DE
Reference: D_13_2010
Gender: Male
Aged: 12
Type of Reference: Placing Request
1. Reference:
On 19th July 2010 the Appellant lodged a reference under section 18 (4) of the Education (Additional Support for Learning) (
The reference is in respect of the decision dated 17th June 2010 where the authority refused a placing request made by the Appellant under paragraph 1 of Schedule 2 of the Act, for her son, to attend the specified school.
The Tribunal has jurisdiction as the authority had agreed that the child should have a Co-ordinated Support Plan (“CSP”) and was about to commence preparing one when the placing request was refused.
2. Decision of the Tribunal:
The Reference is allowed.
The decision of the Respondents to refuse the Placing Request is overturned. The Respondents are directed to place the child in the
3. Preliminary Issues:
The Appellant sought a Direction from the Convener regarding jurisdiction, stating that the authority had failed to confirm the date when it determined that a CSP was required. Additionally, the authority had advised the incorrect time scale for lodging an appeal when refusing the Placing Request. The Convener issued a direction on
At a conference call on
4. Evidence:
Documentary evidence was produced in a bundle with papers T1-T26; R1-R44 and A1-A28. Prior to the commencement of the hearing, and during the course of the hearing additional documents were produced. These were admitted and marked R45-R85 and A29-A36.
Oral evidence for the Respondents was taken from:
-Head of Education, Learning & Leisure, the Education Authority
-Depute Head Teacher, the Nominated School
-Acting Sensory Support Manager, Sensory Support Service
-Senior Educational Psychologist
Oral evidence for the appellant was taken from:
-The Appellant,
-the father of the child
-the child
-Depute Head Teacher, the Specified School
The child did not attend during the hearing but the Tribunal had the opportunity to consider a letter written by him to the Tribunal and to speak with him directly outwith the presence of his parents and the parties’ representatives with a view to obtaining his views.
We were satisfied that we had sufficient evidence upon which to base our decision.
5. Findings in Fact:
1. The child is aged 12. He lives with his parents. He has 3 younger siblings aged 6, 3 and 1 years of age. His father works offshore and his work pattern means that is at home for 3 weeks at a time. The appellant, his mother, is therefore his primary carer.
2. The child has additional support needs due to diagnosed physical conditions. He has Bilateral Optic Nerve Hypoplasia, resulting in the most severe visual impairment in that he has no sight. He has congenital panhypopituitarism and requires hormone replacement injections on a regular basis. He has mild postural scoliosis which impinges on his right thorax, ribcage and collarbone position. He also has fine and gross motor difficulties and poor muscle tone. The child was recently assessed by a physiotherapist for the authority and it was noted that his exercise tolerance was impeded due to flat feet and poor muscle tone likely to produce increased fatigue over longer distances. He requires orthotic insoles, orthotic boots and ankle supports. He visits an orthopaedic consultant twice a year for check ups requiring x-rays to have his bone growth checked. His visual impairment gives rise to the need for guidance and supervision especially out of doors.
3. The child has hypersensitive hearing, in that he hears extraneous environmental sounds and easily overhears conversations of others, which can be intrusive and compete for his attention.
4. The child was diagnosed as having Autistic Spectrum Disorder (Aspergers Syndrome) in August 2010.
5. The child has difficulty with reading and there is a suggestion that he may be dyslexic. He does have very good listening skills and his level of comprehension is age appropriate.
6. The child is a bright boy who is likely to go on at least to Further Education after school and possibly to University.
Primary School
7. The Vision Support Service first became involved with the child in 1999, supporting him first in his home, then at nursery and then at Primary School. The child attended at Primary School, a mainstream school. He has made good educational progress at Primary School. The Sensory Impairment Service supported the child while he was at Primary School and was of great assistance to him. They constantly kept the level of support required by the child under review. By Primary 7 the child was independent in many aspects of his routine and the service tended to monitor him in class rather than actively be involved in supporting him. The Vision Support team have continued to work with him following his transition to Secondary School.
8. Since 2006 the child has had a Social Worker, linked in with the Visual Impairment Team, assigned to work with him and his family. There is an open arrangement whereby the child and his family can access the Social Worker as required to discuss any concerns either at home or at school. To date this support has not been actively engaged by the child or his family.
9. While awaiting the outcome of the appeal against the refusal of the Placing Request, The child commenced at the
10. The Sensory Support Service provided by the authority is highly regarded and has received plaudits from a variety of different sources. Their staff are exceptionally supportive of young people with additional support needs. The Authority Vision Support, part of the Sensory Support Service, works with children with visual impairment from birth to school leaving age. The authority’s psychology service has been granted the Charter Mark award and the Excellence Service award. The authority have produced a Pathways to Policy suite of documents which outlines a range of supports to schools in its area. With regard, in particular, to the provision of support for young people with Autism and Aspergers Syndrome, the authority provides a range of support mechanisms such as staff training, support and education from psychologists and support to staff locally. All staff are able to access supports and materials giving guidance for supporting specific children in specific circumstances. The authority, through their schools, seek to provide support to families by creating a “Circle of Friends” which involves the family, the school staff and the young person themselves. The authority promotes mainstream education for all pupils.
