DE
Reference: D_17_2009
Gender: Male
Aged: 11
Type of Reference: Placing Request
1. The Reference:
(“the Appellant”) lodged a Reference in accordance with Section 18(3)(e) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) in respect of a Decision of (“the Education Authority”) to refuse a Placing Request made by the Appellant for her son (“the child”) to attend School A. The Education Authority refusal was based upon paragraph 3(f) of Schedule 2 of the Act.
2. Decision of the Tribunal:
The Tribunal, in terms of the power contained within Section 19(5)(b) of the Act overturns the Decision of the Education Authority and requires the Education Authority to place the child in School A.
3. Preliminary Matters:
The Hearing was conjoined with a Reference on the contents of the child’s Co-ordinated Support Plan in which the Appellant was represented by other agents.
Both References were carefully case managed prior to the Oral Hearing in terms of a number of Conference Calls. The scope of the Hearing was focused due to the execution of a Joint Minute of Admissions by all parties to the two References.
4. Summary of Evidence:
The Tribunal had regard to an extensive bundle of papers and the Oral Evidence of the witnesses.
The Tribunal heard oral evidence from:-
Witness A, Head Teacher, School B.
Witness B, Educational Psychologist, The Authority.
Witness C, author of the Report comparing the provision at both School B and School A instructed on behalf of the Appellant.
Witness D, Deputy Head Teacher, School A,
The Appellant.
The Appellant also produced to the Tribunal a lengthy handwritten statement, the terms of which have been considered.
5. Findings in Fact:
1. The child is the son of the Appellant. The child was born in 1998. He is 11 years old.
2. The child was born at full term and was a healthy child with normal development. In 2002 The child was struck by a car. The child sustained multiple injuries, including fractured ribs, pneumothorax, fractured pelvis, head injury and consequent obtain damage. The child was 4 years and 1 month old at the date of his injury.
3. The child was registered blind in 2002. Whilst registered blind The child has some sight although severely visually impaired. The child is able to discriminate and differentiate shapes which are more than 4 millimetres in the minimum dimension and of high contrast. The child has multiple physical disability. His visual impairment multiplies the effect of his other disabilities. The child does not have impaired hearing.
4. The child commenced placement at School B and Nursery on 28 April 2003. School B is a non-denominational, co-educational school which caters for children and young people between the ages of 2 and 18 years of age with complex additional needs. He attended the Nursery there until 21 October 2003.
5. The child transferred to a Centre for children with motor impairment on 21 October 2003. It provides day school and outreach services to children from across
6. The child returned to School B on 23 October 2006. There was a phased transition from the Centre to School B between the beginning of September 2006 and 23 October 2006.
7. Whilst at the Centre, The child made good steady progress. Since returning to School B, The child has made little or no progress.
8. The child is currently a pupil within Room 3 of School B. His class teacher is a chartered teacher with 12 years experience of working in additional support needs education. She has an MSc Post-Graduate Qualification in Profound Disability & Sensory Impairment. She has been a teacher at the school since September 2007. She has been The child’s class teacher for 3 years.
9. The child is severely impaired in all areas and is totally dependent on others for all aspects of daily living. He uses a wheelchair. He uses a standing frame for periods. He communicates by use of facial expression. He is also capable of further communicating his feelings, wants and needs by use of his left index finger to point at objects. He uses micro-technology based switch systems. The child uses a piece of equipment known as a “Slim Armstrong”. This is a mounting system which facilitates access to a single switch. The child uses an arm support for his left arm to enable him to access the switch.
10. The child underwent major spinal surgery to correct curvature of the spine in or about April 2008. He was consequently absent from school between April and August 2008.
11. Dr J, Clinical Psychologist was asked by the Appellant’s representative to examine The child in relation to his cognitive ability in the context of his school placement. Dr J produced a Report pursuant to the examination on 11 March 2010. The terms of the Report and findings therein are agreed between the parties. A copy of the Report is found at A67.
12. On a Monday morning at School B, The child and his classmates, with their teacher, share news from the weekend. This is communicated by use of home diaries and switch technology communication. The child will then have a morning snack. Every third Monday afternoon, The child and his classmates go on educational outings in the school minibus.
13. The child also receives physical education on a Monday morning working towards individualised targets. The child is then allowed to choose from a range of activities. The child usually chooses music. The child also has a visual awareness lesson on a Monday afternoon.
