ASNTS_D_13_2011_30.05.11

 

 

DECISION OF THE TRIBUNAL

 

Reference:      D_13_ 2011               

 

Gender:           Male

                       

Aged:               11                   

 

Type of Reference:     Placing Request         

 

 

 

1. Reference

 

On 15 October 2010 the appellant made a placing request for her child to attend School A.  The placing request was made under paragraph 2(2) of Schedule 2 of the Education (Additional Support for Learning)(Scotland) Act 2004 (the 2004 Act).

 

On 6 March 2011, in accordance with section 18(1) and 18(3)(da) of the 2004 Act, the appellant referred the decision of the respondent to refuse the placing request to the Tribunal.  The decision of the respondent to refuse the placing request was a deemed decision in terms of regulation 3 of The Additional Support for Learning (Placing Requests and Deemed Decisions)(Scotland) Regulations 2005.

 

2. Decision of the Tribunal

 

The Tribunal confirms the decision of the respondents, in exercise of its power under section 19(4A)(a) of the 2004 Act.  In terms of section 19(4A)(a)(i) of the 2004 Act, the Tribunal is satisfied that the ground of refusal specified in paragraph 3(1)(f) of Schedule 2 of the 2004 Act exists in relation to School C.  In terms of section 19(4A)(a)(ii) of the 2004 Act, the Tribunal was also satisfied that in all the circumstances it is appropriate to confirm the decision. 

 

The Tribunal was not satisfied that the ground of refusal specified in paragraph 3(1)(f) of Schedule 2 of the 2004 Act exists in relation to School B.

 

3. Preliminary Issues

 

A conference call between the Convener, appellant’s representative and respondent’s representative took place on 12 May 2011.  Instructing officer for the respondent, was also present.  A note of the matters agreed and discussed during the conference call was prepared by the Convener and issued on 19 May 2011.  On 18 May 2011 the Convener issued a Direction permitting the respondent to call two witnesses in addition to the two witnesses they are entitled to call in terms of rule 22(7) of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (the 2006 Rules).  The respondent had requested permission to call a total of seven witnesses.  Having considered the terms of rule 22(7), the overriding objective in rule 3 of the 2006 Rules and the information available in the bundle of papers and as a result of the conference call, the Convener considered that it was reasonable to allow two additional witnesses but that evidence from the remaining three additional witnesses was unlikely to be required or could be provided in a form other than oral evidence.

        

Late papers were allowed as follows:

 

Respondent:

• Third Inventory of Productions
• Letter from Dr AS, Chartered Clinical Psychologist dated 24 January 2008 (referred to in the First Inventory of Productions but not previously produced)
• Affidavit of Instructing Officer for Respondent dated 24 May 2011

 

Appellant:

• Letter from BD dated 24 November 2008

 

The appellant did not initially intend to give evidence but on the second day of the Tribunal hearing her representative indicated that she did wish to do so.

 

The Tribunal was satisfied that it was not possible to seek the child’s views through his attendance at the Tribunal or by any other means as his communication skills are limited.

 

The Convener indicated during the conference call and at the start of the Tribunal hearing that she was employed as a solicitor in the Policy and Advice Team of Respondent Council from 1999 to 2002.  When she first arrived at the Council she shared a room with the respondent’s representative.  They did not work together directly.  She advised the Education Department in relation to a limited number of matters, for example data protection, but not in relation to Court or Tribunal proceedings.  Practice Direction 1 suggests that if a connection between a Tribunal member and Local Authority is as recent as five years the member should not sit.  It is now approximately nine years since the Convener left Respondent Council.  The appellant’s representatives did not express concern about this matter during the conference call or at the Tribunal hearing, despite being invited to do so.

 

A summary decision was issued on 3 June 2011 and due to unforeseen delay in issuing the full decision the Additional Support Needs Tribunals Secretariat, at the request of the Convener, provided the parties with additional information about the Tribunal’s conclusions in relation to the schools proposed by the respondent on 17 June 2011.

 

4. Summary of Evidence:

 

Documentary evidence was provided in the bundle of papers, including late papers and a late affidavit.

 

Oral evidence was heard from the following witnesses, in the order listed:

 

1. Witness A, Head Teacher, School B

 

2. Witness B, Depute Principal Educational Psychologist, Respondent

 

3. Witness C, Social Worker, Children with Disabilities Team, Respondent

 

4. Witness D, Co-ordinator, School A

 

5. Witness E, Head Teacher, School C

 

6. Appellant

 

5. Findings in Fact:

 

[1] The child was born in 1999 and is eleven years old.  He lives with his mother and has regular, weekly contact with his father.  He has a diagnosis of Autistic Disorder, significant learning disability and associated sensory sensitivities, anxieties and phobias which include fear of dogs.  He also has symptoms of hyperactive behaviour.  He has very high sensory needs and struggles in situations where he is expected to have a high degree of social contact and where there is a high level of language being used around him.  He has sensory sensitivities to touch and sounds.  He has difficulties in understanding and interpreting social behaviour and in understanding and using verbal and non-verbal communication.  He has very limited verbal communication.  The child has at times demonstrated self-harming behaviour such as pulling out his eyelashes.  He thrives best in an environment which takes into account his problems with sustaining attention and concentration, his impulsivity and his sensory issues and which can provide him with low levels of stimulation and with clear and consistent boundaries. 

