ASNTS_D_13_2012_23.05.12

 

 

DECISION OF THE TRIBUNAL

 

Reference:      D_13_2012                

 

Gender: Female         

                       

Aged:   9                                 

 

Type of Reference:     Placing Request         

 

 

 

1. Reference

The appellant, (“the appellant”), lodged a reference 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 Council (“the authority”) confirmed in writing on 6 January 2012 to refuse a placing request made by the appellant in respect of her daughter, “The Child”, born 2003.

 

2. Decision of the Tribunal

The Tribunal confirms the decision of the authority and refuses the request to place The Child at School A

The Tribunal confirms the decision of the authority in exercise of its powers under section 19(4A)(a) of the 2004 Act being satisfied––

(i) that one or more of the grounds specified in paragraph 3(1) of Schedule 2 to the said 2004 Act exist or exists;

and

(ii) that in all the circumstances it is appropriate to do so.

The decision of the Tribunal is unanimous.

 

3. Preliminary Issues

A number of pre‑hearing case conference calls were conducted between the dates 12 March 2012 and 11 May 2012.  Convener directions were issues on 8 February, 12 March, 15 March and 23 April 2012.

The following matters were addressed during the case conference calls:

(i)     The authority were permitted to lead evidence from two additional witnesses, Principal Educational Psychologist and Social Work Team Manager.  The appellant was permitted to lead evidence from one additional witness from School A, although this was not required at the hearing.

(ii)    The convener extended the case statement period by a total of four weeks in terms of rule 8 of the Additional Tribunal Support Needs for Scotland (Practice and Procedure) Rules 2006 (“the Rules”).

(iii)    The hearing was postponed until 22 and 23 May 2012, in terms of rule 30 of the Rules.

(iv)   Both parties were permitted to lodge late a range of documents and reports before the hearing and at the hearing, in terms of rule 30(4) of the Rules.

(v)    The convener directed that a report be prepared setting out the child’s views in relation to the subject matter of this reference.

(vi)   The Tribunal directed at the hearing on 22 May 2012 that Witness A, Head of Schools, prepare a revised costing to be lodged the following day [R261], which was complied with.

(vii)   Finally, it was agreed that the authority would lead evidence first.

 

4. Summary of evidence

The Tribunal considered the lengthy bundles of evidence which are recorded at T1-46, A1-67, and R1-261.  These included those documents lodged late,  the case statement for the authority and the appellant and written submissions.

The Tribunal heard oral evidence over two days from the following:

(i)     The appellant;

(ii)    Head of Schools, Council; Witness A

(iii)    Head Teacher, School B

(iv)   Principal Educational Psychologist, Council; Witness C

(v)    Social Work Team Manager, Council; Witness D

(vi)   Social Worker, Council; Witness E

 

Child’s views

An  independent children’s advocate with xx, prepared a report on the child’s views following the direction of the convener to this effect [T45-46].  She concluded that The Child is not able to express a view about a possible placement at School A at this time.  The advocate notes that this situation may change in the future if The Child continues to progress with language development and other forms of non‑verbal communication.

 

5.       Findings in Fact

 

