ASNTS_D_15_2011_12.05.11

 

 

DECISION OF THE TRIBUNAL

 

Reference:      D_15_2011                

 

Gender:           Female

                       

Aged:               12                   

 

Type of Reference:     Placing Request         

 

 

 

1. REFERENCE:

 

[‘the Appellant’] made a Reference,  received 15^th February 2011,  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 [‘the Authority’] dated 3^rd February 2011 to refuse a placing request made by the Appellant in respect of her daughter, [The Child], Born 1998.

 

 

 

2. DECISION OF THE TRIBUNAL:

 

 

The Tribunal confirm the decision of the Education Authority, first intimated in writing to the Appellant on 3^rd February 2011, to refuse the placing request in terms of Section 19(4A)(a) of the 2004 Act being  (i) satisfied that one or more grounds of refusal specified in paragraph 3(1) of Schedule 2 of the said 2004 Act exists and  (ii) in all the circumstances it is appropriate to do so.

The decision of the Tribunal is unanimous.

 

 

 

 

3. PRELIMINARY MATTERS:

 

 

Late evidence was received in this case. The tribunal sought the views of both parties who both confirmed that there was no objection to either party lodging late evidence.  In view of the nature of the late evidence, the representations made by both parties, their mutual consent and agreement 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 said late evidence pursuant to Rule 34 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’].  All additional late evidence was therefore allowed to be lodged and numbered accordingly.

The Tribunal noted the Authority intended to call three witnesses. The Respondent Representative confirmed that there had been no previous formal request to allow three witnesses to be called on behalf of the Authority, having regard to Rule 22 (7) of the 2006 Rules. The Tribunal noted there was no objection from the Appellant to the list of witnesses lodged by the Authority.

One written Convener Direction was issued on 18^th March 2011. 

[The Tribunal did not have a Case Management call due to the unfortunate late availability of both Representatives].

 

 

 

4. SUMMARY OF EVIDENCE:

 

 

 

The Tribunal considered a comprehensive bundle of evidence together with all the late evidence.  The Tribunal also had regard to the Appellant and Authority Case Statements.

We do not intend to list all the documentary evidence lodged by both parties.

 

In addition to the above we heard oral evidence from the Appellant and the aforementioned witnesses namely:

For the Appellant:   Witness A, The Child’s grandmother and the mother of the Appellant, and Witness B, Adviser from Tuberous Sclerosis Association;

For the Authority: Witness C, Head Teacher (School A), Witness D, Head Teacher (School B) and Witness E, Educational Psychologist.

 

The Tribunal further considered detailed oral submissions from both Parties. We observe that the Appellant provided a written ‘Presentation’ of her evidence to the tribunal.  The Authority provided their ‘Summing Up Statement’ in writing. The Tribunal wish to express their appreciation to The Appellant and The Respondent Representative for their written contributions. 

 

 

 

 

5. FINDINGS IN FACT:         

 

 

1. The Child is a twelve year old girl who resides with the Appellant, her mother, The Appellant is an Occupational Therapist.
2. The Child has Tuberous Sclerosis Complex (‘TSC’) which is ‘a multi-system genetic disorder characterised by benign tumours in a wide range of organs including the central nervous system’.
3. The Child currently attends School C. She will start secondary school in August 2011. This transitional stage is very important for The Child. She has an Individualised Educational Plan does not have a Co-ordinated Support Plan.
4. As part of the process of applying for a special school for The Child, the Appellant and her mother, Witness A,  visited School B and School A special schools to assist the Appellant to make an informed decision about the preferred school.
5. The Appellant accepts that both the aforementioned schools are designed to provide education to children with moderate learning difficulties. The Appellant prefers School A as the school best suited to support The Child in reaching her educational potential.
6. The Authority has two special schools for primary age children primarily providing for children with moderate learning difficulties. These are School D and School C. They also have two special schools for secondary age children providing primarily for children with moderate learning difficulties. These are the two aforementioned schools – School A and School B.
7. Most children in School D and School C require to continue their education in a special school for their secondary education. Children from School D are given priority for places at School A.
8. Said priority is based upon:

1. School D and School A are sited close together and
2. School C and School B were opened in 2008. Prior to that the school

            population served by these two schools was served by two schools that     each provided for primary and secondary age children so that the     great majority of children attending each school would remain at that    school for both their primary and secondary school education.

