DE
Reference: D_16_2012
Gender: Female
Aged: 13
Type of Reference: Placing Request
- Details of the reference
A reference, dated22nd January 2012 was received by the Tribunal Secretariat in respect of a placing request made by way of the Appellant’s letter dated 7th November 2011. This request had been refused by the Education Authority under paragraph 3(1)(f) of Schedule 2 to the Education (Additional Support for Learning)(
- Summary of the decision
The appeal is upheld and the placing request granted.
- Procedural history
A preliminary decision was made by me on a question of competence. A text of that decision appears within the bundle (T81 onwards).
There had been a conference call to discuss the witnesses in the case and other procedural matters in the lead up to the hearing. It had been agreed that the Respondent would lead at the hearing.
- Preliminary Issues
The Respondent wished to lodge late papers (R91 to R126). There was no objection to this and this was allowed.
- Decision
EVIDENCE FOR THE RESPONDENT
Witness A
The Respondent led one witness, Witness A.
Witness A has the title of Inclusion Development Manager for those with additional support needs within the authority. He has a background as a Head Teacher and in other posts dealing with children and young people with additional support needs. He holds an LLB from
We heard from Witness A that the Head of the Additional Support Needs Service for The authority, colleague A left his post suddenly in March 2012. At the present time Witness A and another colleague are sharing responsibility for the Head of Service post. Witness A’s first involvement with the child was in November or December 2011. At that point he was approached by Colleague A to research specialist music provision in
Witness A gave evidence about his understanding of the provision that would have been available in School B, had THE CHILD gone there.
Witness A gave evidence that had THE CHILD gone there she would have had two hours of tuition in her lead instrument per week and thirty minutes tuition on her second instrument. In addition, whilst the normal school day finishes at either 14:45 or 15:45 each day, music school pupils are expected to remain on at school until 1700 hours at a minimum. During that period of time they will be involved in musical activities such as ensemble groups and after school hours they will also be engaged in activities involving music outwith the school, such as the local chamber orchestra. In addition, most pupils are expected to take part in the area orchestra on a Saturday morning. Most pupils at SCHOOL B have regular membership of at least three orchestras.
Witness A gave evidence that he had discussed THE CHILD with the Director of SCHOOL B,. The Director was of the view that SCHOOL B could meet THE CHILD’s needs. He had given the Director of SCHOOL B information that THE CHILD had passed grade 6 in violin and grade 3 in piano and she had indicated that THE CHILD would be within the normal range of musical talent that was to be found within SCHOOL B. In particular his evidence was that THE CHILD’s application to SCHOOL B would not be outstanding. He gave evidence that there was a student at School C itself, who was not one of the pupils at SCHOOL B, who had attained Grade 6 at THE CHILD’s age. It was normal that pupils at SCHOOL B moving into S3 would be working on Grade 8 material. The Director would have looked forward to having THE CHILD within the school.
Witness A gave evidence that THE CHILD would require to pass an audition to gain entry to SCHOOL B as that was a requirement of SCHOOL B. He gave evidence that SCHOOL B had fourteen staff teaching music for thirty-eight pupils. The staff had a range of qualifications but all were musicians, teachers and music professionals. Witness A gave evidence that the school also achieved success through their quality of learning. He gave evidence that pupils from SCHOOL B had played in front of an audience of 3000 in area recently and regularly played at a church in area. They sent groups of musicians to the Edinburgh Jazz Festival and in terms of the HMIE report of March 2011 (R28-38 in the bundle) SCHOOL B was specifically highlighted for its very high standard of music provision. There was a high quality of teaching at SCHOOL B. Witness A indicated that there were two teachers at SCHOOL B who were violin instructors. In relation to what SCHOOL B did to prepare its students for a career in music, Witness A indicated that graduates of SCHOOL B have gone on to find and develop careers in music. There are nine children about to leave the school and seven of those have already secured places at conservatoire level. The other two were going on to study music at University level. Witness A pointed to the praise that HMIE had given the school about their preparation of children for a career in music. He said the Director had told him that meeting the needs of a child was paramount. Witness A gave evidence of master classes and said that these were arranged by SCHOOL B.