1. The Child was born in 2003.  She resides with her mother, the appellant, and her Sibling, who is aged 9 years.
2. The Child’s maternal grandmother,  provides considerable support to the appellant in her care of The Child.
3. The Child was diagnosed with moderately severe autistic spectrum disorder by consultant paediatrician, in 2006.  At that time, The Child demonstrated a significant delay in social and communication skills, with language comprehension more delayed than expression.  The view at that time was that The Child had progressed and will continue to progress, but it was not possible to say how far and how fast this progression would be. 
4. The Child was diagnosed with coexisting attention deficit and hyper activity disorder (ADHD), by consultant in neuro-disability, Dr xx, in 2011.  The Child demonstrated symptoms of a very severe sleep disorder as well as severe deficits in attention, listening and impulsivity.
5. The Child has additional support needs arising from her autistic spectrum disorder, her coexisting diagnosis of ADHD and her sleep disorder.
6. The factors giving rise to The Child’s additional needs are difficulties with language and communication, inflexibility in thought and behaviour, issues with social awareness and interaction and sensory processing.
7. The factors giving rise to The Child’s additional support needs have a significant impact on her school life and her out of school life.  These give rise to challenging behaviours which significantly intrude upon the quality of The Child’s life and upon the quality of the appellant and The Child’s sibling’s life.
8. The authority is responsible for The Child’s school education.
9. The Child is a pupil in School B Primary School (“School B”),
10. School B delivers an integrated education provision, with small additional support classes alongside mainstream classes.  There are four additional support classes, including one for children with severe and complex needs.  The school has special facilities such as a sensory room and a soft play area and provides input from speech and language therapy and educational psychology.  The SPELL, PECS and TEACCH approaches are used.
11. The Child is currently placed in additional support and mainstream classes.  She is provided with a high level of 1:1 support within her class groups.  At times she is encouraged to work as part of a group.
12. In or around May 2011, The Child managed to remove herself from the family home and to take herself into town centre.  She was reported missing by the appellant, and police officers located her and returned her to the family home.  Shortly after this, the social work department began to engage with the appellant and The Child.  Witness E was the allocated social worker.  A referral was made to the Children’s Reporter.  The outcome of this is not known. 
13. The Child moved into class 5A in August 2011, which was a major transition for The Child.  Around this time The Child had been prescribed methylphenidate by Dr xx, which appeared to increase The Child’s tantrum behaviour.  This medication has since been stopped.  The Child’s family had been finding the strains placed on them by The Child’s rigid behaviour and sleep patterns increasingly difficult during the summer months prior to her moving classes.  From October 2011, The Child became more settled within the routines of the new class.
14. The Child attends xxxx for respite provision on Mondays, Tuesdays and Fridays from 3.30 p.m. to 7.00 p.m. and for overnights occasionally on request.  Weekend respite at xxxx was commenced on or around 18 May 2012.  The authority meets the costs of this provision.
15. Between 2007 and 2012, educational (including pre-school) and health reports [which include those documents numbered as items 7, 9 – 20 inclusive, 28, 33 and 36 in the inventory of productions lodged by the respondent] demonstrate that The Child has made steady and continuing progress in a number of areas of her educational development within School B. 
16. The authority are able to make provision for The Child’s additional support needs at School B. 
17. A verbal request for a placement at School A was made by the appellant on 4 October 2011.  Following this verbal request, a review meeting was held on 14 October 2011 and the process of preparing a co-ordinated support plan (CSP) was commenced thereafter.
18. A written request for a placement at School A was submitted by the appellant on 24 October 2011.
19. School A is a residential special school for children who have autistic spectrum disorder, with staff trained in meeting the needs of such children and special facilities, such as a sensory room.  There are two full‑time speech and language therapists on the campus and a full‑time educational psychologist who supervises a team of three assistant psychologists and a number of psychology support assistants.  All staff are trained in SPELL and there are qualified signalong (signing) and PECS trainers in the school.  A number of staff are also trained in TEACCH.  Individualised plans are prepared for each child. 
20. Witness A, responded to the placing request on 26 November 2011.  This was subsequently followed up by a letter on 6 January 2012, in which Witness A confirms that the request was being refused.
21. School A wrote to the appellant on 27 October 2011 to confirm, based on the information they have received, that they would be able to offer an appropriate placement for The Child at School A.  They confirmed at that time that they had a suitable placement. 
22. A CSP for The Child was prepared in draft on 22 November 2011 and finalised in early January 2012.  Three educational objectives are set out in the CSP:  (i) to set up and sustain an environment which provides structure and predictability to lower The Child’s triggers to anxiety and maintaining calmness;  (ii) to embed an ongoing learning experience which has communication and the development of daily living skills at its core;  (iii) to support home and family, to reduce the negative impact of The Child’s behaviour on the family.
23. The Child has an individualised educational plan (IEP).  The IEP for 2012 expands upon the CSP objectives and previous IEPs.
24. A comprehensive assessment of The Child’s needs was completed by Witness D, social work team manager, and Witness E, social worker in March 2012.  This identifies significant family difficulties which the appellant and Sibling experience in dealing with The Child.  The assessment concludes that additional local resources should be used before a placement is considered.  This would require both a significant element of respite provision and a structured support package. 
25. School A have not completed an initial assessment of The Child’s needs which has attached to it an initial assessment fee of £4,047. 
26. The cost of providing education to The Child in the residential setting of School A ranges between £167,000 to £186,000 per annum.
27. The Child does not require a 24 hour curriculum in a residential setting in order to benefit from school education.
28. The Child does not have the additional support needs requiring the special residential facilities provided at School A.
29. The cost of providing for The Child’s additional support needs the local area, according to the authority’s preferred model of integrated provision, [model 2 at R261] including meeting the cost of the recommendations set out in the comprehensive assessment are £62,600 per annum.
30. It is not reasonable, having regard to the respective suitability and the respective cost of School B and School A to place The Child in School A.

 

6.       Submissions for the appellant

The appellant made a placing request on 24 October 2011 for The Child to be placed at School A.  This was refused by the authority, in writing, on 6 January 2012.  The reasons for refusal were as follows:

“The authority is able to make alternative provision for The Child’s additional support needs in a school other than the specified school;  and

It is not reasonable to place The Child in the specified school having regard to both the respective suitability and respective cost of the provision for her additional support needs there and in the school which she would otherwise attend and in which a place has been offered.”

The appellant disputes that it is not reasonable having regard to the respective suitability and respective cost to place The Child in School A in preference to School B.  She disputes that the educational provision provided at School B is either adequate or efficient for The Child’s current or long‑term needs. 