 

[2] The child attended School B from the age of five years until December 2010 when the appellant acted on her earlier decision to remove him from school.  He remains on the roll of School B.  He has not attended a school or had any other form of education since December 2010.  When he was at school the child attended an after school club run by VSA in the school building on Monday and Friday.  Respite was provided by a care assistant from Scotland.  During school holidays he attended a play scheme.  He has residential respite approximately every five weeks.

 

[3] At School B an Individualised Educational Programme (IEP) was in place for the child.  His behaviour at school was at times challenging, particularly in the afternoons, and at times he found school stressful.  He also had more settled periods.  He will only eat a restricted diet.  He has made some progress during his time at school.  He finds transitions to and from home and school difficult.  Adult support to reassure him that he is doing the right thing and assist him with work is important.  In the past the school sought advice from a number of sources such as a Chartered Clinical Psychologist in 2008, the education authority’s educational psychologist, Autism Outreach and speech and language therapists.  Local authority social workers provide support.  The child’s current class has a staff ration of four members of staff to eight pupils, including the child. 

 

[4] At times the child’s behaviour at home has been very challenging.  Until approximately October 2010 he was prescribed Equasym to control his hyperactivity and Risperidone as sedation if he became violent.  The appellant has been told how to restart the medication if the child’s behaviour becomes more challenging.  His anxiety levels are minimal when he is in an environment that he is comfortable with and when he does not have any demands placed on him.

 

[5] School B is a local authority special school that takes children aged from five to eighteen years.  Sixty-eight pupils attend the school.  All have learning difficulties.  Twenty-six of the sixty-eight pupils have a diagnosis of autism, with a range of needs.  Most of the children have severe and complex needs.  The children are grouped by age.  From approximately the second year of secondary school the pupils are in an open plan area rather than classrooms.  The curriculum has a strong focus on sensory experiences and steps have been being taken to bring it in line with Curriculum for Excellence.  Most of the children’s achievements are at Access 1 level.   Pupils can access a swimming pool, sensory rooms and a sensory garden.

 

[6] The most recent Her Majesty’s Inspectorate of Education (HMIE) report on School B is dated 9 June 2009.  The evaluations were:

 

Improvements in performance: good

Learners’ experiences: very good

Meeting learning needs: good

The curriculum: good

Improvement through self-evaluation: good

 

[7] If the child remains placed at School B direct payments of £2613 per year are likely to be required and the Jigsaw play scheme would cost £3393 per year.  Transport costs would also be incurred.

 

[8] School C a local authority special school that takes children aged from five to eighteen years.  Forty-six pupils attend the school.  The pupils have a broad spectrum of needs.  Forty to forty-five per cent of the pupils are physically independent.  The school has children on the autistic spectrum, generally in the more severe range such as being non-verbal or having significantly challenging behaviour or anxieties that require to be managed in order for the child to access school.  The curriculum is personalised to the needs of each child.  Some have a sensory curriculum and it is linked to the Curriculum for Excellence.  The children are grouped by age.  If the child is placed there he will receive at least one to one support.  The school offers or can access a number of therapies, including speech and language therapy, occupational therapy, hydrotherapy and music therapy.  There is a sensory room.  The school was formerly a school for deaf children and it is filled with baffles which remove background noise.

 

[9] On 27 April 2011 the respondent wrote to the appellant and offered the child a place at School C.  The appellant has not had any direct contact with the school or staff at the school.

 

[10] The most recent HMIE report on School C is dated 25 November 2008.  The evaluations were:

 

Improvements in performance: satisfactory

Learners’ experiences: good

Meeting learning needs: good

The curriculum: satisfactory

Improvement through self-evaluation: satisfactory

 

[11] If the child is placed School C direct payments of £2613 per year are likely to be required and the Jigsaw play scheme would cost £3393 per year.  Transport costs would also be incurred.

 

[12] School A is an independent day and residential school that takes children from age three to nineteen years.  Pupils have complex additional support needs including autism.  The school follows the Warldorf Curriculum and has features which are in line with Curriculum for Excellence.  The school focuses on the pupil as a whole person and offers a wide range of therapies, tailored to each pupil, for example colour light therapy, rhythmical massage, eurythmy therapy, therapeutic art and speech and language therapy.  Classes are grouped by age.  Staff ratios are determined by the needs of the child and can include one to one support if required.  The school has been accredited by the National Autistic Society. 

 

[13] On 28 March 2011 a representative of School A wrote to the appellant and indicated that the child was a suitable candidate for the school and that the school had vacancies.  The appellant has been to School A on a number of occasions including a visit to the school with the child and his father. 

 

[14] The most recent HMIE report on School A is dated 12 September 2007.  The indicators of quality were:

 

Meeting pupils needs: very good

Curricular and vocational guidance: very good

Structure of the curriculum: very good

The teaching process: very good

Pupils’ learning experiences: very good

Pupils’ attainment in English language: very good

Pupils’ attainment in mathematics: very good

Pupils’ attainment in personal and social development: excellent

Accommodation and facilities: very good

Climate and relationships: excellent

Expectations and promoting achievement: good

Equality and fairness: excellent

Partnership with parents/Governing body and the community: very good

Leadership: Head of Centre: very good

Leadership: Corporate: very good

Self-evaluation: very good

 

[15] The initial cost of placement of the child as a day pupil at School A would be £946 to £989 per week, to be reviewed after a period of six weeks.  Day pupils attend for forty weeks each year.  If the child is placed as a day pupil at School A direct payments of £2613 per are likely to be required and the Jigsaw play scheme would cost £3393 per year.  Transport costs would also be incurred.