In relation to why The authority had offered a place at SCHOOL B, Witness A said that the authority had looked at the various specialist music provisions in Scotland. The cost of accommodation, the cost of transport and the adequacy to meet THE CHILD’s needs were researched in relation to each. In relation to A the cost of tuition and accommodation was nil, but transport would cost an estimated £2,400. At B they did not have a hostel for THE CHILD to stay in and it was ruled out for that reason as she would need to stay with a local family. C was ruled out as it had a great emphasis on traditional music, which was not THE CHILD’s field of interest. SCHOOL B had a nil tuition cost, accommodation of about £2,400 per annum and travel of £1,280 per annum. Therefore, based on the raw figures and the idea of time involved in travel, the Authority felt that SCHOOL B was best suited; the placement in A would involve travel time each way and having considered all factors the offer was made for SCHOOL B.
Witness A confirmed that Colleague A had exclusively researched the provision available at School A. He considered that School A was good in a whole range of things and the most recent inspector’s report had rated it as outstanding in several areas. Witness A’s view was that the teaching and learning was of a very high quality. He had no information about the result of Colleague A’s research as Colleague A had not kept any notes of it that could be found.
Witness A was asked about costs and gave his evidence that the difference in costs for The authority, over The Child’s school life, was likely to be in the region of £50,000. He could not see that as reasonable. He advised that The authority has considerable budgetary pressures. They have the ultimate goal of meeting and addressing a child’s needs but bearing in mind the high quality that SCHOOL B could provide and the fact they felt that school could meet THE CHILD’s needs and that SCHOOL B would be an adequate and efficient provision for THE CHILD he considered that the decision to refuse the placing request was a reasoned and correct one.
Witness A gave evidence that The authority had a budget of approximately £12,000,000 per annum to deal with children with additional support needs, however there was a trend of that budget decreasing. He mentioned a cut of 2.35% over the past year. He was unable to give a figure as to how much of that budget related to the costs for placing children outwith area.
In cross examination Witness A confirmed that neither he nor SCHOOL B had any personal experience of THE CHILD. They had not heard her play. He confirmed that there was no note of any research by Colleague A into the provision available at School A school. Witness A was unable to assist us with what steps, if any, were taken by Colleague A to research School A. Witness A confirmed that the SCHOOL B had not seen any of the recent information from School A about THE CHILD. Asked whether SCHOOL B could help THE CHILD develop to her fullest potential Witness A answered that one met full potential by making reasonable and appropriate provision. He felt SCHOOL B could develop THE CHILD’s potential talent but he found it difficult to confirm that this would be to its “fullest”.
EVIDENCE FOR THE APPELLANT
Witness B
Witness B taught THE CHILD violin for six and a half years and was her only violin teacher in the authority. Witness B has a diploma from the Royal College of Music, is a graduate of the Royal College of Music and studied there for four years. She has been a teacher in music for The authority since April 1996 and is currently peripatetic teacher of violin. Witness B had previously provided a reference for THE CHILD in relation to her application to School A and this appears at page A16 of the papers. She also prepared a statement which appears at pages A17 and A18 of the papers. She confirmed in evidence that that statement remains accurate.
