DECISION OF THE TRIBUNAL
Reference: R 026 2014
Gender: Male
Aged: 13
Type of Reference: Placing Request
Reference
1. This Reference, made by application dated 6th May 2014 (T1-13), and supplemented by a letter of 24th April 2014 (T16-18), is made under s.18(1) and 18(3)(da)(i) of the Education (Additional Support for Learning)(Scotland) Act 2004 (‘the 2004 Act’).
Decision of the Tribunal
2. The Tribunal overturns the decision of the Respondent to refuse the Appellants’ placing request, and requires the Respondent to place the child in School A by 22nd January 2015, all in accordance with s.19(4A)(b)(i) of the 2004 Act.
Preliminary/Procedural Matters
3. A hearing took place on 25th and 26th November 2014. Various conference calls between the Convener and the parties’ solicitors took place prior to the hearing (see Directions of 17th June, 8th October, 31st October, 12th November, and Conference Call note of 20th November, all 2014, and all at T29-38 in the bundle). The placing request in question seeks placement of the child in School A, a school managed by the Respondent. Unusually, there are two Appellants (both of the child’s parents). While this is not the usual position, we see no reason to doubt the competency of a Reference being pursued jointly by two Appellants. Their interest in doing so is equal. The Respondent did not suggest that this was a problem. We proceeded, then, on this basis.
4. Following the hearing, written submissions were directed, with an opportunity for comment on the submissions of the other party. These submissions, plus comments from both parties, were delivered by the deadline set for those (see Appellants’ submissions at T39-52; Respondent’s submissions at T53-71). Thereafter, the Tribunal panel members deliberated and reached a decision. A summary decision was issued on 18th December 2014. The current document is the final decision with reasons.
5. A number of preliminary, evidential points are raised by Solicitor for the appellant in her submission. Firstly, there is a discussion of the format of Dr B’s evidence, and whether we should not place as much weight on it since it is in writing, Dr B not having given oral evidence. We deal with Dr B’s evidence below. We do place less weight on it since he did not give oral evidence. We note the comments of the Inner House in City of Edinburgh Council v MDN 2011 SC 513. The context of the comments referred to (at paragraph 37 of the judgement) is a ground of appeal relating to the refusal by a convener of permission to lead more than the usual two witnesses. There was no such refusal here, the reason for Dr B not giving evidence being that the Appellants could not afford to pay his attendance fee. Reference is made here also to the Convener’s Directions of 12th November 2014 (T35-37) on the request for the Tribunal to cite Dr B, a request which, for the reasons set out in the Directions, could not be granted. In any event, the court in MDN says nothing about the weight to be placed on evidence submitted only in writing. Further, the reference to ‘perfectly satisfactorily’ seems to be a reference to evidence which is uncontested (although the context of the motion considered by the convener in that case seems to have been around contested evidence). Here, Dr B’s evidence is hotly contested by the Respondent. We are satisfied that, in the context of this case, it is perfectly proper to place less weight on Dr B’s evidence on account of it having been provided in writing only.
6. Secondly, the Appellants objected to the late lodging by the Respondent of the document headed “This is Me” at R62-74 of the bundle, described as a transition document, and produced by the Respondent on the first day of the hearing (having been intimated to the Appellants’ representative on the previous day). We are satisfied that this document should be admitted into evidence and be available to us. The basis of the objection is the lack of parental and health professional involvement in the preparation of it. That might be an argument as to the weight of the document as a piece of evidence; in our view, it does not affect its admissibility. The Appellants (sensibly) did not argue that the late production of the document caused prejudice such that it should not be admitted. The Tribunal has wide powers over the exclusion of evidence (see, for example, rule 15 of the Tribunal rules, first paragraph, and more specifically, rule 15(1)(f)(iv)). In our view, no cogent reason for the exclusion of this evidence was advanced.
7. Thirdly, Solicitor for the appellant refers to the Respondent’s objection to Witness E’s evidence where she was asked to state an opinion on the ability of School A to meet the child’s needs. Given our assessment of Witness E’s evidence (see below) we need not dwell on this point for too long. However, we do accept Solicitor for respondent’s point that it is not for a witness, even a skilled one, to usurp the role of the Tribunal by providing an opinion on the very issue the Tribunal must decide. Having said that, this principle only applies, in our view, where the so-called ‘ultimate issue’ is one upon which an expert would not be expected to hold a skilled opinion. Here, one issue is the suitability of a particular school for the education of a particular child. We take the view that professionals such as Witness E (and some others who gave their evidence) could legitimately state an opinion on such a question. What is important, however, is that that opinion is not regarded as determinative and that it does not loom too largely in the Tribunal’s consideration of all of the evidence. In any event, the rules of evidence as they apply in the public courts do not necessarily apply to the same extent in this Tribunal – the rules in this forum are very flexible, and, as noted above, allow for wide discretion on the admissibility of evidence. For present purposes, we are satisfied that the question was a proper one, although the impact of the answer on this case is non-existent, given our assessment of Witness E’s evidence as a whole. We should add here that Witness C gave not dissimilar evidence for the Respondent (on the suitability of School B over School A). This evidence was heavily relied upon by the Respondent in submissions. Although Solicitor for respondent argues that Witness C’s answers were factually justifiable, that is, in our view, a different question to the admissibility one. If the evidence of Witness C on this point was admissible (as in our view it was) it is hard to see why the evidence of Witness E was not. Whether the opinion is justified is a matter of weight, not admissibility.
