DE
Reference: D_20_2012
Gender: Male
Aged: 14 years
Type of Reference: Placing Request
RERERENCE
The Appellant made a Reference dated 4th (received 5th April) 2012, under Section 18 (3)(da) of The Education (Additional Support for Learning)(Scotland) Act 2004, as amended by The Education (Additional Support for Learning)(Scotland) Act 2009 [hereinafter referred to as ‘the 2004 Act’] against a Decision by Glasgow City Council (‘the Authority’) confirmed in writing on 15th February 2012, to refuse a Placing Request made by the Appellant in respect of her son (the child).
DECISION OF THE TRIBUNAL
The Tribunal hereby CONFIRMS the Decision of the Authority, first intimated to the Appellant in writing on 15th February 2012 to refuse the Placing Request being satisfied, in terms of Section 19(4A)(a) of the 2004 Act being (i) satisfied that one or more of the grounds specified in Paragraph 3(1) of Schedule 2 to the said 2004 Act exist or exists, and (ii) in all the circumstances it is appropriate to do so.
It is agreed by the parties that the Tribunal is no longer considering school B. In reaching this decision we were invited to consider School A as the recommended placement by the Authority in substitution of School B. School C is the school requested by the Appellant. School C therefore remains the
The Decision of the Tribunal is unanimous.
PRELIMINARY ISSUES
There was some Late Evidence received in this Reference. The Tribunal sought the views of both parties who both confirmed there was no objection to either party lodging Late Evidence.
In view of the nature of this evidence, the representations from parties, their mutual consent to late lodging, and the said evidence being relevant to this Reference, the Tribunal was satisfied that, in all the circumstances, it would be fair and just to allow all Late Evidence pursuant to Rule 34 of the Rules of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 as amended by The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2010 [hereinafter referred to as ‘the 2006 Rules’].
It was agreed in this case that the Authority would lead evidence first.
The Tribunal from time to time requested additional information during the hearing. We thank all concerned for their cooperation and assisting the Tribunal.
All additional Late Evidence was therefore lodged into their respective sections and numbered accordingly within the bundle.
There were several Case Management Calls leading up to the hearing. The Representatives assisted the Convener to manage wherever possible the attendance of the witnesses to try to minimise any avoidable inconvenience or delay.
The Convener issued a Decision and Direction dated 26th April 2012 at T28. This consolidated and conjoined this Placing Request and a Disability Claim. The Claim was subsequently withdrawn shortly before commencing the hearing.
The Tribunal arranged a conference call between the three members on 13th July 2012 to consider the previous three days of evidence. We decided it would assist our deliberations to hear directly from School C.
After the fourth day of evidence with School C (24th August) the three members re-convened to consider afresh all of the evidence and both sets of written submissions. This took place on 7th September 2012.
The Tribunal wish to thank both representatives’ for the presentation of their case and their professional representation and assistance throughout.
SUMMARY OF EVIDENCE
The Tribunal considered the detailed bundle of evidence. This included the late evidence and all case statements for the Authority and the Appellant. We also had two sets of legal submissions.
The Tribunal heard oral evidence over four days from the following witnesses:
- The Appellant
- Educational Psychologist
- Head Teacher, School A
- Speech and Language Therapist
- Head of Inclusion, EA
- Acting Head Teacher, School C
FINDINGS IN FACT
[1] The Child is a fourteen year old boy who resides with the Appellant, his mother, The Child has a younger sibling, . The Child is now in S3 level.
[2] The Child was diagnosed with Autism Spectrum Disorder (‘ASD’) in 2002. According to the Appellant this impacts upon The Child’s ‘communication, social interaction and imagination’. He has severe learning difficulties and anxiety. The Child was diagnosed with epilepsy in January 2009 but this is well controlled by medication. Otherwise he is a healthy active growing boy who enjoys the outdoors and sports. He does not have challenging behaviour.
The Child is working at an age level of approximately 6-7years old. He is described as sensitive to noise. He does not speak. The Appellant in her original Reference indicated that her son ‘communicates by using British Sign Language (‘BSL’). It appears that when the Appellant referred to BSL she was more accurately referring to Sign Supported English (‘SSE’). We therefore refer to SSE hereinafter.
[3] The Child has Additional Support Needs in terms of Section 1 of the 2004 Act. This is agreed by the Parties and is not in dispute. The Child has an Additional Support Plan. The Child attended School D from August 2004. School D is a primary a school for children with complex learning needs. Throughout his placement at School D approaches to communication were seen as central to The Child’s development. It is widely reported that The Child is a sociable boy who is willing to engage.
[4] For a period of almost 18 months prior to January 2012 The Child did not attend secondary school. He enrolled at School B in S2 in January 2012. . The Child continues to attend School B. He is transported from home every day to school. School B is a special school within Council’s school estate. Prior to this placement The Child was educated at home principally by his mother. The Appellant thereafter allowed her son to return to school and attend School B initially on a part-time basis building up over time. The Appellant was unhappy with the suitability and appropriateness of the placement of her son at School B. Whilst she describes the school as an excellent school, with a very warm and friendly atmosphere, hard working and capable staff and well run by an engaging and perceptive Head Teacher, she did not accept that the school could meet her son’s ‘additional educational needs’ [T23]. Accordingly she made a Placing Request. This was refused on 15th February 2012 [at T25]. In the refusal letter the Authority stated that they were able to make provision for The Child’s additional support needs at School B. The Authority now accepts that School B is not an appropriate placement for The Child. They accept that School B is unable to maintain and develop The Child’s communication skills. The Authority have offered an alternative placement for The Child namely School A, a special school within Council. The Authority is responsible for The Child’s school education.
[5] The Appellant wishes her son to attend School C. The Appellant formally made a Placing Request by letter on 31st January 2012 for School C at T23/24. They confirmed a place for The Child in their letter of 22nd December 2011 [T22]. This Request was formally rejected by Head of Inclusion on behalf of the Authority, in their letter dated 15th February 2012 at T25. Since that letter the Authority now state that School A is able to make provision for The Child’s additional support needs.