Appellant’s representative, for the appellant, submitted that the decision of Witness A to refuse the request in January 2012, prior to the completion of the comprehensive assessment, was entirely unsatisfactory. 

Appellant’s representative referred to the respective medical opinions of Drs yy and zz which suggest that The Child has severe autism, a co‑existing diagnosis of attention deficit and hyperactivity disorder and a very severe sleep disorder.  She has a range of developmental difficulties arising from this, which were not in dispute.  Appellant’s representative submitted that The Child’s needs require “24 hour recognition”.  He referred to the oral evidence of the appellant and to the terms of the comprehensive assessment in this respect.  He submitted The Child’s additional support needs exist inside and outside of the classroom, which was not in dispute.

Appellant’s representative referred to the provisions of section 4 of the 2004 Act.  Section 4 specifies that a duty is placed upon the education authority to

“… make adequate and efficient provision for such additional support as is required by that child…”.

The provision of additional support is to ensure that a child with additional support needs is in a position to benefit from their school education.  Section 1(2) of the 2004 Act defines school education as including

“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”

The Education (Additional Support for Learning) (Scotland) Act 2009 inserts the words, “whether or not education provision”, into the definition of “additional support”.  Appellant’s representative submitted that this amendment, taken together with the statutory guidance, encourages education authorities to take a holistic approach to the provision of additional support.  This requires an analysis of a child’s additional support needs inside and outside of the classroom to establish whether their needs can be met and whether they can benefit from their school education.  Appellant’s representative referred the tribunal to the opinion of the Lord President in the case of City of Edinburgh Council-v-Mrs MDN [2011] CSIH 13, at page 32, where the Lord President states that:

“additional support (to benefit from school education) included provision which was non educational as well as that which was educational.”

Appellant’s representative referred the tribunal to the tests to be applied in refusing a placing request, set out by the Lord President in his judgement.

The tribunal was also referred to the case of MacAulay-v-Aberdeenshire Council, 2 September 2008 where Sheriff Tierney considered the onus rests upon the education authority to establish they are able to make provision for a child’s additional support needs in a given school. 

It was submitted that the authority has a duty under schedule 2 paragraph 2(2) of the 2004 Act to meet the fees and all necessary costs in relation to the child’s attendance at the requested school and that the authority does not have a ground for refusal in terms of Schedule 2 paragraph 3 of the 2004 Act.  In the event that the authority is found to have a ground for refusal, the Tribunal may only confirm the refusal if all the circumstances show it is appropriate to do so in terms of section 19(4A) of the 2004 Act.  It was submitted that even if a ground for refusal exists, the benefits to The Child in attending School A outweigh the grounds for refusal.

Appellant’s representative submitted that the current level of support provided by School B inside the classroom and the support being provided outside the classroom, is not sufficient to meet The Child’s needs.  He suggested achievements at school are noted for things The Child has been doing previously at home.  Staff are unable to get The Child to eat and drink at school.  Staff are unable to administer The Child’s medication at school.  Travelling to and from school is a difficult transition.  Appellant’s representative submitted that in order to meet The Child’s holistic additional support needs and to ensure she benefits from a meaningful education, she requires to be placed in School A. 

The appellant remains concerned that any progress in The Child’s speech and language has been minimal.  It was submitted that the speech therapy provided directly by xx on a 6‑weekly block (twice per year) is insufficient for The Child’s needs. 

Appellant’s representative referred to the comment of Dr yy, GP, that another education provider with regular specialist input would hopefully “push The Child on especially with her language which is very limited”.  The tribunal was referred to the observation of Dr xx that The Child is a child with very significant and complex additional support needs.  Dr xx suggests that ideally The Child “needs to be in an environment which allows her to have continuity of care, daytime as well as evening and night‑time as well, where her long‑term development and needs can be met with a minimum of transitions.”

Appellant’s representative submitted that it is important to develop a holistic approach to respite and care for The Child, both educationally and at home, which is alluded to by Dr zz, who said “I think arranging respite should be a priority looking at the impact The Child’s difficulties is having on her family”.  It was submitted that failure to provide appropriate respite care is having a severely detrimental impact on The Child’s home life.  Appellant’s representative submitted that the lack of appropriate care and support for The Child at School B and at home, is having a significant impact on her development and wellbeing and also on the health and wellbeing of her family.  He referred to the third educational objective in the CSP, which states that one of the objectives is “to support home and family life and to reduce negative impact of The Child’s behaviour”.  Appellant’s representative referred the Tribunal to the concerns stated by Witness E, Dr yy, and Dr xx.  Dr yy, states her concern that “..a crisis will occur.”. 

