ANONYMISED DE
1. Reference:
On 23rd January 2014 the Appellant lodged a reference under section 18(4) of the Education (Additional Support for Learning) (Scotland) Act 2004, [now as amended by the Education (Additional Support for Learning) (Scotland) Act 2009] (“the Act”) against a decision of the Education Authority (“the Authority”).
The reference is in respect of the decision dated 29th November 2013 where the Authority refused a placing request made by the Appellant under paragraph 1 of Schedule 2 of the Act, for his son, otherwise known as “The child”, to attend at School A ( the “specified school”).
The Tribunal has jurisdiction as The child had a Co-ordinated Support Plan (“CSP”) when the placing request was refused.
2. Decision of the Tribunal:
The decision of the Tribunal is to refuse to confirm the Authority’s decision to refuse the Placing Request of the Appellant. The Tribunal accordingly direct that the Authority make arrangements for The child to be enrolled at School A, to commence from the beginning of term in August 2014.
The Tribunal directs the Authority to update and amend The child’s Co-ordinated Support Plan accordingly.
3. Preliminary Issues:
At a conference call on 1st April 2014 the Appellants were allowed to lodge additional papers and further papers were lodged on behalf of the Appellants shortly before the commencement of the hearing.
The Authority requested that while Witness C was assisting the Authority in the preparation and presentation of their case, they also wished to call her as a witness on behalf of the Authority. While this was somewhat unusual, in the absence of any objection from the Appellant, this request was granted.
It was agreed that it would not be appropriate or possible to obtain The child’s views directly due to his limited capacity for expressing himself. His parents therefore would be asked to provide the Tribunal with an indication of his views.
4. Evidence:
Documentary evidence was produced in a bundle with papers T1-T117; R1-R49 and A1-A40.
Oral evidence for the Respondents was taken from:
-Witness A, Educational Psychologist, The Authority
-Witness B, Depute Head Teacher, School B
-Witness C, Additional Support Needs Manager, Education Authority
Oral evidence for the appellant was taken from:
-Mum, the mother of the child
-Witness E, Head Teacher, School A
-Witness F, Educational Psychologist
The Tribunal called for an additional witness, namely, Witness G, Principal Teacher Support For Learning, School B
We are satisfied that we have sufficient evidence upon which to base our decision.
5. Findings in Fact:
The child is aged 12. He lives with his parents.
The child is currently enrolled as a pupil at School C. This is a small rural school where The child has been well supported in a mainstream setting. At School C The child has SLT input and support for learning in class. At School C Primary The child’s peers, who have been with him since P1, are very supportive and protective of him and look after him. He attends an after school club but does his homework with the support of his parents at home.
The child is a very happy child who enjoys the company of adults and his peers. He is kind and caring towards others. He enjoys his role in helping to organise the school football team and playing football with his classmates. The child enjoys helping out with the tuck shop at school. The child presents as a confident boy who is comfortable with his achievements in school and has a positive self image.
The child previously attended at Cubs but his parents felt that he would not be able to cope with joining the Scouts. He now attends Sea Cadets on a Thursday. The child is involved in a lot, but not all of their activities. The Appellant assists with the Sea Cadets and The child’s sister also attends. The child’s family support enables him to attend.
The child can find social situations difficult and can become frustrated if he is not understood. The child is increasingly becoming aware of the differences between himself and his peers.
The child has additional support needs due to diagnoses of Specific Language Disorder, Developmental Coordination Difficulties and Developmental Delay. He also shows signs of Dyslexia and Dyspraxia. The child is recorded with the NHS as having a Learning Disability.
The child’s specific language disorder impacts on all areas of literacy and learning. The Speech and Language Therapist supports The child with his development of comprehension and expressive language. The child’s speech was reported to be that of a two year old upon starting school and his language processing remains very significantly delayed. The child is still functioning in the Curriculum for Excellence Early Stages for language development. The child still uses jargon phrases within his spoken language and occasionally babbles, especially when he is excited.
The child is unlikely to be ever working at the level of his peers and formal academic qualifications are unlikely to be achieved.
The child has some difficulty with motor skills and he has been assessed by Occupational Therapy, although he is presently discharged from this service, with a programme of input being recommended.
The child requires organisational assistance with dressing and other complex self care and life skills tasks. The child wears glasses and is seen regularly by an optician. The child has been provided with glasses with a prism to reduce visual stress and help with immature development of eye co-ordination.
The child has no sense of danger or self preservation. Because of a limited awareness of risk, The child is vulnerable in activities such as cooking or crossing the road when not supervised. The child is in the early stages of using money.
Due to his level of understanding and social skills The child is considered to be vulnerable both educationally and emotionally. He can get easily confused in situations he is not familiar with. On one occasion when asked to take a visitor to the staff room at School C Primary he was unable to do so, despite having attended that school for 7 years. His mother also described that, although he is familiar with his local Asda, if he leaves her at the checkout to use the toilets, which are close to the checkout, he becomes confused and cannot find his way back to where he left her.
The child requires access to a carefully differentiated curriculum with characteristics as detailed in his Pupil Profile (T31). While this document was prepared in 2012 all parties agreed that his needs remained largely unchanged. Witness A advised that some services had since changed and The child had shown an increased desire for independence and that his speech and articulation had improved.
Witness A, Educational Psychologist, has been working with The child since she took over from the author of the Pupil Profile in August 2012 although she had known of him earlier in her training. She advised that she has had a lot of involvement with The child. She has worked with him in class; she has observed him in class and in the playground; she has visited him at home; she has worked with him individually when carrying out her assessment for the Formal Consultation Follow Up & Action Report by the Educational Psychology Service in March 2013. She was also consulted as part of gathering information to inform The child’s Transition Individual Education Plan (IEP). We accept that through all of this she has come to know The child and his needs well.
