ASNTS_D_02_2015_23.10.14

ANONYMISED DECISION OF THE TRIBUNAL

Summary of Decision

The Tribunal confirms the decision of the respondent, refusing the placing request, in reliance on paragraph 3 (1) (a) (v) of the Education (Additional Support for Learning) (Scotland) Act 2004 (hereafter “the 2004 Act”), namely that placing The child at School A would be likely to be seriously detrimental to the educational well-being of pupils attending the school; and it is appropriate in all the circumstances to do so. 

Representation and Witnesses

The Tribunal sat on 23 October 2014.

The appellants, The child’s parents, were represented by a solicitor. A case officer also attended to observe, put took no part in the proceedings. The appellant gave evidence by telephone but did not call any witnesses. Dad was not able to attend or give evidence.

The respondent (Council A) was represented by additional support needs manager. He called evidence from Witness A, head teacher of School A; Witness B, Service Manager, Education (ASN and Early Years) Council B.

Each witnesses called gave evidence, led first by the Tribunal, and then the parties were provided with an opportunity to ask questions.

As the parties had the benefit of representatives who took their own notes of the evidence, this decision does not set out the oral evidence of the parties. The findings of the Tribunal set out below, set out the evidence which was accepted, however, it must be noted, there was almost no material dispute as to facts and the determination of the material issues, turned on a dispute in relation to opinion evidence.

The Issues

The issues for the Tribunal are narrow and encompass:

1. would placing The child at School A be likely to be seriously detrimental to the educational well-being of pupils in attendance there;
2. is it, in all the circumstances, appropriate to confirm the refusal of the placing request (if one or more grounds for refusing the placing request exists)?

Findings of Fact

1. The child was born in 2002. He is diagnosed with autistic spectrum disorder, global developmental delay. He has limited speech but can articulate and needs support from adults to do so. For the last few years he has attended the Hub, a base for pupils with additional support needs at School B. He continues to attend there.
2. Council B  is responsible for The child’s school education.
3. The appellant made a placing request for SCHOOL A by letter dated 18 June 2013. This was rejected by the respondent, by way of a letter dated 28 April 2014. The respondent is the education authority responsible for SCHOOL A.
4. COUNCIL B has made provision for The child by offering him a place at the additional support needs base (hereafter “ASNB”) at School C from August 2014. The child may take up a place (which has been offered) at a new provision to be opened in the area which will make provision for pupils with language and communication disorders. COUNCIL B hope this provision will be ready by August 2015. There is no certainty about the date by which it will be ready.
5. The child is known to Educational Psychologist, an educational psychologist employed by COUNCIL B. She works with the ASNB at School C. In a report dated 3 June 2013 she set out her opinion that the ASNB at School C can meet The child’s educational needs. Mr and The appellant disagree with her assessment and they think the ASNB at School C cannot meet The child’s educational needs. They have provided no professional evidence to demonstrate the ASNB at School C cannot meet The child’s needs.
6. For the reasons given in Educational Psychologist’s report, and in the absence of any contrary professional evidence, the ASNB at School C is suitable and can meet The child’s educational needs.
7. Whilst there may not have been a place available at the ASNB at School C in 2013, by August 2014, at the latest, a place was available for The child and this was communicated to Mr and The appellant. Any dispute in relation to this is resolved in favour of COUNCIL B, given the witness statement and clear oral evidence of Witness B (and in fact The appellant’ oral evidence was that she was not in fact aware an offer of a place had been made for The child at the ASNB at School C at later meetings).
8. SCHOOL A is a successful school meeting the needs of pupils with severe learning difficulties (many of whom are also on the autistic spectrum). The head teacher Witness A has been in post for four years. She has been a qualified teacher for 35 years. There are around 55 pupils on the school roll. Pupils aged between 4 and 17 are educated at SCHOOL A.
9. SCHOOL A has around sixty members of staff. There are fourteen teachers. Most teachers have been there for many years, only two teachers have been at the school for less than one year.
10. SCHOOL A can meet The child’s needs. Witness A had seen notes, IEP, a CSP and a report from Educational Psychologist (who confirmed SCHOOL A can meet The child’s needs) and was satisfied The child fits into the profile of the school and would be in the middle of the spectrum of need of pupils at the school. His ability levels and autistic needs are familiar to the school staff. The curriculum and peer group would be appropriate for him.
11. The current purple class has six pupils. The current pink class has seven pupils. Both classes require a high adult to child ratio. The pupils have needs similar to The child, but the pupils in the pink class have marginally higher needs.