Appellant’s representative referred to the comprehensive assessment.  He submitted that the recommendations reflect the ambitions of the Authority and invited the Tribunal to exercise caution in determining whether these are realistic and achievable.  He quoted Witness E, who described the recommendations as aspirational; while acknowledging the evidence of Witness D, who described the recommendations as achievable.  Appellant’s representative submitted that the Tribunal can place no certainty on the achievability of the recommendations and therefore the Authority fails to meet the duties imposed upon them by the 2004 Act.

Appellant’s representative submitted that The Child was a suitable candidate for the School A.  It was submitted that the only way in which The Child’s additional support needs could be fully met is through her placement at a specialist residential school, that being School A.  The emphasis placed by School A on speech and language therapy would allow The Child to develop in that area.  If The Child were to have a residential placement at School A, she would have 24 hour access to a specialised curriculum.  She would have consistent contact with staff specifically trained to meet the needs of children with autistic spectrum disorder.  At School A there are two full‑time speech and language therapists on the campus.  There is a full‑time educational psychologist who supervises a team of three assistant psychologists and a number of psychology support assistants.  All staff are trained in SPELL and there are qualified signalong (signing) and PECS trainers in the school.  A number of staff are also trained in TEACCH.  The individualised plans for each child are detailed and provide for objectives, the progress towards which is measurable.  School A would provide for continuity of care, throughout the period of 24 hours, where The Child’s long‑term development and needs can be met with the minimum number of transitions.  

It is hoped that The Child’s sleep pattern will improve and that medication, food and drink can be administered and consumed by The Child effectively.  In addition, as a school which only caters for children who are on the autistic spectrum, the school environment is specifically adapted to ensure that sensory difficulties which the children attending there have are not exacerbated.  Finally, in recognition of the significant strains being placed on The Child’s family, it is hoped that a residential placement would allow the appellant to regain her health which has been affected by the demands imposed by The Child’s care;   and for appropriate strategies and programmes to be put in place for The Child’s return home. 

It was submitted that the matter of respective costs should be considered by the Tribunal, but the effect of such costs alone should not determine the Tribunal’s decision.  It was submitted that the additional costs of the implementation of the recommendations set out in the comprehensive assessment should be considered carefully when set against the costs of School A. 

In conclusion, the Tribunal was invited to find that The Child is not receiving adequate support at School B.  The Tribunal was referred to the terms of section 28(1) of the Education (Scotland) Act 1980, which states

“In the exercise and performance of their power and duties under this Act, the Secretary of State and Education Authority shall have regard to the general principle that so far as it is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents”.

The Tribunal was invited to overturn the refusal of the placing request by the authority, it being appropriate to do so, and to grant the placing request made by the appellant.

 

7.       Submissions for the Respondent

The authority relied on schedule 2, Paragraph 3(1)(a)(iii), 3(1)(d) and (3)(1)(f) of the 2004 Act in inviting the Tribunal to uphold the decision to refuse the placing request.

Respondent Representative, for the respondent submitted that School B delivers an integrated provision with small additional support classes alongside mainstream classes.  Several of the additional support classes are autism specific in the way that the daily curriculum is organised and delivered.  The school has special facilities such as a sensory room and soft play area and is attached to the local paediatric occupational therapy and physiotherapy centres and the hydrotherapy pool.  The school has a high level of speech and language therapy input as well as educational psychology input.  Other visiting services include the specialist teacher for autism and the sensory impairment teachers.  The only real difference between School A and School B is that School A has “24/7” provision.  However School A provision after the school day is more akin to care rather than education.  Such care can also be provided in area, and House has already directed this care towards The Child’s educational needs. 

It was submitted that The Child’s educational needs are better provided for in area.  In response to the specific points raised by the appellant, Respondent Representative submitted that School A does not provide 24 hours access to a specialised curriculum after school time and the respondent can do just as well, if not better in this area.  Speech and language therapy is available at School B and varies according to the needs and presentation of the child.  There is provision for further speech and language therapy support to The Child.  The speech therapist at School B does exactly the same as the speech and language therapist at School A.  Witness C supervises a team of fully qualified psychologists who have the same initial qualifications and relevant postgraduate qualifications as psychologists at School A.  The psychology provision at School B is equivalent to School A.  The SPELL, PECS and TEACCH approach used at School A is also familiar to School B and is applied as appropriate.  The Child has an individualised PECS programme. 

At School B, The Child mixes with peers in the support classes and also mixes with children who do not have learning difficulties.  The reports lodged by the respondent indicate that The Child benefits from mixing with other children without learning difficulties.  Such normalised peer group experience would not be available at School A.  Within her class groups, The Child has a high level of 1:1 input.  School B appears to prepare The Child better for the real world.  Respondent Representative submitted that School B keeps just as detailed records if not more so than School A.  The respondent denied that The Child does not take a sufficient range of foods and adequate fluids at School B.  The Child presents as a healthy, well‑nourished child.  In any event, Respondent Representative submitted that all autistic children have some rigidity in what they will eat and drink. 