Witness F carried out an assessment of The child for the purposes of this Referral. Although his assessment used a different set of tests, the outcome of that assessment closely reflected the opinion of Witness A with regard to The child’s abilities and needs. Witness F reported that The child’s progress to date in literacy and numeracy was above the levels that may have been predicted from his cognitive profile. Witness F stated within his report that with regard to educational needs the development of The child’s emotional well-being, life skills and personal safety are as important, perhaps more important, than his educational attainment. This reflected Witness A’s position, that in her view for The child life skills were paramount over academic skills.
The child often struggles with word finding and needs support in analysing word structures to aid his storage and retrieval of words. The child has many learned conversational conventions which can give the impression of him interacting and conversing appropriately. However, these are functional phrases and The child does not have mutually interactive conversations or “chat”. He doesn’t really comprehend the chat or get much out of it other than having his needs met.
Assessments of The child conclude that he is better at understanding than expressing himself, but his parents, who obviously know him best, say that it is actually the other way around. Any arrangements for The child would have to appreciate his difficulty with both.
The child has friends within School C and is supported in particular by one peer. The child is less included in activities outwith school such as parties or social gatherings. Out of school The child has few friends. Mum described that when she invited some children from The child’s primary school round, The child did not seem to know what to do. Although The child’s peers at primary school are supportive of him other children in the area are increasingly distancing themselves from The child when they see him out of school. Mum stated that The child tries to make friends with other children but they are reluctant to take him on as a friend. She also expressed doubt that the pupil from School C Primary who was friendly with The child and who would also be attending School B would choose to continue that friendship in preference to others.
In his assessment Witness F referred to the Pupil Profile and quoted from T34 –
“While The child has been supported within a mainstream setting with some success...[there is a] need to give ongoing consideration to the relative balance between the benefits he has accrued and will continue to benefit from by being ‘immersed’ within the rich language environment of a classroom of peers and the need for The child to receive individual input and intervention, particularly with regard to his developing language skills”
Witness F went on to state “There seems a real risk that the gains and benefits that have accrued to him during his impressive Primary years may, for The child, be put at risk in the context of an integrated secondary setting, simply on account of the inherent nature and the organisational demands of that setting, however excellent and desirable it may be for most children.”
The Tribunal did take into account, when considering Witness F’s report, his previous involvement of School A, as a member of its Care and Educational Committee, and the fact that his report was requested by the Appellant in support of this Reference and prepared in the specific context for a placement for School A. Witness F in his oral evidence stated that he no longer holds his post with School A and that his primary concern was The child rather than promoting School A.
School C Primary is a primary school catering for 112 pupils. It is not The child’s catchment area school. The Appellant & Mum chose to send The child to School C Primary after he had been assessed at nursery. The child’s parents felt that he would benefit from a smaller school in a rural setting. Neither of The child’s siblings attend School C Primary.
The child is in a mainstream class at School C Primary. The number of pupils in the P6/P7 class is 21. He is very well supported there. The child receives support from a class teacher, and a support for learning teacher or a pupil support teacher (PSA). Witness A advised that recently they had to ask the school not to support him quite so much and to promote his independence. The child also receives input from SLT and social work. At School C Primary The child is completely included and liked by everyone. He has been with the same class since P1.
While The child is being taught within a mainstream class he has a highly individualised curriculum. The child is aware that he is being taught differently from his peers. Mum advised that she understood that the other pupils were not really aware of how far behind them The child presently is. The child’s learning is at the level of P2 and he is reading the same book as his 6 year old brother. The child enjoyed the support of the same learning support teacher from P1 to P6 until she retired. He was allocated a new learning support teacher and took a while to get used to the change. The child has had access to a laptop since P1 and has access to an ipad during appropriate times in class. Mum expressed a concern that the gap between The child and his peers was widening and at times The child was being left to play games on the ipad while the rest of the class were learning.
School B is a mainstream school built within the last 6 or 7 years. The school is fed into by 4 primary schools including School C Primary. The school is much larger than School C Primary with approximately 107 pupils in S1 alone. The school areas are colour coded to assist pupils with navigating around it.
The Learning Centre within the school takes the form of a corridor with rooms off. The main part takes the form of a very large room split into areas with teaching and learning rooms, sensory room, IT suite, a soft seating area, nurture area and a kitchenette. There are cubicles for quiet work. The main classroom has 5 computers and an interactive white board used for teaching. The Behaviour Support room is a large area with quiet rooms off and again there are computers for the pupils use.
The Learning Centre is used by pupils with ASN and is also regularly used by mainstream pupils including those who have been off long term through illness and those who refuse to attend school. At present there are no pupils who spend all of their time at the Learning Centre as this is discouraged by the school.
There are 6 full time equivalent ASL teachers in School B and 203 Pupil Support Assistant hours per week with 5 full time PSA and 2 part time PSA.
At School B the ethos is very much that ASN pupils should be in mainstream classes, with support, as much as possible. At present there is one pupil in S1 with needs “reasonably similar” to The child. There are no other children with needs similar to The child coming up from P7 in 2014.
At present there are 4 pupils who have support from a PSA in getting from class to class. If The child attended at School B there would be provision for him to be met in the morning and taken to his class. He would have the support of a SPA in class. He would be accompanied to each class during the day until home time when he would be accompanied to the school front door. A PSA would be with him at break time and lunch time and take him to the Learning Centre.
At School B there are various activities on offer, such as the Dr Who club at lunch time, games and the school Panto, which all the children are encouraged to contribute to, either by taking part or making the costumes etc. Activities offered by the school include football, basketball, hockey, badminton, chess club, war games and music. At present there is a boy with ASN who takes part in basketball. Football is more competitive and so is not so inclusive.
Community Learning and Development (CLD) are located nearby and offer peer support and team building.