11. At the
12. Following the child’s diagnosis of Aspergers in August 2010, the Authority sought advice from medical professionals and colleagues in the Educational Psychology Department with a view to ensuring that the appropriate supports were available to the child and to those working with him.
13. The Specified School is a specialised school catering for children and young people up to the age of 19 who have visual impairment and may also have other conditions. Pupils can attend on a residential and non-residential basis. The only requisite for entrance to the school is to have a visual impairment. There are 54 places at the
14. All teachers within the school either have or are en route to obtaining the Post Graduate Diploma, Visual Impairment and the Braille Competency Certificate (Grade 2). They have knowledge and experience of using a wide range of resources specifically designed for blind users with additional disabilities. Classroom Assistants are also working towards or have achieved their Braille Competency (Grade 2) qualifications and are given extensive training to ensure that their support to pupils is relevant and informed. Mobility and Independence Specialists routinely assess all pupils and devise and implement specific independent programmes to encourage mobility and orientation skills. All programmes are planned in collaboration with other school based Therapists to ensure coherence across disciplines. Multi-disciplinary therapeutic input and ongoing assessment is provided by Physiotherapists, Speech and Language therapists and Occupational therapists. Hydrotherapy, orthotic, chiropodist, dental and medical support are also available at the school.
15. A multi-discipline baseline assessment is conducted over a period of six to eight weeks after a pupil takes up a place in the school. This assessment, which is used to inform targets and priorities, would involve parents and the wider team of educators and therapists.
16. The Specified School uses the full range of “blind methods” of teaching. The pupils have access to JAWS and a Brailler and the internet in every classroom and in the library.
17. The school presently has five boys in a class making up S1 and S2 within the school. Of these five, two have no sight. One of them is autistic and one suffers from Dyspraxia. Four of the boys follow the mainstream curriculum and one boy partly follows the mainstream curriculum and partly has a specialised curriculum. These would be the peer group for the child if he attended at the
18. Within the
19. There is a bell system within the school. It was described as being a “dull” bell and goes off at the beginning and end of the day and at interval and lunch time. When the child visited the school, the bell did not appear to cause him any concern.
20. As far as possible, the Specified School encourage independence in mobility and life skills, such as dressing, washing, cooking etc. There is a flat available where pupils could spend some time living as independently as possible, while having minimal support from staff as required. The
21. The authority began planning the child’s transition to the
- Investigate replacing the bell system within the school (not actioned).
- Investigate Braille signage within the school to help with wayfinding (not actioned).
- Braille training for two teachers and two auxiliaries from MA.
- Staff awareness sessions and training with the Vision Support Service.
- Training provided by the Visual Impairment Team to auxiliaries in the
- Training provided to the child’s subject teachers specific to the child’s additional support needs.
- Teachers from the
- A DVD had been made looking at aspects of the child’s daily life and used in training sessions with auxiliaries and other staff.
- All P7 pupils who would be attending at the
- A room was renovated and designated as a Braille room. It was allocated for the sole use of the Vision Support Team in the
- The provision of hardware and software for the child’s use, such as a Braille Note, laptop with JAWS, DAISY books and audio material.
- The provision of two Bambach chairs.
- Mobility training for the child, including long cane skills, to take place on a weekly basis.
- Support in classes, especially during the first term, by one of the Vision Support Teachers.
- Support in classes by an Auxiliary.
22. The cost incurred by the authority to date amounts to £47,634. This is broken down as follows:
Training for staff in Braille (and staff cover), JAWS and Braille Note Training - £8535
Purchase of Laptop, Braille Note, Visual Display for Braille Note, Brailler x 2, - £5690
Purchase of Software for Braille Note and JAWS - £915
Purchase of Bambach chairs and adjustable table - £1594
Communicator (preparation of written materials) - £13,000
Auxiliary hours - £12,000
Mobility - £1500
Taxi & Escort - £4400
23. These costs are considered to be “one-off” costs to the authority, although updates to the software may be required from time to time. The authority provides a taxi and auxiliary (because of medical needs) to the child to travel to and from school. At present, this taxi service is used by the child and the other blind child attending at the specified school. The authority advised that, if the child wished to stay at school to attend at after school activities, the taxi and auxiliary would still be available to him at negligible extra cost. Resources such as the Communicator and auxiliaries etc are also used by the other blind child in the school.