Tribunal’s Reasoning

1. The Tribunal has considered all the written and oral evidence, the parties’ written submissions and the statutory Code of Practice.

2. Pursuant to sub-paragraph 3 (1) (a) (v) Schedule 2 of the 2004 Act the respondent is relieved of its duty to accede to a placing request if placing The child at SCHOOL A would be likely to be seriously detrimental to the educational well-being of pupils attending SCHOOL A.

3. The Tribunal notes the decision of Sheriff N M P Morrison sitting at the Sheriff Court of Lothian and Borders at Edinburgh, H v City of Edinburgh Council [2011] SLT (Sh Ct) 181 at paragraphs 26 to 28.

4. “Seriously detrimental” is a high test. ‘Detrimental’ taken alone suggests ‘detriment’ or ‘harm’ but requires to be read together with ‘seriously’: minor detriment or harm to the educational well-being of the other pupils will not suffice. The Tribunal notes in a similar but different statutory context the decision of Stadlen J sitting in the High Court (England and Wales) in Hampshire County Council [2009] EWHC 626 and the decision of the Upper Tribunal (England and Wales) in NA v London Borough of Barnet [2010] UKUT 180 (AAC). Whilst these cases interpret the term “incompatible with the efficient education of other children” and are therefore of restricted relevance, they demonstrate the need for a similarly high evidential test.

5. However, the respondent is not required by the statutory scheme to demonstrate that placing The child at SCHOOL A would be seriously detrimental; rather that placing The child at SCHOOL A ‘would be likely to be seriously detrimental’. This denotes a lesser evidential standard to be discharged by the respondent. The Scottish Parliament has directed education authorities, and this Tribunal standing in the shoes of the respondent on appeal, to a lesser test at sub-paragraph 3 (1) (a) (iv) and (vi) as compared to sub-paragraph 3 (1) (a) (iii). Due account must be taken of this difference in the language of the statutory tests. However, on the facts of this case, this makes no difference to the Tribunal’s conclusions.

6. “Educational well-being” is not a term that requires further elucidation.

7. “Pupils attending the school” is not further defined. It need not include all pupils and plainly that is not the language used in the 2004 Act. Some pupils, who attend the school, would be sufficient. After having heard the evidence the Tribunal is primarily concerned with the six pupils currently educated in the purple class.

8. The Tribunal has focused its inquiry on the needs of the pupils and not the teaching staff. Witness A did give evidence of industrial relations difficulties and the fact that staff had “called in the unions”. The Tribunal has placed no weight on this evidence. It is not appropriate for education authorities to rely upon threats of industrial action to make good a case in respect of the educational well-being of pupils. It should be the role of the education authority and the head teacher of a school to properly instruct and direct teachers to comply with their terms and conditions of employment and the reasonable instructions asked of them. Depending upon the circumstances the rule of law may require nothing less, see Re (L a Minor) [2003] ELR 309.          

1. The Tribunal has placed considerable weight on Witness A’s evidence. She was an impressive witness with a considerable understanding of SCHOOL A and the demands on it. There was no body of evidence to contradict her evidence. She was questioned in some detail and over some time by the Tribunal members (and Appellant’s soloicitor) to test her hypothesis that The child’s attendance would be likely to be seriously detrimental to the educational well-being of pupils attending. She remained resolutely of this view throughout the period of questioning. The Tribunal accepts her evidence.  