14. On a Tuesday afternoon and a Wednesday and Thursday morning, physiotherapy is provided in the class, including some 1 to 1 therapy with pupils within the class. The therapist is a highly specialist Paediatric Physiotherapist, NHS Trust.
15. On a Wednesday afternoon Speech & Language Therapy is provided to the pupils within the class, including some 1 to 1 therapy with pupils in the class. The Speech & Language Therapist is, NHS Trust.
16. On a Thursday afternoon physiotherapy is again provided to the class, including some 1 to 1 therapy with pupils within the class. Occupational therapy is also provided every Thursday by, Senior Paediatric Occupational Therapist, NHS Trust.
17. School B has a hydrotherapy pool. The pool was defective and out of use for a substantial period until November 2009. The pool is now functional. The pool aims to provide use of this facility to 34 pupils enrolled. A number of the pupils, including The child have been assessed as requiring the use of the pool for therapeutic (as opposed to purely recreational) purposes. Training for staff and health and safety assessments still require to be undertaken. It is not known when the hydrotherapy pool can be utilised by The child. He will be able to access the pool there more than once every 5 weeks. The child would benefit from hydrotherapy on a regular basis.
18. School B offer and deliver a sensory curriculum designed to meet the needs of children’s cognitive abilities from around 12 months to 3 years. The child is likely to function cognitively beyond 3 years in some aspects of his learning. The staff at School B do not accept this.
19. The child’s cognitive level must not be overestimated. Equally The child’s cognitive level must not be underestimated.
20. School B was the subject of a HMIe Inspection in December 2006. Its findings are at R3. This records that staff expectations of pupils’ work needed to be higher. One proposal as a result of the inspection was to ensure pupils individualised educational programmes provide a more coherent, better co-ordinated approach to meeting pupils needs. Notwithstanding this The child’s IEP lacks specification in respect of targets and evaluation.
21. The Vision Profile (R80) held by School B in respect of The child is defective in that the detail of his functional vision lacks specification and fails to convey to those working directly with The child his abilities and needs.
22. In March 2008, Dr M, Consultant Community Paediatrician on behalf of the Functional Vision Assessment Team recommended that an ongoing functional vision assessment be carried out in respect of The child by the Visual Impairment Specialist Teacher. No such ongoing functional vision assessments have been carried out.
23. On 23 January 2009, The child was examined by Professor D, Consultant Ophthalmologist. Professor D estimated The child’s cognitive development around a mental age of 3 to 4 years.
24. On 21 May 2009, The child was examined by Dr D, Consultant Neuropsychologist. Dr D estimated The child’s cognitive development around a mental age of 3 to 4 years.
25. The child requires hand splints. There have been a series of difficulties in meeting The child’s needs in this respect at School B since or about October 2009. Satisfactory hand splints have not yet been provided. No timescale could be specified by School B as to when this will be rectified.
26. The child is not toileted at School B. The child is toileted successfully at home. The child controls his bowel movements and does not have a bowel movement at school. To date, School B have only changed his incontinence pad once daily. The child regularly returns home soiled with urine. School B are unprepared to attempt to toilet The child throughout the school day even on a trial basis.
27. The child benefits from access to augmentative and alternative communication technology. School B have failed to supply any such technology. The Appellant obtained a DynaVox System from PAMIS (Profound and Multiple Learning Disability Network
28. School B have failed to communicate appropriately with the Appellant. This includes the lack of intimation to her that School B receives QTVI (Qualified Teacher of the Visually Impaired) support from the Visual Impairment Team of The Authority Sensory Support Service. She has accordingly had no opportunity to relay information to them in order to maximise any potential benefit to be given to The child.
29. The Appellant made a formal Placing Request in the Form PC1A dated 6 August 2009 (R58) requesting that the Education Authority place The child in School A,. On 24 September 2009 the Respondent wrote to the Appellant refusing the Placing Request. Notwithstanding that the terms of said refusal were erroneous it was agreed between parties that the substance of the grounds constitute lawful grounds, subject to proof and that the Placing Request was competently refused by the Education Authority.
30. School A is a grant aided special school. The school caters for visually impaired children which follow either aspects of, or a full mainstream curriculum, the Campus caters for pupils with visual impairment and multiple disabilities. This is where The child would be educated if placed there. Where pupils would benefit from aspects of a highly specialised and a mainstream curriculum, they access provision at both sites.