24. Prior to attending at the
Cost of the Specified School
25. The cost for the child to attend at the specified school would amount to £53,034 per annum. This cost represent fees of £40,562.34 for residential attendance, Monday to Friday during school term times, and the additional cost of transporting the child to and from the school each weekend and at the end of terms.
26. If the authority were satisfied that there was a significant advantage in the provisions for the child at the
27. There is a significant difference in the additional cost provision of the specified school, as opposed to the nominated school.
28. The appellant first considered the
29. Initially the child and his parents were positive about the transition to the
30. The authority refused the Placing Request on 17th June 2010. At that time the authority had not visited the
31. The Acting Sensory Support Manager also advised that they had regular contact with the
Mainstream Curriculum
32. At the
33. In his second year, the child will not be able to take Geography due to the amount of map work involved. At the
34. At the
35. At the
36. At Primary School there was a good level of communication between the Appellant and the Vision Support staff and the school teachers regarding the child’s progress. At the
37. At the
Physiotherapy and exercise at the Nominated School and the Specified School
38. The child had recently been assessed by a physiotherapist for the Authority and this report was received into the Bundle during the course of the Hearing. The Appellant advised that she had also instructed an assessment from an independent physiotherapist, but that the report from this assessment was not yet available. The conclusion within the report lodged stated that the child requires regular supervised use of the multi gym at school and cross trainer at home (provided by his parents) to maintain his muscle straight and posture. He may benefit from swimming or activities in water to encourage a more extended trunk posture.
39. The child has the use of a multi-gym at the
40. The child sometimes returns home complaining of a sore back after using the multigym. The Appellant is concerned that, as he is not being supervised by a physiotherapist, the child may be using the equipment incorrectly. The child has hyperextension of the joints. Incorrect use of the gym may be of more harm than good to him. When he was recently assessed by the physiotherapist, it was noted that the tilt to his posture has increased.
41. The child takes part in P.E lessons, including swimming. He has his own changing area and receives support in changing and dressing and undressing.
42. At the the
43. At the
Mobility Training at the Nominated School and the Specified School
44. At the
45. At the
Support Base, Braille Room and Reading Comprehension
46. There is no Support Base within the
47. At the
48. The child is reported to be progressing well academically to date. His reading of Braille is slow but the school report that his comprehension is good. When tested using the Neale Analysis Reading Test, his comprehension scored well. Although he struggles with reading Braille in French, his oral skills in French are good.
49. The school are investigating the possibility that the child may suffer from Dyslexia. There may also be a link between his Aspergers and difficulties with reading.
Ability to Make Friends
50. At primary there was another child who is also blind, who is of the same age as the child. He and the child had been friendly and had occasionally visited each other’s houses. However, although they were friendly, they were not described as being friends. The appellant advised that, having Aspergers Syndrome, the child found it difficult to form friendships. He would focus exclusively on one topic and other children would become disinterested in speaking with him. Being blind meant that he did not pick up on visual cues that the other children were becoming bored.
51. In Primary School there was a buddy system for the child. However, the child did not wish this to be continued into secondary school. The child did not want buddies to be chosen for him. The buddy would sometimes leave the child and go off and do his own thing.
52. Pupils who were friendly to the child in Primary School during school hours would walk past him without acknowledging him outside of school. The child did not have friends who called round for him. This is mainly true also at the
53. The child is receiving support in social skills to assist him in the art of making friends. This includes teaching him “opening lines” that he can use to start conversations. He does make an attempt to engage other pupils in conversation. However, he can find that these prepared opening lines can lead to problems in that it does not flow like natural conversation. Additionally, if he does not receive the anticipated response from the other person, it can leave him at a loss as to what to say next.
54. During his visit to the
55. The Senior Educational Psychologist shadowed the child for a day and gave his opinion that the child was able to cope with being in a large class of pupils and does not appear to be distracted by conversation going on in the background.
56. In the draft CSP, the child’s hypersensitive hearing is identified and it is noted that, as a result of being aware of background noise and the conversations of others, The child sometimes finds it difficult to focus on oral directions or tasks that require concentration.
57. The Appellant confirmed that the child finds it difficult being in big groups of people. The appellant advised that the child can appear to struggle to cope within the family home if both sets of grandparents are visiting and his siblings are playing. At school, if others in his class are talking, for example, about the programme, The X Factor, the child will take this in as well as what the teacher is talking about, and so struggles to concentrate.
58. The Authority led evidence regarding the child’s mannerisms of finger flicking and rocking. The Educational Psychologist had observed the child in a number of his classes and stated that these mannerisms appeared during times when the child was not actively employed, such as when changing from one task to another or when, in a group situation, he was not actively carrying out the task. The teacher would quietly bring the mannerism to the child’s attention and he would stop doing it. The Educational Psychologist was of the view that these mannerisms were a way to relax and not of any great concern.