At School B all of the teachers except one have Inclusive Practice Certificates. Some PSAs have Support Certificates. The school uses a council based learning tool available on their computers. Staff have attended courses on Autism and Dyslexia and mental health. With regard to the PSAs School B have provision for 204 hours per week which equates to around 5 full time and 2 part time staff. There are 5.6 full time teachers within the Learning Centre along with Witness G who described her role as being mainly administrative, although she does take approximately 6 classes per week.
School D, caters for children from 5 to 18 with additional support needs. It is approximately 15 minutes drive away from School B.
At School B they have an in-school Careers Adviser. They have links with College. Older children are offered the opportunity of taster courses at the college with the idea of progressing to college.
The Authority’s position is that they are satisfied that The child’s additional support needs can be met at School B (with possible access to School D as appropriate)
School A is a specialist residential school for secondary school age children who have been unable to flourish in mainstream school. In 2012/13 the school started with a roll of 27 and ended with a roll of 35. It is not unusual for children to be added to the roll throughout the year. School A is co-educational and provides a mixture of boarding and day students with the majority of students boarding during the week and going home to their families at weekends and holidays. The primary diagnosis of the school cohort include Aspergers Syndrome, Autistic Spectrum Disorder, Language Processing, ADHD, Global Delay and Mental Health (OCD, eating disorder etc).
All students have a detailed Individualised Education Plan (IEP) which outlines the short term and long term targets. Each target is set in a timescale with success criteria. Residential students also have a detailed Care Plan, of which the IEP is part. All teaching and care staff are aware of each student’s personal targets and work towards achieving them throughout the 24 hour curriculum.
Each student has a Keyworker who provides regular support and is the person who a student would go to with any concerns. It is recognised that some students need support to prepare to cope in larger groups and less predictable situations. To this end School A organises activities such as weekly swim trips and there are many other opportunities, both educational and leisure, to work outwith the school campus.
The curriculum at School A is very much individualised to meet the needs of each student. Some students follow an initial course based on Curriculum for Excellence then work through SQA qualifications ranging from Access 2 to Higher.
For some students, their core provision is through ASDAN accredited courses. ASDAN courses are life skills based and focus on the skills required to be as independent as possible. Planning for trips, independent travel, road safety etc are units of study in a Transition Challenge, which covers eleven curricular areas. Students have the opportunity to pick up SQA accreditation in areas where they have a particular aptitude.
Care staff support students in developing good health and hygiene routines.
There is particular focus on breaking down barriers to learning. There are also opportunities for developing skills for learning, skills for life and skills for work with a continuous focus on literacy, numeracy and health and well being.
At School A senior students attend a link course each week at a College, and many link with colleges in their home authority in their final school year. School A has links with local businesses to offer work experience. Careers education is provided in school and through links with Skills Development Scotland.
School A has 17 weeks holidays a year plus occasional and in service days. This is longer than the holidays in a local authority school.
In addition students have the ability to work on John Muir and Duke of Edinburgh Awards. Accreditation is gathered across the 24 hour curriculum.
The Care Commission unannounced inspection in February 2012 reported – Quality of Care and Support – very good; Quality of Management and Leadership – Good; Quality of Environment – Good; Quality of Staffing – Good.
Transition planning for The child started when he was in P6. Witness A advised that she met with The child’s parents in October 2009 to discuss the options available to them when considering secondary education. The options included mainstream being the local school with an enhanced base; special schools and the flexible option of a combination of mainstream and special school, such as School D, to meet The child’s needs in a bespoke way.
In her evidence Witness A advised that she was confident that School B could meet The child’s needs. Her confidence was based on her understanding of how School B would provide support;-
Confidential information would be sent to all staff teaching The child, using a “passport”
There would be a very individualised curriculum to meet his needs.
He would be on a “flexible pathway”
He would be in small groups, say 5, with children at a similar stage of education {Early Years} focusing on life skills and using School D to assist in life skills.
They would involve The child in football and at School D he would have access to riding and swimming and the gardens there.
They would use the resources at School D which would include a variety of projects for The child and peers – similar youngsters with similar needs.
She felt that there would be a need to be responsive, to address any problems quickly and effectively and that this would be achieved through clear communication between the school and the parents.
There would be frequent reviews. For example, she foresaw a review taking place after a few weeks at School B to see that The child’s needs were being met
She felt that this would try to give The child the best of both worlds where he could still move up in the school with his peers.
The Authority stated that the basic cost to the education authority for a pupil attending School B is approximately £10,000. We are required to look at the additional costs to the authority of The child attending. The additional costs for the year 2014/15 were stated as follows:-
- In the Authority’s response they stated that should additional PSA hours be required to support specific communication and language needs the cost would be around £11,000. In her evidence Witness C stated that she had approved funding to provide one full time PSA for The child and she estimated that the cost of this to the Authority would be £17,000 per annum.
- Transport costs for The child to travel to and from home will be approximately £4,332
- The cost of an escort for travel will be around £1,425
- There may also be costs associated with The child travelling to and attending for 1-2 sessions per week at School D. The cost of this is likely to be around £6,000.
The likely extra costs to the authority for The child attending School B and School D are accordingly £28,757.
- As The child would be a residential pupil at School A the cost of his attendance would be £47,751 for the session 2014/5, which includes all boarding and education fees along with SLT fees .
- The cost of his transport between home and school would be approx £16,986 per year.
- The cost of an escort for 12 hours per week for the journeys would be approximately £3,420.
- While it had not been stated that School A would have to take on a PSA, the cost of this provision, if it was required, would be around £17 per hour.
The likely extra costs to the authority for The child attending School A are accordingly £68,157. The child’s parents advised that they were considering taking The child to school on a Sunday night. This would bring down the transport costs. However, it can clearly be seen that there is a significant difference in the additional cost provision of a place at School A as opposed to School B.