 

 

 

6. Summary of the Parties’ Submissions

 

RESPONDENT

 

The respondent’s solicitor submitted that the grounds of refusal in paragraph 3(1)(f) of Schedule 2 of the 2004 Act exist, as follows:

 

1. School A is not a public school.

 

2. The evidence shows that the authority can make provision for the additional support needs of the child in both School B and School Cs.  Both these schools educate children with a range of additional support needs, including the kind of additional support needs the child has.  For example, twenty-six of sixty-eight pupils at School B have an autism diagnosis and School Calso has pupils with such a diagnosis.  In School C, the child would feature at the mid-point of the range of pupils.  Both the schools have experienced and well trained staff, as outlined by the Head Teachers.  R89 details the training of School B staff, much of which relates to autism.  The Depute Head Teacher of School C was formerly Head of Education at School and has particular expertise in autism.  Staff turnover in both schools is low.  Both offer a high ratio of staff to pupils.  The child’s class at School B has a ratio of four members of staff to eight pupils.  Five of the eight pupils have autism.  The Head Teacher described the class as being very quiet.  In School C the class the child would join would have three other pupils with a ratio of at least one member of staff to one pupil.  In terms of the learning environment, the classroom at School B was described by the Head Teacher as “autism friendly”, involving an uncluttered classroom and tables in a U shape so that pupils face each other or the whiteboard.  The prospectus at R95 indicates that pupils have access to good outdoor facilities, a swimming pool, sensory rooms and a sensory garden.  The child’s serious difficulties have not prevented School B from being able to meet his needs. 

 

At School C the classroom would have two associated break-out rooms for time out.  It also has good indoor and outdoor facilities including a sensory room and ball pool.  The University swimming pool can be used.  As a former deaf school the acoustics are good in relation to background noise removal.  There is no school bell.  In terms of curriculum, both schools offer a wide, varied and well structured curriculum based on Curriculum for Excellence. National qualifications such as Access 1 can be achieved at both schools.  Both offer a wide range of therapies, for example speech and language therapy, physiotherapy, occupational therapy and hydrotherapy.  Some of these involve professionals from outside the school.  School B can also offer music therapy and School C offers rebound therapy and riding for the disabled.  The evidence shows that the authority has made more than adequate provision for the child’s additional support needs in School B during his time there and is able to continue to do so.  Previous difficulties have been resolved in the past and there is no reason to suppose that the most recent difficulties cannot also be addressed, for example attendance at the After School Club could be reviewed. 

 

The main problems latterly seem to have been related to the After School Club and the length of the child’s day away from home.  It is reasonable to conclude that the medication situation was a significant contributory factor as the difficulties in October to December 2010 appear to coincide with stopping medication.  Evidence was led that Dr R wrote to the appellant on 14 February 2011 explaining how to restart the medication if the child’s behaviour becomes more challenging. It is therefore unfair to attribute the difficulties during that period to an inability on the part of the authority to make provision for the child’s needs.  The Head Teacher of School B mentioned that from August to October 2010 the child was making good progress, with speech and language coming on and increased interaction with peers.  This is a relatively short time before the child was withdrawn from school in December 2010.  He made appropriate year on year progress at School B, managing to do more each year, as is shown by the school reports.  It is not accurate to suggest that his learning has plateaued.  School B would offer continuation and stability given that the child has attended there for over six years.  The evidence shows an overall picture of a child coping well at School B and being happy or content to be there.  This is borne out by the evidence of the social work and educational psychology witnesses about their observations of the child at School B.  Compared to previous observations the social worker noticed a positive change when she visited the school in Autumn 2010.  The child made eye contact and seemed comfortable and happy to be there.  The educational psychologist found the child to be quite communicative and aware of others.  His email at R121 describes a relatively settled picture.  Dr S, clinical psychologist, in January 2008 indicated that the child was being extremely well managed within a small class by staff who seemed to know him very well and respond to his needs very sensitively.  There was no reason for the school to suppose that further assessment of this sort was required. 

 

With parental co-operation, support and careful planning, it is reasonable to conclude that the child can be reintegrated successfully into School B.  School B is the principle recommendation of the educational psychologist because of familiarity and stability, but School C is a viable alternative.  This school could do for the child in future what School B has done up to now.  It would have the potential advantage of a fresh start.  It would offer better soundproofing, a higher staff to pupil ratio and a more informal and flexible albeit still structured approach.  The school is well placed to access the local community.  It is unlikely that the closure of School C and School Bs will take place before summer 2014.  The new building would be state of the art and both Head Teachers have experience of successfully supporting pupils through transitions.  The appellant has not taken the opportunities offered to have an arranged visit to School C to see the facilities and speak to the Head Teacher.  It is not surprising that the child is exposed to less stress now as he is not challenged to the same degree at home as he would be in a school environment.  There is evidence that his current social isolation is a concern.  The appellant has shown a reluctance to take advice at times.  No real weight can be attached to the letter from Crossroads dated 28 July 2011.  Support at home was offered by social work and turned down by the appellant.

 

The appellant’s representative suggested a lack of assessment, but there have been annual reviews and School B has liaised with other professionals and agencies.  Educational psychology is a resource for use by the school and the involvement of educational psychologists need not be direct.  It is reasonable to conclude that the school would have requested more involvement from educational psychology if it was deemed necessary.  Taking the child out of school is unlikely to have assisted external agencies to meet his needs.