8. Only one further procedural matter is worthy of note. The Respondent had intended to lead evidence from Headteacher of School A. However, he could not attend due to having to take bereavement leave on the day he was due to give evidence. Solicitor for respondent was able to secure the agreement of Witness D to give evidence instead. We expressed some concern over the position this put Witness D in – giving evidence with less than a day’s notice when she would, no doubt, have acquired the management responsibilities of Headteacher School A at very short notice. A further difficulty was the fact that later on the day Witness D was to give evidence, she would be attending the funeral of a pupil from the school. This combination of circumstances led to us carefully checking that the Respondent was content that Witness D would be ready and fit to give evidence. We were assured by Solicitor for respondent and Witness A that, having double checked the position, Witness D was content to give evidence, and indeed that she would prefer to do so. We had no reason to be concerned; as we note below, Witness D was an excellent and invaluable witness. It is to her significant credit that she performed so well in that role in such trying circumstances. We also note, on a related point, that Solicitor for the appellant reserved her position on whether she would wish Headteacher School A to give evidence, since her cross-examination plans were based on the assumption that he would be a witness. We agreed that that question could be reserved, but in the event, Solicitor for the appellant did not ask us to adjourn the case for further evidence to be led.
Summary of Evidence and Proceedings
9. The bundle consists of: pages T1-71 (Tribunal papers), pages A1-134 (Appellants’ papers) and pages R1-74 (Respondent’s papers). We took into account all of the information in the bundle in reaching our decision.
10. Oral evidence was led from the witnesses listed above over two days. the child did not provide his views, nor did he give evidence; both parties agreed that he did not have the capacity to do so (see Conference Call record of 20th November 2014, T38).
The submissions of the parties
11. Solicitor for respondent asked us to confirm the refusal decision, in terms of s.19(4A)(a) of the 2004 Act. She urged us to find that both grounds of refusal in paragraphs 3(1)(a)(i) and 3(1)(b) of Schedule 2 to the 2004 Act exist and that it is appropriate in all of the circumstances to confirm the refusal decision. Her reasons and the evidence she relies upon to support these reasons, are set out in detail in her written submissions (T53-71). The Respondent originally relied on the grounds of refusal in paragraphs 3(1)(a)(i) and 3(1)(a)(ii) of Schedule 2, but upon submission of its Case Statement, the latter ground was dropped and replaced with the one in paragraph 3(1)(b) (see R33, paragraph 3.5; see also the original placing request refusal letter dated 10th April 2014 at T15).
12. Solicitor for the appellant urged us to find that neither ground of refusal relied upon by the Respondent exists and that, if we find that either or both do exist, we ought to find that it is not appropriate in all of the circumstances to confirm the refusal decision. If she succeeded in either of these arguments, we would be obliged to overturn the refusal decision and place the child in School A. Solicitor for the appellant’s arguments in support of her position are set out in her written submissions (T39-52). It is clear from previous case law that the Respondent bears the burden of proof, and this was the basis on which we approached the analysis of the evidence.
Findings in Fact
13. The Appellants are the mother and father of the child, who lives with his mother and father.
14. the child was born in December 2001.
15. the child has additional support needs (‘ASN’) as defined in s.1 of the 2004 Act. the child has Cerebral Palsy, global developmental delay and a visual impairment. These difficulties impact on the delivery of education to the child. the child’s visual impairment comprises of a visual processing delay, consisting of a delay in the brain’s processing of visual images. This visual impairment is a component part of the child’s global developmental delay.
16. The Appellants made a placing request in or around March 2014, seeking placement of the child in School A from the start of the academic session 2014-15. That request was refused by the Respondent, that refusal being intimated by a letter dated 10th April 2014 from Head of Inclusion (T15). The Respondent had previously considered the Appellants’ wish for the child to attend School A rather than School B. That consideration was carried out by the Respondent’s Disability City Consultative Group who decided that the child should attend School B. A record of the decision of that Group, taken at a meeting on 11th November 2013, is available at R40-42.
17. the child attended School C Primary School, (‘School C’) between August 2008 and June 2014. The Respondent has offered the child a place at School B School, (‘School B’). School C is a Primary School for pupils with complex learning needs. School B is a secondary school providing education to pupils between the ages of 11 and 18 who have additional support needs arising from complex learning difficulties. School A School is a school which is designed to provide an education to pupils with sensory and dual sensory impairment and additional complex needs. School A opened in 2007. Each of School C, School B and School A are within the Respondent’s management and control.
18. The maximum teacher:pupil class ratio for pupils at School A is 1:6. There are three classes in School A which contain five pupils. School A is not at full pupil capacity. In the event that the child is placed in School A during academic session 2014-2015, the child would not be placed in one of the three classes in which there is currently a space. Instead, the class structure and composition at the school would have to be reorganised, to ensure that the child is placed in a suitable class. The pupils at School A are currently organised into eight class groups (not including the Nursery class), as outlined in A112. The letters in the column under ‘Pupils’ represent the first initials of each of the pupils in the class.