Availability of Place at School A/School B
If the placing request is granted, the specified school would be able to place The child in the school for the academic year 2014/15. Likewise, there is a place available for The child at School B.
Views of the Child
Mum advised that it was difficult to ascertain The child’s view on his future schooling. His response may depend upon his mood and he was likely to say what he thought you wanted to hear. Accordingly to try to understand his views we require to look at his responses to the respective schools.
The child has visited School A on three separate occasions, twice for a short time and on the third occasion on a residential basis. His mother described that he quickly seemed to “fit in” with the rest of the pupils there. He seemed happy and ran off to join in with the others in his class. He asked when he could go back. When he returned to School A he was recognised by children he had met on his previous visit. When he stayed over, he stayed for 3 days and 2 nights. Mum stated that she reassured The child when she would return to the school and he seemed content with this. The child was encouraged to telephone his parents each evening. When he did so he seemed happy and eager to go back to the evening activities with the other students.
The child has visited School B on a couple of occasions in connection with transition. He has previously attended at a Lego club held there. He enjoyed his experience at School B when he was involved in cookery.
He was described as being upset when his parents spoke about a letter received arranging a further visit to School B and at receiving an application for a Kidz card from School B. His parents requested that the transitional visits to School B be suspended as they felt that these were confusing to The child.
Views of the Parents
Mum advised that The child had been well supported at School C Primary. However, there would be a big difference between the rural primary school and School B which would be much larger and much busier. While The child’s parents supported inclusion they felt that The child would not benefit from this at School B. Mum advised that they had been told that The child would be in mainstream classes for the majority of his time and that out of 30 periods per week The child would be “pulled out” of three classes per week for ASN. She advised that after discussions she had been told that this would be increased to 6 periods per week. They were concerned that there was a risk that The child would be left behind. If he felt that he did not understand then he would withdraw into himself and stare out of the window rather than engage with learning.
The child’s parents accepted that there was a disparity between the number and quality of visits by The child to the two schools. They had asked that the transition visits to School B be stopped as they felt that these were confusing to The child. They advised that the visits to School A were not only to let The child see the school but also for the school to assess The child and his needs. This was done by the school over the 3 visits. They felt that the Authority had the benefit of the fact that there has been ongoing assessment of The child and his needs since P1.
The position of the Appellant and his wife is that The child can adapt to change but does take longer than other youngsters. They felt that the change to a secondary school which involved a split placement would be difficult for him. They were concerned about the size of School B as it was much bigger than The child had been used to. They appreciated the authority’s concerns over the risks involved in sending The child away to school but despite this they still felt that they wished him to be given a place at School A.
They advised that The child was increasingly becoming aware of the difference between himself and his peers. At School A while he would be different to his peers, they were all “different” for various reasons and so it would be easier for him to feel included. The child had coped well with his short stay at School A. He was used to staying with his grandparents and speaking with his parents on the phone. He would be able to speak with them on the phone when at School A. He did not require their physical presence to be reassured. They felt that he had a secure attachment with his family and that this would not be affected by being away from them during the week.
They advised that The child could become angry and upset if he was not being understood. They felt that during his time at School A he had been able to be understood despite the wide range of communication levels, i.e out of 35 pupils 20 had a diagnosis of Aspergers Syndrome.
The child’s parents had taken into account the shorter academic year at School A and were confident that they could put suitable arrangements into place for The child during the holiday periods.
6. Reasons:
Section 28 of the Education (Scotland) Act 1980 provides that Education Authorities shall have regard to the general principle that, in so far as is compatible for the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.
Schedule 2, Paragraph 2(2) of the Education (Additional Support for Learning (Scotland) Act 2004 provides that where the parent of a child having additional support needs makes a request to the Education Authority for the area to which the child belongs to place the child in the school specified in the request not being a public school but being (a) a special school the managers of which are willing to admit the child…it is the duty of the Authority, subject to paragraph 3, to meet the fees and other necessary costs of the child’s attendance at the specified school.
For the avoidance of doubt it is accepted that the specified school is a special school and it is accepted that the managers of the special school are willing to admit the child.
The duty imposed by paragraph 2(2) does not apply in a number of circumstances. One of these sets of circumstances is contained in paragraph 3(1) (f) which requires all of the following conditions to apply, namely:-
(i) the specified school is not a public school,
(ii) the Authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,
(iii) it is not reasonable having regard to both the respective suitability and the respective cost (including necessary incidental expenses) of the provision of the additional support needs of the child in the specified school and in the school referred to in paragraph (ii) to place the child in the specified school, and
(iv) the Authority have offered to place the child in the school referred to in paragraph (ii).
It is not in dispute that the specified school, namely School A is not a public school so paragraph 3(1)(f)(i) is fulfilled. The Authority consider that The child’s additional support needs can be met in School B which is a school within their management. This was disputed by the Appellant. The Authority have offered to place The child at the school referred to in paragraph 3(1) (f) (iv). The areas of dispute therefore are restricted to paragraph 3(1) (f) (ii) and (iii).
In order for us to consider whether paragraph 3(1)(f)(ii) was satisfied we first had to identify The child’s additional support needs and then look at whether School B is able to meet those needs.
Both the Authority and the Appellant had taken steps to assess The child’s additional support needs. We have accepted the evidence in this regard and have narrated the same above. We carefully considered the evidence of Witness A, whose involvement with The child on an ongoing basis meant that she was able to identify what, in her particular view, was most important for The child. The child’s mother gave her evidence in a very clear and realistic manner. There was no dispute between the parties as to the needs as identified.
No issues were raised regarding credibility or reliability of any of the witnesses and in fact, there is agreement on a lot of what is before the Tribunal. The evidence of the witnesses demonstrates that the Authority has accurately identified The child’s additional support needs.