59. The Appellant and the child both gave evidence to the effect that these mannerisms were likely to occur both when the child was not actively engaged, and when he was feeling upset, frustrated or angry. The child was able to appreciate that he should not carry out this behaviour at school, but once at home, he would relax his restraint. The child described that he would feel like hitting himself. There was a clear difference in the level of behaviour when he was frustrated as opposed to when he was relaxing. This behaviour may not be so obvious to those who do not know him well, or when the child is in “school mode”.
60. The child will do what is asked of him, but he can get frustrated. His teachers do not realise when things are getting on top of him. The child had an apparent lack of knowledge of who he could confide in regarding his feelings of anger and frustration.
Extra Curricular Activities
61. The appellant has considered taking the child to activities run by the Forum for the Blind. The activities are held mainly on a Monday evening between 6pm and 8pm. This is traditionally the evening when the child’s 6 year old sibling has swimming lessons. However, the child is resistant to change of routine, even the routine of his family. Accordingly, the child does not attend at these activities.
62. The child goes swimming once a week at the weekend with a Special Needs instructor, arranged by his parents. The instructor works on correcting the the child’s alignment. The child also has keyboard lessons each weekend, arranged by his parents. At Primary School, the child raised money for Guide Dogs for the Blind by doing a sponsored walk, which he organised himself. He also took full part in outdoor activities during a residential trip in P7 and played a leading role in the P7 show. He enjoys the challenge of new things and giving things a go.
63. The Nominated School offers some extra curricula activities which the child takes advantage of, namely, the chess club and the computer club, which are run at lunchtimes. The child advised that he only occasionally interacts with other children when he attends at these activities.
64. The Specified School offers a wide range of extra curricula activities, including horse riding, swimming, canoeing, sailing, power boating, judo, trips to the cinema, football, bowls, swim teams and once a year the pupils take part in Disability Scotland sports event. Rather than the child being the only one in a team with a helper, the child would be in a team where all the children have a disability and require helpers and so would not be singled out. In addition to a hydrotherapy pool, the Specified School also has a swimming pool that the pupils have access to after school, on a daily basis if they so choose.
Independent Life Skills
65. The child has consistently shown a strong desire for independence. At home he has gradually become more independent, showering and dressing himself, although the appellant picks out his clothes for him and occasionally has to advise him if he has put a top on back to front or inside out. The Appellant admitted that she probably does too much for her son at home. During the week, having other children as well as the child, means that she does not have the time to allow him to do things for himself. She does try to allow him more time to attempt things for himself at the weekends.
66. The child struggles with tasks such as cutting up his food. When eating, he can sometimes end up dropping food on himself without realising it. The child can become frustrated if the Appellant tries to teach him activities at home such as making toast
67. There are no facilities to provide independent living skills at the
68. In the draft CSP the authority have identified a need for an Occupational Therapist to identify the child’s support requirements and a rehabilitation worker to support him in his development of further awareness of hand positioning and applying power through utensils while eating and his development of motor awareness. However, the Rehabilitation worker is also tasked with working with the child on routes within the school, and has only been allocated a single period once a week within which to carry out these activities.
69. At the
Medical Needs and Trained Staff
70. As a further result of the child’s condition, he requires adrenaline if he gets injured or has a shock. He requires to carry emergency medication with him at all times. This has hindered his ability to join certain clubs, such as Scouts, where they only had a First Aider who was not qualified to administer his injections. The child also has a reduced ability to feel pain and may not be able to appreciate the seriousness of any injury.
71. At the
72. At the
73. The Respondents have prepared and lodged a draft CSP. The CSP was not considered in any great detail as it is still in draft form. Additionally, the Appellant disagrees with some of the contents. However, it does identify that additional support will be required in areas not presently addressed. Social Work are identified to provide support with accessing activities outwith school. An assessment from an Occupational Therapy is required to determine the child’s support requirements to develop his independent coping skills.
Views of the Parents for Now and Future.
74. The appellant advised that, although she would find it difficult with the child living away from home during the week, it was the child’s own strong views that had helped her and her husband to come to the decision that this would be best for him.
75. While there would be a large amount of travelling involved from the child’s home to the
76. The child does not make friends easily, due to the combination of his blindness and his Aspergers Syndrome. He did not make any real friends throughout his time at Primary School. It was usually younger children, especially girls, who would talk to him and “look after” him. He does not have any friends outside of school. In the local area, classmates can walk past him without speaking to him. Teaching him “opening lines for conversation” is not the solution as it does not let him start conversations naturally.
77. Being in a larger class would not necessarily be of benefit to the child. Although in theory he would have a larger pool of children to choose friends from, because of his blindness, he would still have to either speak to those who were physically next to him, or who approached him. He would not, for example, be able to look across the room and make eye contact with someone sitting at the other side of the room. His classes often sit the children in small groups to work together anyway.