9. The capacity at School A has been set by the Authority at a maximum of 90 pupils. [School B has a capacity of 80 children]. School A is currently full to its capacity.  Fourteen pupils are leaving at the end of this school year and their places will be provided to new pupils entering the school at S1 at the beginning of the next school year. Thirteen of these places were allocated to children transferring from School D. The remaining one place was allocated to a child not attending School D who was prioritised by the Authority for that place over The Child because the other child was more suitable to the peer group in the particular class concerned and was assessed as having a greater need for the place. The other child also lives considerably closer to School A than to School B. The Authority demonstrated that they carefully considered the needs of The Child in the processes they adopted in determining the placing request of the Appellant, and in allocating the final place in School A.
10. The Authority have concluded, after very careful consideration, that if they  were to exceed the limit of 90 pupils at School A this would be seriously detrimental to the educational well- being of other pupils at School A.
11. To exceed the said limit would give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided at School A.
12. The Authority wrote to the Appellant on 3^rd February 2011 to advise of their decision to refuse the placing request.
13. School B is a state of the art purpose built special school. School A is an old building with many challenges with limited circulation space and limited opportunity to offer a quiet area.
14. School B and School A offer a wide range of facilities to their pupils. School B has a specialist drama teacher but School A does not.  School B has a room specifically for drama activities but School A does not.  School B provides portable staging and lighting equipment but School A does not.  The Appellant identified the opportunity to participate in drama/theatre activity as being important to The Child and one of the advantages offered by School A. 
15. School A does provide easier access to green spaces than School B. School B has a park located approximately five minutes walking distance. This is used regularly by the pupils.
16. Both said schools provide similar trips to places such as theatres, cinemas and museums.
17. Both said schools provide a similarly broad range of work experience activities.
18. The Appellant considers after school clubs important for The Child.  The Child is a sociable child who enjoys company. The Child is a competent cyclist, swims weekly and enjoys physical activity. The Child is a very sporty child. School B offers a greater opportunity to participate in sports.
19.  The ACERS Club is attended by pupils from several special schools. The Child currently attends ACERS Club by a bus provided by a voluntary organisation.  The Authority would have no difficulty in arranging for The Child to finish her school day on a Monday a little earlier and to provide The Child transport to School C to catch the bus.  School B is a relatively short distance from School C.  The Authority has undertaken to provide transport to the ACERS Club direct from School B in the event that there was no space for The Child on the bus operated by.
20. The Child is one of nine pupils who are due to transfer from School C to S1 at School B next school year.
21. The Child has participated in three transition visits to School B.
22. The state of accommodation at School A is poor.  School B is a very recent new build and therefore provides highly modern facilities.
23. Neither School A nor School B expect or indeed require input from family members during any activities of the school day including activities which comprise going out into the local community during the school day.
24. The Child will be provided with transport to and from school by the Authority. If she were to ‘self-travel’ it will take two buses to travel from The Child’s home to School B.  School A, being near Leith Walk, is well served by public transport. Only one bus would be required to travel to School A from The Child’s home. 
25. Both said schools offer excellent links with the community and both offer summer camps.
26. An Autism Diagnostic Observation Schedule Assessment took place on 3^rd May 2011.  In summary, on this assessment, The Child scored below the threshold for an autism spectrum disorder.  She does however have some difficulties with repetitive behaviours and some areas of communication.
27. It is of importance for The Child that there is ongoing monitoring by health and appropriate assessment of her needs and the impact of these needs on her learning. Her condition is one that is subject to change and early detection is essential so that appropriate intervention may be put in place.  The Child is reviewed annually in the Neurology Department by Dr E.  She is not on regular medication and is fully mobile.  She is relatively vulnerable socially.
28. The Child and her family should be supported by the Authority to receive any outstanding assessments, and that they be collated through a multi-agency meeting to inform The Child’s educational needs.
29. Dr P, Consultant in Neuropsychiatry, stated in his letter to The Respondent Representative dated 4^th May 2011 that he agreed with the recommendation by the Education Psychologist regarding an educational placement for The Child.
30. The Appellant and her mother visited School A on one occasion. This visit was relatively brief.
31. The Authority does not dispute that The Child has difficulties with social functioning and that she benefits from such opportunities.
32. The Authority has a duty to make adequate and efficient provision for additional support needs. They must ensure that a child with additional support needs is able to benefit from education which is directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential. In so doing these things, the Authority is not required to do anything which would incur unreasonable public expenditure.
33. The significant expenditure calculated by the Authority for School A to alter the accommodation would be not less than £100,000. The least expensive means of extending or altering the accommodation would be to install a temporary unit, known as a sectional building. This evidence was not challenged by the Appellant.
34. The size of the general classrooms at School B (which are all 45 square metres)  are considerably larger than two of the general classrooms at School A, namely rooms 010 ( RME) and 043 (French). 
35. If The Child were to join as the 10^th pupil in School A S1 class, this would be seriously detrimental to the delicate peer group in that class having particular regard to the fact that the school staff have carefully prepared over the past year for integrating two children from the Autism Specific Class into this class.
36. Provision of an additional room to accommodate The Child would necessitate the re-organisation of class groups to the detriment of other children.
37. To increase the number of pupil in School A to create a place for The Child would have a significant negative impact on other children.
38. The Appellant in her final Presentation accepted that School A and School B offer an impressive curriculum. The Tribunal is satisfied that The Child’s needs would be well met in School B.
39. Independent travel for The Child is important. She currently is not an independent traveller in respect of her school education.
40. It is not appropriate to grant the appeal and grant the placing request for School A.