 

In terms of the statutory test the authority is able to make provision for the child’s additional support needs.  This element should be taken as assuming parental support and co-operation will be forthcoming.  The potential lack of this should not be taken to affect the authority’s ability to make provision.  It is self evident that the success of almost any placement will be dependent to a significant degree on parental co-operation and support.  As a matter of public policy it would be highly undesirable if an education authority was deemed not to be able to satisfy this statutory ground because a parent fails to co-operate with a school whether by stopping sending their child there or by other means.  The authority’s ability to make provision should be seen as independent from and unaffected by non co-operation of a parent. 

 

3. It is not reasonable, having regard to the respective suitability and respective cost of School A versus School B and School C to place the child in School A.  School B is more suitable than School A.  The child is known to staff who have managed him through periods of difficult behaviour in the past.  There is nothing to suggest that the additional therapies offered by School A are needed by the child, for example the colour light therapy that is provided to all pupils unless they refuse to go.  The educational psychologist thought that the IEP offered by School B was better than that offered by School A as it had a broader curriculum.  School C is also more suitable than School A.  The appellant alleged that Dr R had told her that School A would be most suitable for the child, but this is not documented or mentioned in the case statement and weight cannot be attached to that evidence. 

 

The HMIE reports for School A and School C are both quite old and are in different formats.  The report on School C speaks highly of the Head Teacher.  She gave clear evidence that improvements had been made since the date of the report.  Even the report on School A had points that required to be addressed and Witness B gave evidence that they had been.  The HMIE report on School B listed particular strengths such as the positive impact of outside facilities, involvement of children in an enjoyable learning experience, positive relationships and teamwork, provision for health and well-being and the forward thinking leadership of the Head Teacher.  The children were considered to be achieving very well towards their learning targets within their IEPs.

 

The respective costs mean that it is not reasonable to place the child at School A.  With reference to the table at R132, the annual cost of a placement at School A would greatly exceed the annual cost of the current placement at School B or the prospective placement at School C, even if the weekly cost of a placement at School A remained at their lowest estimate of £946.  The fees would be much greater if the child required a more intensive package or if he had a residential placement.  No school fees are payable for School B or School Cs and the only additional costs relate to transport and social work related costs.  There is no evidence that there would be additional cost for a new member of staff if the child is placed at School C.  The social worker indicated that an intensive six week package would be required for return to school.  As shown in the table, social work related costs would be incurred even if the child was at School A.  Transport costs may be much greater for School A.  The financial implications for the education authority of placement at School A are considerable. 

 

4. The authority has offered to place the child in School B, where he has attended since 2004.  Attendance can resume.  On 27 April 2011 a formal written offer of a place in School C was sent to the appellant.  Prior to this the suggestions made that School C would be suitable for the child and invitations to visit the school amounted to the offer of a place.

 

The respondent’s solicitor submitted that in all the circumstances of the case it is appropriate to confirm the decision of the education authority.

 

 

 

 

 

APPELLANT

 

The appellant’s solicitor referred the Tribunal to the cases of City of Edinburgh Council v Mrs MDN [2011] CSIH 13 and M, as parent of RM v Aberdeenshire Council 2008 WL 3996503.  He submitted that in terms of section 28(1) of the Education (Scotland) Act 1980 the education authority must have regard to the general principle that so far as is compatible with the avoidance of unreasonable public expenditure pupils are to be educated in accordance with the wishes of their parents.

 

In relation to the grounds of refusal in paragraph 3(1)(f) of Schedule 2 of the 2004 Act the appellant’s solicitor submitted that:

 

1. It is not disputed that School A is not a public school.

 

2. In relation to the question of whether or not the education authority is able to make provision for the child’s additional support needs, it is necessary to take a step back from the test and consider what the child’s additional support needs are.  This is difficult to ascertain.  Evidence was presented, primarily by the respondent’s witnesses, but there is a limit to contemporary analysis or assessment of the child’s needs.  In answer to a question from the Convener the appellant’s solicitor indicated that he was not arguing that the Tribunal required to obtain further information in order to make an assessment of the child’s additional support needs, and he stated that the appellant wished the Tribunal to reach a decision on the basis of the information available to it.  In the case of M v Aberdeenshire Council, which related to a decision of an Education Appeal Committee about a placing request for a child on the autistic spectrum, the Sheriff said that it was surprising that it did not appear that any formal professional assessment of the child’s needs had been carried out by the education authority and that it was difficult to see how an education authority could make provision for additional support needs if they had not acquainted themselves with just what these needs were.  At A16 the child’s General Practitioner states that the child is “one of the most severely mentally disabled patients I have”.  The Tribunal should give this statement weight.  At A17 Dr R outlines the child’s needs and indicates that he thrives best in an environment that takes into account his problems with sustaining concentration, his impulsivity and also his sensory issues and can provide him with low levels of stimulation and clear and consistent boundaries.  At R121 the educational psychologist said in an email dated 4 January 2011 that the child had communication and behaviour problems that were quite challenging but not unmanageable and that there was a need to work closely with social work to build a shared, holistic picture of how to meet the child and family’s needs.  He said that there had been no formal assessment in relation to sensory issues.  The Head Teacher of School B when questioned about whether Occupational Therapy had been involved, for example to help the child with holding a pen or knife and fork, said it was a matter for health professionals.  The social work witness did acknowledge that thorough assessments were required and recognised that the last assessment under section 23 of the Children (Scotland) Act 1995 was in 2006.  There was some confusion about whether the school or social worker would make a referral to Occupational Therapy.  She admitted that there has not been any Occupational Therapy or sensory assessment.  Annual Reviews that took place at school were not always well attended by other professionals and the multi-agency approach appears to have faltered.  The appellant’s view is that there should be a holistic approach to the child’s needs.

