needs. Witness C gave evidence that the child managed with support in a mainstream primary setting and recommendations made in the CAHMS report (A47-50) can be implemented in a mainstream school, a view explicitly confirmed by Witness D and Witness A. Witness A gave evidence as to the very broad range of pupils at the nominated school and the child’s class includes two pupils who already access the ALN provision for numeracy and literacy.

 

There was in our view very limited evidence before us to suggest mainstream was not suited to the ability or aptitude of the child. The most significant evidence of this was the Educational Psychology Report prepared by Dr A (A5-A33) who concluded, among other things, that the child’s “needs could not be met within the provision available in School C without a serious and, probably unrealistic, infusion of extra resource”. He concludes that, “on the basis of the information available to the present author, it would appear that The child’s needs cannot be met in School C School”. And therein we considered there was a problem in giving preference to Dr A’s views over the evidence of the witnesses, in that Dr A clearly did not have access to as much information regarding the child as the Respondents. Witness D was particularly critical of Dr A’s report describing the report as “decontextualized”, by which she meant “not in the learning environment. He took account of the child’s parent’s views but didn’t observe him in the learning environment, visit the schools or take account of practices and procedures.” Dr A indicated “most classroom teachers are not trained specifically for learning support” yet Witness D gave details of the training she was involved in providing to staff at the nominated school on additional learning needs both in groups but also by what she described as her “coaching” role. She considered the staff to be very skilled in solution based approaches and building resilience. Dr A clearly places a heavy reliance on information about the child obtained from the parents and, having only met him briefly, acknowledges that that was not an assessment of the child. There is a resulting emphasis on the child’s supposed behavior and relationship with peers in primary school which differed markedly from the evidence of Witness C. There was no consideration by Dr A of the curriculum in the nominated school nor did it appear that he had any knowledge of other children with additional support needs attending the nominated school.

We were not concerned by Advocate for respondent’s suggestion that the report was of limited value due, in part, to the respondent being unable to ask him questions about it, the Tribunal is entitled to and frequently does consider written statements as equivalent to oral testimony. Our difficulty is the views in the report contrast so markedly with the views of the professionals who gave evidence that are involved directly with the child that it is impossible to reconcile the views of Dr A with those witnesses. Accordingly a choice required to be made as to the evidence we accepted and while we certainly respected Dr A’s views we considered he was lacking too much important information to make a fully informed assessment about whether mainstream education was suited to the child’s ability and aptitude.

 

The foregoing is not, of course, to say that mainstream education was suited to the child’s needs without further support but in that regard the child is no different from many children with additional support for learning needs who attend mainstream schools.  The Tribunal is satisfied on the basis primarily of Witness E’s evidence that the Respondent had procedures in place to assess the support needed for the child and to enable him to access that support. She confirmed that the situation with the child is continually under review and that while he is coping in the main with his curriculum it has been identified that he would benefit from attending the ALN provision for literacy and numeracy. While a process had to be gone through to access that support, given the ALN provision is a district resource, given the child’s needs and the fact places are available Witness E was optimistic that the support would be provided. 

 

Incompatible with the provision of efficient education for the children with whom the child would be educated

 

We considered this ground does not apply and that the evidence on this ground was incontrovertible. The evidence of Witness D, Witness A and Witness E was clear that this would not be the case.  Indeed it appeared to us that the nominated school was very experienced at educating children with additional support needs, including others with similar needs to the child, alongside other children in the school.

 

Result in unreasonable public expenditure being incurred which would not ordinarily be incurred

 

Again we considered the evidence in relation to this ground to be incontrovertible. Witness A was clear that the cost of educating the child would be met from the school budget. Any additionality provided in the ALN provision would not result in significant extra expenditure given the evidence of Witness E that there are places in the provision. The contrary argument put by Appellant’s solicitor relied on Dr A’s report at A31 where he offered a view that the child would fail at the nominated school without a considerable and unrealistic increase in resources. As such, she argued, that the cost of placing the child at the specified school would negate the need for extra expenditure at the nominated school. This argument seemed highly speculative, firstly given the Respondent’s witnesses gave evidence that the nominated school could meet the child’s needs and there was no indication at all of “unreasonable” public expenditure having been incurred or likely to be incurred in respect of the child’s ongoing attendance at the nominated school.