19. All pupils currently attending School A have a sensory impairment (visual or aural) as well as additional support needs. The admission criteria for entry to School A is that a pupil seeking admission must have a sensory impairment of a visual and/or aural nature as well as additional support needs. There are pupils who currently attend School A who have a similar visual impairment to the one suffered by the child.
20. the child has visited School A on one occasion, and was shown around the school and took part in a music class. The Appellants (or one of them) have visited School A on three occasions.
Reasons for Decision
(a) The first placing request refusal ground (2004 Act, Schedule 2, paragraph 3(1)(a)(i)): employment of an additional teacher.
21. This ground of refusal is established where there is sufficient evidence to lead us to conclude that if the child were placed in School A, this would make it necessary for the Respondent to take an additional teacher into employment. In our view, in order for this ground of refusal to exist, we would have to be satisfied that there is a direct causal connection between the placing of the child in School A and the need for the employment of an additional teacher. The reference to an ‘additional’ teacher is clearly a reference to a teacher who is not currently in the employment of the Respondent. Further, we have to be satisfied of the necessity for the employment of such an additional teacher, not only the desirability of such employment.
22. Two witnesses gave evidence pertinent to this ground of refusal: Witness A and Witness D. Witness A is employed by the Respondent and is responsible for strategic development of curriculum and teaching for schools in an area of the council. Witness D is the Deputy Headteacher at School A.
23. It is clear from Witness A’s evidence that he has had no direct involvement in handling the Appellants’ placing request prior to the hearing. The placing request was refused by a former colleague, who was, at the time, Head of Inclusion (see his refusal letter at T15). Witness A explained that he had, since writing that letter, left the Respondent’s employment. Witness A was able to give evidence about the lack of capacity in the Respondent’s current teaching staff resources, such that no additional teacher could be provided for School A without employing a new one. However, this evidence is, in our view, irrelevant in this case. Witness A’s evidence on the Respondent’s teaching resource capacity would only be relevant if there was evidence of a need for School A to expand its teaching complement as a direct result of the child’s placement there. No such evidence is available to us. Witness A accepted (as is conceded by Solicitor for respondent in her summary of his evidence at T56, first full paragraph) that the school may have to restructure if the child is placed there. Witness D, in her position as Deputy Head, confirmed that this is the case. The evidence indicates that School A is not at full capacity. Witness A agreed that the accepted maximum teacher:pupil class ratio for schools such as School A is 1:6. This is accepted as being the case by the Respondent (see SNCT Handbook excerpt at A99-A101; Witness A accepted this interpretation of the table at A101). The current pupil complement for each class at School A is outlined in the table at A112, again as produced by Solicitor for respondent under cover of A111. This table contains information on the number of pupils in each class, along with class teacher and support staff information. The letters in each of the boxes in the ‘Pupils’ column represent the first initials of the pupils currently in each of the classes. This table shows, as accepted by Witness A and confirmed by Witness D, that there are three primary classes (‘Primary Group 1’, ‘Primary Group 2’ and ‘Primary Group 4’) which are not at full capacity, each containing five pupils. Witness D was clear in her evidence that if the child were placed at School A, he would not be placed in any of these three classes, since none of them would be suitable for him.
24. The evidence suggested that the remaining class groups are currently at capacity. However, Witness D indicated that in the event of the child being placed in School A during the current academic year, a reorganisation of the class structure at the school would be required. The class structure would be reviewed routinely in any event in June 2015, at the end of a two year cycle, but the child’s placement in School A would necessitate an earlier review and reorganisation in order to accommodate him. She did not indicate that an additional teacher would require to be added to the current school complement. Her evidence was to the effect that the pupils at School A (including the child) would continue to be educated using the current teaching staff complement, but in a reorganised structure. We accept Witness D’s evidence to the effect that this process of reorganisation which would be required could have a negative impact on the wellbeing of other pupils at the school. However concerning this may be, that is not a relevant consideration in assessing whether the current ground of refusal exists. In addition, we accept Witness A’s point that the maximum capacity of six pupils need not be reached in every class; it is a maximum number, not a minimum or expected number. We accept that a school such as School A is entitled to have some classes not at full capacity, where to do so reflects the school and class composition. However, we are tasked, at this stage, only with considering the necessity of the Respondent taking into employment an additional teacher.
25. In addition, Witness A gave evidence to the effect that former colleague, before framing the letter refusing the placing request, would have satisfied himself of the necessity of the employment of an additional teacher. However, we place no weight on this evidence. We have no information on the enquiries former colleague made, and whether those enquiries could reasonably lead to him forming the view that this ground of refusal existed. In any event, we have to consider the evidence relevant to this ground available to us, not the evidence which may have been available to someone at an earlier date. The requirement to consider if one of the grounds of refusal ‘exist or exists’ (2004 Act, s.19(4A)(a)(i)) demonstrates that the appropriate time for considering this question is at the date of the hearing, not at the date when the request was refused.
26. Bearing in mind Witness D’s evidence in particular, then, it is clear that an additional teacher would not be required at School A in the event of the child being placed there. It follows that the Respondent would not require, in this event, to take an additional teacher into employment. The Respondent has, therefore, failed to persuade us that this ground of refusal exists.