The Tribunal accepted that Witness A had come to know The child well and had a good understanding of his additional support needs. We accepted the evidence that for The child his emotional development and life skills were more important than academic achievement. Witness A in her evidence appeared confident that the supports for specific needs as required by The child were in place at School B. However, having heard the evidence of Witness B and Witness G we were not satisfied that this was, in fact, the case.
We formed the view, based on the evidence of Witness A and Witness F, that in addition to a highly individualised curriculum, the most important needs for The child could be identified as follows:-
- To work in small groups
- To have access to a suitable peer group
- Provision of Speech and Language Therapy on an ongoing basis
- Frequent reviews
- To focus on life skills rather than educational attainment
- To be supported in extra curricular activities as a means of widening his group of friends as well as broadening his life skills
We looked at whether we were satisfied, on the basis of the evidence, that School B is able to support these needs.
Mainstream Classes v Small Groups
Witness A was quite clear in her evidence that she considered that The child required to be taught in small groups of, say, 5 pupils. She stated that The child could work in larger groups but never in a “huge” group. She stated that it was always in the plan for him to be in a relatively small group. She stated that he would be able to access some mainstream classes and saw these as mainly being the practical subjects. She did see The child being in more mainstream classes in the future, when he was ready for it and envisaged that this may be when he was in S3. Her belief that School B would be suitable for The child appeared to be partly based on her belief that he would mainly be taught in small groups in the Learning Centre and with the addition of attending at School D, again in small groups.
In the Transitional IEP one of the long term targets was identified as “The child will become familiar with School B, finding his way around the school, recognising staff and feeling supported.” This was to recognise the complex nature of the building and the large number of staff that The child would have to become familiar with at School B. One of the short term targets identified is “The child will access the Support Centre and a very limited selection of mainstream classes with targeted support in order to ensure confidence and reduce anxiety” and the support strategy is stated as “....Very limited access initially to mainstream classes for practical subjects with targeted support. Any phased increase in access to mainstream to be at The child’s pace and with full consultation with his parents.” (The emphasis is mine)
In the Comparison of Provision prepared by Witness A for the Authority under the heading of Curriculum/Challenges it was noted that The child would likely find the large classes challenging and would likely experience considerable anxiety. It would be essential to offer The child a personalised timetable with preparation and support to join mainstream classes if and when there were judged to be of benefit to him. It was also noted that the number of pupils and the hustle and bustle of the academy may mean that The child will experience sensory overload which may be anxiety provoking and that this would need to be monitored and solutions sought if it was deemed a problem.
At the Hearing the suggestion that The child would be taught in a small group appeared to come as a surprise to the Appellant. He and his wife had been advised that The child would primarily be taught in mainstream classes with PSA support. This was in fact confirmed by Witness B and Witness G. They envisaged The child spending the majority of his time in mainstream classes, with PSA support and spending approximately 1½ days per week at School D for activities.
Witness B and Witness G both described School B as having a focus on mainstream. Witness G in particular stated that The child would be placed in mainstream classes for the majority of his time and that he would be “extracted” for classes such as numeracy and literacy and SLT. She accepted that The child would be unlikely to be able to access modern studies classes in mainstream but believed that, with PSA support he would be able to be in mainstream classes for history and geography. She stated that if the school found that The child struggled with mainstream classes then they would extract him for additional classes in the Learning Centre. In practical classes The child would be in a class of around 17, and in a class of around 27 in the teaching subjects.
We considered that there seemed to be a lack of appreciation of the extent of The child’s needs by School B. When Witness G was asked to look at The child’s Pupil Profile, she appeared not to have seen this document before. She had, however, been one of the parties who had provided input for The child’s Transition IEP and had been involved in revising it.
Despite this there does not seem to have been the necessary level of communication when discussing the provisions for The child at School B and insufficient consideration given to what The child’s day would look like. While it is perhaps too early for a timetable for The child to have been produced we would have expected that detailed thought would have been given to where he would spend the majority of his time. While there should always be a degree of flexibility the position as stated on behalf of the Authority appears to be that the default is mainstream and that The child would be extracted if mainstream was seen not to be working. We do not consider this the same as making suitable provision.
There has been an assumption that because The child had made good progress in a mainstream primary school with support he should also be able to cope in a mainstream secondary school with support. This assumption does not appear to take into account the difference for The child between a small rural primary and a large busy secondary school.
If the position is, as stated by Witness F and Witness A, that The child will struggle in mainstream classes, we consider that there is a danger that, on an ongoing basis, his needs would not be fully met due to The child’s ability to learn and use stock phrases appropriately giving an impression that he understands more than he actually does. Mum expressed a valid concern when she stated that The child might be left staring out of the window or playing games on his ipad while the rest of the class progressed ahead of him.
In the event that it was recognised that he was failing to keep up in mainstream classes, the result could be that The child would end up spending the majority of his time in the Learning Centre.
Which brings us to our next consideration.
Peer Group
At present The child is well supported by his friends at School C Primary. We had regard to the fact that The child has been with the same class since P1. However, we were advised that only 2 of The child’s peers from School C Primary would be transferring to School B and that neither of them had ASN.
Witness A in her evidence stated that there would be other children at School B with similar needs to The child and that there would be a group of 5 children who would be taught together. She stated that there would also be children at School D with similar needs as The child and who could also form a peer group for him. Witness C stated that there would be a “cohort” within the mainstream class who would access the Learning Centre – more than likely that these would be the same group of pupils - and that this would form a peer group for The child at School B.
Witness B stated that there was one other child with similar needs to The child coming up to the school in August 2014. In contrast, Witness G stated that there were no other children with The child’s needs due to start at School B along with The child. The school did have other children with Additional Support Needs. A lot of the ASN pupils suffer from dyslexia, some very severely. One girl presently at school has health issues and is in the Learning Centre a lot. One of the current S1 pupils has needs reasonably similar to The child but she was not aware of any P7 children coming to School B in August 2014 with needs similar to The child.
