ASNTS_D_09_2010_12.07.10

 

 

DECISION OF THE TRIBUNAL

 

*This decision was appealed to the Court of Session and the appeal is pending.

 

 

 

1. Reference

The Appellant lodged a reference dated 25^th February 2010 under Section 18 (3)(e) of the Education (Additional Support for Learning) (Scotland) Act 2004 (hereinafter “the Act”). The basis of the reference is the Appellant’s wish to have her son, attend the Specified School. This placing request has been refused by the Education Authority (hereinafter “EA”).

 

 

 

 

 

2.         Decision of the Tribunal

 

The Tribunal find in favour of the Respondent (the EA) and hereby confirm their decision, all in terms of Section 19(5)(a) of the Act.

 

 

3.         Preliminary matters; 

(a)        Contents of CSP

By an earlier direction the hearing of the case in respect of a placing request for the child was conjoined with a case concerning the contents of the CSP. However, during the course of the Hearing parties were helpfully, able to confirm that agreement on the contents on the CSP looked possible.  Alas, it is now understood that such an agreement has not been reached. However, the scope of the dispute has been greatly narrowed (and the Tribunal extend their gratitude to the parties for their work in that regard).  Accordingly, the format of the CSP is now in terms of the enclosed decision and this should be implemented by the EA forthwith.

 

2. Witnesses

 On the morning of the first day of the Hearing parties repeated motions first made in pre-Hearing conference calls and in respect of which a decision had been carried over to the full Tribunal.  The Appellant made a Motion to be allowed to call additional witnesses. The Appellant had previously indicated an intention to call a representative of the National Blind Children’s Society and a representative of the Irlen Institute. The Appellant’s agent indicated that he wished to also call the Vice Principal of the Specified School and a Child Psychotherapist of the Child and Adolescent Mental Health Service (hereinafter “CAMHS”). 

 

            In addition the EA had given prior intimation of witnesses, the Head Teacher of the second Primary School and an Educational Psychologist. They indicated that they also wished to call the Consultant Ophthalmologist and the Head Teacher of the first Primary School.

 

            Neither party objected to the additional witnesses that the other party wished to call, save for the Appellant’s proviso that they do not wish the Consultant Ophthalmologist’s evidence to stray into the area of fabricated or induced disability. Accordingly, the Tribunal gave permission for these additional witnesses to be called in terms of Rule 22(2) of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006, (hereinafter “the Rules”). 

 

(c)        Exclusion of evidence

(i)  Fabricated or induced disability

The Convenor had previously been asked, during a conference call, to exclude the information contained in the papers at page R3, under the heading “Education Authority Education Service Information/Statement”, paragraph 1 thereof and in addition the information contained in paragraph 1 on page R3.  Broadly, both of these paragraphs contained an assertion by the EA that the main problem in this case was that the Appellant suffered from Factitious Disorder by Proxy (otherwise called Munchausen By Proxy).  A decision on this matter had been held over to the full Tribunal and the motion was renewed before the full Tribunal. 

 

The Appellant’s agent submitted that it was part of the over-riding objective that references to the Tribunal have to be dealt with fairly and justly.  He submitted that the allegations being made at the parts complained were very serious ones and were ones being made about a child whose name had been on the Child Protection Register previously but had been subsequently removed. He submitted that he was not entirely clear what the EA meant by “fabricated or induced disability”, but that had to be the sort of condition that a Psychologist or Psychiatrist would confirm and there was not such a suitably qualified person to be called in this case to provide such confirmation. Accordingly he submitted it was not appropriate to allow any evidence pertaining to such matters to form part of this case.

 

In response the Education Authority indicated that their statements and the evidence that they may lead in support of them were essential to understanding the complexity of this case.  They submitted that the Consultant Ophthalmologist would offer evidence to support their assertions and the Educational Psychologist would support that. It was submitted that the Consultant Ophthalmologist would give evidence regarding the degree of visual impairment suffered by the child and that when the Tribunal considered the extent of that we would understand clearly the difference in the claims made by the Appellant about the child and the position adopted by others. 

 

After deliberation the Tribunal considered that it was not fair and just to allow suggestions of fabricated and induced disability to form part of the case. The reason for this was that that did not appear to have a bearing on the issue on which the Tribunal was being asked to rule (namely whether paragraph 3 (1)(f) of Schedule 2 of the 2004 Act applied).  It appeared to serve no useful purpose, in the context of what we required to determine, to become embroiled in such matters, although it may have been considered relevant in the overall management of the case by the EA.

 

(ii)  A Representative of the National Blind Children’s Society’s Report

The Education Authority made a Motion to exclude the representative’s Report (which appears at pages A24 to A31). Their submission in this regard was that any externally evaluator, such as the representative of the National Blind Children’s Society purported to be, would have given the EA sight of their Report prior to it being lodged in this case.  They submitted that before it was produced they should have been given an opportunity to respond to it. 

 

On behalf of the Appellant in response it was submitted that that was not a valid objection.

 

After deliberation the Tribunal considered that, particularly where the representative of the National Blind Children’s Society was to be led in evidence and thus her Report could be challenged by the EA at that time, it was not appropriate to exclude her Report from the papers.

 

 

4.         Summary of Evidence

The Tribunal considered the papers in the bundle which consisted of:-

 

1.         Copy Reference to Additional Support Needs Tribunal for Scotland (T1 – T64).

2.         The Respondent’s case statement and submissions (R1 – R219); with the detailed paragraphs R2 and R3, mentioned above having been deleted and with the papers at R78 – R82, being minutes of mediation sessions, having been previously excluded by direction of the Convener.