[6] School C is a grant aided school. It is a purpose built school. It offers full time day placements, residential placements and shared placements with mainstream schools. It provides nursery, primary and secondary education.
[7] As part of the process of making a Placing Request for The Child, the Appellant visited School C to assist her to make an informed decision about that school. She visited the school on an open night and also attended with her son on 6th December 2011 when he was observed by staff at School C. The Appellant subsequently visited School A. The Child has not visited School A.
[8] School A is geographically much closer to The Child’s home than School C and the travel time to and from school is overall likely to be shorter. School C is in. The Child resides in the north-west area of.
[9] School C observed The Child on 6th December 2011. Class teacher carried out the observation. Her Report is at A5-A8. The education at School C is not exclusively suitable to only deaf children. Many of the children there have no hearing impairment [see A33]. The school has an autism base and staff who are qualified and experienced in the education of children with an autism spectrum disorder. The structure of the base significantly changed in August 2012. The Child would not receive a communication approach wholly based on BSL at School C. He would be offered an inclusive communication environment like all of their pupils. They use English, both spoken and written, BSL, SSE, and modern technology including a wide range of Alternative and Augmentative Communication (‘AAC’) devices. School C offer a bilingual environment recognising BSL and English equally. This is stated in their Prospectus at A19. Clearly School C would also use SSE.
[10] Speech and Language Therapist from School C, assessed The Child at home, with his mother present, on 27th October 2011. The Report is at A9-A10. She noted therein that her results ‘do not give a comprehensive picture of The Child’s language skills’. The Therapist concluded that The Child’s main mode of communication is a combination of gestures, SSE, English and vocalisations. The Child, whilst having no intelligible speech, did vocalise, sometimes meaningfully and sometimes randomly. He was able to finger spell and vocalise (close to target sound) the alphabet. Furthermore he could fingerspell several simple words. The Child can hold a pencil and colour in. His writing is legible and the sentences are described as ‘simple, but structured quite well’. At the time of this assessment The Child was being home-schooled. It is recorded that The Child was receiving informal tuition at home from an unqualified ‘tutor’ to develop SSE at that time. This is believed to have been in place for about six months. She noted that The Child seemed motivated to communicate and was eager to please.
[11] xx is the allocated Educational Psychologist by the Authority for The Child. His detailed Report is dated May 2012 [R216-224]. The Report centred on a recommendation that The Child move to School A in August 2012. xx concluded that The Child would ‘benefit from widening his approaches to communication to include AAC as well as signing and other non-verbal communication systems’. xx does not support a placement for The Child at School C. AAC devices are recommended as the focus for The Child’s future communication. xx recommends School A as the more appropriate placement for The Child. He lists the resources available at School A at R223.
[12] xxxx, a Speech and Language Therapist (SLT). prepared a detailed assessment of The Child’s communication methods and considered what his communication support needs are. Her Report is dated May 2012 [R226-230]. She identified four support needs at R229-230. She supports a placement at School A. Speech and Language Therapy will continue to work with The Child for at least one year. She also made detailed Recommendations at R230. In the long term xxxx would support a placement at School A in preference to School C.
[13] xxxx is Head of Inclusion at Council. He considered all the evidence during the hearing and supports the placement at School A. He believes that School C would limit The Child’s methods of communication and his ability to communicate in the wider world.
[14] xxxx is Head Teacher of School A. He supports a placement for The Child at his school. He is aware of the Reports from xxxx and xxxx. Whilst he clearly acknowledged and respected the importance of signing for The Child he wished to explore other communication methods namely AAC devices for The Child. xxxx was very confident that his school could provide a suitable peer group for The Child. He further advised that School A would be able to offer many opportunities for The Child’s post-school transition. School A’s use of an array of communication approaches were praised by Education Scotland in February 2012.
[15] The Appellant, initially lodged her Reference when the Authority was recommending School B for her son. Relatively recently the Authority changed their position. They now accept that School B is not an appropriate setting for The Child. The Authority recognises that SSE is important for The Child. 4 witnesses acknowledged that SSE is important for The Child.
[16] xxxx is the acting Head Teacher at School C. She continues to offer a place to The Child at School C. School C staff and many pupils would be able to understand The Child’s signing. School C would also explore AAC devices for The Child. She considered there would be a suitable peer group for The Child. They would also offer opportunities for post-school transition for The Child.
[17] School A is able to make adequate and efficient provision for the additional support needs of The Child. Education provision at School A is suitable for the additional support needs of The Child. There is no identified long term additional cost to the Authority if The Child were to attend School A.
[18] School C may be able to make adequate and efficient provision for the additional support needs of The Child. Education provision at School C may be suitable for the additional support needs of The Child. A 5- day non residential placement costs £25801.50. The ‘cost’ referred to in paragraph 3(1) (f) (iii) of Schedule 2 of the 2004 Act is the cost to the Education Authority rather than to the public purse generally. If The Child is placed in School C, the school fees (and other necessary incidental expenses) to be paid by the Education Authority will be the measure of the cost to the Education Authority of making that provision; whereas if The Child is placed in School A, the cost to the Local Authority of making that provision will be measured in terms of what further expenditure is necessary to enable it to meet The Child’s needs. A comparison of the respective suitability of the provision for The Child’s additional support needs in the two schools was not more appreciably in favour of School C and we considered the local provision within School A more suitable having regard to a number of factors including curriculum, peer group and transition planning. A comparison of the respective costs thereof was appreciably in favour of School A.
[19] School C is not a public school.
[20] The Authority is able to make provision for the additional support needs of The Child at School A, a school under their management.
[21] The Authority has offered a full-time place to The Child at School A.
[22] It is not reasonable, having regard to the respective suitability and the respective cost (including necessary incidental expenses) of provision for the additional support needs of The Child at School C and at School A, to place The Child at School C.
[23] In all the circumstances presented to the Tribunal, it is not appropriate to grant the appeal. We therefore confirm the Decision of the Authority to refuse the Placing Request for The Child to be placed in School C. We do not accept that School B was an appropriate setting for The Child but we accept that School A is appropriate.