 

The child’s health needs are significant and include self-harming and alopecia.  He needs real understanding of what the issues are.  He cannot articulate them himself.  The appellant has to deal with his behaviour at home and from summer 2010 his behaviour whilst at school and then coming home were unmanageable or certainly worse than they were before.  The evidence does not give a homogenous perspective as to the child’s needs.  It is difficult to agree with the respondent’s submission that both School B and School Cs would meet the child’s additional support needs as they offer very different things.  The Head Teacher of School B said that School C may be more appropriate given its provision for sensory difficulties.  The schools have to be treated separately in terms of analysis.  The appellant considers that the problems the child has are associated with School B and that his issues were exacerbated before she withdrew him in December 2010.  She raised questions in the 2006 Annual Review about whether or not School B was the most suitable educational provision for the child.  The Head Teacher described the school’s experience with the child as a bit of a rollercoaster but said that on the whole they were coping “OK”.  Paragraph twenty of the case of City of Edinburgh Council v Mrs MDN quotes the Tribunal in that case as having not been persuaded that it was enough for the authority simply to say that the child’s behaviour was being “managed”.  It is not sufficient for the authority to say that School B was coping “OK” and it is reasonable in the circumstances for the appellant to seek to find an educational provision that would allow the child to prosper individually, personally and educationally.  The appellant believes that School A would meet the child’s needs on a holistic basis.  It is difficult to compare this to School B.  The educational psychologist conducted a few observations of the child at school and saw him interacting on a one to one basis with a support worker and in the school hall, both in the morning, although issues tended to arise in the afternoons.  The context of his analysis is that he has been involved with the child for four or five years but has only seen him a few times and only attended one Annual Review for about fifteen minutes.  He has had very little involvement with the child on a one to one basis.  He did not argue that School A could not meet the child’s needs.  The social worker said that she saw positive changes in the child in school but she has not observed him there often and has not had regular contact with him.  If the Tribunal accepts the evidence of the appellant about the child’s stress levels before and after school it could be taken that School B is not an appropriate placement to meet his overall needs.  A very different picture is painted at school and at home.

 

The latest HMIE report about School C shows concerns about aspects of the provision there.  It is therefore impossible to say that the education authority could make suitable provision for the child’s additional support needs in that environment. 

 

3. It would be reasonable and suitable to place the child in School A.  The Tribunal should accept the evidence of the appellant that the child’s behaviour had deteriorated prior to his being withdrawn from School B in December 2010.  His stress levels were particularly high then and his difficulties with transitions were exacerbated.  There is a need for a holistic, broader analysis of his needs.  He is now calm.  Witness B gave evidence that School A is calm, tranquil and a leading unit in social pedagogy.  The focus there would be on the child’s sense of self and building from there.  When the child visited School A he was calm and offered to shake hands.  The appellant indicated that when she was in the vicinity of School C the child shouted and swore.  The HMIE report in relation to School A is very positive.  Since the report was prepared the curriculum and child centred approach have been strengthened.  It is a particularly good school and notable for its success.

 

In relation to cost, the evidence in the table at R132 is accepted, although if one to one or two to one support is to be provided at School C a new worker may have to be allocated to the child.  The appellant is of the view that a placement at School A would be money well spent.  The cost may be relatively small compared to the cost implications if the child’s needs are not properly met at this stage.  The cost of School A is reasonable.

 

4. The authority offered the child a place in School C but not until 27 April 2011, after the reference was made.

 

The appellant’s solicitor urged the Tribunal to overturn the refusal of the placing request and to accept School A as an appropriate and suitable placement.  He submitted that the appellant is attempting to get the best provision for her child in order to reduce his stress levels and the difficult behaviour that results. 

 

7. Reasons for Decision

 

INTRODUCTION

 

Section 19(4A) of the 2004 Act specifies the circumstances in which a Tribunal may confirm or overturn the decision of the education authority to refuse a placing request referred to in section 18(3)(da) of the 2004 Act.  In terms of section 19(4A)(a) the Tribunal may 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”

 

In terms of section 19(4A)(b) the Tribunal may overturn the decision and require the education authority to place the child in the school specified in the placing request by such time as the Tribunal may require.

 

Section 19(4A)(a) creates a two part test, and the Tribunal considered each part in turn. 

 

TEST IN SECTION 19(4A)(a) OF THE 2004 ACT – PART ONE

 

Firstly, the Tribunal considered whether or not one or more grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exist or exists.  The paragraph of schedule 2 of the 2004 Act relied on by the education authority is paragraph 3(1)(f).  The duty in paragraph 2 of Schedule 2 to the 2004 Act to comply with the placing request does not apply if all of the four conditions in paragraph 3(1)(f) apply. 

 

The Tribunal’s views in relation to the applicability of the conditions in paragraph 3(1)(f)(i) to (iv) are as follows:

 

• 3(1)(f)(i) the specified school is not a public school

 

It was not disputed that School A is not a public school.