Witness B’s oral evidence covered information about THE CHILD’s talent on the violin. Witness B considered that THE CHILD was an obvious talent. She pointed out that grade 5 on violin, which THE CHILD had passed in primary seven, had theory within it which was equivalent to completing an Advanced Higher which a child would normally be expected to do at six years older, within S6. Witness B gave evidence about the very competitive world of music. She explained that entry to the five main conservatoires is by audition, that places are fought for and that therefore one requires a competitive environment when learning music, to train one for that. She considered that THE CHILD has something within her that equates to drive and that THE CHILD recognises the importance of competition. Experience of performing and access to a high quality peer group of performers assists one in aspiring to the correct levels to proceed with a music career. In terms of orchestral experience, Witness B considered that this was important. Witness B did not consider that THE CHILD’s experience of orchestras within Scotland was suitable. The school orchestra at School C had to pick a level of music that the whole orchestra could cope with and that was generally far lower than THE CHILD’s standard. The area school orchestra was of a better standard but still not as high as that of THE CHILD and all of the children there were much older. The National Children’s Orchestra for Scotland only offered a one week summer course and one week Easter course. They would play more challenging music but Witness B considered that weekly exposure to same was necessary for THE CHILD to progress. Witness B last saw THE CHILD play when she returned to area for a Diamond Jubilee Concert at the beginning of June 2012. On that occasion THE CHILD played a very challenging piece of music very well. It was a well known showy, flashy piece which required lots of different bowing techniques. It was a piece previously on the Grade 8 syllabus. Witness B noticed significant improvement in THE CHILD’s technique since she had last heard her play.
Witness B gave some personal information about her own experience of having studied at St Mary’s in Edinburgh, a specialist music school. She considered that the expert tuition, lessons and emphasis on music was what was required to prepare her for her own further career in music. In relation to SCHOOL B she gave evidence that she would not class that as a specialist music school. She referred to it as “School C with an extended music department”. She pointed out that it was relying heavily on local provision for orchestral practice and so on. Witness B gave evidence that School A has a long established reputation for musical excellence. SCHOOL B does not have that same reputation.
In cross examination, when the various aspects of enhanced provision at SCHOOL B were put to her, Witness B indicated that these would be all be of benefit to THE CHILD butnot sufficient to meet her goals and aspirations. She considered that what School A offered, through class work and group work, and through the range of orchestral experience was all of a much higher quality. It offered total immersion in music.
The Appellant
The Appellant, gave evidence that she studied general sciences and piano performance. She holds a Bachelors Degree in Fine Arts and a Masters. She is the mother of four children. THE CHILD’s two older sisters also have an interest and involvement in music. Despite THE CHILD’s sister having grade 8 in cello and grade 8 in piano and her other sister having reached grade 8 in the violin and grade 5 in piano she considered that THE CHILD has something extra. She felt that THE CHILD had a drive for performance that set her apart from her sisters. She wanted to win any competition and is driven on by peer pressure. She worked towards a competitive event and tried to be as good as she could be for it. In terms of reaching her full potential, The Appellant considered that THE CHILD required people around her, challenging her.
She gave evidence that,since commencing at School A, THE CHILD has realised that she is at the bottom in comparison to some of the children there and she would do as much as she could to move herself up. THE CHILD is a very determined person and sets herself goals and then proceeds to achieve them. The Appellant gave evidence about the regime at School A and the level of playing there. She gave evidence about why the decision to apply to School A was made. In particular she gave evidence that there was discussion amongst the family of the things that THE CHILD would require to give up if she wanted to attend a specialist music school. Her parents explained to her that she would be narrowing her life down considerably and reducing her options. The Appellant gave evidence about the audition process and the application for a placing request. The Appellant indicated that she had no experience of SCHOOL B and it had not been considered by her or the family as an option for THE CHILD. She has now considered it (since the offer to place THE CHILD there was made by the Education Authority). She does not think that it would meet THE CHILD’s needs. She said that whilst it would give THE CHILD violin and piano instruction the fact that there are only 37 other pupils in the school meant that an orchestra could not be formed. School A could not only form an orchestra but also an age related orchestra, as well as ensembles. She considered that SCHOOL B was not a whole lot different to a normal school and did not represent an “immersion in music”.
The Appellant’s evidence about the regime at School A included a rundown of the typical day and of the school week. She explained how THE CHILD had been matched up to her violin teacher both by personality, ability and what she needed to work on. She explained how THE CHILD was exposed to three different string players at School A being her violin teacher, the teacher who took her quartet and the teacher who took the orchestra. She explained how THE CHILD was assigned an accompanist at School A to help her with practice and also discussed the academic arrangements at School A.