The Tribunal considered all the evidence within the productions initially lodged, together with all the late evidence lodged, and the oral evidence of the witnesses who attended over four days, including the Appellant. The Tribunal also considered the detailed written submissions lodged on behalf of both parties.
It is not practical, appropriate or necessary, to narrate every aspect of the evidence in this written decision. We note that many of the witnesses lodged written mini biographies to assist the Tribunal. We thank all witnesses for these.
The Statutory Provisions
The Authority moved the Tribunal to confirm the decision of the Authority in terms of Section 19(4A) of the 2004 Act.
Section 22 of the 2004 Act is the relevant section in so far as it states that ‘Schedule 2 makes provision about Placing Requests in relation to children and young persons with additional support needs’.
Turning to Schedule 2 of the 2004 Act, this deals with the Authority’s duties to comply with a Placing Request.
Paragraph 2 of Schedule 2 of the 2004 Act relates to the duty to comply with Placing Requests.
Paragraph 3 of Schedule 2 of the 2004 Act [headed ‘Circumstances in which duty does not apply’] provides a list of grounds which the Authority could seek to argue in support of non-compliance with the duties in the aforementioned Paragraph 2.
Section 19(4A) of the 2004 Act states the power of the Tribunal and the two stage test which the Tribunal must apply.
In the first stage, the Tribunal requires to determine whether it is satisfied that the Authority has established that one or more grounds of refusal, as provided within Schedule 2, paragraph 3(1) of the 2004 Act, exist or exists.
If the Tribunal is thus satisfied that one or more grounds exist or exists then, and only then, the Tribunal moves to the second stage.
In this case the Respondent relies on Schedule 2, Paragraphs 3 (1) (b), (d) and (f).
In the second stage, the Tribunal must exercise its discretion and determine whether, in all the circumstances, it is appropriate to confirm the Authority’s decision.
In this case The Appellant’s representative argued that in all the circumstances The Child should be placed at School C.
The onus is on the Authority to establish that one or more of the grounds exist or exists, and to satisfy the Tribunal that in all the circumstances it is appropriate to confirm the decision of the Authority.
The Tribunal considered all the evidence before it and the ability of the Authority to make provision for the additional support needs of The Child. .
The First Stage:
[Whilst the Tribunal had careful regard to all of the evidence presented to us we now explore some aspects of the evidence in further detail].
The evidence presented assisted us to better understand The Child’s additional support needs and the provision at School C and School A.
Whilst we understand there is still an offer of a place for The Child to attend School C, the Authority continues to oppose the Placing Request.
The Child has learning difficulties and autism spectrum disorder. This gives rise to communication difficulties and anxiety. The Child is a sociable boy who is willing to engage. He is not considered deaf. We note that his comprehension is comparable to that of a child in primary 2 (see R227). He has limited ability to produce speech and communicates using attempted speech, limited signing and showing behaviour to convey a message. He finger spells and understands phonics, the letter showing potential to learn through means wider than signing. He may also be able to use writing and AAC devices as a method of communication. The Child is not using the formal grammatical structure of BSL, but is using more vocabulary than in simple Makaton. Sadly his PSA at School B did not understand his finger spelling. The Speech and Language Therapist provided the Tribunal with helpful background information about The Child. She stated that because of his ASD communication is easier at home where he is less anxious. She stated that the ASD causes anxiety and reminded us that The Child therefore needed reassurance. She reminded us that The Child must be able to communicate more than just the answers to questions so that he was able to enjoy more opportunities to interact with people.
The Child’s mother speaks to him and signs at the same time at home. She learned this alongside The Child and his sibling . He learned finger spelling at home. We noted that The Appellant got an unqualified sign ‘tutor’ for The Child after meeting a family at a sports centre whose child started signing to The Child. The parents were deaf, as was one sibling. The family put The Appellant in contact with the Deaf Children’s Society. A xxxx contacted The Appellant and volunteered to assist. xxxx is a PSA and has no formal BSL qualifications. xxxx visited the family for up to six months providing worksheets, a CD-Rom and 2 DVDs.
The Child’s Educational Psychologist, gave evidence. Although not long in that role he had been previously tracking and monitoring The Child and indeed giving advice to others about him for about one year. He told us that he is registered with the Health Professional Council (HPC) and that his first duty is to The Child. He told us that would always recommend the most appropriate resource for a child, which may be one not managed by the education Authority. He further stated that he had a role in identifying ‘capacity building’ needs. In other words if he identified that the education Authority were perhaps not able to provide a resource for a child, then efforts could be made through training to provide an appropriate resource for that child and future needs. The Appellant’s partner prepared a very detailed Report on The Child’s additional support needs and matched them to School A. The Educational Psychologist visited School C. He focussed upon the use of ‘British Sign Language’ and a total signing environment – presumably as BSL was specifically referred to in the original Reference. He did not apparently seek to advance his own wider knowledge about School C and their AAC provision. He described his visit as ‘testing the hypothesis’, as he was required to do as an Educational Psychologist operating the
He put forward a strong case for School A in terms of curriculum support available, AAC, post-school options, college packages, social work support, peer-group availability, functional life-skills and varied communication options. The scant evidence from him about School C did not assist the Tribunal. He appeared not to have gathered sufficient evidence of the full extent of the total communication support, in addition to BSL, that would be available at School C. He was unable to provide the Tribunal with a broader description of the school. .Although he compared School C with School A unfavourably in terms of post-school options, peer group and communication options, his evidence lost some credibility due to its paucity and the suspicion that he did not visit School C with a completely open mind. Accordingly, after hearing all of the witnesses called by the parties, and after the Tribunal’s initial deliberations of said evidence, we decided that the Tribunal should hear directly from School C through The Deputy Head. The Tribunal had regard to all the documentary productions, including the OMG Report, the 2009 HMIE Report, the School Prospectus, the ‘The Way Forward’ document, the letter offering The Child a place at School C and two professional Reports (Donaldson and Bainbridge).