At School B The child would be encouraged to make friends with those also accessing the Learning Centre and those he would come into contact with at School D. The Christmas show was stated as an opportunity for him also. There was no programme in place to foster friendships. In the Learning Centre the older children are be encouraged to take the younger ones under their wing, but there was no evidence as to how this may translate into friendships and how they would continue outside of school.
Witness G stated that at School B The child, along with others, would be provided with a “buddy” who would be with them all of the time during their first week at school. They would meet him at the start and the end of the day. After the first week it would be left up to the pupils to decide if they wanted to spend more time with them.
In all of the circumstances we are not satisfied that there was evidence that there would be a suitable peer group for The child at School B.
Speech and Language Therapy (SLT)
We were provided with a report from NHS Dept of Speech and Language Therapy dated 6 April 2014. This stated that The child has been known to SLT service since 2004 and has received regular input since this time. At the time of this report it was stated that The child still has significant difficulties with word finding/ retrieval skills; often has problems sequencing sounds in the correct order in words; has very obvious difficulties with planning and organising skills, particularly when language is involved; and in speech can often make grammatical errors with tenses and often omits little words such as ‘is’, ‘and’ and ‘a’ etc. The report reflects The child’s difficulties as already identified by Witness A and Witness F.
The child had been receiving regular support from his SLT throughout P7 on a fortnightly basis. The report recommended increasing this to a weekly basis to support him during transition from primary to secondary. The report advised that support could take the form of direct therapy provided either by a speech and language therapist, an SLT assistant or a combination of both, programmes, input to Education plans as well as advice and training to support communication. It was anticipated that this input will be required over a significant period of time and that a review should be carried out in October 2014 once The child has begun S1.
The use of SLT was identified in The child’s Transitional IEP. In her evidence Witness B stated that at present there was no specific SLT provision at School B and that they would have to consult the Authority to see if The child could get it. She stated that the staff at School B could provide SLT support to The child but did not have the level of expertise as recommended in the report. When asked if School B could provide weekly SLT she advised that she believed that such support could be called in “as and when we need it”. She advised that if The child was getting this level of support presently and the support was being provided by the NHS then she “could see no reason why this should not continue”. She gave an example of the school calling in extra resources for children with hearing difficulties or English as a second language.
Witness G stated that she saw The child accessing SLT in the Learning Centre during the times that he was extracted from the mainstream classes. She stated that she was in regular contact with SLT NHS and believed that SLT could be provided flexibly, about once per week.
Within the Transitional IEP one of the targets stated “The child will improve his communication and life skills to increase his independence at school and in his community”. SLT was identified as a resource to achieve this target. However, under the heading of “anticipated difficulties” we note that it states “Time available to SLT limited to 30-40 minutes every second week”. The position of the Authority appears to be that they see no reason why SLT would not be provided on a weekly basis, but this would not appear to accord with the information available at the time of drawing up the Transitional IEP
The Tribunal was directed to the case of MacAuley v Aberdeenshire Council 2008 SLT(ShCt) 126. While the present Reference is not on all fours with this case, it does lay down a principle that by the time of the hearing the Authority must be able to satisfy the Tribunal that the required SLT supports are in place, not that if The child attended School B then they would make the request for that support.
We do not consider that the Authority have satisfied us that appropriate SLT provision is in place.
Frequent Reviews
In her evidence Witness A stated that it would be important for there to be frequent reviews to ensure that the supports in place for The child were appropriate. This would ensure that School B would be responsive to The child’s needs and that any problems would be addressed quickly and effectively. Reviews would also allow the school to respond to The child’s changing needs as he grew and matured. She foresaw that a review would be carried out after only a few weeks to see if The child’s needs were being met.
Witness G also stated that there would be reviews carried out. However, her position was that reviews would be carried out every term and probably not before the end of September.
We do not consider that the frequency of reviews that School B envisage will be appropriate for The child. The failure to carry out an early review could adversely impact upon The child particularly if the outcome of the review was that he was struggling in the mainstream classes.
Life Skills
For a child like The child, who has a number of additional needs, life skills are an important part of enabling him to establish his independence. They are likely to impact upon his ability to integrate fully into mainstream education and to successfully follow the school’s inclusion policy.
Witness B advised that at School D The child would get sports and life skills, but this was not expanded upon. In the Comparison of Provision Witness A stated that The child’s curriculum would include wider life skills such as budgeting, shopping, self care, cooking, gardening, arts and ICT. In addition this would be enhanced without outdoor learning and opportunities accessed from external agencies such as riding for the disabled or swimming. As we had heard that The child would get swimming, riding and gardening at School D we must believe that this is the external agency referred to. We heard evidence that the practical links between School B and School D were still being explored and so determine that the provision was not yet in place.
The child is at the early stage of learning about money and at School C Primary in order to support this they arranged for him to help out at the tuck shop at break times. He seemed to enjoy this but there was some resistance as he didn’t want to limit his own break time activities. The target within his Transitional IEP relating to his use of money saw The child’s parents as a resource to support him by taking him shopping and occasionally letting him help with purchases. We were advised that ASDA was near to School B and The child could be supported to shop there.
The child requires a high level of support with practical skills such as eating with cutlery and self care skills. He has to be reminded to put on clean clothes rather than dirty ones. At times The child still struggles with personal hygiene issues around going to the toilet. Often others would notice the smell but he would not. When asked how this was dealt with at School C Primary she advised that they did not change him and he would require help to clean himself or have a shower when he got home. When asked what supports School B could offer in this regard Witness G advised that there were two disabled toilets located within the Learning Centre and that staff and PSAs were located next to the toilets. She advised that they would be accessible if a child required help. There were other children with similar problems and they were allocated a box within the toilets where they could store a change of clothes. There was no suggestion that a member of staff would take direct action other than to send The child to the toilet to clean himself and get changed. When considering whether this was sufficient we had regard to Mum’s evidence that when The child was showering at home he often had to be reminded to use soap. He clearly requires some form of direct supervision in relation to personal hygiene rather than being left to get on with it.