78. In the
79. The appellant does not think that sending the child to the
80. At the Nominated School they are seeking to follow a policy of inclusion but already the child is being excluded from parts of certain classes, namely art, technical and religious studies and, in his second year, Geography. Also, the Appellant is concerned that as the workload increases, the child will struggle to keep up.
81. At the
82. Due to his physical condition, the child requires regular, appropriately supervised use of a multi-gym preferably on a daily basis. He does not get this from the
83. When the appellant was speaking with the physiotherapist at the recent assessment, the physiotherapist was surprised to learn that there was no input from occupational therapy as she had been led to believe that this was in place.
84. The Authority have prepared a draft CSP which makes reference to Physiotherapy and Occupational Therapy but there is no indication as to if and when these services will commence. The physiotherapist who has left is not currently being replaced. The Appellant is concerned that, with the current economic climate, the school may struggle to keep up the current level of support for the child, let alone provide the additional support necessary. The
85. The Appellant has been requesting input from an Occupational Therapist for some time. This would help to address the child’s problems with low muscle tone and poor motor skills. These, combined with his blindness, affect his ability to carry out tasks such as cutting up his food, eating without spilling food on himself and drinking out of a cup.
86. At the
87. The Appellant has concerns regarding the child’s mental health and is concerned that he is showing some signs of depression. He comes home from school and describes that he sits in some of his classes such as music and during classes using PowerPoint, and feels excluded. He recently advised her that he was aware that he was standing rocking back and forth in one of his classes. He often lies on his bed at home and does nothing. He has to be encouraged to join in with the family. The child advises his parents that he struggles with reading, that it exhausts him to read a page, and he can’t understand why the school described his comprehension of reading as good. At the
88. The child had always shown mannerisms such as flicking and flapping his hands. He can hit his face until he leaves a red mark. At school he is told to stop. He accordingly holds back at school but when at home he releases his restraint. This behaviour is becoming noticeably worse and it is getting to the point that the child is hurting himself.
89. A sense of independence is extremely important to the child. He is keen to learn to do things for himself. When visiting the
90. His parents do not believe that it is appropriate that the the child’s future should be restricted to his home town when it comes to further education or living arrangements. At the
Availability of Place at the Specified School
91. If the placing request is granted, the specified school would be able to place the child in the school with immediate effect, on a full time basis from the start, or on a phased basis, whichever was deemed to be most suitable.
6. Submissions from the Parties:
(A) Respondents:
1. Section 28 of the Education (Scotland) Act 1980 provides that Education Authorities shall have regard to the general principle that, in so far as is compatible for 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.
2. Paragraph 2(2) of the Education (Additional Support for Learning (Scotland) Act 2004 provides that where the parent of a child having additional support needs makes a request to the Education Authority for the area to which the child belongs to place the child in the school specified in the request not being a public school but being (a) a special school the managers of which are willing to admit the child…it is the duty of the Authority, subject to paragraph 3, to meet the fees and other necessary costs of the child’s attendance at the specified school.
3. For the avoidance of doubt it is accepted that the specified school in
4. The duty imposed by paragraph 2(2) does not apply in a number of circumstances. One of these sets of circumstances is contained in paragraph 3(1) (f) which requires all of the following conditions to 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 to both the respective suitability and the respective cost (including necessary incidental expenses) of the provision of 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. It is understood not to be in dispute that the specified school , (the requested school specified in the placing request) is not a public school so paragraph 3(1)(f)(i) is fulfilled. The authority consider that the child’s additional support needs can be met in the Nominated School which is a school within their management and I understand that it is accepted that the Authority have offered to place the child at the school referred to in paragraph 3(1) (f) (iv). The areas of dispute therefore are contained in paragraph 3(1) (f) (ii) and (iii).
6. The basis for the child’s additional support needs is that he is blind and has recently been diagnosed with Aspergers Syndrome. There has also recently been a suggestion that he may be dyslexic.
7. Evidence was led from four witnesses for the Authority regarding the steps the Authority had taken to meet the child’s additional support needs and the steps that the
8. No issues were raised regarding credibility or reliability of any of the witnesses and in fact, there is agreement on an awful lot of what is before the Tribunal. The evidence of the witnesses demonstrates that the Authority has identified the the child’s additional support needs and that the Authority are able to make provision for the additional support needs in a school other than the Specified School. The requirements of paragraph 3(1) (f) (ii) have been met.