31. School A can meet the educational, medical and therapy needs of The child in terms of the curriculum and available physical and staff resources there. In addition to meeting the additional support needs of The child which are not met by School B and the Education Authority School A has a superior auditory environment, superior availability of augmentative and alternative communication technologies and an opportunity to maximise mobility in terms of the probable use of a smart chair. There is likely to be the availability of social interaction between The child and peers who are able to talk.
32. The cost of a placement at School A is £38,152 for day placement on a 38 week per year basis.
33. Estimates from taxi firms to facilitate The child’s attendance at School A on a 38 week per year basis in £30 per day. This equates to a weekly cost of £150 and an annual transportation cost of £5,700.
34. The total cost to the Respondent of The child attending School A is accordingly £43,852.
35. The unit (average) cost of placing a child at School B is £30,336. This is based on a school roll of 29 full-time pupils. This figure is calculated by dividing the running costs of the school for the last financial year by the number of pupils on the school roll. The number of pupils on the school roll is currently 34. Some of these pupils attend School B on a part-time basis. This equates to a full-time school roll of 29 pupils. The figure also takes account of a central budget cost, Speech & Language Therapy provision and a 5% administration cost.
36. No extraordinary additional costs are incurred in respect of The child’s placement at School B.
37. The child is currently transported to and from School B by taxi. The cost is met by the Education Authority. The child travels with two other children. The total annual cost of the taxi contract is £10,419.60. One-third of this figure amounts to £3,473.20.
38. The overall running costs of School B to the Respondent will be unaffected by The child’s placement at an alternative educational facility.
39. The additional cost to the Respondent if The child were to be placed at School A is accordingly the total cost specified at finding 34 hereof (£43,852) less the cost of his transport to and from School B (£3,473.20).
40. The additional cost to the Respondent of The child attending School A rather than School B is accordingly £40,378.80 per annum.
6. Reasons for Decision:
The Tribunal considered all of the evidence and were satisfied that there was sufficient evidence available for the Tribunal to reach a fair decision on the Reference.
Reference is made to the Tribunal’s findings in fact as set out. The Tribunal has carefully considered all of the available evidence which included all paper productions and the evidence of the witnesses. The Tribunal has also had regard to the oral submissions made by the parties representatives. This Placing Request Reference is an Appeal in terms of Section 18(3)(e) of the Education (Additional Support for Learning) (
In terms of Section 19(5)(a) of the Act the Tribunal may confirm the Decision of the Education Authority if one or more of the grounds of refusal specified in paragraph 3(1) or (3) of Schedule 2 of the Act exists and in all the circumstances it is appropriate to do so. This requires the Tribunal to apply a two stage test. The Tribunal firstly requires to establish whether the Education Authority has established any of said grounds of refusal; then, the Tribunal has to consider whether, in all the circumstances, it is appropriate to confirm the Decision of the Authority.
The Education Authority sought to rely upon the terms of paragraph 3(f) of Schedule 2 of the Act. If this statutory exception were not to apply then the Education Authority are bound to comply with the Appellant’s Placing Request and place The child in School A. The burden of proof in establishing the exception contained within paragraph 3(1)(f) of Schedule 2 rests with the Education Authority.
There are four conditions contained within paragraph 3(1)(f) of Schedule 2 of the Act. It was a matter of agreement between the parties that paragraphs (i) and (iv) were not at issue. School A is not a public school. The Education Authority have offered to place (maintain) The child within School B. Accordingly the Tribunal’s focus was to consider whether or not the Education Authority had established both paragraphs (ii) and (iii) of paragraph 3(1)(f) of Schedule 2 of the Act.
The Appellants representative submitted that there was a preliminary legal basis for the Tribunal establishing that Subsection (2)(ii) of paragraph 3(1)(f) had not been met. Reference was made to Scottish Statutory Instrument 2005 No 355: The Requirement for Teachers (
The thrust of the Appellant’s representative’s submission in this respect was that since The child’s teacher did not hold a specific prescribed qualification to teach the visually impaired that this Regulation had been breached and accordingly, as a matter of law, the Education Authority were not able to make provision for The child’s additional support needs at School B.