 

• 3(1)(f)(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,

 

Additional support needs:

 

Section 1(1) of the 2004 Act specifies that “A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.”  Section 1(2) indicates that “the reference to school education includes, 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”.  Section 1(3)(a) defines “additional support” as meaning, in relation to a child of school age “provision which is additional to, or otherwise different from, the educational provision made generally for children … of the same age in schools (other than special schools) under the management of the education authority for the area to which the child or young person belongs”. 

 

The appellant’s solicitor appeared to make conflicting submissions that there were not sufficient contemporary assessments to identify the child’s additional support needs and that the Tribunal had sufficient information before it to identify the child’s additional support needs and reach a decision.  The Tribunal considered whether or not it was necessary for it to appoint an expert in terms of rule 24 of the 2006 Rules, but concluded that this was not required as taking into account the documentary and oral evidence presented to it, the Tribunal was satisfied that it had sufficient information before it to identify the child’s additional support needs. 

 

The child’s additional support needs arise from his Autistic Disorder, significant learning disability and associated sensory sensitivities, anxieties and phobias and hyperactive behaviour.  He requires a considerable amount of individual support from an adult in order to benefit from school education.  He has very high sensory needs, including sensitivity to sound, and as a result requires an environment within which this can be managed.  The environment should provide low levels of stimulation.  He requires clear and consistent boundaries.  He needs to be in an environment where there is an understating of his difficulties and how best to manage them.  He requires assistance and techniques to enable him to communicate to his full potential.  This may include input from speech and language therapy.  He requires assistance to sustain attention and concentration.  His impulsivity requires to be addressed.  He requires particular support with transitions.

 

The child’s General Practitioner states at A16 that he is “one of the most severely mentally disabled patients I have”.  Whilst not doubting the veracity of this statement, the Tribunal was unable to give it any weight in determining the reference.  The Tribunal has no comparative information about the General Practitioner’s other patients.  In any event, the statement is so general that it does not provide any assistance in determining the child’s additional support needs or in assessing the respective suitability of the proposed schools.

 

Provision for Additional Support Needs:

 

The Tribunal did not accept the submissions of the respondent’s solicitor in relation to the significance of the HMIE report on School C.  He appeared to found on that report as the main reason for suggesting that School C could not make provision for the child’s additional support needs.  The report into School C was prepared on 25 November 2008.  The inspection of School C in 2008 used the standard “How Good is our School” version three, which set higher standards than the previous version.  There is no doubt that there were areas where improvement was required, but it is evidence from the HMIE report that it was an improving school when the report was written.  The Tribunal accepted the evidence of the Head Teacher of School C, who was herself singled out for praise in the HMIE report that in the years since the report was written improvements had been made in all the areas identified by HMIE.  The HMIE report on School B dated 9 June 2009 indicates that it is a good school.  The Tribunal accepted the evidence of the Head Teacher of School B that steps had been taken to address areas that required improvement identified in the HMIE reports.

 

The Tribunal considered that the authority are able to make provision for the additional support needs of the child in both School B and School C.  Both schools are special schools which have a number of pupils with autism and have experience in supporting and teaching children with similar additional support needs to the child.  Whist there are aspects of the provision at School B that are less than ideal, for example the school bell and school layout, the Tribunal considered that these issues did not amount to an inability to make provision for the child’s needs.  They do weigh in the assessment of the respective suitability of the school with School A, as outlined below.

 

• 3(1)(f)(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

 

As explained above, the Tribunal concluded that the education authority could make provision for the additional support needs of the child in either School B or School C.  Paragraph 3(1)(f)(iii) requires the Tribunal to balance the respective suitability and respective costs of the specified school, School A, and the schools proposed by the education authority.

 

Respective Costs:

 

The estimated cost of Direct Payments and Jigsaw would be the same if the child was placed at School A as a day pupil, School C or School B.  These figures were not challenged by the appellant.  As these costs are the same for all schools they do not required to be considered when balancing respective cost and respective suitability.  The education authority (R132) estimate transport costs to the respective schools as follows: School B £1365, School C maximum £3023 and School A £2000 to £11,200.  On the basis of the information provided, the Tribunal decided that it was reasonable not to take transport costs into account in balancing the respective costs of School A with the other schools.  There will be transport costs for all three schools and the minimum and maximum estimates in relation to School A are substantially different.  On the information provided the cost of transport to School A may be slightly more than transport to School B and slightly less than transport to School C.  

 

Costs – School A:

 

The placing request relates to placement of the child at School A as a day pupil for forty weeks per year.  The Tribunal has therefore considered the cost of this provision and not residential provision.  The evidence before the Tribunal suggests that the minimum cost of placement at School A would be £37,840 per year.  This figure is contained in a table submitted by the respondents (R132) and is based on attendance at School A as a day pupil for forty weeks per year.  A letter from School A dated 28 March 2011 and submitted by the appellant (A61) quotes an initial rate of £946 to £989 per week, to be reviewed after a period of six weeks.  £946 x 40 weeks = £37840.

 

Costs - School C and School B:

 

In the case of SM as legal guardian to J v A Decision by the Additional Support Needs Tribunal on 12 August 2006 to uphold the refusal of a placing request for J at RB, Edinburgh by Edinburgh City Council [2006] CSOH 201 it was held that “cost” in paragraph 3(1)(f)(iii) of Schedule 2 to the 2004 Act referred to cost to the education authority rather than to the public purse generally and if a child was placed in a state school under the authority’s management, the cost to the local authority of making that provision would be measured only in terms of what further expenditure was necessary to enable it to meet the child’s needs.  Using this definition of cost, no additional costs would be incurred in placing the child at School B or School Cs, other than those referred to above which apply to all three schools.