(b) The second placing request refusal ground (2004 Act, Schedule 2, paragraph 3(1)(b)): suitability of the education at School A for the child.
27. This ground of refusal is established where there is sufficient evidence to lead us to conclude that the education normally provided at School A is not suited to the age, ability or aptitude of the child. A number of preliminary observations about this ground should be noted:
(a) This refusal ground involves a consideration of the suitability of School A only, and not a comparative suitability assessment of School B and School A;
(b) The ground involves the suitability of the education specifically for the child;
(c) We require to consider the education ‘normally provided’ at School A (we come back to this later);
(d) It is evident that lack of suitability on any one of the three variables of age, ability and aptitude (or a combination of more than one) is sufficient to lead to the conclusion that the ground exists and that we may not consider any other variables;
(e) The use of the term ‘not suited’ suggests to us that the focus is on an overall lack of suitability (against the three specified variables);
(f) We are not tasked with considering whether the education normally provided at School A is suited to the child across the variables specified; the focus of the ground of refusal is whether the education at School A is not so suited.
28. The significance (and sense) of this last observation is clear when one considers the burden of proof. The Respondent must persuade us that (to paraphrase the wording of the ground) the education at School A is not suited for the child. The Appellants need not establish that the education normally provided there is so suited. To put it another way, it is possible that the Tribunal may reach the conclusion that it is not satisfied that the education normally provided at a school is not suited to the child on any of the three variables, while being unable to conclude that the education normally provided there is so suited. In essence, the Respondent needs to satisfy us of a negative conclusion (not suited). The reason for dwelling on this point will become clear as we develop our reasons.
29. One feature of the evidence on this ground is the identification of the needs of the child. The Appellants argue that the child has been diagnosed with a visual impairment. The Respondent argues that the child does not have a diagnosed visual impairment, rather that he has a mild to moderate impairment in his visual processing (see the Respondent’s Case Statement at R30, paragraph 1.2). The importance of this debate lies in the nature of School A as a school. As Solicitor for the appellant maintains (Appellants’ submissions, T42, second paragraph) the evidence of Witness D, taken with the 2012-13 Handbook issued by School A (A35-71, at A38, first paragraph in particular) suggests that the usual entry criteria for a pupil seeking to attend School A is a diagnosis of visual impairment alongside additional support needs. There was some discussion in the evidence of there being two types of visual impairment, namely impairment of visual acuity (impaired eyesight which could potentially be corrected by visual aids) and impairment of visual processing ability (the way the brain processes visual images). Witness D accepted that these two types of visual impairment exist, but that it is difficult to isolate them. Having heard and considered all of the evidence, however, we take the view that the resolution of this debate is simpler that it might first appear. We are not considering a statutory term when we consider ‘visual impairment’. We are considering a term which is a threshold term to guide an education authority and a school on whether a child should be admitted to that school. In our view, it is reasonable to give the term ‘visual impairment’ a broad meaning, bearing in mind this context. A visual impairment is, in our view, a difficulty related to the vision of the child in question which (given the context) might affect how the child learns. In our view, it should not matter whether the impairment relates to the physical condition of the visual apparatus of the child or to how visual images are processed by the brain.
30. Support for this interpretation can be found from the skilled ophthalmologic evidence available to us. PG, Consultant Opthalmologist, concludes that the child’s ‘Diagnosis’ includes ‘Visual evoked potentials shows delayed function’ (see his letter to father dated 9th January 2014, at T14, letter heading). He explains, in the body of the letter, that there is a delay in the signals from the child’s eye to his brain. He refers to a delay in the child’s visual processing, explaining that his visual acuity is ‘normal’. More specifically for present purposes, PG later accepts, in a written response to a question from Solicitor for respondent, that the child has a mild to moderate impairment – we infer that this is a reference to a visual impairment (see his letter of 26th June 2014 at A97-98, final paragraph on A98). The diagnosis of visual impairment is further supported by the evidence of Dr A, Consultant Opthalmic Surgeon (see his report at A102-107). He is clearly an experienced medical practitioner who has significant experience of paediatric ophthalmic practice (see A104). Dr A describes ‘visual perceptual difficulty’ as ‘without doubt the principal visual problem for [the child]’ (A107, paragraph 3.3). He goes on to explain that the child has a visual impairment (not an isolated one) and that the level of impairment is likely to be in the mild-moderate category. Although we did not hear oral skilled ophthalmic evidence, this evidence is clear and was not undermined or contradicted by any other evidence. We have no doubt, then, in accepting that the child suffers from a visual impairment of the kind identified by PG and Dr A.
31. Even if we were not so satisfied, Witness D’s evidence was to the effect that there are pupils currently in School A who have a similar visual impairment to that of the child.
32. We conclude, then, that the child satisfies the admission criteria of School A, since he has a visual impairment and additional support needs. However, this is only one factor in considering this ground of refusal. A pupil might satisfy the admission criteria of School A while the education normally provided there may not be suited to his age and/or ability and/or aptitude. We turn now to the other evidence on these variables.