 

Accordingly given none of the grounds for an exemption to apply to the presumption of mainstream we conclude that the Respondent has established a ground for refusing the placing request that to place the child in the specified school would be contrary to the presumption of mainstream as provided for by Schedule 2 Paragraph 3(1) (g) of the Act.

 

Conclusion on appropriateness of confirming the Respondent’s decision

 

Notwithstanding the Respondent has established that a ground for refusing the placing request applies we then had to consider whether, in accordance with section 19 of the Act, it is appropriate in all the circumstances to confirm the decision of the Respondent.

In our view the evidence clearly established that the education that the child is and will receive at the nominated school would be far more suited to his educational development than the specified school. For example Witness D gave evidence to the effect that the nominated school was very well equipped to meet the child’s needs.

 

Having said that there were a number of further factors that we considered relevant to this ground. Appellant’s solicitor quoted Dr A’s predictions that the child would have poor peer relations in the mainstream environment coupled with low self-esteem. She submitted the child’s expressed views made it clear “this downward spiral is coming to fruition”.

 

Supporting Appellant’s solicitor’s submissions, there was also a suggestion of bullying within the nominated school, albeit this was not accepted by the Respondent, Witness E indicating that only two incidents of name calling had been reported in the school. The child himself stated that “I don’t have any friends. I get bullied by others…It makes me sad”. The child’s father gave powerful evidence that at breaks and lunch the child sits by himself in the bushes.  Witness D spoke about the importance of the child mixing with his peers calling this “social capital” and it certainly appeared to us that The child is isolated, particularly outwith class time and while he may not be being bullied there have certainly been incidents that have caused the child to be upset.

 

That said we were not at all convinced that these issues would be any better should the child attend the specified school. While Witness F had very positive things to say about his own time in the specified school it was clear from the evidence of the Respondents that the pupil population of the specified school was quite different from his time there. Witness A and Witness D both gave evidence that none of the children attending first year at the school had come from a mainstream primary so the child would be unique in that regard. There would be children with more severe difficulties than the child. Those difficulties being described by Witness D as “significant” and “complex”. Again from Witness D pupils at the specified school “have a range of barriers to learning that could include autistic spectrum conditions trauma such as sexual abuse and social, emotional and behavioural needs which could require involvement with Social Work Services and CAMHS. Witness D felt the child “could be vulnerable there due to those children’s needs.”  Witness B, when asked about the risks of placing the child in a special school and a mainstream school, responded that, while it was a difficult question for her to answer, it was more of a risk to place the child in a school where the children had more obvious difficulties compared with the general school population. The evidence clearly indicated that the child has a peer group at the nominated school, for example two of his classmates are receiving support from the ASL unit on literacy and numeracy as is proposed for the child (Witness E), 26 of the 55 first year intake have additional support needs, albeit this includes children where English is not their first language (Witness E) and approximately 200 of the nominated school’s roll have additional support needs (Witness A). Further, Witness A, while describing the benefits of mainstream education, stressed the importance of not limiting a child’s peer group. In contrast the evidence of several of the witnesses, as detailed above but most clearly Witness D suggested that there wasn’t any similar peer group at the specified school.

 

So while we were very concerned regarding the issues raised in relation to the child’s isolation at the nominated school and also the unhappiness articulated in the advocacy report we have concluded that the child would not have a suitable peer group at the specified school and it is far from clear that instances of the child being picked on by some other children would be better at the specified school and certainly not so much better as to off-set the reduction in the quality of education the child would receive should he attend the nominated school.

 

Accordingly for the reasons articulated above we find in favour of the Respondent.

 

We would however wish it to be noted that we are concerned about the child’s happiness within the nominated school as articulated in the advocacy worker’s report and the suggestion of how isolated the child feels at break time as evidenced by his father. While we also noted that the information in the advocacy report did not accord with the Witness E’s observations or the child’s Motivation and Wellbeing Profile (R92) it was clear to us that the possibility of the child being bullied needs to be monitored and appropriate steps taken to address the child’s apparent social isolation in the school. We were very impressed with the professionalism of both Witness E and Witness D and are sure they will take the necessary steps to monitor and resolve these issues.

 

Finally, we record our thanks to both representatives for the manner in which they conducted the reference.