We note that The Education Psychologist did not recommend the normal secondary school curriculum for The Child. Whilst he did not expect The Child to get SQA qualifications such as Access1 he considered ASDAN and the John Muir award more appropriate. School A offer these. He stated that the starting points for The Child in terms of literacy, communication, numeracy and an appropriate peer group had been identified for The Child. We understand the aim is to give The Child functional skills that would assist him in supported employment or college. He also confirmed that if The Child were to attend School A, after around 4-6 weeks, there would be a meeting of all the professionals involved with The Child and his mother, to develop an individual curriculum for The Child.
Looking to transition he stated that if The Child attended School C his post-school opportunities would in his opinion be somewhat limited. If he attended School A he would be expected to attend college in area. The personalisation system in area and Self Directed Support meant that there was a limited amount of money for each child. He thought that it would be unlikely that the child would be allowed to spend that on transport to a college outwith area. We observe that the same transition duties apply to the Authority regardless of which school The Child attends. He accepted however that some of the area Colleges would be flexible in facilitating college visits and day placements for young people attending schools outwith the area.
He stated that School A was a better match in terms of resources to need for The Child. He recommended School A for communication opportunities and access to the wider world.
We noted the four key aspects as identified additional support for learning needs for The Child in the Educational Psychologist’s Report at R216-224. In respect of The Child’s ‘communication profile’ He recommended total communication as opposed to total signing. He recommended AAC and pushing The Child to use as many tools as possible. He described signing as giving extra assistance to The Child. It appears that The Child used a mixed approach at School D (R222), had made progress there, and therefore such an approach would be beneficial to The Child. He described the norm for The Child should be total communication alongside signing (R221). He suggested that this would be delivered at School A. He did not consider that School C would be as proactive in developing a total communication approach which embraced forms of communication (such as AAC) that go beyond signing.
The HT of School A gave evidence. We understand he has some 34 years of experience working with ASN and has been a HT for some 16 years. He has been the HT of 4 ASN establishments and developed assistive technology/ICT to support pupils’ access to learning in these schools. He has experience of young people with a wide variety of needs including CLN, ALN and ASD. His leadership has been strongly endorsed by Education Scotland, including in particular his leadership of School A (at R201, Report dated February 2012). Before being appointed to School A he was appointed by the Education Authority to turn around an ASN school which has not had a successful HMIE Report. He told us he successfully did this within 20 months.
School A is in a rural setting overlooking area. The school deals with pupils with physical impairment, medical conditions, many categories of learning difficulties, visual impairment, ASD (often in conjunction with other issues) and those who are non verbal. He told us that School A has evolved to meet changing needs and its ability to reflect on practice was noted in the Education Scotland Report (R200). We noted the facilities within the school and the activities offered therein. He stated that School A push their pupils to achieve. He told us that School A has excellent AAC and ICT facilities. AAC tools from School A go home with the child in the evenings, can be taken to clubs and on holiday. The child takes them with them when they leave the school. He sees technology as providing a ‘huge platform to access the curriculum’. He stated that the aim is for pupils not to be isolated and to be able to communicate with peers and the wider world. There is a highly specialist teacher who programmes the device with curricular content and allow the child to communicate. The teacher supports the child to use devices and work is done to help a child bond with devices. There are very regular meetings with the family so that they can use the device. He was very clear in his evidence in that in order to obtain the best picture of The Child a thorough and robust assessment was required. He told us that it might take weeks or months to get this right but stressed that the decision would affect The Child’s future, including college and employment, and that above all, it was important to get it right. School A track and plan The Child’s curricular work, not just literacy and numeracy but also in health and wellbeing too. He stated that targets would be set. There would be a post placement review, after about six weeks, as well as an annual review.
He stated that the school should not restrict a young person to a single means of communication. The aim should be to move to ‘independence’ so that the child can be understood in the wider world. The school would support signing for The Child but fundamentally he was of the view that if The Child were only to sign that would be limiting for him. He also stated that he would not expect SSE to be The Child’s main method of communication based on his profile and the assessment of the professionals.
It is believed that The Child has the cognitive ability to learn AAC effectively, giving him the opportunity to communicate with a much wide peer group than SSE would offer him. School A has the ability to offer The Child further exploration of his communication methods. There is a PSA level 2 BSL which is way above The Child’s level. Initially therefore he would be in a signing environment., with SALT and a multi-agency team based there, ready to explore a much wider range of opportunities.
The Tribunal considered to be a charismatic HT and highly enthusiastic about working in special needs schools. He was not familiar with School C. He was able to present to us that his school could deliver a communication-friendly environment, could support SSE and offer a wide range of alternative means of communication, in addition to signing and verbal speech. His proposals that School A would offer The Child the means of communication suited to his individual needs was convincing. He justified the need for assessment over time in order to explore all options whilst maintaining The Child’s existing successful means of communication through SSE. He provided a sound description of information communication technology (ICT) being a vital resource for communication and learning giving examples such as digital books, digital exams, I Pads, interactive technology.
He told us how School A had evolved as a school to meet the challenging needs of children and young people providing a range of services for children with complex needs such as The Child has. He had no reservations at all that School A would be a suitable school for The Child referring us to ongoing assessment of assistive technology and his curricular needs, continuing access to SSE and meeting the needs of The Child having regard to his speech and language therapy Report. In addition he stated that The Child would be in an appropriate year group with opportunities to form friendships with his peers and to communicate with a signing peer. If The Child attended School A he would the 14th pupil in the year group. The class group would be formed taking into account factors such as gender balances, the possibility of friendship and settling into some subjects. He stated that there would not be an issue with finding a peer group. The Child is a sociable boy and physically active. There were pupils who would welcome The Child as part of their peer group.
We noted from him that the school journeys to his school took a route which involved picking up pupils from different parts of the city. The Child would travel with other pupils to school.
He described School A’s post-school transition arrangements as being good with access to work and college placements and options for employment. We note that whilst he had not met The Child he had considered the Reports on The Child. He stated that School A are already meeting the needs of children with similar additional support needs to The Child’s. School A is not a designated ASD provision but he was firmly of the view that his school was able to provide a suitable environment for pupils with this diagnosis. He spoke of allocating The Child a personal support assistant and a pastoral care teacher.