Witness G in her evidence stated that life skills feature highly in the practical classes such as Home Economics, Technical classes, RME, art and PE. This appeared to be a general emphasis on life skills rather than provision based around particular identified needs.
We had heard that in the practical classes The child would be supported by a PSA but would still be in a class of around 17. It is unlikely that he would get the same level of support in this area as if he had been in a small group of 5, as envisaged by Witness A.
Having regard to The child’s abilities and his high level of needs we are not satisfied that appropriate provision had been made for The child in this regard.
Extra Curricular Activities
Mum stated that she and the Appellant have offered The child various activities. He presently goes for swimming lessons and he joins in with football at School C Primary. He was previously a member of the local Cubs but when he was too old for that they felt that he would not cope with being in the Scouts. They enrolled him in the Sea Cadets instead. The child could not manage at the Sea Cadets were it not for the support for his father and sister. The child was not able to pass the water safety test. His involvement there is accordingly limited. We heard from Mum that at break times The child stands alone. His sister has had to step in to ensure that The child is involved in activities, including just being able to paddle in shallow water.
Mum stated that Social Work had suggested identifying someone who could support The child at Sea Cadets in order to give some independence from his family. Various attempts have been made but to date no-one has been identified.
The child has little appreciation of risk and so it is foreseeable that he will always be limited in his involvement. There had been focus on teaching The child words associated with the Sea Cadets but this has been placed on hold. He will never be able to cope with the academic side of attending the Sea Cadets.
The child’s parents have offered The child lots of activities but often he just does not want to go back. He was attending at the Lego club at School B but recently advised that he no longer wanted to go as a result of a comment made by another child.
At present The child has shown an interest in football. School B has a football team but it was the opinion of Witness G and Witness B that at secondary level it was more competitive and it was unlikely that The child could join. Witness G stated that there were other sports available, such as basketball. However, we were concerned that this again showed a lack of appreciation of The child’s additional support needs. Although he has been discharged from OT he continues to have difficulty with coordination and so his ability to access sports which are likely to require a high degree of coordination is limited.
Witness A stated that The child would have access to a youth club. Witness G’s evidence was that there was a youth club at School B which was quite successful and should be accessible to The child.
In Witness A’s evidence she suggested that there were already links between School B and School D. Her evidence was The child would access School D for SLT and activities such as swimming and horse riding. We heard from Witness B and Witness G that School B had existing links with School D had been used more for advice and support rather than actually providing physical support. Witness G stated that only recently had this situation changed and they were now exploring how to access School D for two existing S1 pupils with ASN going into S2.
In the Submissions for the Respondent they made reference to The child being able to access swimming at School D from August or October 2014 and horse riding from March 2015. No evidence had been led to this effect. However, if we were to take this into account, it would appear that the supports that Witness A had envisaged being in place immediately would, in fact, not be so.
As a local authority school School B is understandably not able to offer the same 24 hour curriculum as a specialised residential school like School A. However, the importance of extra curricular activities is recognised within his Transitional IEP.
One of the long terms targets is stated as “The child will increase his confidence and begin to build some resilience by participating more fully in out of school activities”. The IEP proposes that The child increase his level of participation with the Sea Cadets. However, we consider that The child’s participation will always be determined by his ability and were it not for the support of his family it is unlikely that he would be able to attend. The proposed solution of a support worker or parent “to converse with Sea Cadets about legal aspects of inclusion/discrimination if necessary” fails to recognise that, due to safety reasons and The child’s lack of risk awareness, there will always be activities that The child will not be able to take part in regardless of any such “conversations”.
Witness G stated that School B do not do The Duke of Edinburgh Award scheme.
Other proposals within the Transitional IEP are that The child participate in taster sessions of disability football or Multisports at the Sports Village and for The child to attend the Teen Group at School D. Both of these activities envisage The child’s parents being principally involved. From their evidence it is likely that The Appellant & Mum would fully participate in this and it would be for The child to decide if he wanted to continue with the activity.
Having regard to the role to be played by The child’s parents rather than the local authority it is questionable as to whether these supports are actually being offered by the Authority.
Having regard to The child’s most important needs we are not satisfied that School B is able to make provision for the same. Witness A seemed confident in recommending School B but, having heard the evidence it would appear that this confidence was based on incorrect information about what would actually be provided. The most significant provision, in our view, is the requirement for The child to be taught in small groups. While Witness C stated that it would be possible for The child to be in a small group within a mainstream class, the lack of other pupils with similar additional support needs as The child leads us to believe that this is unlikely to happen and The child would effectively be learning alone, either in a large mainstream class or in the Learning Centre. While the school has been able to successfully support other ASN pupils, we were concerned at the lack of insight into the full extent of The child’s learning disability and the particular needs that result. There was clearly an assumption that because he had been successful within a mainstream primary school, he would continue that success at secondary level. Provision would be provided on a trial and error basis rather than based upon available information.
There is a two stage test in terms of section 19(5) (a) of the Act: 19(5)(a)(i) the Tribunal requires to determine if the authority has established any of the circumstances in paragraph 3(1)(f); then 19(5)(a)(ii) the Tribunal has to consider whether in all the circumstances it is appropriate to confirm the decision of the authority.
In terms of paragraph 2(2) of Schedule 2 of the Act, the Authority is required to meet the fees and other necessary costs of the child's attendance at the Specified School unless one of the circumstances in paragraph 3(f) is established.