Respondent Representative agrees that continuity of care and a high level of structure in all contexts of The Child’s life are important, but submitted that the interdisciplinary plan based in area, which takes account of the comprehensive assessment and the recommendations set therein, takes full account of that.  He submitted that MM report is evidence that the respondent is fully meeting The Child’s additional support needs educationally and can meet family needs, with family engagement. 

The School B curriculum, like that of School A, is based on national standards with each child having an individualised programme according to specific needs.  It was submitted that consideration should be given to the effects of The Child’s transition back to area, which could be very difficult for her and her family.  In area, the respondent can work on the transition from school to non‑school life very closely and make the transition seamless with the involvement of all the relevant local agencies.  Respondent Representative argued that a family separation from The Child will not assist the family in acquiring skills to cope with The Child’s autism.  However, if The Child continues at School B then the family is fully part of the support team. 

The Child’s sensory difficulties have been addressed at School B in an ongoing way.  Dealing with the wider world is not focused on at School A.  The respondent is aware of, and accepts, the needs of the family and the strains that an autistic child places upon them.  Respondent Representative submitted that the authority has provided significant respite and after-school care.  Reference was made to the comprehensive assessment and the respite package which has been commenced, arising from the recommendations. 

In conclusion, Respondent Representative submitted that there is no substantial difference between the educational provision at School B and School A.  In many areas, School B does better, for instance it gives access to mainstream peers.  The 2004 Act emphasises the inter‑agency approach.  All the school reports and reviews from other agencies indicate that The Child is making progress in her current educational setting.

In relation to cost, Respondent Representative submitted this is a relevant matter, both on the facts of the case and in terms of the relevant statutory provisions.  He submitted that it is not reasonable, with regard to the respective costs, to place The Child in the specified school at School A.  The extra cost of sending The Child to School A in the context of finite resources would be out of proportion to the possible benefit to the young person and out of proportion considering the potential detriment to others.

Respondent Representative submitted that the transition of removing The Child from the strong family attachments which she has in area, with her mother, brother and maternal grandmother, will be seriously detrimental to the continuity of her education.  If her important attachments to significant adults in area are disrupted, this may negatively affect these important developments in her understanding of language and communication and the sense she is making of the world and disrupt the continuity of her learning.  He submitted that an autistic child does not easily transfer learning from one context to another.

Respondent Representative submitted that the respondent has established that The Child does not require a 24 hour curriculum in a residential setting.  He submitted that the reference is premature.  The CSP has only recently been completed in January 2012.  There has not been an opportunity for the targets set therein to bed down or to be evaluated and monitored.  The interdisciplinary work following from the CSP is in its infancy.  Without any criticism attached to the appellant, she has in the past been resistant to interdisciplinary working.  The comprehensive assessment has only recently been completed and its recommendations have not yet been fully implemented.  MM and LW’s work is also at the early stages of development.

In relation to those other matters arising from the reference, Respondent Representative confirmed that the diagnosis of autism is not in dispute.  Neither is the significant effect of caring for The Child on her family.  Respondent Representative submitted that the authority is aware that The Child has difficulty with transitions and has consistently sought strategies to deal with this throughout The Child’s education.  The appellant’s assertion that it is inappropriate for The Child to be in two different classes was refuted.  The authority considers that a combination of both classes provides The Child with a range of opportunities for more formal learning experiences.  Bearing in mind that The Child is severely autistic and her learning will take place in tiny steps, The Child’s past and present learning process does not seem to be appreciated by the appellant.  Respondent Representative submitted that if The Child carries out the same task in different settings, then that represents good progress.  Finally, he contended that the provision at School A was more suitable was not evidenced by the appellant.

Respondent Representative invited the Tribunal to confirm the respondent’s decision to refuse the placing request in terms of section 19(4A)(a) of the 2004 Act.

 

8.       Reasons for Decision

1. The Tribunal considered all the written and oral evidence and written submissions.  It is not practical, appropriate or necessary to narrate every aspect of the evidence in this written decision. 

The statutory provisions

2. Section 22 of the 2004 Act states that schedule 2 makes provision about placing requests in relation to children and young persons with additional support needs.  Schedule 2 of the 2004 Act deals with the Authority’s duties to comply with a placing request.
3. 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, provides a list of circumstances in which the duty does not apply.  Section 19(4A) of the 2004 Act states the power of the Tribunal and the two‑stage test which the Tribunal must apply:

“(4A)    Where the reference relates to a decision referred to in subsection (3)(da) of that section the Tribunal may—

(a) confirm the decision if satisfied that––

(i)  one or more grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exist or exists, and

(ii)  in all the circumstances it is appropriate to do so,

(b) overturn the decision and require the education authority to—

(i)  place the child or young person in the school specified in the placing request to which the decision related by such time as the Tribunal may require, and

(ii)  make such amendments to any co-ordinated support plan prepared for the child    or young person as the Tribunal considers appropriate by such time as the Tribunal may require.”