 

 

 

 

 

 

6. REASONS FOR DECISION:

 

The Tribunal considered all the evidence within the productions initially lodged, together with all the late productions, and the oral evidence of all the witnesses including the Appellant and The Respondent Representative. Finally we considered the submissions made on behalf of both parties.

It is not appropriate or necessary to narrate every aspect of the evidence within this written decision.

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 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.

 

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 First Stage

 

In appealing against the decision of the Authority to refuse a placement at School A, the Appellant stated that The Child’s needs could be best met in that school. In forming her opinion The Appellant took account of a range of factors which she, her witnesses and her representative addressed in evidence.

 

The Appellant placed considerable value upon the location of School A explaining that it would afford easy access to a lively community which would in turn allow The Child to have good learning experiences using local facilities, eg shopping.  In the longer term, The Child could perhaps enjoy work experience in local charity shops and learning to travel independently which would be easier and safer in that she could travel using one bus instead of two as would be the case at the alternative school, School B.

 

Witness D, Acting Head Teacher from School B outlined a range of shopping opportunities available to children attending School B and clarified that as in School A, those children who are able to do so, access College placements and work experiences. The school ensure that those young people who have the capacity to travel independently receive all the training and support necessary for them to develop this important skill.  Witness B, TS adviser, highlighted in her evidence, that the pace of The Child’s development is now slower than was previously the case and that with her specific knowledge of TS this is likely to be ongoing. A key feature of The Child’s condition is that it is not possible to predict future changes or development.  Witness B did caution that The Child would be very vulnerable travelling alone. Any change such as a bus being late, a different colour than expected, or even other children pushing and shoving at a bus stop, could make it very difficult for The Child to cope and could increase her vulnerability. The Appellant told us in her evidence that she did not envisage independent travel happening in the short term. She also explained that to date The Child has successfully managed to travel to her grandmother’s home on one occasion having being escorted to and from bus stops by adults.

 

The Appellant additionally indicated that her sister plans to move to the area where School A is  located. It is planned that The Child’s aunt will look after her one evening a week after school and that this, together with the child-care provided by her grandmother together with The Child’s attendance at an after school club, will be valuable to the family as a whole, when The Appellant returns to work after her current maternity leave.  If The Child begins to travel independently, The Appellant believes that it will be easier and safer for The Child to travel to her aunt’s intended place of residence from School A.

 

The Child currently attends an after school club which is a valuable social outlet for a child who seems to be otherwise isolated in the community.  The Appellant demonstrated a great understanding of her daughter’s social needs in terms of  the opportunity to have appropriate childhood experiences and friendships but also to develop her social skills.

 

The Authority has offered to put transport plans in place to ensure that The Child will be able to continue her attendance at her after school club from School B.  The Appellant appreciated the flexibility demonstrated by the Authority in this regard but had concerns that it would mean that The Child would have to leave school earlier and thus miss some curriculum time. This was put to the Head Teacher who considered that  it would be an acceptable use of time in relation to the development of  social skills.

 

The Tribunal formed the view that the longer term advantages identified by The Appellant in relation to independent travel are very uncertain, at this time,  given The Child’s current abilities/ vulnerabilities and the evidence that her rate of development has slowed down. There are advantages to be gained by the family in relation to child-care.  The arrangements proposed by the Authority to ensure attendance at the after school club seemed a reasonable solution. This will enable The Child to continue to benefit from something she clearly enjoys.