The Tribunal found this witness to be genuinely passionate about his pupils. We also noted the way he engaged with the Appellant when he was giving evidence. We believe he has the personality, experience, drive and commitment to work well at building bridges and would ensure that The Child and his mother are always at the centre of future decision making.
Xxxx is a Speech and Language Therapist. She knew The Child well. She gave a clear description of her experience, role and purpose working with The Child, to assess and develop his communication skills to his greatest potential, to inform education staff as to The Child’s language levels and recommend communication methods suited to his needs. She stressed her aims for children, namely to communicate with everyone they want and need to and be prepared for the wide world and the future. She had approximately 8 face to face sessions with The Child. She considered this contact was sufficient to produce her assessment. She was therefore confident that the assessments were realistic. She stated that her duties are always to the child. She had no allegiance to the Authority as she was employed by NHS.
The Tribunal found her evidence very informative. She was very interested in The Child’s skills in finger spelling and literacy as a potential basis for communication through writing. She told us that during one observation The Child’s level of SSE skill meant that his PSA was unable to understand his messages. This may discourage him from using SSE as much at school as he does perhaps at home. Her evidence gave us a useful description of The Child understands of spoken language, knowledge of vocabulary and use of sign. She explained to us The Child’s difficulty in producing speech sounds and the need to revert to object reference and symbols. She stated that the diagnosis of ASD impacts on The Child’s communicative intent and use of language or SSE stating that The Child is in fact unusually communicative. She talked of The Child’s need for reassurance as he is prone to anxiety. She stated that his cognitive skills must be recognised and extended through the curriculum - academically and socially.
She stated that AAC must be explored properly with Speech and Language Therapy in order that all options are considered and non-limiting devices sourced. She confirmed that The Child’s AAC needs could be met by School A but could not comment on School C. She agreed that The Child’s need for continuing exposure to and use of SSE would be vital whilst exploring additional alternative means. We understand that Speech and Language Therapy input would necessitate a significant level of support which would be likely to continue for at least a year.
The Tribunal considered the evidence from this witness to be very factual, measured and considered. We felt that she knew The Child’s communication and developmental level very well. She was able to provide clear evidence to support what she was saying. She gave the clearest picture to the Tribunal of exactly how The Child communicates. We found her assessment of the next steps for The Child and what he needs very credible. She strongly argued for a total communication approach to include signing, finger spelling, gesture, vocal, written and exploration of AAC. The Tribunal had careful regard to her Report and The Child’s identified additional support needs (at R229). We found her Report very persuasive. We noted her recommendations for The Child: (i) that AAC be explored, (ii) that his level of literacy be explored, (iii) than an educational ICT assessment take place and (iv) that Speech and Language Therapy assessment continues. She stated that the long term objective for The Child was to communicate with people who were not in the signing community. She stated that it was more beneficial in the long term for The Child now to be in a school with a PSA who knew SSE and other staff with a ‘smattering’ of basic signing (namely School A) rather than in a school where almost all the adults has SSE experience (namely School C). She further stated that it would be better for The Child to be in a school where only one pupil used signing than attend a school where a significant number of pupils used or understood signing as The Child needed to develop other methods of communication. We accept that she conceded to The Appellant’s representative that, at least in the short term, School C, would be alongside other pupils who would understand The Child’s signing attempts, and that this would be beneficial compared with an educational context where pupils would not understand such attempts. This highlighted for us the critical importance of School A being highly proactive in addressing The Child’s signing needs and developing his AAC ability and other communication methods. We recognise that further work must be carried out to consider The Child’s keyboard skills, obtain an educational ICT assessment, and gather more information about The Child’s spelling and his writing of words. We observe that the HT accepted there would be a time delay in finding the best device for The Child. But he also recognised that during that time SSE would be particularly important.
She was quite clear however that she did not want to take signing away from The Child as that is how he currently communicates with his family. She thought it might be possible to give the other staff in School A more skills. She stated that it would not necessarily be beneficial for The Child to attend School C while other methods of communication were being introduced to him. She stated it was the Speech and Language Therapist who did that initially, not the school. Furthermore once the device had been introduced the device then in essence belonged to everyone. She stated that School A staff was trained to use alternative systems.
xxxx Is Head of Inclusion services for Council Education. He put forward a very passionate argument for School A being the more appropriate and suitable school for The Child. He was very forthright in the way he delivered his evidence. He told us that he did not know exactly what would be available to The Child at School C aside from SSE. He described the opportunities for The Child at School A to extend and challenge him to access the curriculum in what he called an inclusive environment close to his local community. He was of the view that School A is the more appropriate school for The Child and described the school as sector-leading in AAC. He said that within School A there would be the opportunity and expertise to explore a range of communication packages including SSE, to use AAC to extend learning/communication and for post-school packages including links to social work support and adult services. He stated that extra speech and language therapy input could be directed to the school if required for training purposes related to The Child’s needs through the contract with NHS, and that 2.5 fte Speech and Language Therapists are currently on site with AAC expertise.
He has strategic responsibility for inclusion over the whole area and is responsible for all special education in the area. He expressed several concerns about the past including the placement at School B. He stated that if The Child were to attend School A his additional support needs would be reviewed by the multi-agency team at the school. He also stated that he would request regular Reports from HT and Educational Psychologist.
The Tribunal formed the view that he knew the provision with the area well. Of all the witnesses, apart from Deputy Head School C, he had the most informed knowledge of the provision at School C. He described his understanding of School C ‘core-business’. He demonstrated a desire to deliver the best for each individual pupil. This seemed genuine.
He told us that he can purchase training to ‘up-skill’ staff through an existing contractual arrangement with Speech and Language Therapy. He can also access additional signers in other schools. He stated that a training package could be put together going beyond simply the staff dealing with The Child in School A. He stated that he would not seek to train the whole of School A in SSE as he hoped that The Child would begin to develop and utilise alternative communication methods. If however The Child was unable to do so he indicated the matter would require to be reviewed. He further indicated that if The Child was found to have a hearing loss, he would employ an educational audiologist to investigate further.