9. Evidence was given as to the costs involved in the child attending the
10. The costs of attending the
11. Witnesses gave evidence on behalf of the Authority regarding their visit to the
12. Witnesses on behalf of the Education Authority considered that the child would benefit from increased socialisation at the
13. In all the circumstances and taking everything into account, the Authority invites the Tribunal to find that each of the four criteria in paragraph 3(1) (f) are made out and accordingly that the duty to comply with a placing request does not apply in this case. The Authority fully considered the circumstances prior to making a decision on the placing request and refused the placing request for the child to attend the
(B) Appellant:
1. The Appellant referred the Tribunal in the first instance to the case statement which clearly confirms the Appellant and her husband’s position regarding the placing request. After listening to all the evidence, they are more convinced than ever that their preferred choice of school for their child is, without question, the
2. They accept that the
3. The Appellant and her husband fully acknowledge the efforts that have been made by the school and the authority both prior to and during the child’s transition to secondary education. However, their experience of how they have consistently been mislead by promises and commitments given by the Authority which have never materialized does not inspire any confidence in their ability to provide an adequate and efficient education for the child. They understand the authority’s position regarding inclusive education as the first priority. However, parent’s right of choice cannot be denied and they cannot dismiss the fact that schools such as the
4. The Appellant and the child himself, realise that the Specified School – a well recognised Centre of Excellence- is better suited to give the child better opportunities to address the many issues created by, primarily, his blindness, than the Nominated School.
5. This child accepts he is blind- he has never been anything else – but acceptance does not mean an end to hope, ambition and aspirations for a future as a well adjusted, confident, well equipped adult with the same opportunities as anyone else, despite his blindness.
6. His parents realise he will not always be a child. They cannot, even though it is instinctive, allow his life to be ruled by his blindness. As you have seen, he is bright, inquisitive, adventurous and talented and has great potential, however he needs to become and remain an active, participating member of his community at school, home and beyond. He must be given the best opportunities to fulfil that potential –it is his right and is enshrined in the ASL legislation.
7. Addressing the reasons in law for refusing the placing request - the authority have stated they are able to make provision for the child’s needs at the
8. Turning to 3 (1) (f) (iii)- Respective suitability and respective cost. -the Authority have already stated that the Authority does not dispute that the
9. The child would also be enabled and supported to make and maintain friendships both in school and after school. This in turn would give him the confidence to apply these skills back in his own community at home.
10. In relation to the
11. Therefore, we would say that respective suitability is not established and that the
12. In relation to respective costs - we believe this argument has not been established. The Authority has placed before the Tribunal figures which are inconsistent and, we believe, inaccurate, for members to make a judgment. The Authority state that the Specified School Placement would be £53,034- including travel. However, it has been established that the authority already place a child at the
13. If it were to be established, which it has not been, that the
14. If the Tribunal is not convinced in relation to the above explanations of why the authority has not established their reason in law, it is necssary to consider the ‘in all other circumstances’ rule to grant the placing request for the following reasons:-
The child, himself, wishes to attend the
15. The Appellant has used her right under the ASL Act to make the placing request. This has not come easily to her and her husband to make an application to send their child away to school but they are looking to and planning for his future. He may be residing away from home but this is a very necessary step. If he does not go now, then he will always be known as the blind student and is destined to be isolated, lacking in confidence, have little independence out with his family, thus leading to quite a narrow existence and with no real possibility of reaching his full potential which could be endless if given the right educational and social setting.
16. Finally, there are many different factors giving rise to the child’s additional support needs. All of these factors have to be addressed effectively. Therefore, the appellant believes that his continued attendance at the
6. Views of the Child
1. The child had written a letter to the Tribunal and also spoke directly with the Tribunal members, outwith the presence of his parents and the parties’ representatives. The Tribunal found that the child was articulate and thoughtful in his responses and was able to put forward his views.
2. The child advised that he had a number of criticisms about the nominated school. Included in these were:-
a. He had been concerned, before moving up to the nominated school that the school bell was very loud and would cause him a problem. The nominated school now has no bell and the teacher tells the class when the end of the class is. He preferred the school having no bell.
-In evidence the Tribunal was advised that the school had gone to a “no bell” system and that, following the success of this trial, the “no bell” system would be kept in place.
b. He was unhappy about being provided with a “buddy” to help him at lunch and break. He advised that they often leave him and go off to do their own thing and leave him alone.
-In evidence the Tribunal was advised that the buddy system had been used at the child’s Primary School but had not been instituted at the nominated school, following the child’s stated wishes.
c. In music lessons they had only let him try playing a woodwind instrument once, then said he should stick with the piano. He felt that, if allowed longer to practice, he would have got better at it.
-In evidence the Tribunal were advised that the music teacher had identified that the child physically was not able to effect a seal with his mouth which would allow him to play the wind instrument and so further opportunities to practice would not have achieved a better result.
d. In certain subjects, such as music, computers or Rich Task, the child stated that he felt left out, on occasions, when the work included visual elements.