In answering questions from the Tribunal, The Appellant indicated that she did not have a very positive view of SCHOOL B and that she obtained this view from researching the school’s website and from looking at ranking tables in connection with the low attainment there and from speaking to other people in The authority with a background in music. Those persons were saying that SCHOOL B did not have a good reputation (see for example A20). The Appellant felt that SCHOOL B offered an enhanced provision and that THE CHILD required a specialist provision. She drew an analogy between a child with a learning difficulty who was not having their additional support needs met within mainstream school or a specialist unit but required separate specialist provision.
In cross examination it was suggested to The Appellant that the main difference between School A and SCHOOL B was the number of students and the ability to provide an orchestra and ensemble in house. The Appellant replied that the main difference in fact was that the whole school at School A was turned on its head to provide musical education.
In cross examination The Appellant indicated that irrespective of the decision made by the Tribunal she would hope that THE CHILD would continue at School A. However, financially the family would have to decide how and if that could be done.
Witness C
Witness C is Head of Strings at School A School of Music. He has held that position for fifteen years. Before that he was a cellist in a prominent string quartet and the principal cellist in the National Orchestra. He holds a qualification from the Royal College of Music showing that he has a specialiases in cello teaching. He has been working with musically gifted young people internationally for fifteen years. Witness C auditions every string student who applies to School A both at their first and second audition. He first met THE CHILD in Autumn 2011 at her first round edition. Witness C explained the audition process at School A. He explained that the school was looking for students with potential and ability. They were looking for students with musical awareness and with the “X Factor” or musical spark or something which lifted a performance out of the ordinary. In relation to THE CHILD he considered that she was clearly very musical with a good ear. He considered that she had good aural perception which is very important for a string player. He felt that she had a nice performance energy. Having said that there were things that could be improved.
Witness C confirmed that his report at A55 remained his opinion. He spoke of the unique environment provided by School A. He gave evidence that it is the largest specialist music school in the UK. It has a very prominent place internationally. The school is able to field a full size symphony orchestra and have a second orchestra too. The school is able to attract acclaimed musicians to assist musically through master classes. There are ten lunch time concerts within the school every week. Every single child in the school is placed in a chamber ensemble which contains someone equipped to play chamber music at the highest level. Because of the full range of instruments played by children at the school, the school is able to perform a full range of music. The school runs performance classes where children can all play several times in front of their own peer group and the school has a very diverse mix of the backgrounds of the children who attend.
Witness C felt that School A allowed THE CHILD the chance of exposureto violin repertoire and all of the other instruments played by children within the school. She was able to take part in a string quartet, which she is currently leading, and to play in a The symphony orchestra. Witness C gave evidence about THE CHILD’s violin teacher who was trained at the Tohu Music School in Japan which is a world leading institution and who also teaches at the Royal School C of Music. There are ten to twelve violin teachers at School A. Academic music lessons are also an important part of School A and are taught by one teacher to a class of no more than twelve.
Witness C gave evidence that THE CHILD has settled well at School A and looks extremely happy. She is progressing very well in all areas. He advised that there are around 120 children in the string department at School A. THE CHILD’s peers are at an advanced level for their age and some are extremely advanced, that is to say performing at a level way beyond grade 8 music. Some of the children attending the school are already enjoying quite prominent international careers as soloists. Many who leave School A are in the very top level of entry to conservatoires. A pupil from School A recently took second prize in the top violin competition in the world. There is a level of creativity, spark and impetus at School A. Witness C considered that School A allowed THE CHILD to watch her peers and be motivated and inspired by them and by those older than her in the school. He considered THE CHILD to be a very motivated student.
Witness C had had an opportunity to read the prospectus for SCHOOL B. He was of the opinion that it was a very different thing from School A.. The number of children was dramatically different as well as the environment. He explained that School A has every kind of musical facility that one could imagine. He considered that THE CHILD needs a full immersion in music and that was provided to her at School A. He considered that the level of facilities, its size and the international dimension of School A made it a very different kind of facility to SCHOOL B.