33. It is not in dispute that there is no evidence to suggest that the education provided at School A is not suited to a child of the child’s age. There are children from a wide range of ages, including those of a similar age to the child, currently at School A. The Respondent did not argue the age variable, and concentrated on aptitude and ability. As indicated above, we need be satisfied of the lack of suitability on one of these variables, if the ground is to exist. In considering the meaning of the words ‘ability’ and ‘aptitude’, in our view these words (being words in common usage) should be given their ordinary and natural meaning, but in the context of the education of a child with additional support needs. In other words, what we are considering here is the educational ability and aptitude of the child. It is also important for us to consider that we are dealing with an assessment of likely ability and aptitude, in the context of the education normally provided at School A; the child has not attended that school as a pupil, so we require to form a view, based on all of the evidence, about how the child might fare in an education at School A.
34. One concern we have about the evidence and submissions in this case is the concentration on the purpose for which School A was built. Solicitor for respondent in her submission (at T65) refers to the school as:
“…purpose built and run for children whose sensory impairment is their primary barrier to learning”.
In our view, while this is a relevant consideration, it is one of many. Our task is to consider the suitability of the educational provision at School A for the child (against the three variables), not whether the school was designed to cater for someone like the child.
35. We heard evidence about how certain aspects of educational provision for the child might (or might not) be catered for if the child attended School A. Solicitor for respondent outlines in her submission a list of ways in which the education normally provided at School A is not suited to the child’s abilities and aptitudes (see T66). However, the evidence of one witness in particular is pivotal to our decision on this ground, namely Witness D. Before we deal with her evidence, we should deal with the evidence of the other witnesses. We will return later to Solicitor for respondent’s list at T66.
36. Witness B is the Headteacher of School C, and has been in post for around two years. She gave evidence about the child’s time there, which seems to have been successful, as well as on his educational abilities generally. However, the impact of her evidence on the current question is limited. Although she supported the transition of the child to School B, she was clear about her inability to offer detailed commentary on the provision at School A. She has not taught there, and although she had attended meetings there, she had only seen the school during a tour on one occasion. Witness B’ evidence would have been pertinent to the ‘appropriateness in all of the circumstances’ stage of the Reference, since a comparison between School B and School A would have been part of consideration of that test. However, we do not reach that stage in this case. We refer to her evidence on a particular point relating to the child’s needs, later.
37.Dr B, who did not give oral evidence, prepared a report (A72-96). He is a Chartered Psychologist, and he outlines his investigations and conclusions very clearly in that report. Witness C, who did give oral evidence, offers some written reflections on Dr B’s report (R60-61). Despite the detail in Dr B’s report, we can deal with its impact in this case relatively briefly. Dr B concludes that it is not possible to conclude whether School B is more suitable for the child than School A (A91-92). However, at this stage, we are considering School A in isolation. Dr B does indicate that, in his view, the child could fit into either school, and shares the characteristics of pupils in both schools (A89). However, in the end, we decided that we could place little weight on Dr B’s conclusions for present purposes. There are two main reasons for this. Firstly, we did not hear oral evidence from Dr B. As noted earlier, it is clear that the Appellants could not pay Dr B’s attendance fee, and that this is the main reason for him not being offered as a witness. Although that is unfortunate, it does not alter the fact that Dr B’s evidence was not tested in the usual way by cross examination and questioning. This does not mean that it holds no value; but it does limit its value (see the discussion on this point, above). We should add here that Dr B’s evidence is in a different category from the skilled evidence of Mr P and Dr A since although they provided written evidence only, their evidence was not challenged by either party; indeed, Solicitor for respondent’s questions for Mr P (repeated and answered in Mr P’s letter of 26th June 2014 – A97-98) are largely ones of clarification. Secondly, and most importantly, we decided that Dr B’s report was focussed predominantly on a comparison between the suitability of School B and School A. As we have stated in the context of Witness B’ evidence, such a comparison would only be relevant at the ‘appropriateness in all of the circumstances’ stage, which we do not reach in this case. Given that this is the main focus of Dr B’s evidence, we are reluctant to afford it much weight for present purposes; there is a danger that any conclusion he reaches about the suitability of School A might be unduly influenced by a concentration on the comparison exercise. We should add that even at the appropriateness stage, Dr B’s evidence might have been limited in value given his conclusion that, in his view, it is not possible to conclude which of the two schools would be most suitable for the child.
38. Witness E gave evidence in support of the placement of the child; it is fair to say that she strongly favoured School A for him. We note that Witness E has a close relationship with the child and his family, and clearly has an attachment to the child. She has previously taught him while he was a pupil at School C. Solicitor for respondent suggests in her submissions that Witness E’s evidence should be given little weight (T61-62). We agree. Although we have no doubt about the genuineness of Witness E and her professionalism in giving evidence in an unbiased way, we do have concerns about the confidence with which Witness E presented her views. This is in contrast with the measured way in which Witness D gave her evidence. It may, at first blush, seem odd to suggest that a witness has stated views too confidently. However, on questions of suitability such as those we are considering, there are many grey areas, and our impression of Witness E’s evidence was that she too readily glossed over those grey areas. We stress that we are not criticising Witness E professionally; but we have to weigh the evidence according to our impression of it, and for this reason, we place little weight on Witness E’s evidence in considering the current ground of refusal.