10. After careful consideration of all the written and oral evidence, the Tribunal have come to the clear view that placing The child at SCHOOL A would be likely to be seriously detrimental to the educational well-being of the pupils in purple class for the reasons given by Witness A, namely:

• timetables are difficult, delivering the curriculum is already tight;
• currently the six pupils in the purple class are often split into two groups of three; three remain at the three work stations and three are taken to other rooms in the school (soft play etc) – it would be seriously disruptive and at times simply not possible to manage a group of 4 as opposed to three because of space, staff and workstation limitations;
• the purple class is just managing it does not have the ability to absorb further demands and tests;
• it would be highly detrimental to have two extras persons in the  purple room;
• there would be unacceptably increased noise level (The child is articulating words and needs to be supported by staff to continue to do so (and there are already two children who are also articulating who need to be supported to do so) – the overall effect would be of too much noise;
• a new member of staff would create significant pressure on existing staff with need to learn/train;
• another young person would result in further sharing of limited existing resources;
• purple class pupils would be subjected to further change when they need to focus on the curriculum and make progress after settling in;
• staff communication over the heads of the children would become intolerable;
• there would simply be too much disruption particular given The child would admitted at time not normally associated with transition: the extra bustle would have a deleterious effect.

11. Individually these matters may not amount to ‘serious detriment’ but taken together they clearly satisfy the necessary statutory test explained above. The legislative scheme does not call for the respondent to demonstrate there are no reasonable steps that could be taken to overcome the serious detriment. However, after having heard Witness A’s evidence and the logistical and practical difficulties on an already pressured school, it would simply not be possible to take practical steps to resolve the serious detriment to the six purple class pupils, if The child were placed at SCHOOL A.

50. The Tribunal placed particular weight on Witness A’s evidence because she had placed seven pupils in the pink class. This had resulted in expanding the class; adding two small rooms to the main classroom; and moving the door, to incorporate the toilets into the ‘classroom suite’. Additional staff had been employed including an additional 0.5 teacher. Witness A was clear that it was simply not possible to take the steps that taken place in the pink class in the purple class. Her evidence on this point was compelling and clear.

1000. In answer to a question from the Tribunal, Witness A stated: “I couldn’t say we couldn’t manage but we would not choose to do it. I couldn’t possibly say we could not manage.” This does not demonstrate there would not be likely to be a serious detrimental effect on the educational well-being of the pupils. Rather, Witness A’s response was testament to her professionalism.

14. The Tribunal understood The appellant’ evidence and her desire to have The child educated at SCHOOL A. SCHOOL A under Witness A’s leadership is a very good school. The appellant had visited the school and had a familiarity with it following her visit. However, Mr and The appellant were not in a position, themselves, to contradict the evidence of Witness A. They relied upon no expert or other professional evidence to explain why Witness A’s evidence was wrong. The Tribunal in reaching its conclusions, whilst able to rely on its expertise, must be evidence led.

• The Tribunal has considered pursuant to sub-section 19 (4A) (ii) of the 2004 Act whether in all the circumstances it is appropriate to confirm the decision of the respondent to refuse the placing request for SCHOOL A. The Tribunal has concluded it is appropriate to confirm the decision because:

1. 1. placing The child at SCHOOL A would be likely to be seriously detrimental to the educational well-being of the six purple class pupils – that would be inequitable;
   2. The child’s parents have chosen for him to remain at the Hub at his primary school: that is their choice;
   3. The child has a place at the ASNB at School C which, on the basis of the evidence filed with the Tribunal, can meet his needs;
   4. in all the circumstances it is appropriate to confirm the refusal of the placing request.

16. The Tribunal is grateful to the representatives for their helpful and constructive approach.  

Order

The reference is dismissed and the decision of the respondent, refusing the placing request, is upheld.