Para 3(1) (f) (i) and (iv) of Schedule 2 are not in dispute. School A is not a public school and the Authority have offered to place the child in School B.
The Tribunal considered the evidence before it of the ability of the authority to make provision for The child's additional support needs in School B, and concluded that this was not established. Para 3(1)(f)(ii) accordingly is not satisfied.
Having reached the above decision, we do not, in law, require to consider matters further.
In deciding whether, in all of the circumstances it was appropriate to refuse to uphold the refusal of the placing request we did give some thought to the suitability of School A and the criticisms made of it and the concerns expressed should The child attend there. In the comparison of the two schools it appears that School A is able to provide for The child’s needs; providing small classes of 3 or 4; peer groups in that the 3 others who would be in The child’s class would be at a similar level of learning; it had already been identified that he would be in the stream following the ASDAN curriculum and accessing the mainstream curriculum if he showed an ability or strength in that area. They had provision for onward transition from school, having arrangements in place for work experience and links with local colleges. There were a number of extra curricular activities available, including The Duke of Edinburgh and the John Muir Award schemes.
At School A, the residential nature of the school means that life skills would be acquired through support not only during the school hours, but also from the support staff in the evenings. Acquiring and developing life skills throughout his years at School A will also assist The child to live as independent a life as possible after school. In this respect, the acquisition of life skills is, for The child, a crucial aspect of his educational needs. School A are in a position to offer individualised life skills education as an integral part of the curriculum they offer.
When questioned about School A, Witness A, who had visited the school, stated that without a doubt School A could meet The child’s additional support needs. However, she did have a number of concerns should The child attend at School A.
One concern was that The child had a particularly strong bond with his parents and if he was sent away to a residential school this could be harmed. She stated that the attachment theory was becoming increasingly important. She did not suggest that there was any current difficulty with The child’s attachment to his parents, on the contrary, she described it as very strong, especially with the Appellant. Mum described The child’s reaction when he stayed over at School A and certainly it did not appear that he was caused any upset or distress at being separated from his parents. In fact, he was keen to return to the activities which had been interrupted by the call with his parents. We take on board that the experience that The child had been short. However, he felt included there and appeared to enjoy the experience. He would be returning to his family each weekend and, while the shortened academic year was criticised, this would result in The child being able to spend the extended holiday periods with his family. He had been using a laptop and ipad for a number of years and these were available to him to communicate with his family along with nightly telephone calls home.
The Appellant is a school teacher and so would be available for The child during the school summer break. He had the support of The child’s grandparents who would be available to spend time with The child. In relation to the weeks when the Appellant was still working and School A was on break, Mum advised that they have a friend who is a child minder and well known to The child and that she would be able to look after him.
Concern was expressed that if The child travelled up each Monday morning he would be tired during the day. The Appellant and his wife planned for The child to travel up on Sunday evening. This would limit the weekend time that The child had with his family but would mean that he was rested for school on Monday morning.
The peer group at School A was felt by Witness A not to be suitable. Being in a small class would limit The child’s opportunities to form friendships although it was noted in the Comparison that he would have access to the wider peer group who could provide positive role models and language models for him. The majority of pupils at School A were either Autistic or have Aspergers Syndrome. She was concerned that The child may become upset at some of their less positive behaviours. It was accepted that The child may also see less positive behaviours at School B but Witness A felt that The child would have the benefit of being able to discuss these with his parents.
While the information from Witness E confirms that the majority of pupils at School A have Aspergers Syndrome, we also note that in 2012/13 there were 8 pupils with Global Delay and 2 with Language Processing. With regard to the behaviours, Witness E advised that the school had a policy of working on empathy and would speak with pupils about behaviours, explaining them and reassuring pupils.
On his residential visit to School A The child did appear to be able to join in with others both in class and in extra curricular activities. He was recognised by another pupil from a previous visit and made to feel welcome. He was reported by Witness E to be excited by being around others like himself and identified friends he had made over his three day visit. In relation to how any friendships formed would be continued over the school holidays, Witness E advised that they do have pupils who keep in contact over the summer and visit each other.
Witness A expressed reservations about the teaching qualifications of staff at School A and advised that unless they have a teaching qualification, in her view they should not be teaching at SQ level. Witness E advised that while a large number of her staff did not, in fact, have a teaching qualification so far the SQA have been satisfied about their ability to deliver the SQA curriculum. We have heard that for The child the main focus will never be on attaining academic achievement. Having regard to the Quality and Standards Report Summary 2012/13 we are satisfied that the staff at School A are qualified to deliver the ASDAN courses that The child will be likely to undertake.
The Tribunal carefully considered all the circumstances applying to The child having regard to all the available evidence. We had regard to the principle stated in the Education (Scotland) Act 1980 that "so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents". Given this obligation, there must be a heavy onus in determining that a placing request be refused. Parental views are not determinative, but are an important factor to be considered in the exercise of discretion to the placing request. While we were given information as to the respective costs, we were not given any information that would allow us to determine whether the proposed costs were unreasonable and the figures were left to speak for themselves.
The Appellant has used his right under the ASL Act to make the placing request. This cannot have come easily to him and his wife to make an application to send their child away to school but they are looking to and planning for his future. He may be residing away from home but this is a very necessary step. If he does not go then he may be destined to be isolated, have little independence outwith his family, thus leading to quite a narrow existence and with no real possibility of reaching his full potential.
In all the circumstances, we conclude that it is not appropriate to confirm the decision of the authority refusing the placing request. The Tribunal accordingly direct that the authority make arrangements for The child to be enrolled at School A, to commence from the beginning of term in August 2014. As a consequence of this the Authority will be responsible to meet the fees and costs associated with this.
As the Co-ordinated Support Plan is still in effect, we do require to order amendment of the CSP in terms of section 19(5)(b)(ii) of the Act.
For all of the above reasons we have reached the decision recorded above.