-In evidence the Tribunal were advised that, in the classes stated by the child, the children worked in groups and had to take turns in using the computer etc, and so each child would have some time when they were not physically engaged in the task. They were also advised that the child had auxiliaries in certain classes who worked one on one to support him in physical tasks such as making bird boxes etc.
e. The child advised that he liked to go to the library at lunch time and listen to tapes or have people read books to him. He has been told by his teachers that he cannot do this. He finds reading in Braille frustrating as it takes him a long time and the school do not have the book that he is currently reading in audio format.
-In evidence the Tribunal were advised that the child is encouraged to use the library. They accepted that he had been told that he could not have someone reading to him and explained to him that it would not be appropriate, due to his age, to have other children see him being read to.
f. The child advised that, at the nominated school they pushed him to read Braille, which he found very frustrating.
g. The child advised that the nominated school is a big school with lots of people in it, making it difficult sometimes for him to get around. However, he advised that he had to think more about how he would move between different classes and that he was now moving around “ok”. He used lifts where possible and complained that when he was using the stairs he was told to hurry up and to use only one hand instead of two to hold on to the banister.
-In evidence the witnesses for the authority denied this and stressed that the child’s safety was treated as paramount.
3. The child advised that he shared a taxi to and from the specified school each day with another child who was also blind and who had been at Primary School with him. Although they were friendly and had occasionally gone to each other’s house in the past, they weren’t in the same classes and didn’t socialise together. He also advised that he did not talk to this other child about his experiences of being blind.
4. When asked about extra curricular activities, he was aware that there were clubs run by the Society for the Blind. However, he did not attend at these, as most of the activities were on a Monday night and his parents took his sister swimming on a Monday.
5. The child had visited the specified school and stated that he would prefer to attend there, even though this would entail living away from his family during the week. He stated that he thought he would settle in quite quickly. In his letter he stated that, following his visit to the specified school in February 2010, he “thought that it sounded a brilliant school to go to”.
6. He detailed the perceived benefits of the
-The bell at the
-They have a hydrotherapy pool there. This would be useful as he doesn’t get much physiotherapy in his area.
-Being away from his family during the week would allow him to increase his independence and he would learn skills such as cooking, using a talking microwave. A further benefit of living away from home would be that he would no longer have to navigate the stair gate that his parents have installed at home for his younger siblings He advised that he could not open the stair gate. Also, he didn’t get to make meals at home. He was able to do some tasks like make his own bed. He would like to get better at things like showering and getting changed.
-He believed that it would be easier to make friends in the
-The
-There is a climbing area at the
-The teachers at the
-The class sizes are much smaller and the classes would be adapted for blind people.
7. Most concerning to the Tribunal, the child described feelings of frustration and anger which led him to hitting himself on the face. He felt more angry at times when he felt he was being left out in lessons, where the class were involved in visual activities or making things. He did not feel able to express these feelings at school. He advised that, at home his parents were aware that he was hitting himself and told him not to do it as it would leave a mark on his face that other children would notice. He did not seem to be aware of who he could confide these feelings to at the nominated school and was concerned at the reaction of his teachers and supporters if he told them.
7. Reasons for the Decision
1. The Tribunal considered all the evidence and were satisfied that there was sufficient evidence available for the Tribunal to reach a fair decision on the reference.
2. The issue in dispute was the respective suitability of the provision available at the
3. The local authority submitted (in short) that the Specified School was at least as suitable, if not more suitable for the child as the Nominated School. The measures that have been put in place to support the child’s additional needs, and the commitment of the Nominated School to continue to monitor his changing needs and adapt as necessary, ensure that his needs are met and will continue to be met at the Nominated School. The majority of the costs of the child attending at the
4. The Appellant submitted that while the
5. The decision to refuse the Placing Request was taken at a time when the child was still in Primary Education. At the time of the hearing, the child had been attending at the
6. The Authority confirmed that they still considered their decision to be reasonable taking these developments into account. Evidence had been led regarding the steps taken by the authority to support these additional needs.
7. In the submissions from the Authority, it is notable that three Additional Support Needs have been identified, namely the child’s blindness, his Aspergers Syndrome and the possibility of his having dyslexia. In the minutes of the meeting held to consider the Placing Request, again the focus was on his visual impairment with little mention of his physical or emotional needs. The supports put in place by the Authority are all primarily directed at his blindness.