 

The cost of placement at School A is significantly greater than the cost of placement at School B or School C.

 

Respective suitability:

 

School A:

 

The Tribunal was satisfied on the evidence before it that School A could make provision for the child’s additional support needs and that it would be a suitable placement for him.  The HMIE report on School A dated 12 September 2007 is exceptionally good and the Tribunal accepted evidence that improvements had been made to the curriculum and the child-centred approach had been strengthened since that date.  Accreditation by the National Autistic Society provides independent evidence that the School makes effective provision for children with autism.  The environment of the school is relatively calm and tranquil.  A range of therapies are available and are used depending on the needs of each child.  The holistic approach of School A is likely to assist the child to benefit from school education. 

 

The Tribunal did not give any weight to the appellant’s evidence that Dr R had indicated to the appellant some time ago that School A would be the most suitable school for the child.  This view is not contained in the letters written by Dr R at A17-18 of the bundle.  An email from the appellant’s representative dated 19 May 2011 indicated that Dr R had nothing further to add to these letters.  This account of her views was not referred to in the appellant’s case statement.

 

School B:

 

Provision at School B prior to December 2010:

 

There was evidence, particularly from the appellant and in the written school reports, which indicated that at times the child showed distress and his behaviour was challenging.  The appellant believes that this is because the provision at School B is not adequate and he does not want to go there.  However, there was also evidence that at time the child was settled at school, and the Tribunal accepted the evidence of the educational psychologist and social worker that they had observed him coping relatively well at school and had noticed improvements in his interaction.  The Tribunal accepted the evidence of the Head Teacher and Educational Psychologist that the child may say phrases like “no school”, “no home” or “no Mum” but it is not possible to know whether or not this means that he does not want these things.  For example, he may be trying to understand the environment he is in at the time.

 

The Tribunal considered that there was insufficient evidence to determine exactly which factors or combination of factors caused particular difficulties to manifest.  For example, casual factors in the more recent difficulties may include medication being stopped, After School Club making the day too long, the child struggling to cope with the demands of interaction with others and school in general, his significant difficulty with transitions or the child picking up on the appellant’s unhappiness with the school and desire for alternative day or residential provision.  In relation to the improvements noted by the appellant since the child has been away from home, Dr R has explained that his anxiety levels will be minimal when he is in an environment that he is comfortable with and when he does not have any demands placed on him.  In the current situation, social isolation is an increasing concern.  However, his difficulties and how they have manifested help to establish the nature of his additional support needs and suggest the type of educational provision that will be most suitable to meet his additional support needs in future. 

 

Suitability of School B:

 

Although there is evidence that School B made provision for the child’s needs for several years there were areas where the Tribunal had concerns about the suitability of this school to meet his needs in future as he grows older and moves through the school.  Although staff have autism training, the Tribunal had concerns about some of the autism practice described.  For example, children sitting in a U shape in the classroom is contrary to good autism practice.  The Head Teacher gave evidence that the physical conditions of the school are less than ideal.  As the child moves up the school he will be in an open plan class area rather than in a classroom.  Given his particular needs, including those arising from autism and hyperactivity, this is not likely to be the best environment to keep stress to a minimum and facilitate learning.  The school and the child have developed ways of dealing with some of the parts of the school day that cause him sensory distress, such as the child putting his fingers in his ears when the school bell goes off and on occasion turning off strip lights.  The Tribunal accepts that there is an argument to some extent that it may benefit the child to learn to deal with some of the sensory challenges he will face outwith school, however he is a child with very high sensory needs, with sensory sensitivities to touch and sounds, who will thrive best in an environment which takes into account his sensory issues.  The Tribunal therefore considers that the elements of school provision at School B that cause sensory distress are likely to impair his ability to benefit from school education.  The school is relatively noisy and busy compared to School C and School A.  School B appeared to have a less flexible, individualised approach than the other two schools.  The staff to pupil ratio is less favourable in School B. 

 

The authority argued that the fact that School B will provide the child with a familiar environment and people was an argument in favour of the suitability of that school.  This potential benefit is reduced by the fact that it is over five months since the child attended school there.

 

In comparing the HMIE report on School B with the report on School A with the report it is relevant to note that the inspection of School A, carried out jointly with the Care Commission, used a standard called “How Good is our School” version two.  The inspection of School B in 2009 used the standard “How Good is our School” version three, which set higher standards than the previous version.  For example, the standards required to merit a “very good” in version three are more demanding than those in version two.  As outlined above, the Tribunal was satisfied that improvements had been made in the areas identified in the HMIE report.

 

The Tribunal did not consider that the fact that there are plans to merge School B and School C in a new state of the art building, in 2014 at the earliest, had a significant bearing on the assessment of the suitability of the school.  Although the child has particular difficulty with transitions, it was clear from the evidence of both Head Teachers that considerable effort would be put in place to manage any future change of this nature to ensure that minimum distress was caused to the child.

 

The Tribunal did not give any weight to the documentary evidence from Crossroads or BD at A36 and R128 due to the conflicting nature of the evidence and the implications made that undue pressure was put on BD both by the appellant and by the respondent.  The Tribunal does not offer any view in relation to the reality of these implications.  This evidence would not have had a material bearing on the Tribunal’s decision and as a result the Tribunal saw no need to seek clarification of the position. 