He heard all the evidence presented to the Tribunal. He was firmly of the view that School A was the more appropriate placement for The Child. He concluded that The Child was a young man crying out to communicate in a variety of ways and a mother desperate to communicate.
He argued that School C primarily use BSL with the some AAC. He argued that attending School C would limit his life chances. He stated that School A was sector-leading in AAC and that School C would limit The Child’s post-school opportunities. He told us that significant work is being done in area about ‘Positive Destinations’ with partners, and that is best done in a area school for a area based child.
The Tribunal was most concerned about The Child’s placement at School B in January 2012 after being home-schooled for around 17 months or thereabouts. School B was unable to understand The Child’s attempts at communication. This is clearly stated by staff in a Report dated 29th March 2012 [T26] and by the Appellant in her case statement (April 2012). Head of Inclusion stated that he was annoyed and disappointed that he had not been made aware of the difficulties earlier. We observe that by the time he gave his evidence to the Tribunal he too was of the view that School B was not an appropriate placement for The Child. The Education Authority must recognise how worrying the placement at School B must have been for The Child and The Appellant. The said Report stated ‘The Child has appeared to understand that no-one is able to understand his signing-he signed a lot in his initial visits but this has lessened as time has gone on. It has been noted that he resumes his sighing as soon as he sees his mum. He has also tried to sign to his PSA and on occasion takes his PSA’s hands and tried to make her sign, hand over hand. As we use makaton we are finding it difficult to maintain and develop his communication skills’. The same Report also commented on how ‘he is more cognitively able than the rest of our pupils’. The Authority must recognise that significant confidence building will be required to reassure The Appellant that School A is delivering the best possible placement for her son. The Tribunal also consider that it is important that the Authority do not underestimate the importance of signing.
He stated that The Child can be placed in School A at no additional cost to the education Authority. There is a place for him and no additional staff would require to be employed. The PSA who would be designated to The Child is already employed at the school. Some restricted money could be initially spent on staff training. We understand there is a component in the contract with the NHS for flexible training. He observed that there was also an element in the existing school’s budget to train staff with no extra cost. He told us that there would be no additional transport cost as a bus already goes there. We also noted that there is already a taxi taking a area pupil to School C.
The Tribunal were reassured by his evidence that signing training could be put in place and that he would also seek to address issues raised during the Tribunal. He was of course present throughout all the evidence. His commitment to the Tribunal will ultimately benefit The Child and hopefully reassure his mother.
The Appellant challenged aspects of the evidence both directly and through The Appellant’s representative. The Tribunal carefully considered her evidence and her request for this Placing Request. The Appellant wishes her son to attend School C. She told us that BSL ‘made a phenomenal difference’ in terms of conveying his needs, observations and reducing frustration. She told us of appointing a ‘tutor’ to teach The Child aspects of BSL. The Appellant gave a good account of these aspects. It gradually became clear in the hearing that what The Appellant was referring to was not full grammatical BSL but using signing to communicate – named Sign Supported English (‘SSE’). The Appellant felt that SSE had given The Child a means of communicating to convey his observations, needs, wants and feelings. The Appellant was impressed by The Child’s learning of finger spelling and learning of orthography and spelling. The Tribunal consider that these are encouraging signs that suggest strongly that there are other additional forms of communication open to The Child which will provide him with a wider communicative context. These skills would suggest SSE could be complemented and possibly supplemented in time by other more shareable methods of communication.
The Tribunal explored with The Appellant the possible impact of having to travel to School C. The Appellant responded from a personal perspective. When the Tribunal explored this further The Appellant did not express any concerns from The Child’s perspective. The Tribunal also explored with The Appellant how The Child perhaps felt when he was not attending school. We note that she did not consider this an issue for him. Her feeling was that he had not missed school. The Appellant advised us that many of The Child’s and ’s after-school activities begin at 5.30pm or 6pm. She told us that she did not have a car.
The Appellant has visited School C and School A. She stated that if The Child were to attend School A she stated that an ‘understanding of autism and signing would need to be put in place’.
The evidence presented to us indicates that The Child may indeed have the potential to access AAC technology.
We observe that notwithstanding the extensive evidence presented to the Tribunal, The Appellant remained unsure as to whether she would accept the Tribunal’s decision if we were to uphold the refusal of the Placing Request and recommend School A. She indicated that she would ‘very likely, possibly, probably’ let The Child go to School A if the Tribunal were to find in favour of School A. School B is not an appropriate school for The Child. He is still a pupil that school. The age and stage of The Child is of vital importance. His preference for routine and structure is also of vital importance. It is critically important that The Child leaves School B and attend School A. Any delay in either moving from School B to School A or any further absence from school will, in the opinion of the Tribunal, be seriously detrimental to The Child and his education.
It is of great importance to remember that The Child is operating at around a 6-7 year old level. It appears that he had been making good progress at School D so the approaches and curriculum were appropriate. His ability to finger spelling, respond in writing, and communicate his needs and observations shows real potential. It is now of critical importance that everything is done to develop the broadest total communication package for The Child including AAC and signing. Such a package will ultimately take The Child into his adult life. Furthermore The Child’s access to an appropriate curriculum which will stretch and challenge him in line with Curriculum for Excellence must go hand in hand with this. Appropriate communication support will allow The Child to extend his knowledge base and his peer interactions. The Child is a young person who requires ongoing reassurance and focus should be on building self esteem and confidence. This will come through motivation with appropriate curriculum and also carefully planned support and challenge through target setting.
The Tribunal called as a witness the acting HT at School C. The Tribunal did not consider it had enough reliable information about School C school from the evidence previously led. Accordingly, in fairness to the Appellant and indeed the Authority, we decided to call this witness to give us more accurate and informed information about School C. We do not seek to rehearse all the evidence provided by the acting HT but we do take this opportunity to thank her for attending.