8. It is recognised that the
9. For a child like the child, who has a number of additional needs, life skills are an important part of enabling him to establish his independence. While providing these may not be seen as part of his secondary school education, for him the lack of such skills as choosing which clothes to wear, dressing himself properly and being able to eat meals in public is likely to impact upon his ability to integrate fully into mainstream education and to successfully follow the school’s inclusion policy. The
10. Mobility is important in fostering independence and self esteem. While the child is receiving mobility training at the
11. During the Tribunal’s interview with the child, he did exhibit some of the mannerisms mentioned in evidence, such as rocking, hand flapping and finger flicking. It was noticeable that if he became anxious or excited, the nature and intensity of his flicking increased and was different in nature from when he was sitting and waiting for more questions. When he exhibits these mannerisms at the
12. In following the policy of Inclusion, the
13. In order to access the mainstream curriculum at the
14. While the
15. At the
16. There are timetabled for the child periods in the Braille room to allow him to work on his maths, his mobility and to catch up with work. He is timetabled to go there at times when the rest of his class may be involved in lessons that he cannot take part in due to their visual nature. There was no evidence that any other children were present in the Braille room during these times. Accordingly, he is working alone and being put in a fairly isolated situation. At the
17. It was noted by the Tribunal that there is no Support Base within the
18. With regard to a 24 hour curriculum, there was an acknowledgement that the Nominated School did not offer the same level of co-ordinated support and instruction throughout the school day and beyond as the Specified School and in the minutes of the meeting to consider the Placing Request, there is a recommendation that a future meeting be held to explore how partners can work together to provide a similar model to the Specified School. No costings have been provided in respect of implementing the measures mentioned in the draft CSP (In a letter from Education Officer he said they would pay for whatever is required).
19. The approach of the
20. Section 19(5) of the Act provides:
"Where the reference relates to a decision referred to in subsection (3) (e) of that section, the Tribunal may –
(a) confirm the decision if satisfied that –
(i) one or more of the grounds of refusal specified in paragraph 3(1) or (3) of Schedule 2 exists or exist, 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, and
(ii) make such amendments to the co-ordinated support plan prepared for the child or young person as the Tribunal considers appropriate by such time as the Tribunal may require..."
21. Paragraph 2(2) of Schedule 2 of the Act provides:
"Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being –
(a) a special school the managers of which are willing to admit the child…it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school."
22. Paragraph 3(1) of Schedule 2 of the Act provides that this duty does not apply:
(f) if all 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 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 special 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).
23. In the circumstances of this case, in terms of paragraph 2(2) set out above, the authority is required to meet the fees and other necessary costs of the child's attendance at the Specified School unless one of the circumstances in paragraph 3(f) is established.
24. There is a two stage test in terms of section 19(5) (a) as set out above: firstly the Tribunal requires to determine if the authority has established any of the circumstances in paragraph 3(1)(f); then, the Tribunal has to consider whether in all the circumstances it is appropriate to confirm the decision of the authority.
25. Para 3(1) (f) (i) and (iv) are not in dispute. The
26. The Tribunal considered the evidence before it of the ability of the authority to make provision for the child's additional support needs in the
27. The issue for the Tribunal was, accordingly, in terms of paragraph 3(1)(f)(iii) to consider whether or not it is 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 Nominated School.
28. Section 1 of the Education (Additional Support for Learning)(
1(1) 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.
1(2) In subsection (1), 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.
29. The 2009 Act came into force on 14th November 2010 and accordingly, the amendments therein apply as at the time of this hearing. The amendment to the Act is shown in italics.
1(3) In this Act, “additional support” means-
(a) in relation to a prescribed pre-school child, a child of school age or a young person receiving school education, provision (whether or not educational provision) which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the same age in schools (other than special schools) under the management of the education authority responsible for the school education of the child or young person, or in the case where there is no such authority, the education authority for the area to which the child or young person belongs.
30. The Tribunal had regard to C v City of
"The whole burden of the test of what constitutes additional support needs clearly refers to educational support, and further to education support offered in a teaching environment. This in turn must refer to the educational needs of the child, and not to anything else. It cannot refer to the social and environmental needs of the appellant herself, or indeed of the child."
31. As noted above, at paragraph 27, section 1(2) of the Act sets out the definition of school education and thus the guiding objective of the Act, to "developing the personality, talents and ... abilities of the child ... to their fullest potential."
32. With regard to the question of respective costs, we accepted that the annual fee of the
33. The Tribunal considers that where the suitability of the provision in both schools is almost identical, and where there is a significant cost to be incurred by the authority in placing the child in the
34. If, however, we are incorrect in our application of the test in section 3(1) (f)(iii) of the Act, it would be appropriate to consider the second stage of the test set out in section 19(5)(a) of the Act, namely if, in all the circumstances, it is appropriate to confirm the decision of the authority to refuse the placing request.
35. The Tribunal carefully considered all the circumstances applying to the child having regard to all the available evidence. We had regard to the principle stated in the Education (
36. In all the circumstances, we conclude that it is not appropriate to confirm the decision of the authority refusing the placing request. The Tribunal accordingly direct that the authority make arrangements for the child to be enrolled at the
36. As the Co-ordinated Support Plan is still in draft, we do not require to order amendment of the CSP in terms of section 19(5)(b)(ii) of the Act.
For all of the above reasons we have reached the decision recorded above.