39. Witness F gave evidence about the child’s physiotherapy needs. While Witness F gave his evidence very clearly and professionally, we have difficulty in seeing how his evidence is relevant to the current question, or how it might have been relevant to the appropriateness question, had we reached that stage in this case. In our view, there was no evidence to suggest that, if the child had to attend School B, his physiotherapy needs would not have been fully met, or that they would be better met in School A. In the end, then, we place no weight on Witness F’s evidence.
40. We turn to the evidence of Witness C. She is an educational psychologist employed by the Respondent. She is a very experienced professional. She is the educational psychologist for School C and School B, and she was directly involved in plans for the child’s transition to School B. She sat on the Disability City Consultative Group meeting on 11th November 2013 when that group considered the child’s transition to secondary school (see the record of that meeting at R40-42). She prepared a written report, offering reflections on Dr B’s report (R60-61) and gave detailed oral evidence. Although employed by the Respondent, she is independent in the sense that she forms her own professional view of the needs of a child within her caseload irrespective of the interests of the Respondent. Solicitor for respondent relies on the evidence of Witness C on the question of the suitability of School A (T58-59). Witness C was clear in her view that School A is not a suitable school for the child, and based her view on her assessment that the child requires a sighted peer group. She also based her view on the assertion that School A is a school for children with sensory impairment as the main barrier to their learning. She supported School B as a suitable school for the child (although, for present purposes, we are considering School A only). While we closely considered Witness C’s evidence, we felt that the weight we could afford her conclusions was detrimentally affected by a number of factors. Firstly, Witness C (unlike Witness D) does not have a detailed understanding of the educational provision at School A. School A is not within her professional remit. Witness C has had a tour around the school, but has not been in any of the classrooms. She has attended meetings there and spoken to the Headteacher. Secondly, her direct contact with the child is limited. Witness C explained that she had met the child on one occasion, when she had observed him during a school lunch break. She had not observed the child in class. Witness C explained how she later discovered that on the day she observed the child, he had been feeling ‘off-colour’. In our view, a clearer understanding of the child’s educational needs might have been gained by observing him in class, since that is the key educational environment. Thirdly, we detected a heavy emphasis in Witness C’s evidence on the purpose for which School A was formed, and its emphasis on children with a sensory impairment. What we are primarily concerned with is not the ethos or origin of the school (although that is a relevant consideration), but the suitability of the education normally provided there for the child. While the former may, of course, impact on the latter, we were concerned that there was an over emphasis on the former in Witness C’s evidence. We should stress that we placed weight on Witness C’s evidence, given her professional qualifications and experience, but we note the limitations here as they affect the current question.
41. Turning to the evidence of Witness D, we found her evidence very helpful to the current question. She was the only witness who has a detailed, clear and direct understanding of the educational provision at School A. She is a very experienced teacher and has been Deputy Head of School A since it opened in 2007. As Solicitor for respondent notes (Respondent’s submissions at T59, third full paragraph) Witness D is very experienced in the education of children with a sensory impairment. She was a very impressive witness. She answered all of the questions as best she could, and made it clear when she could not provide an answer. She gave her evidence in a measured, careful and clear manner. She is clearly a very dedicated professional. Witness D demonstrated a detailed understanding of the class structure and membership at her school. She has a good knowledge of the needs of the pupils there, as well as a clear understanding of the teaching methodologies used. She had met the child on one occasion and she had an understanding of his needs in general terms. In our view, one key point emerges from Witness D’s evidence. She clearly stated on a number of occasions that she could not comment on whether or not the child’s needs could be met at School A, since she did not know him well enough to reach a view on that question. In our view, this is a serious blow to the Respondent’s case. Witness D is, by some distance, the witness who is best placed to consider the child’s suitability for School A. She was, however, unable to say whether or not School A would be able to meet the child’s needs. Of course, as Solicitor for respondent points out, it is not for any particular skilled witness (or even collection of such witnesses) to form a definitive view on the presence or absence of a particular ground of referral; that is for us to determine on the basis of all of the evidence presented (see below) (on this point, see the comments of the Inner House at paragraph 39 of the case cited above, namely City of Edinburgh Council v MDN 2011 SC 513 on the usurpation of the role of the Tribunal). However, Witness D did not, despite lengthy and rigorous questioning from the representatives and the Tribunal panel members, indicate at any point in her evidence that the admission of the child to School A would present any particular problems for the school from an educational suitability point of view. Witness D was, of course, well aware of the nature of these proceedings, and the possible outcomes (indeed, the potential placement of the child in School A school early in 2015 was put to her as the premise for a number of questions); despite this, we could not detect any suitability concern around the placement of the child in the school. Witness D did indicate that, as noted above, the current class structure would have to be reorganised to accommodate the child, but the concern was around the impact on other pupils. While that is, no doubt, a very real concern, it is not a concern which can be related to the suitability question we are currently addressing.