The Tribunal have directed themselves to the Scottish Government “Guidance on appropriate qualifications for teachers of children and young persons who are hearing impaired, visually impaired, or both hearing and visually impaired”. Appendix A outlines the additional specialised knowledge, understanding and skills required of teachers to enable them to meet the specific additional learning needs of such pupils. There is no suggestion contained within this Guidance that such a teacher requires to hold a specific visual impairment qualification. The Tribunal noted that it had not been suggested to or by any of the witnesses that The child’s current teacher did not hold a necessary qualification to teach him. The Tribunal accordingly in all of these circumstances rejected this submission made on behalf of the Appellant.
The first test the Tribunal required to apply under, paragraph 3(1)(f)(ii) was whether The child’s additional support needs can be met at School B. As a result of the Tribunal’s findings, the Tribunal was not so satisfied. Even if the Tribunal had been satisfied that the additional support needs of The child were being met, then the Tribunal considers it is reasonable, having regard both to the respective suitability and to the respective costs involved that The child should be placed in School A (as opposed to maintaining his place at School B). The Tribunal is therefore satisfied that the terms of paragraph 3(1)(f)(iii) are not established. If the Tribunal had required to proceed to the second stage of the test set out within Section 19(5)(a) of the Act then it would have concluded that in all of the circumstances it is not appropriate to confirm the decision of the Education Authority.
The overwhelming weight of evidence was that School B do not have a proper grasp of all of The child’s additional support needs and in particular the nature of his visual impairment. The child’s basic additional supports needs are not currently being met which was accepted in evidence by Witness A, the head teacher at School B in particular in respect of the failure to provide The child with appropriate hand splints. The length of time throughout which The child has been educated there in the absence of appropriate hand splints is unacceptable. Witness C gave very clear evidence which the Tribunal accepted that The child’s educational needs are not being met at School B.
School B have failed, miserably in the view of the Tribunal, to address The child’s basic care needs in terms of toileting. There was a clear body of evidence that The child does have the capacity to be toileted. The Report from the Centre (dated January 2005) indicated that The child has an ability to “wait” yet a pattern had not yet been established. The child’s parents successfully toilet him at home and this information has been provided to the school on more than one occasion. The child does not have a bowel movement at school and the Tribunal concluded from all of the available evidence that this is due to control. Notwithstanding this Witness A the head teacher of School B and the Education Authority at large would not concede that any trial at toileting is even worthwhile. Circumstances are however in fact worse in that The child’s incontinence pad has, to date, been changed only once daily. He is regularly returned home soiled with urine. The best that the Education Authority would concede at the end of the evidence was that his incontinence pad would be changed twice daily. This is unacceptable.
There appears to be a thinking at School B that The child cannot benefit from anything other than a sensory curriculum which would ordinarily be targeted to those with a cognitive ability of 3 years or less. It was not accepted by Witness A that The child has any scope beyond this level in any aspects of his learning despite all of the available evidence.
It is clear that The child would be able to utilise and benefit from access to augmentative and alternative communication technology. The use of such technology is beyond the scope offered by a mere sensory curriculum. Such technology is not routinely used at School B. It was The child’s parents that introduced the use of such an item of technology, namely the DynaVox system and despite School B being aware of The child’s success in utilising this they have not made provision for this type of equipment or an alternative piece of equipment to be utilised by The child and have no clear vision for the future as to how that may be addressed.
The Tribunal were satisfied that there is a culture at School B, earlier detected within the HMIe Report dated 27 March 2007 (R3), that their IEP’s (Individualised Educational Programmes) are not consistent with SMART (specific measurable achievable realistic targets) ideology. The evidence of educational planning for The child appears to be consistent with the findings within the said Report in which is states that targets should be better co-ordinated; staff expectations of pupils work needs to be higher and that IEPs require to provide a more coherent, better co-ordinated approach to meeting pupils needs.
The Tribunal concluded that staff at School B have failed to properly understand the nature of The child’s visual impairment. The functional vision component of his vision profile held at School B is defective as it does not inform those working with The child as to his abilities.
Whilst there are good reasons for not overestimating The child’s abilities it is similarly very important not to underestimate his abilities and there should not, as a matter-of-fact, be an artificial ceiling placed or rather imposed upon opportunities for The child’s learning. The impression which the Tribunal were left with was that there has been an attempt to make The child fit in to the curriculum offered by School B as opposed to School B tailoring an education programme to fully meet The child’s additional support needs.