When asked to rank School A in the musical world Witness C, quite properly, said that as a teacher there it was not for him to comment. All he was prepared to say was that School A has an international reputation. He said that there are School A students everywhere in the musical world, in major orchestras and performing as major soloists. The principal string for the London Symphony Orchestra is a School A pupil. When he recently attended a concert abroad the lead performer was a School A former pupil.
In cross-examination Witness C was asked about the fact that THE CHILD is only at grade 6 violin. Witness C gave evidence that School A did not view musical grades to be particularly important as they have their own sophisticated system of evaluation and assessment internally. His view was that THE CHILD could easily pass grade 7 violin now and was developing at a rate that he would be hoping for. He considered that she was in the middle of the group of her violin peers but that many had been there for a lot longer than her. He considered that THE CHILD would have the ability to go to a leading conservatoire in the future. It was put to him that from the nine leavers this year at SCHOOL B seven had gone to conservatoires and two to study music at university and that that was not dissimilar to the post-school destinationsof those leavingSchool A. Witness C indicated that that was correct and that he could not comment on how many were in the top bracket of entry to conservatoires butwhen one talked to colleagues at conservatoires they considered School A students to be at the absolute top of the tree and that became relevant later in a highly competitive musical career.
THE CHILD
THE CHILD gave evidence to the Tribunal by reading a pre-prepared statement,which was subsequently provided to the Tribunal. THE CHILD was asked several questions by the Tribunal itself. Then she was asked if she had ever considered SCHOOL B. She said that she had not. She said that she knew it was not as good as School A and that it was not famous. She said that when she was preparing her statement she had looked at SCHOOL B’s website and she could tell it was not as good as School A. She said it was not such a good school for studying music and it was based in a comprehensive school too, so music specialist pupils were often in a mainstream learning environment with pupils who were not specialising in music. She spoke about the very positive and musical atmosphere at School A.
SUBMISSIONS FOR THE RESPONDENT
The Respondent’s Representative indicated that his principal submission was that all four of the conditions set out in paragraph 3(1)(f) of Schedule 2 to the Act apply, so there is therefore no duty on the education authority to comply with the placing request.
In dealing with the sub-paragraphs in turn he submitted that (i) was agreed in that the specified school (School A) is not a public school. In relation to (ii) his submission was that the authority are able to make provision for the additional support needs of THE CHILD in a school other than School A and in particular that SCHOOL B is adequate for that purpose. He said that to accept that submission the Tribunal would need to accept that Witness A was a reliable and credible witness. He had spoken to the Director at SCHOOL B and gave clear evidence about the level of tuition and music available there. In dealing with matters he said that one had to consider Section 4 of the 2009 Act which provided for the duties of the education authority. He indicated that there was apparent imbalance between Section 4 and Section 1(2) of the Act which was the Section which defined “school education” as being “such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential”. He asked the question as to whether that meant the fullest potential possible or the fullest potential that was reasonable.
He conceded that the education on offer at School A was better or would be better for THE CHILD and that that was accepted by the Respondent here, however he asked the questions as to whether the Council was obliged to fund that provision given the cost of it. He submitted that Section 1(2) should be read through the priThe Child of Section 4 and therefore the definition of fullest potential should be balanced by what was reasonable and adequate.
In relation to (iii) he submitted that in reaching their decision to offer SCHOOL B to THE CHILD what Colleague A and The authority did was to take into account what School A had to offer and the respective cost of it and form the view that the expense of School A would not be reasonable. He said that the Tribunal had evidence about the cost and indicated that if THE CHILD were to continue to attend at School A the cost to the education authority would be just over £45,000 in total over the time that THE CHILD was likely to attend there. He submitted that the education budget was under pressure and that with all those factors in mind the decision made having regard to the respective suitability and respective cost was a reasonable one.