 

 

The Appellant and Witness A each formed a very positive impression of School A.   A number of factors were cited including the high level of stimulation The Child would gain from the atmosphere within the building. In particular, one advantage for The Child would be the high level of traffic through the centre of the school as children move from one class to another. The Appellant stated that this could be very stimulating for The Child as children, staff and visitors move about. This was described in less positive terms by the Head Teacher who outlined the very tight management undertaken by staff to ensure the safety and wellbeing of the whole school population.   By comparison, The Appellant felt School B seemed “sterile”.  The calmer, lower stimulus environment of the latter however is in line with national guidelines for the planning of Special Educational Needs schools.

 

On the day of the visit to School A, the children were selling home baking as part of the Enterprise programme within the school. This activity, together with access to the Duke of Edinburgh Award Scheme and drama, made a very positive impression on the Appellant and her mother.

 

The Tribunal noted that School B has introduced the JAS programme in which The Child could participate which leads onto the Duke of Edinburgh Scheme. School B offer a variety of activities which develop the self-esteem of participants.  These include outdoor education and sporting activities including the opportunity to enter competitions and to attend sessions at the Scottish Institute of Sport.  The Authority stated that if there was a demand for access to the Duke of Edinburgh Awards Scheme this would be met. School B also run a café to provide very similar opportunities to School A for children to learn to handle money and interact with others. School B have a dedicated drama teacher which School A does not have and they also have a continuing programme of drama and performance opportunities.

 

The Child is described as a sporty child, enjoying a range of activity.  The Appellant spoke of her joy on hearing that The Child had been horse riding at her current school. School B have, what the Head Teacher of School A described as, the facilities to allow a child to “excel at sports”.  The Tribunal further observe that horse riding is one activity available to children at School B.

The Appellant spoke very positively of the head Teacher of School A, Witness C. The Tribunal observe that Witness C stated that notwithstanding any recent reports and assessments, and the Appellant’s position that her daughter has not been properly assessed, she would not alter her decision in respect of the placement decision. She described senior management team, comprising of Witness C, the deputy Head teacher and two principal teachers, and their careful deliberation of 5 sets of papers, assessing the needs of each child and the place available. They looked at educational, social and health needs of each child.  She reiterated that the child with the most needs was, in her team’s opinion, allocated the final place.

Both The Appellant and Witness A also highlighted the importance of The Child being able to participate in school camping trips. It emerged, after enquiry, that this opportunity is also available at both schools.

 

Both of the Head Teachers and the Educational Psychologist stated that the two schools are each designated and staffed to meet the needs of children with moderate learning disabilities and additional needs such as ASD. They all agreed that The Child’s learning needs could be well met in either school.

 

The Child’s mother and grandmother both attached importance to the fact that School B is a fairly new school. It was argued that School A was well established and therefore able to offer The Child valuable experience and expertise. School B at the time of the visit had been open for less than two years.  It is understandable that the family might have greater confidence in a school which has developed its reputation over many years.  The Appellant also expressed concern that the Head Teacher’s post in School B has not yet been filled on a permanent basis.  Whilst School B is a relatively new school, the Tribunal formed the view that it is also well placed to provide The Child with valuable experience through the expertise of the staff at School B.

 

The Tribunal unanimously formed the view that both schools are well equipped to meet the needs of The Child.  School A and School B schools clearly offer learning options which are comparable in many ways. However in some specialist areas, such as drama and sport, both of which were of particular interest to The Child, School B appears to have potentially more to offer The Child.

 

The Appellant expressed concern that The Child’s needs had not been fully assessed and that the allocation of places at School A could not therefore have been based on adequate assessment.  Witness E gave a compelling argument that it was The Child’s functional needs which must be taken into account in determining how best to meet her education needs and not her underlying condition - that it is the effect of the disability on the child which needs to be considered rather than the cause. Witness E, who has twenty years’ experience, also gave a full account of her assessment process and her professional experience.  Having knowledge of The Child since four years old added significant weight to her argument in the opinion of the Tribunal.

 

It was suggested that The Child’s social development needs are likely to be greater than those of a child with Autism and that this had not been taken into consideration when allocating places. The Educational Psychologist completely rejected this argument. Although Witness B the TS adviser took a different view on this point she acknowledged that her training and experience of ASD related only to children with ASD and TS.  What was evident from the account given of the process by which allocation decisions were made was that the needs of individual children were examined in detail and that it was individual need which was the determining factor and not a diagnostic label. As previously stated the Tribunal offers no criticism of the Authority’s selection process. Indeed the Tribunal formed the view that, from the evidence presented to us, the basis on which assessment/prioritisation of need for places was made was entirely appropriate.