4. 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 for within schedule 2, Paragraph 3(1), of the 2004 Act exist or exists.  If the Tribunal is satisfied that one or more grounds exist or exists, then the Tribunal requires to move to the second stage.  In this case, the authority relies on schedule 2, Paragraph 3(1)(a)(iii), (d) and (f):

“3(1) The duty imposed by sub‑paragraph (1) or, as the case may be, sub‑paragraph (2) of paragraph 2 does not apply––

(a) if placing the child in the specified school would––

(iii) be seriously detrimental to the continuity of the child’s education;”

…

(d) if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,

…

(f) if all of the following conditions apply, namely—

(i)  the specified school is not a public school,

(ii)  the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,

(iii)  it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school, and

(iv)  the authority have offered to place the child in the school referred to in paragraph (ii), …”

5. In the second stage, the Tribunal must exercise its discretion and determine whether, in all the circumstances, it is appropriate to confirm the authority’s decision.  In this case, the appellant argues that in all the circumstances The Child should be placed in School A.
6. 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

Ground of refusal: paragraph 3(1)(a)(ii): seriously detrimental to the continuity of the child’s education

7. The Tribunal accepted the evidence for the respondent set out in the documents lodged and through the oral evidence of Witness A, Witness B and Witness C that placing The Child in School A would be seriously detrimental to the continuity of her education.  The Tribunal found the written and oral evidence for the respondent to be consistent, reliable and credible.  The oral evidence was presented in a well informed manner.  The qualifications and experience of the witnesses was considered by the Tribunal.  Each of the witnesses for the respondent appeared to be an experienced, well informed, competent professional.
8. The Tribunal was not persuaded that the appellant had established that School A was a more suitable educational placement for The Child.  It appeared to be a disproportionate response to place The Child in School A, when the local resources available in area had not yet been fully tested or exhausted. 
9. The Tribunal accepted the evidence of Witness C that removing The Child from her social contacts, her family connections and her locality would have the potential to seriously disrupt her educational and emotional development.  It was clear from the oral and written evidence of Witness C, the oral evidence of Witness B and the appellant that The Child has a strong connection with her family, with House and with RS, her 1:1 support teacher.  She has regular out of school contact with her maternal grandmother.  The appellant described the secure familiarity of the routine The Child has when she returns from school.  It was also apparent through the evidence of Witness B that The Child has a connection, albeit more distant, with her class teacher and with the speech and language therapist.
10. The Tribunal noted that there is no history in the authority of an off area placement for a child of The Child’s age.  The Tribunal accepted that The Child is developmentally younger than her numerical years and was in no doubt, taking into account the factors giving rise to The Child’s additional support needs, which include a difficulty with transitions, that placing The Child in School A would constitute a major transition for a number of reasons.  School A is based in the western area of the central belt in mainland Scotland which is some considerable distance from the home area. This would mean that The Child would no longer have daily contact with the appellant.  Contact would be reduced to a 6 weekly cycle, with extended contact during holiday periods.  The journey from area to School A would be complex and challenging for The Child.  Witness C described The Child as having difficulties with transitions and not easily able to transfer learning from one context to another.  As School A provides education and care over 24 hours, it is anticipated that The Child would have contact with an increased number of education and care staff, some of whom would work different shift patterns.  Managing transitions between the care and school environment in School A did not appear to have been considered in detail.
11. The Tribunal considered the written and oral evidence of the appellant and was in no doubt as to her good intentions and motivation to find the best she can for The Child, however, her perception of School A was limited as School A has not completed an assessment of The Child.  It was clear that she was impressed with the facilities provided by School A, however, she has not visited the school.  The weight the appellant placed on School A appeared aspirational.  For example, there was no evidence provided by the appellant to support the contention that School A would result in fewer transitions for The Child.  The appellant relied heavily on the fact that The Child would not have a transition from home to school and vice versa and provided little to contradict the evidence of Witness C.  It appeared to the Tribunal that in addition to the major transition from her home, school and locality to School A, The Child would continue to have daily transitions within School A from the teaching environment to the care environment.  The physical distinction from home to school might not be there but the process of transitions would remain nevertheless.  The Tribunal accepted the evidence of Witness C that the transition of removing The Child from the family attachments which she has in area with her mother, sibling and grandmother will be seriously detrimental to the continuity of her education.  It could have a severe effect on her education and wellbeing.  The Tribunal accepted the evidence for the respondent that currently, The Child is making important developments in her understanding of language and communication and the sense she is making of the world.  If her attachments to significant adults in area are disrupted, this may negatively affect these important developments and disrupt the continuity of her learning.