In relation to (iv) he said that he understood that the Appellant would argue that no offer of an alterative place had been made as is required by this sub paragraph because the offer was conditional on the outcome of an audition. His submission was that the sentence of the relevant section did not require an unconditional offer to be made and that offers are regularly made subject to conditions and when they are so made it cannot be said that there is no offer. He indicated that it was difficult to see how an unconditional offer could be made within the time frame.
Against all of this background The Respondent’s Representative submitted that the placing request should not be granted. When asked again by the Tribunal about the question of respective suitability his submission was that SCHOOL B was adequate and efficient. He conceded that he could not contest the fact that School A was the more suitable school for THE CHILD but that it was not a contest between the schools but a balancing exercise that the Tribunal required to carry out. If it was a contest School A would win but costs have to be taken into account.
SUBMISSIONS FOR THE APPELLANT
The Appellant’s submissions were split into the following areas:-
Ability as an additional support need
It was accepted by the Authority in this case that THE CHILD has additional support needs arising from hermusical ability. The Appellant submitted that that was an appropriate concession.
Duty incumbent upon the Education Authority
The Appellant submitted that making the most of school education was the important thing for the Tribunal to bear in mind. It was conceded that the duty was to make adequate and efficient provision in terms of Section 4(1)(a) of the Act. However it was submitted that Section (1)(1) and Section (1)(2) of the Act made it clear that it is not simply a case of developing talents to a reasonable level but to the fullest potential. It was submitted that there is a balance to be struck there. Adequate and efficient provision has to be directed towards the additional support of the child required to benefit from school education to his or her fullest potential.
Approach for the Tribunal to adopt
The Appellant submitted that the approach was set out in Section 19(4)(A) of the Act. Firstly the Tribunal required to consider whether grounds for refusal exist and secondly whether, in all the circumstances it is appropriate to confirm the decision of the Education Authority. The submission was that only where a ground of refusal is established does the Tribunal then have to go on to consider whether in the circumstances it is appropriate to confirm the decision of the Authority.
Reference was made to the case of M –v- Aberdeenshire Council 2008 SLT (Sh Ct) 126 and the approach adopted by the Sheriff there was discussed. That case made clear at paragraph 11 that the onus of proof is on the Education Authority to show that the placing request should not be made. At paragraph 47 the Sheriff agreed with that. At paragraph 14 of the Judgement the Sheriff states that the issue is one with four conditions and it is necessary to show that all four conditions apply. With reference to paragraph 17 of the Judgement the Appellant submitted that we had to look at 3(f)(ii) first and only if we can be satisfied that that applies should we go on to look at 3(f)(iii).
In relation to 3(f)(iv) and the offer made by the Education Authority it was submitted that an offer of an audition is not an offer to place. It was submitted that sub paragraph 2 of paragraph 2, schedule 2 of the Act requires an offer of a place to have been made. It was submitted that THE CHILD would be at a level suitable for entry to SCHOOL B so this may seem academic, but SCHOOL B did not have sufficient information to decide whether THE CHILD was a suitable pupil there in all ways. We were asked to consider matters with reference to paragraph 2(2) which requires the parent to have confirmation that managers of a school are willing to admit a child before they can apply for a child to be placed there. It was submitted that a conditional offer was not sufficient to meet the test set out in this sub paragraph.
With reference to 3(f)(ii), the Sheriff’s Judgement at paragraph 32 was referred to. It was submitted for the Appellant that it is very difficult to say how a child’s needs will be met if their needs have not been assessed. It was submitted that the Authority had not undertaken any appropriate assessment of THE CHILD’s needs in this case. Whilst there had been discussions with SCHOOL B these were discussions only and SCHOOL B had never met THE CHILD or heard her play and there had been no formal assessment of THE CHILD’s talents or abilities. In paragraph 46 of the Judgement the Sheriff held that one should look at the position at the time the decision is made but also at the time of the Hearing. The Sheriff in that case found that without a formal assessment it was difficult for a decision to be made under this sub paragraph. It was submitted by the Appellant in this case that without a formal assessment by SCHOOL B the Tribunal cannot know that SCHOOL B would meet the needs of THE CHILD and so cannot be satisfied that sub paragraph ii/ is satisfied. The duty is on the Education Authority to provide the assessment and that is sensible. It was submitted that someone from the Education Authority could have gone to School A school and SCHOOL B and compared them in terms of what they had to offer. It could have been arranged for THE CHILD to attend at SCHOOL B for assessment but that was not done. As such the Authority have failed to carry out an assessment of THE CHILD’s needs.