 

The Tribunal concluded that School A would be more suitable to meet the child’s additional support needs than School B, for the reasons outlined above.

 

School C:

 

The Tribunal found the evidence of the Head Teacher of School C about the ethos and approach of the school to be persuasive.  A number of factors make School C suitable to meet the child’s additional support needs.  The physical environment is favourable in relation to his needs, including the baffling that reduces background noise, the lack of a school bell and break out areas.  The school’s approach is flexible and less structured that that on offer at School B.  The child would be in a classroom with a staff to pupil ratio of at least one to one.  A number of appropriate therapies are on offer.  There is a focus on managing anxiety to enable pupils to benefit from school education.  The Depute Head Teacher has particular expertise in autism.

 

The appellant had not visited School C or spoken to the Head Teacher, but a number of the positive factors that led her to conclude that School A was suitable for the child also exist in relation to School C, including a calm environment, an individualised approach, teaching at the child’s pace, less structure and therapies targeted to the child’s needs.

 

In comparing the HMIE report on School C with the report on School A with the report it is relevant to note that the inspection of School A, carried out jointly with the Care Commission, used a standard called “How Good is our School” version two.  The inspection of School C in 2008 used the standard “How Good is our School” version three, which set higher standards than the previous version.  For example, the standards required to merit a “very good” in version three are more demanding than those in version two.  As outlined above, the Tribunal was satisfied that improvements had been made in the areas identified in the HMIE report.

 

As outlined above in relation to School B, the Tribunal did not consider that the fact that there are plans to merge School B and School C in a new state of the art building, in 2014 at the earliest, had a significant bearing on the assessment of the suitability of the school.  Although the child has particular difficulty with transitions, it was clear from the evidence of both Head Teachers that considerable effort would be put in place to manage any future change of this nature to ensure that minimum distress was caused to the child.

 

In considering respective suitability the Tribunal did not place weight on the appellant’s account of the child’s response to a visit to School A contrasted with his response when she took him to the vicinity of School C.  The Tribunal accepts that the child may respond positively to the tranquil nature of the surroundings of School A, but the evidence suggests that he was unlikely to be aware that he was visiting a school.  The Tribunal noted that the appellant had not at any time had contact with the Head Teacher or any other member of staff at School C or arranged a visit to that school, and considers it unlikely that she would take a child with difficulties with new environments and transition between environments to a potential new school without any prior discussion, notice or planning.  Even if she drove with the child in the vicinity of the school, the Tribunal does not consider that a negative response to this is an indication of how suitable the school will be to meet the child’s needs once appropriate arrangements have been made for his attendance.  The transition to a new school, either School A or School C, is likely to cause difficulties and will have to be carefully managed.  The Tribunal noted that the social worker proposed a period of six weeks intensive support to facilitate the transition back to school.  The co-operation and attitude of the appellant will be crucial to a successful return to school.

 

The Tribunal concluded School C was as suitable to meet the child’s needs as School A.

 

Conclusion:

 

Paragraph 3(1)(f)(iii) requires the Tribunal to have regard to the respective suitability and respective costs of the schools in order to determine if the authority are correct in their contention that it is “not reasonable” to place the child in School A.  For the reasons outlined above the Tribunal concluded it is not reasonable to place the child in School A as the provision at School C is as suitable for the child as placement at School A and the cost of placement at School C is considerably less than the cost of placement at School A.  In relation to School B, the Tribunal is satisfied that the provision at School A would be more suitable to meet the child’s additional support needs than the provision at School B, and having balanced this with the fact that placement at School A would cost considerably more than placement at School B concluded that it would have been reasonable to place the child in School A if the only alternative was School B. 

 

• 3(1)(f)(iv) the authority have offered to place the child in the school referred to in paragraph (ii)

 

The child is on the roll for School B and therefore has a place at that school.  He was offered a place at School C on 26 April 2011.  The Tribunal did not accept the argument of the respondent that its actions prior to 26 April 2011 amounted to an offer to place the child at School C for the purposes of paragraph 3(1)(f)(iv), but considers that as at the point of decision of the Tribunal a written offer of a place had been made this condition applies in relation to School C.

 

TEST IN SECTION 19(4A)(a) OF THE 2004 ACT – PART TWO

 

Having concluded that the grounds for refusal in paragraph 3(1)(f) of Schedule 2 to the 2004 Act apply in relation to School C, the Tribunal went on to consider the second part of the two part test in section 19(4A) of the 2004 Act; whether or not it was satisfied that in all the circumstances it is appropriate to confirm the decision of the education authority.

 

In considering this test the Tribunal took into account that section 28(1) of the Education (Scotland) Act 1980 provides that “In the exercise and performance of their powers and duties under this Act … education authorities shall have general regard to the principle that, so far as 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”.  In circumstances where suitable provision for the child’s additional support needs can be made at School C and the grounds for refusal in paragraph 3(1)(f) of Schedule 2 to the 2004 Act exist, as outlined above, placement at School A in accordance with the wishes of the appellant would involve unreasonable and unnecessary public expenditure.  More generally, the Tribunal was satisfied that in all the circumstances it is appropriate to confirm the decision of the education authority as suitable provision can be made at School C. 

 

CONCLUSION

 

As the Tribunal is satisfied that the ground of refusal specified in paragraph 3(1)(f) of Schedule 2 of the 2004 Act exists in relation to School C and that in all the circumstances it is appropriate to confirm the decision, the Tribunal confirms the deemed decision of the respondents to refuse the placing request.