We accept that School C provide a range of communication approaches. We noted that one member of staff has a particular interest and experience in the use of AAC devices. Moreover teaching staff use such devices on a day to day basis within the school. She stated that if The Child were to move to School C he would at least initially be of part of a base, with a likely move thereafter into the secondary class in due course. Consideration would require to be given as to where to place The Child. We note that the school provide SQA qualifications for Access Level 1 and above. In relation to those working at lower levels they are using AQA qualifications to provide access to certification and recognition of achievement. School C have elected to use AQA which is an English accreditation.
We note there is a life skills programme throughout the school. She told us of School C experience of supporting transition to colleges throughout
The school employ three full time in-house Speech and Language Therapists each enjoying a specialism. One has a special interest in autism (including a diploma in dysphagia) and another has a special interest in AAC and the use of AAC devices. We note that they provide recommendations to teaching staff and promote inclusive communication skills. They can of course work with a child on a one-to-one basis or in small groups. School C therapists and educational psychologists are all registered with the Health Professionals Council (as are Educational Psychologist and Speech and Language Therapist)
She has experience of working with children with additional support needs in local Authority schools. She stated that all the therapists and professionals are on site. She stated that they deliver a strong coherent team around a child and can respond to a child’s needs quickly. School C work with outside agencies in its use of communication technology and AAC devices. Specific reference was made to KeyComm at the
She estimated that the travel time to her school for The Child would be around 45-60 minutes subject to traffic. She stated that other pupils with autism are able to manage similar journeys.
We note that all teachers at School C are hearing, and all have a minimum level of Level2 BSL. She stated that he would not be learning BSL as his first language is English. Teachers would speak and sign to him. She stated that all staff and a number of pupils would understand his signs. Many pupils would also be able to understand The Child’s SSE. She indicated that there would be an appropriate peer group for The Child at School C.
We note that The Child was observed in class at School C and there was also a home visit by SALT. We observe at this stage that The Child has never been to School A and no staff there have met with him.
We were advised that The Child’s placement at School C is still open to him. We heard evidence around if there might be additional costs to the placement. She stated that even if they recruited additional staff to The Child’s class there would be no increase in fees. An increase would only occur in the case of a staff member recruited on a 1:1 basis for The Child. We do not know from the evidence if this scenario might arise but we observe that She did indicate that she would request a support worker from The Child’s current school in the initial transition stages. She stated that this would assist in delivering a smoother transition process. We did not consider her evidence to markedly depart from School C Report. We did not interpret her Report to suggest permanent full time 1:1 support for The Child.
We observe that she had not met The Child but neither had HT. She made references on several occasions to not knowing very much about The Child. She did not have knowledge of the Reports of Educational Psychologist and Speech and Language Therapist. These are dated May 2012. The Tribunal adjourned to allow her time to consider these reports. When School C offered a place in December 2011, The Child had been out of school for a significant period of time. She stated that The Child’s presentation had not changed, in her opinion, since the original offer of a placement.
The base has changed since The Child’s visit in December 2011.
She was asked if the offer of a place at School C was still open. She appeared to hesitate for a moment and then say “Yes, I’d say so”. As indicated above School C have changed its base provision significantly.
Previously there were four boys in the base which was situated in the downstairs of the primary department. We now understand there are three base classes containing ten pupils located upstairs. The classes moved upstairs as recently as week ending 24th August 2012. She stated that there is now the opportunity for pupils to be taught with different pupils, whereas previously it was ‘quite restrictive’. There is a wide range of cognitive ability within the class with an age range of S1 to S3/4. Half are hearing half are deaf. Four of the ten have ASD diagnosis. Decisions would have to be made where The Child would fit in. The profile of some of the pupils in the base was described. Although stating that there was physically a place for The Child she commented that some classes and groups were full.
The Tribunal noted the document ‘The Way Ahead’ and the Operational Management Group. We noted the evidence therein about the criteria and admissions policy. We accept however that School C (and indeed School A) retain flexibility about admissions.
Having regard to all the evidence of her, whilst she stated there is a physical place for The Child within her school, her evidence did not reassure us that the school still confidently endorse the original offer of a place for The Child. The Tribunal explored whether School C were in fact in possession of adequate assessment information upon which to base the original offer of a placement.
We note the cost of the place at School C is £25801.50, including lunches and snacks. This included the cost of therapy for a normal day placement, five days a week. She accepted that if a child required 1:1 support there would be an additional charge – of around £25,000 per annum. She indicated to The Appellant’s representative that she hoped a placement for The Child would not exceed £25801.40. We proceeded on this basis.
In respect of the new base model and staffing she stated that she ‘might need to bolster staffing ratio’ but she indicated that she did not intend to charge more by providing 1:1 support. She did make it clear however that she would seek assistance at least at the transition stage.
We were addressed in respect of the Doran Review. We did not consider this aspect of submissions in our deliberations. Speculation of its contents was not our place.
She told us about transition and what arrangements there were to keep links with The Child’s local community. She told is of links with area 1, area 2, area 3 and area 4. She said that The Child would be a challenge but we note she referred to a transition to College (area). Mrs Binnie accepted that she was not aware of a post-school work placement for a pupil with ASD.
Having regard to the Reports of Educational Psychologist and Speech and Language Therapist, whilst BSL is not required SSE is of great importance to The Child.
It is recommended that The Child should be moving onto a system of communication which will be understood by more people. Educational Psychologist, whilst acknowledging signing as being of ‘extra assistance’ for The Child, he did not consider it was a requirement. His experience was that children could move quickly from signing to AAC. We observe that signing is at least in the short term a very important requirement for The Child especially as he moves to a new school and is exposed to AAC devices etc. We consider signing is currently a requirement for The Child and will be of great importance when he moves to School A. This must not be ignored or underestimated.
At the end of the First Stage the Tribunal is satisfied that the Authority have established Schedule 2 paragraph 3 (1) (f) (i)-(iv).
The Second Stage
If the Tribunal is not satisfied with the First stage there is no requirement to move onto the second stage of the test, namely the appropriateness of the decision.
If the Tribunal is satisfied that the First Stage has been established and therefore the Tribunal must thereafter consider the appropriateness of the decision to refuse the Placing Request, notwithstanding being satisfied that grounds of refusal do exist specified within paragraph 3(1) of schedule 2 of the 2004 Act.