It was further submitted that there is evidence from the Appellant regarding the child’s needs in this case from Witness B. It was submitted that she is well placed to make an assessment of THE CHILD’s needs. In addition the Tribunal had heard evidence from Witness C who said that School A would best suit THE CHILD’s needs. It was submitted that he is also well placed to make an assessment. It was pointed out that School A reports were never provided either to SCHOOL B nor to the music teacher at School C. Very little weight can therefore be given to the evidence about the suitability of SCHOOL B led by the education authority. The weight to be given to Witness A’s evidence was also questionable as his evidence was hearsay and followed his recollection of the position of the Director of SCHOOL B and was accordingly not the best evidence. It was submitted that the Tribunal also heard evidence from the Appellant. She was able to make a realistic assessment of THE CHILD in comparison to her two other daughters. In addition she is a person who herself has completed a Performing Arts Course and has some experience of a performance environment. An analogy could be drawn between THE CHILD’s case and the case of a child with other additional support needs and what the Tribunal was being asked to consider was the benefits of a specialised unit as against a special school. It was submitted that the ethos and environment of a special school, with its total immersion in music, offers more. It was submitted that School A was comparable to a specialist school and that the Appellant had shown it was a specialist school that was required to meet THE CHILD’s needs rather than an enhanced provision. The constant immersion and exposure to music and a school where music is the heart and soul is what was required.
In relation to paragraph 4(f)(iii) it was submitted that the onus is again on the Respondent. The Tribunal could not be satisfied from the papers or from evidence that there had been any analysis of the respective suitability of the schools here. The Appellant had raised the question of suitability with the Education Authority from the beginning. There was nothing to show that an assessment of School A was done. We could not be clear what Colleague A had found out about School A, if anything. There appeared to have been no real comparison of the respective suitability of the two schools. Cost was not the only consideration. The Education Authority here have looked primarily at costs and not at suitability. The code of practice page 50, paragraph 70 was highlighted.
Finally, the Appellant submitted that it was clear that School A was far more suitable than SCHOOL B in terms of the learning experiences that it can offer THE CHILD. The level of teaching, the international reputation, the ensemble work and many other attributes offered much more than SCHOOL B. SCHOOL B could offer extra tuition and that was it. School A attracted the “best of the best” and was able to offer more and the placing request in this case should be granted.
DECISION
Schedule 2 of the Act requires Education Authorities to comply with placing requests, unless they consider that one of the circumstances set out in paragraph 3 apply. In this case The authority state that the circumstances set out in paragraph 3(1)(f) mean that they do not require to comply with the placing request. Against that decision an Appeal has been taken to the Tribunal.
In approaching this task, therefore, the Tribunal requires to consider the terms of paragraph 3(1)(f). This requires the Authority (the onus being on them) to demonstrate that all of the conditions set out in sub paragraphs 3(1)(f) apply. In this case it is accepted that sub paragraph i/ applies in that School A School of Music is not a public school. The application of the remaining sub paragraphs is in dispute.
Dealing with sub paragraph iv/ first, the Tribunal was not attracted to the Appellant’s submission that the Authority have not made an offer to place THE CHILD at a SCHOOL B. It was submitted that there has only been an offer to audition. An offer to audition is quite distinct from an offer to place subject to an audition being passed and it is that latter offer which we consider has been made in this case. The Tribunal consider that the conditional offer (as we would characterise it), that has been made in this case is sufficient to fall within the terms of this sub paragraph.