The Tribunal, has no confidence that learning opportunities for The child are being maximised nor that he is being provided with the resources in order for him to achieve his full potential. The Appellants witnesses and Witness B advised that children such as The child, if not challenged, may regress. They are likely to disengage and switch off from the learning experience. On the basis of the Tribunal’s findings this may well be the case with The child. Dr J reported following his second assessment of The child in April 2008 that The child had not received appropriate support and therapy in the preceding 2 years. The Tribunal considers that such support and therapy would be of an educational nature which ought to have been provided at School B.
School B have not met all of The child’s additional support needs. The Tribunal have also concluded that School B either cannot or will not meet all of his additional support needs in the future.
The Tribunal were satisfied that School A can meet The child’s educational, medical and therapy needs in terms of the curriculum and available physical and staff resources there. Once placed there The child will be the subject of a multidisciplinary baseline assessment which will inform the choice of targets and priorities. This process will take between 6 to 8 weeks to complete and fully involve The child’s parents as well as a wide team of educators and therapists. There has been a lack of willingness on the part of School B to fully engage The child’s parents who undoubtedly have expert knowledge which should be utilised by others for The child’s benefit.
School A offers a far superior package of education and care for The child which is undoubtedly worth the additional costs involved. The benefits to The child in meeting his additional support needs are proportionate to the costs to be incurred. In particular:-
- The auditory environment within School A is better suited to The child’s needs. He finds the simultaneous processing of information from more than one sensory channel very challenging. It is essential to diminish the amount of clutter and background noise whilst teaching The child. The Speech & Language Therapist Report (A37) prepared at the time of a Review in May 2009 suggests that The child may respond better within a calmer or quieter environment. This ties in with the views of Professor D, Consultant Ophthalmologist. The greater potential for quiet and individual work is provided within School A. The current auditory environment within School B may well be hindering The child’s progress. Whilst the Education Authority at the time of their submissions undertook to rectify certain difficulties (noisy teachers chairs and squeaking hinges) there appears to be a lack of understanding generally as to the nature of The child’s visual impairment and the extent of his functional vision. His visual impairment multiplies the effect of all of The child’s other disabilities and accordingly it is paramount to ensure that the auditory environment within which The child is educated best suits his needs.
- School A is a specialist special school for the visually impaired. As such there is a requirement that all teachers undertake the mandatory training leading to the qualification as a teacher of the visually impaired (QTVI). This will ensure that the meeting of The child’s visual impairment additional support needs if embedded in all thinking and planning.
- Placement at School A will ensure that The child receives direct access to augmentative and alternative communication technology. The child has the capacity to benefit from more developed forms of communication technology other than a simple switch utilised by his left hand. He has an understanding of symbolic representation. That is his only current method of communication within the School B setting. Developing The child’s ability to communicate in other forms will greatly improve his capacity to learn and quality of life more generally.
- School A has a visiting Orthotist and appropriate hand splints can be designed, made and fitted in all likelihood over a 2 week period.
- School A will place The child on a toileting programme in conjunction with The child’s parents.
- School A can offer hydrotherapy sessions to The child for therapeutic purposes at least once a fortnight and possibly once weekly depending upon an assessment of his clinical needs. The benefits of hydrotherapy to a multiply disabled visually impaired child such as The child are significant. There have been ongoing problems with The child accessing the hydrotherapy pool at School B which has been out of action for some significant time. Although operational the pool is still not being used due to outstanding matters including health and safety assessments and the most The child would be in a position to access the hydrotherapy pool once it is fully operational would be once every 5 weeks.
- School A can offer The child the opportunity to utilise a “Smart” chair. This is a wheelchair using electronic guidance along a tracking system. The child is likely to be in a position to utilise such a system which will enable him, for the first time, to control his own movement. This is likely to be of significant benefit to him.
- At School A, The child is likely to have the opportunity of interacting with peers who have speech. Given that his hearing is not impaired such interaction is likely to be of great benefit to him.
In conclusion therefore the Tribunal records that neither paragraphs (ii) nor (iii) of paragraph 3(1)(f) of Schedule 2 of the Act have been established. Furthermore, in all of the circumstances of the case, the Tribunal concludes that it is not appropriate to confirm the Decision of the Education Authority refusing the Placing Request. Accordingly the Tribunal sets aside the Decision of the Education Authority dated 24 September 2009 and Directs that The child be placed in School A.
In setting out the Tribunal’s reasons we have not, for the sake of brevity, addressed every issue in the Reference in detail due to the summary nature of the Tribunal’s jurisdiction. We have, in the main, adopted the submissions made on behalf of the Appellant.