Ground of refusal: paragraph 3(d): the child does not have additional support needs requiring the education or special facilities normally provided at that school

12. The Tribunal accepted the evidence of Witness A, Witness B, Witness D and Witness C that The Child does not have the additional support needs requiring the education or special facilities normally provided at School A.  They were agreed that The Child’s educational needs have and can continue to be met In School B.  They agreed that The Child is coping well across her classes.  They acknowledged that the period of transition to class 5A at the end of the summer term in 2011, was difficult for The Child and consequently, her family.  However, this appears to have now settled.
13. The tribunal was not persuaded that Witness A could not have been in a position in January 2012 to refuse the placing request, particularly as the comprehensive assessment had not been completed.  His evidence was clear and consistent in this regard.  He was entirely satisfied that he had sufficient information available to him through a range of sources, which included the draft CSP, to make an informed decision.  He nevertheless acknowledged the need for further assessment in January 2012, which prompted the completion of the comprehensive assessment.  He insisted that his view has not changed following the completion of this. 
14. Witness B and Witness C advised that The Child’s peer group at School B know her and that The Child is included in mainstream schooling with opportunities for learning and role modelling with her mixed range peers.  This would not be available at School A.  There is clear and consistent evidence from the range of reports and minutes provided that The Child has over a number of years been thriving and progressing in this inclusive environment without the need for a curriculum over a “24/7” period. 
15. The Tribunal acknowledges that School B is a unique school, offering mixed range education in a number of additional support and mainstream classes.  What is not provided for within the school is supplemented by way of external supports.  By remaining in area and more particularly at School B, The Child has access to the additional supports provided within the school and to a range of external and expert supports, which include Studio 3, provided  by the consultant clinical director MM and Ms W.
16. MM used to work at School A as head of support for pupils over a number of years.  He is an expert in autistic children and their education.  He visited School B and observed The Child in person at school and on the school bus.  He had discussions with The Child’s mother and her maternal grandmother and the class teacher.  He was supported in his visit by Ms W, who is developing family training programmes for families with autistic children and has a background in psychology.  Ms W is also a specialist in autism.  MM notes in his report that The Child has difficulty with transitions from class to class.  He notes that The Child appears to be doing well in School B and the teaching staff and environment seem to be meeting her needs.  His conclusions are that resources should be directed at support to the appellant with The Child during non school hours.  He advises that if the Authority were able to provide staff support to the appellant, then he and Ms W would provide training to these members of staff and to the appellant.  It is MM’s view that they can improve the situation at home by providing the appellant with more respite, as well as supporting her through those aspects of care which provide the greatest challenge.  This is reflected in the recommendations of the comprehensive assessment, which speaks of the benefit to The Child of remaining in her own community. 
17. Witness D explained that the Authority has a history of providing tailor made support.  He described the Authority as excelling in inter partnership working.  He gave the example of Sleep Scotland supports being developed locally as a further option available to the family.
18. Witness C’s view is that there is evidence that tight interdisciplinary work is beginning to address the family’s needs and promote The Child’s wellbeing and that an integrated support package will have the most impact if delivered locally.  She concludes that a residential placement is unnecessary.
19. The Tribunal accepted the evidence of Witness A that School B meets The Child’s needs and has the capacity to change and be flexible and that continues to be the case.  Witness B explained that the combination of both classes at School B provides The Child with the range of opportunities for more formal learning experiences, as well as opportunities to spend time in the sensory room and enjoy music.  The Child continues to have difficulties with eating and drinking at school, however, Witness B and the home/school diary indicates that there has been an improvement in recent months. 
20. For all of the aforesaid reasons, the Tribunal found that School B could meet The Child’s needs.  There was no direct evidence presented from School A, beyond the confirmation that a place was available and the description of the school provision, that altered the Tribunal’s view.  School A requires to complete an assessment of The Child before confirming the place.  This assessment has not taken place.  In all of the circumstances, the Tribunal did not accept that it had been established that there was a benefit to The Child to attend School A.

Ground of refusal: paragraph 3(f): costs

21. School A is not a public school.  The Tribunal finds that the Authority are able to make provision for the additional support needs of the child in a school other than School A, namely School B.  Having considered the range of basic costs of providing a place to The Child at School A with the revised costs at model 2, the preferred (integrated provision) method of support, prepared by Witness A, the Tribunal finds that it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of The Child in School A and in School B, where she is currently placed, to place The Child in School A. 
22. For all of the aforesaid reasons set out in the first ground for refusal, the Tribunal accepted the evidence for the respondent that removing The Child from her social contacts, her family connections and her locality would have the potential to seriously disrupt her educational and emotional development.  In the context of cost, the extra cost of sending The Child to School A would accordingly be out of proportion to any possible benefit to her. 