At the second stage, the Tribunal is required to exercise its discretion and determine whether, in all the circumstances, it is still appropriate to confirm the decision of the Authority.
In this case the Tribunal is satisfied that the First Stage has been established and therefore the Tribunal require to consider the appropriateness of the Authority’s decision having regard to all the circumstances of the case.
In respect of parental choice The Appellant brought the original Reference to the Tribunal on the basis that The Child required British Sign Language (in practice SSE). Whilst we are respectful of the wishes of the Appellant for The Child to attend School C the Tribunal, having regard to all of the evidence presented to us, consider School A to be the more appropriate placement at this time for The Child. We are not satisfied that it is reasonable to incur the cost of a placement for The Child at School C and furthermore we are satisfied that School A can make provision for the additional support needs of The Child. In the Tribunal’s judgement, the provision for The Child’s additional support needs in School C is not appreciably more suitable, for him, than the provision in School A.
Having regard to various strands of evidence, and taken cumulatively, the Tribunal is satisfied that The Child’s additional support needs will be best met at School A. At School A, The Child will have the opportunity to follow a senior curriculum and qualifications at a supported level within the Scottish qualifications and accreditation structure. The AQA accreditation structure at School C is at an early stage and is not yet fully embedded within the school. We felt there was less evidential clarity about the peer group in School C. The peer group at School A was portrayed as broad and flexible in response to need. This would give The Child the experience of practising and adapting his communications skills in preparation for the wider world. Finally, School A would be able to give The Child the opportunity to move with peers he will be familiar with through the transition stage, including work experience opportunities, and perhaps even supported college placements in the future. Change is likely always to be difficult for The Child and familiarity with his peers may indeed assist him.
Accordingly, the Tribunal is satisfied that the Decision to refuse the Placing Request is appropriate in all the circumstances as noted above.
Although the Tribunal upholds the Authority’s decision, thus refusing the Placing Request by The Appellant for School C, we consider it is of great importance that the Authority and the Appellant work together and nurture a good working relationship.
Observations
No matter which school The Child’s attends it will require to adapt to his arrival.
We were highly impressed with the HT of School A. We carefully noted the undertakings of Head of Inclusion and we hope that everyone will work collaboratively to make the placement at School A a successful one for The Child.
We make the following observations, in good faith, to assist the Authority, School A, The Child and his mother in the future.
(a)Target setting with the Appellant and The Child at the centre will be very important so that there is clear evidence supported by professional assessments of The Child’s progress towards agreed targets. This would also help to demonstrate the appropriateness of the placement;
(b)If The Child were to move into a period of non attendance again the Authority should immediately consider their options as The Child has already lost a lot of education within a school setting;
(c) The Authority and School A require to urgently consider what SSE training/support needs require to be put into place for staff so that they have the capacity to read The Child’s spontaneous communication attempts. This is vital to The Child at School A. Communication approaches must be in line with Speech and Language Therapy recommendations. This will enable The Child to communicate at his own level (level 1 or 2) using this preferred means whilst also being assessed for additional means of communication such as AAC;
(d) It may be useful for the HT, to link up with The Appellant and clearly outline how his staff is supported to ‘understand autism’. The Tribunal formed the opinion that he would embrace this positively;
(e) The Tribunal wonder if there may be scope to look at Advocacy for The Child. For someone to independently express the needs and feelings of The Child and ensure that these are listened to. It is of great importance, wherever possible, to seek to determine The Child’s views on his communication, learning and his future;
(f) Transition planning for post-school determinations is obviously important for The Child especially at his age and stage. This includes qualifications, college and employment options having regard to The Child’s particular needs and in consultation with his mother;
(g) We consider it important that Speech and Language Therapy be involved in order to continue assessing The Child’s potential for verbal speech, his receptive language skills and his ability to use written recognition of orthography or recognition of whole words for reading and spelling and awareness of sounds within words. We fully endorse the Report of Speech and Language Therapist. In addition The Child should be assessed for his level of skill with SSE in terms of recognition and use as well as potential for other AAC, considering the full range of low and hi-tec AAC;
(h) It is important that there be collaboration between education and Speech and Language Therapy including educational psychology advice to ensure The Child’s means of communication provides an effective vehicle for building relationships with his peers, expressing his views, needs and opinions, progressing the Curriculum and enabling The Child to reach his potential academically;
(i) It would be helpful of course if The Child’s family are confident in communicating with him if and when he masters alternative means to SSE;
(j) Partnership working with The Appellant through contact, inclusion in planning and target setting, clear explanation of findings and communication methods are essential in order to enable trust within a supportive parent-professional relationship;
(k) If the criteria are met consideration must be given to a Co-ordinated Support Plan for The Child; and
(l) We understand from Head of Inclusion’s evidence that he will arrange for HT and Educational Psychologist to regularly report to him on The Child’s progress within the school, the development and progress of The Child’s communication skills, and keep under review the overall suitability of School A in meeting The Child’s additional support needs.
The Tribunal formed the view that many of the above would be taken on board and acted upon by School A, HT and Head of Inclusion. We do not seek to be prescriptive in our observations but we hope the matters raised will allow everyone involved with The Child at School A to work more closely together and to give him the support he needs and deserves.
We accept The Appellant wishes the best for her son and we formed the view that School A is the more appropriate school for The Child. In Refusing to place The Child at School C the Tribunal is making no criticism of the expertise and professionalism offered by School C.
In The Appellant’s representative’s first written submission he stated that The Child did not ‘fit neatly into the traditional criteria of either school’. HT also recognised this. He accepted that the children at School A were diverse commenting ‘That’s our challenge - it’s not one size fits all’. This is possibly the challenge for many schools and many pupils.
Having carefully considered all the evidence the Tribunal was satisfied that School A can realistically adapt to meet The Child’s additional support needs.
We are satisfied that there is sufficient evidence of good quality before the Tribunal to justify the refusal of the Reference.
The Tribunal thank The Appellant for her attendance and her courtesy throughout this important hearing.