42. Further, certain parts of Witness D’s evidence support an impression that the child could be suitably educated at School A. She made reference to the reorganisation of classes to accommodate him. While this was in the context of questioning about what the school would do if the child were placed there, we did not detect, in response to these questions, a concern about not being able to find an appropriate class for the child. Further, Witness D indicated that there are some pupils currently attending School A who have a similar visual impairment to the child. She stressed that each child is different and has different needs, but we draw from this part of her evidence support for the notion that School A may be suited to the child’s ability and aptitude; this strand of evidence points away from the existence of the ground, even if only in a limited sense. The concerns which led to Solicitor for respondent’s list of pointers to a lack of suitability of School A (see her submissions at T66) were put to Witness D in questioning, but in our view, this did not lead to any overall, general concern about the suitability of the education of the child at School A. One particular focus of the evidence around suitability was about the child’s use of PECS (Picture Exchange Communication System). PECS is not used at School A and the teachers there are not trained in its use. However, Witness D indicated that if the child attended School A, he would be moved onto the Boardmaker system, which she felt would be better than PECS. In the event that remaining on PECS was recommended by a Speech and Language Therapist, Witness D explained that the school would accommodate this.
43. Returning to the points highlighted by Solicitor for respondent in her list of ways in which School A would not be suited to the child’s ability or aptitude (T66), we have mentioned the PECS point, above, in the context of Witness D’s evidence. We will now turn to consider the other points on that list. On the use of MAKATON, another communications system, although the evidence indicates that no current pupil at School A is using that system, this is of little importance overall: although the child had responded positively to the introduction of MAKATON, the evidence of Witness B suggested that he does not use it expressly. Further, mum expressed the view that the child was not interested in using this method since he made up his own signs. Solicitor for respondent points out that the child would not have a sighted peer group at School A. Witness C, in particular, was concerned about this. However, it is clear that not all pupils at School A are visually impaired; there was evidence of two non-visually impaired pupils. This suggests that there is scope for the child to be found an appropriate peer group; in any event, Witness D did not offer any negative suitability comments relative to the child arising out of this consideration. It is also pointed out by Solicitor for respondent that staff are specifically trained in the education of children with sensory impairment. We see this as evidence which supports the Appellants’ case; as indicated above, the child has a visual impairment (which, we understand from the evidence, falls under the ‘sensory impairment’ umbrella). Witness D pointed out that some other pupils have a similar visual impairment to that of the child. Further, although staff members are trained in the education of children with sensory impairment, given the remit of School A and the range of the needs profiles of the children there, in our view, the teachers at that school would be trained to deal with a whole range of educational needs. The fact that they are trained in a particular area does not lead to the conclusion that the provision is not suited to the child’s ability or aptitude. Solicitor for respondent refers to the use of British Sign Language (‘BSL’) with the two non-visually impaired pupils at School A. In our view, this is of limited relevance. Witness D indicated that steps would be taken to adapt provision to meet the needs of any child placed there. In fact, the use of BSL for these two pupils would, by the logic employed, point towards lack of suitability of School A for the other pupils currently there who do not use BSL; that is not, of course, a suggestion which can seriously be made. Solicitor for respondent refers to the school ‘as a whole’ not being ‘geared to play to the strengths of non-visually impaired pupils’. We do not accept this interpretation of the evidence. The school caters for two non-visually impaired pupils already. Even if that were not the case, the comment is a general one which harks back to the original purpose of the school, not the suitability of the school for the child’s ability and aptitude.
44. Turning to another of Solicitor for respondent’s arguments, she places some emphasis in her submissions on the evidence that the main or primary barrier to learning for the pupils at School A is their sensory impairment. Evidence in support of this proposition comes from Witness A (Respondent’s submissions at T55, third paragraph) and Witness C (Respondent’s submissions, T58, third full paragraph). The reason for relying on this evidence is to contrast this with the child, in respect of whom the evidence suggests that his visual impairment is not his main barrier to learning. This proposition is supported by Witness B and Witness C (Respondent’s submissions, T56, final paragraph and T58, 2nd full paragraph, respectively). We are prepared to accept that the child’s visual impairment is not his main or primary barrier to learning; the strength of the evidence is clear on this point. However, as Solicitor for respondent concedes, Witness D’s evidence does not support the notion that sensory impairment is the main or prime barrier for pupils at School A (see the Appellants’ submissions at T49, first paragraph under ‘Witness D; Respondent’s submissions T59, penultimate paragraph). Witness D explained that it is difficult to talk about main issues, although she agreed that sensory impairment is a significant barrier for the pupils at School A. In our view, it is difficult to isolate and quantify the significance of a particular difficulty in a child who has multiple difficulties which impact on his learning. Witness B referred to the child’s visual impairment as being part of his global developmental delay (Respondent’s submissions, T56, final paragraph). This sits together with the evidence of Dr A, where he states:
“the child does not have an isolated visual impairment, rather he has a visual impairment that is an equivalent part of his overall global developmental delay.” (see his report at A107, paragraph 3.3).
45. It seems to us that taking the evidence of Witness D, Witness B and Dr A together, it is unhelpful to try to measure the significance of each component part of the child’s additional support needs; such an exercise would, in our view, be highly artificial and unreliable. There is no evidence before us to support the reliability of such an approach. In our view, then, we cannot conclude (as we are asked to) that there is a suitability issue with the child attending School A around a comparison of the significance of his sensory impairment in contrast to that of the pupils currently attending School A. In addition, in considering the School A Handbook, which describes the pupil complement of the school (see A38 in particular) we detect no particular emphasis on the primacy of the sensory impairment of its pupils (see the first and fourth paragraphs of A38, in particular).