The second stage

23. Having established that one or more grounds for refusal exist , the Tribunal required to move to the second stage of the test, namely, whether or not it is satisfied that in all the circumstances it is appropriate to confirm the decision of the authority.
24. The Tribunal accepted the position of the respondent, which was supported by the written evidence and the oral evidence presented by Witness A, Witness B, Witness C and Witness D, that the reference of the appellant is premature.  The Tribunal recognises that the appellant has in the past been resistant to inter agency support.  The CSP was recently completed in January 2012.  The inter agency working between education, health, housing and social work remains in its infancy.  The input of MM and Ms W is similarly at the early stage of development.  Weekend respite was only recently commenced between Friday 18 May until Monday 21 May 2012.  It is intended that this continue.  The Child receives increased support after school at House.  Witness B and the appellant gave evidence that The Child finds her experiences at House to be positive.  She appears to have settled into the transition to House.
25. The comprehensive assessment recognises the investment that is needed into the provision of respite and the support needed for The Child’s out of school time.  This is absolutely crucial to prevent a crisis from occurring within The Child’s home life, which will undoubtedly have a significant impact on her educational development.  The Tribunal considered the recommendations with great care and accepted the evidence of Witness D that these are realisable, rather than aspirational.  This was supported by the revised costing analysis prepared by Witness A.  There was evident commitment by those at senior management levels, and crucially by Witness A who has financial responsibility, to the delivery of the recommendations.  The Tribunal rejected Witness E’s assertion that many of the recommendations were “aspirational”.  The fact that these were outwith her realms of experience did not make them any less deliverable.   Her evidence was often confusing.  On the one hand she acknowledged shared authorship of the comprehensive assessment, whereas at other times, she abdicated ownership of certain content and recommendations or appeared unsure as to their meaning.  It was not clear the extent to which she accepted shared ownership of the assessment. 
26. Some of the recommendations from the assessment were beginning to be implemented by the time of the hearing and it was obvious that the appellant had already benefitted from the period of weekend respite which had occurred immediately before the hearing.
27. The Tribunal accepted that local resources in area had not yet been exhausted.  The appellant had, until May 2011, consistently refused offers of support from the authority.  This was clearly driven by a strong commitment to parenting The Child independently, which is commendable.  However, it is obvious that the strains of caring are now at breaking point.  The authority must nonetheless be given reasonable time to respond to The Child’s needs and to address the appellant’s needs in order that she can be equipped to support The Child at home.  It is clear that the provision of consistent respite is central to this.  Witness D described this as “enhanced wrap around care”.  For the avoidance of doubt, the Tribunal understands this to mean the provision of enhanced care (more than was currently provided) before and after school, which will include week days and weekends.  Witness D advised that the enhanced care provision would be subject to regular review.
28. The Tribunal is grateful to Appellant’s representative, and Respondent Representative for the non confrontational way they conducted themselves throughout the case conference and the hearing process, and for their assistance to the Tribunal. The Tribunal also wishes to thank the appellant for her patience throughout the two days of hearing evidence and for her willingness to explain her position, in her own words, to assist the Tribunal in gaining further understanding into the demands of caring for The Child. 

 

Further Observations

The Tribunal wishes to make these further observations:

The comprehensive assessment

The evidence was clear and parties were agreed that the demands on the appellant of caring for The Child were substantial.  Without significant out of school support to The Child and to the appellant the risk of a crisis remains. In reaching this decision, the Tribunal placed a great deal of weight on the three detailed recommendations set out in the comprehensive assessment, which were considered to be achievable.  These include the provision of regular structured respite, to include fortnightly long weekends, the involvement of a Sleep Scotland service, the use of Crossroads or family focus carers for additional social activities and a contingency plan for increased respite during school holidays.  Housing needs will continue to be explored and the Tribunal hopes the two main options identified in the assessment will be investigated further in partnership with the housing department.

Communication

It was apparent from the range of oral evidence that there were problems and deficits in areas of communication within the authority, between the school and the appellant and between the range of agencies providing a service or support to The Child.  The Tribunal observes that this may have contributed to the reluctance of the appellant to engage with agencies and her lack of confidence in the delivery of the recommendations set out in the comprehensive assessment. 

There were clear deficiencies in communications between the school and the appellant, between inter departmental agencies and between internal and external agencies. It is hoped that the CSP will improve the coordination of services and the process of shared communication.  The authority is invited to improve the strands of communication, to build upon the objectives set out in the CSP and to ensure the flow of communication is clear and uninterrupted between the school and the appellant.  It is essential that the appellant understands why educational targets are set; and why and how the range of priorities are set.  These should be specific and measurable.

Advocacy services

The appellant is clearly exhausted by the demands of caring for The Child.  She agreed at the Tribunal that at times she does not always take in what is being said due to the level of her tiredness.  The Tribunal considers that the appellant may benefit from the individual support of an advocacy worker to ensure that her views are represented at the range of meetings she attends for The Child and to assist her in digesting the range of information provided to her.  Witness D is invited to provide the appellant with information on the range of advocacy services available in area to assist her further should she wish to access their services.