 

The evidence provided by the TS Adviser and by Dr P, a Consultant with specialist knowledge and expertise in this condition, emphasised the need for children with this condition to be the subject of regular assessments, not just in relation to medical needs but to identify psycho-social needs and changing learning support needs.  It was noted that there is no Co-ordinated Support Plan in place for The Child.

 

The case has been well made for the need to ensure regular review of The Child’s needs.  Given the complexity of need, we formed the view that it is important to monitor The Child’s health in order to identify changes which may require medical intervention and the need to consider the impact of any change on her development, support needs, and her educational  needs.

 

The Tribunal consider it is important for reviews to be multi-disciplinary/multi-agency to facilitate appropriate sharing of information between health and education.  The Child is described by her mother as being isolated in the community. She told us that The Child is sometimes lonely at home.   Like any twelve year old girl The Child has a need for social experiences out with her family. There is a risk that children with TSC may experience anxiety/depression. We consider that a comprehensive integrated assessment of need should involve social work services.  This would create an opportunity to explore additional ways of supporting The Child to develop her social skills and independence.

 

 

The Tribunal is satisfied that the Education department has demonstrated that to increase the number of pupils in School A to create a place for The Child would have a significant negative impact on other children, having regard to all the circumstances presented to us.

The Tribunal is satisfied that the provision of an additional room to accommodate The Child would necessitate the re-organisation of class groups to the detriment of other children. 

The Tribunal is satisfied that the financial cost of creating a place for The Child in School A and the impact on other children therein are both significant.

It has been clearly evidenced that The Child’s needs would be well met in School B.

 

The Tribunal observe that the evidence from the Authority, including the significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with School A was not formally challenged by the Appellant.

The Appellant seemed to focus primarily upon the appropriateness of the Authority’s decision.  This takes us to the second stage of the test.

 

 

 

 

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.

 

In this appeal 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.

 

The Tribunal is satisfied that the decision to refuse the placing request is appropriate in all the circumstances as noted above.

 

The Tribunal noted the detailed information within the Suitability Assessment at R15-24 as at 22/03/2010. Several areas were assessed at rating D defined as:

‘Does not support the delivery of services to children and communities (the school buildings and grounds seriously impede the delivery of activities that are needed for children and communities in the school).’

Many comments were made including classes being too small, rooms with no natural light or ventilation (library and art room for example), the Home Economics base is located upstairs and only accessible by stairs, the Computing Room doubles as a Music Room, with insufficient space and electrical points to make the space adequately flexible for the dual purpose, the PE hall has to be used as the lunch hall and Assembly which curtails PE activities around lunch breaks, the science room is too small and is not properly fitted out for this specialist subject, every available space must be used for multiple purposes, there is no meeting  room/space apart from the staff room, there is no office for the deputy Head Teacher and Business Manager, and General Administration space is cramped with two members of staff working again with no natural light or ventilation. There is only one external social space - a large grassed area- which has to be used by all age groups of pupils.  It is further noted that this area is bordered by a public park and the perimeter fencing is inadequate to prevent unwanted access leading to vandalism.

 

The Tribunal in their deliberations preferred the final submissions of the Authority having regard to all the evidence presented to us. The Tribunal did hear some evidence (under reservation) about the selection process of the final placement. In the Tribunal’s opinion, the evidence demonstrated a fair and considered process. The matter was given careful consideration over a period of time by the Authority.  In fairness to the Appellant, and in the interest of justice, the Tribunal allowed the evidence surrounding the selection process in this particular Appeal and the Tribunal offers no criticism of the Authority in respect of  how they went about this critically important and sensitive task.  The Tribunal is satisfied that the Authority’s decision was made on the basis of extensive mutli-disciplinary discussions and consideration of the preferences of the Appellant.

 

Although the Tribunal upholds the Authority’s decision, thus refusing the placing request by The Appellant for School A, we consider it is indeed of great importance for The Child that the Authority ensures they work very closely with the Appellant.

The Respondent Representative will have noted the concerns of the Appellant for her daughter. He will also have noted the Appellant’s request for appropriate assessments of her daughter. We note that Witness B confirmed that she would be happy to work with the Authority in the future, to assist them wherever possible and thus provide additional advice on behalf of the Tuberous Sclerosis Association. 

At the core of everything must be The Child, her education, her critical needs - both now and in the future.

 

The Tribunal wish to record their appreciation to The Appellant for her assistance and courtesy throughout this important hearing.  We also are grateful to both Representatives’ for presenting the arguments of both sides to the Tribunal in a clear and concise manner.