In relation to sub paragraph ii/, namely that the Authority are able to make provision for the additional support needs of the child at SCHOOL B, the Tribunal does not agree that this has been proved. In this context “additional support” is defined in Section 1(3)(a) of the Act as: “in relation to a…… child of school age or a young person receiving school education, provision (whether or not educational provision) which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the same age in schools (other than special schools) under the management of the education authority responsible for the school education of the child or young person……” In relation to THE CHILD we take the view that this relates to the additional music provision.
The term “school education” is first mentioned in Section 1(1) of the Act where it is then detailed in Section 1(2) to include,“In particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential”.
Thus, in view of the Tribunal, the Authority would have to satisfy us that they are able to make provision for THE CHILD’s additional support needs in terms of musical provision, in SCHOOL B. “Additional support needs” is referred to in the interpretations section of the Act, being Section 29 and specifically in Section 29(1) where it is stated “additional support needs” is to be construed in accordance with Section 1(1). Section 1(1) of the Act creates a link to section 1(2) of the Act. It was the view of the Tribunal that these sections all require to be weighed.
It was difficult for the Tribunal to decide whether SCHOOL B could provide for THE CHILD’s additional support needs, particularly in the absence of any witness being called by the Authority from SCHOOL B. At a conference call prior to the Hearing in this matter the Convenor was led to understand that a witness would be available from SCHOOL B, but no such witness was led.
SCHOOL B does provide 2.5 hours of specialist tuition in THE CHILD’s two instruments per week. It does provide access to specialist music teachers and to a peer group engaged in specialist musical study. However no-one at SCHOOL B has met THE CHILD or heard her play. Whilst the evidence was that the director felt that THE CHILD would be placed within the ordinary category of pupils that she has within the school, from Witness C’s evidence it was apparent that he only gained a sense of THE CHILD’s abilities, her strengths and weaknesses from audition and from meeting her in person rather than from conducting any paper exercise. From the evidence there is a prospect at least of THE CHILD having sufficient musical ability and talent to gain entry to one of the top conservatoires, if she continues with her progress at School A and to go on to have a further career in music. The Sheriff’s comments at paragraph 47 of the case M –v- Aberdeenshire Council are relevant here and these appear at page A178 in our bundle. This point was mentioned in the Appellant’s submissions and with those submissions the Tribunal agree; we cannot determine that SCHOOL B would meet THE CHILD’s need for additional support without having the Education Authority’s assessmentof THE CHILD’s needs or an indication of what special measures they would take to meet those needs.
Having made that decision it is clear that we shall uphold the Appeal as paragraph 3(1)(f)(ii) is not made out. However, for the sake of completeness we should also deal with the test required in paragraph 3(1)(f)(iii) being the reasonableness, having regard both to the respective suitability and to the respective costof School A. Having carried out this exercise we observe that it is not, in our view, an academic exercise requiring us to assess whether School A is a better school than SCHOOL B. Instead what we require to do is look at its respective suitability for THE CHILD, as opposed to SCHOOL B. In addition we have to look at the respective costs of the two provisions. We have to consider both of these matters in the balance with neither taking precedence over the other.
In our view, having regard to THE CHILD’s needs, School A is the school best placed to meet those needs. In our view there was sufficient in the evidence before us to find that THE CHILD has high potential and musical talent and ability and that the expertise, peer group and musical opportunities offered at School A were more suitable for her. Having said that, the respective costs are greater. However, the figure involved being about £46,000 in total is a tiny fraction of the Education Authority’s budget. On the other hand it is a figure that could clearly fund one full time teaching post in one of the Authority’s schools or be meaningfully used by them elsewhere.
However, having weighed matters in the balance, the Tribunal is of the view that it cannot be said that it is not reasonable, having regard both to the respective suitability and cost, for the Local Authority to place THE CHILD at School A.
In all the circumstances therefore the Appeal succeeds.
Thus in terms of Section 19(4A)(b) of the Act the Tribunal has decided to overturn the decision of the education authority and requires The authority to place THE CHILD in School A school, or as is more appropriate in this case, to maintain her placement there.