46. Solicitor for respondent quite properly raises the issue of the reference, in the wording of the ground of refusal, to the education ‘normally’ provided. Any reference we have made in these reasons to educational provision at School A should be taken (where not expressed) to be a reference to normal provision there. In our view, this wording means that the suitability of the education is not to be judged by reference to what could, conceivably be provided; instead, what should be considered is the normal (or usual) educational provision in the school. We note that Witness D, at various points in her evidence, refers to adapting to the child’s needs if he were placed there (as would be the case, she indicated, for any child placed there). However, in our view, this factor should not be weighed too precisely. In our view, the use of the word ‘normally’ is designed to prevent a child being placed in a school where the provision there would have to change significantly in order to meet the child’s needs. Where any change which would be required is not significant, in our view this would fall within ‘normal’ provision. In our view, any adaptation of the education provided at School A, in order to meet the child’s needs, would not be significant. We refer to paragraphs 42 and 43 above, where we deal with the lack of suitability points raised by Solicitor for respondent. In any event, as already noted, the child meets the admission criteria of the school, and some other pupils there have a similar visual impairment. In these circumstances, it would be difficult for us to infer that the education ‘normally’ provided is not suited to the child’s age, ability or aptitude. Once again, we refer here to the negative nature of the ground of refusal and to the burden of proof.
47. Drawing all of this together, there is insufficient evidence to satisfy us that the education normally provided at School A is not suited to the age, ability or aptitude of the child. This is for a number of general reasons (each explained in more detail above). Firstly, the child meets the general admission criteria of the school. Secondly, there is no clear, reliable evidence available to us from a professional(s) with a detailed understanding of the provision at School A, which suggests that the education normally provided there is not suited to the child’s age, ability or aptitude. In particular, no such evidence is available from the Deputy Head of the school. In reaching this conclusion, we have focussed on the evidence of Witness C and (in particular) Witness D; the evidence of Witness B, Dr B, Witness F, Witness A and Witness E we regard as of minimal or no value for this purpose (although the evidence of Witness B is referred to for certain limited, specific purposes above). Thirdly, there is evidence which suggests that the child’s needs may be able to be met at School A, for example the fact that other pupils there have a similar visual impairment (in tandem with additional support needs) as well as Witness D’s evidence about the movement of the child from PECS to Boardmaker. In reaching this conclusion, we repeat here that we are looking at the test of educational provision in the round, being ‘not suited’ to the child’s ability and aptitude. It is insufficient for evidence to be led that there are pockets of lack of suitability which, when combined, do not lead to the conclusion of overall lack of suitability. We should add here that we are not persuaded, on the evidence, that the education normally provided at School A is suited to the child’s ability and aptitude; our decision is instead based on insufficient evidence to persuade us of the converse.
48. We are conscious of the fact that we have not commented to any significant extent on the evidence of the Appellants. The reason for this is not that their evidence is unimportant (clearly it is of significance in all of these cases); rather we feel that their evidence would have been relevant to the ‘appropriateness in all of the circumstances’ test. In this case, we need not consider that test.
(c) Appropriateness in all of circumstances (s.19(4A)(a)(ii) of the 2004 Act).
49. Since we have decided that neither of the grounds of referral relied upon exist, we need not embark on an examination of the submissions and evidence relevant to this test. This is clear from the wording of s.19(4A)(a): in order to confirm the refusal decision at least one ground of refusal must exist, in addition to the confirmation of that refusal being appropriate in all of the circumstances.
50. We are prepared to say that had we decided that the ground of refusal in Schedule 2, paragraph 3(1)(b) of the 2004 Act exists (suitability of the education normally provided), we would have had no difficulty in reaching the conclusion that it would be appropriate in all of the circumstances for the refusal decision to be confirmed. Taking the evidence and submissions as a whole, we would not have been persuaded that placing the child in School A would have been appropriate in circumstances where the education normally provided there is not suited to the child’s ability or aptitude.
Further comments
51. We would make only one such comment here. This is in relation to the practice of forming membership of meetings of the Respondent’s Disability City Consultative Group for consultation on the transition of pupils with ASN. There appears to be no practice to the effect that a school which a parent has expressed an interest in his/her child attending is represented within the membership of any such meeting. The membership of these meetings appears to be dealt with, to this extent, randomly. We have no doubt that suitable professional disciplines are represented at each such meeting, but in our view it would be sensible and fair for the Respondent to put in place a process whereby any relevant schools are professionally represented at such meetings. In the Group’s meeting relevant to the child’s transition, a number of schools were represented (see the membership list at R42, five in total), but no one was in attendance from School B or School A. This is particularly unfortunate since, as we understand it, the meetings of this Group are held on the premises of School A. One related point is whether there is a process in place for written or oral representations to be made by parents to the meetings of this Group. Again, it seems to us fair and sensible that such provision is made. We have, of course, no jurisdiction over the work of that Group, but we offer these thoughts, in case they are of assistance.