 

3.         The Appellant’s case statement and submissions (A1 – A86).

4.         In addition the Tribunal considered the papers in the bundle that related to the contents of the CSP on behalf of the Respondent (R1 – R33).

 

In addition to these papers, the Tribunal considered the following matters:-

 

5.         The oral evidence from the witnesses detailed below; and

6.         The oral submissions made on behalf of both parties on 12^th July 2010.

 

 

 

5.         Findings in Fact

1.         The child is currently aged 13.  He lives with his mother.  His father died when he was about two and a half.

 

2.         The child attended a nursery school attached to the first Primary School for Nursery Education. The child’s mother was not keen to leave him in the care of the nursery. The child himself was happy when left in nursery. 

 

3.         The child began his primary education at the first Primary School.  From Primary 1 to Primary 3 at the first Primary School he made appropriate progress.  His academic performance was average.  He enjoyed playing football, running and chasing.

 

4.         The child’s mother made frequent complaints whilst he was a pupil at the first Primary School.  She raised many different issues, one of which resulted in the child being moved to a different class with a different teacher.  Although frequently absent, when in school, the child was achieving within the average academic range.

 

5.         The child was withdrawn from school by his mother at the beginning of Primary 3 but returned on 17^th November 2003.  The child continued to be within the normal range in terms of his assessed academic performance in Primary 3. 

 

6.         In Primary 4, the child retained the same teacher as he had had in Primary 3. The child seemed very settled in class.  He was withdrawn from school in October 2004.  The child’s mother made a complaint to senior managers, which was rejected after investigation. 

 

7.         In November 2005, L was enrolled in Primary 5 in the second Primary School.  He settled well there.  He made friends.  The child’s mother was very much involved with the school.  The child made good progress in all areas of his development at the second Primary School.  He loved football and participated in a skiing trip with the school.

 

8.         In May 2006, the child tripped on stairs within the second Primary School and had minor first aid attention.  He had not had any prior difficulty with the stairs.  He had previously been caught running on the stairs and swinging off the banister at the bottom of the stairs.  As a result of this trip, the child’s mother withdrew him from school from May 2006 until end October 2006.  In October 2006, the second Primary School re-arranged the school itself to move the child’s class from upstairs within the building to downstairs.  The child’s academic progress was hampered by his long periods of absence from school.

 

9.         In June 2007, he was withdrawn from School by his mother following a meeting at which the Head Teacher had suggested that the child had been dwelling on disabilities.  The child was present at the meeting and had become highly distressed.  The Head Teacher had not wanted him to attend the meeting but his mother had insisted. The child’s mother initiated a formal complaint against the Head Teacher, which was dismissed after investigation.

 

10.       On 21^st April 2008, the child began attending the third Primary School. Initially he attended morning sessions only. During the period from April to June 2008 he was making appropriate scholastic progress.  After the school holidays, in August 2008, the child’s state of anxiety had significantly increased.  There was a major decrease in his educational performance. 

 

11.       The child last attended school in October 2008. 

 

12.       The EA have offered him a place at the Nominated School.  This is a mainstream Secondary School with 938 children on campus.  The Nominated School has a learning support area staffed by teaching staff.  The EA’s specialist visual impairment outreach support team would support the child in attending the Nominated School.  There would be a comprehensive, individually tailored  support package for the child. 

 

13.       The child has a diagnosis of mild dyspraxia and dyslexia.   He has various visual perception difficulties caused by a somatoform disorder.  He has attachment disorder.  He has a generalised anxiety disorder.

 

14.       The child’s mother wishes him to attend the Specified School. This is a school which specialises in educational provision for children with diagnosed visual impairments.  There are 54 children on campus there.

 

15.       The cost of attendance at the Specified School in their Enhanced Program is £38,915 per annum.  Taxi travel with an escort would cost approximately £16,530 per annum.  The annual cost of a pupil support assistant, such as the child would require at the Nominated School, is £17,967 to £23,355.  Escorted taxi travel would add approximately £13,110 to this figure.  Accordingly the total if the child were to attend the Nominated School would be between £31,077 and £36,465.  There is a minimum difference in cost of £18,980 per annum.

 

16. The child has not attended school for nearly two academic years.  It is thus difficult for the EA to assess his educational needs.  He currently receives home tutoring from his uncle, a Technical Studies teacher.

 

17. 17.  The child was previously the subject of Grounds of Referral to the Children’s Panel.  These grounds were denied by the child and his mother and the case referred to the Sheriff Court for proof.  The Grounds were abandoned by the Reporter prior to proof.  There is no outstanding involvement by the Reporter.

 

18. 18.  The child’s name was placed on the Child Protection Register in August 2009.  It was removed from the Register on 16^th November 2009.

 

19.        The child strongly wishes to attend the Specified School.  He is motivated to attend there and is not currently motivated to attend mainstream secondary school. 

 

 

 

 

6.         Witnesses

The Tribunal heard oral evidence in this case over a period of four days, being 3 days in June 2010 and 1 day in July 2010. Evidence was led, on occasion, out of the natural order, with permission of the Tribunal, in order to best accommodate witness availability. 

 

For the EA evidence was led from the following witnesses:-

 

The Head Teacher of the first Primary School

The Head Teacher of the first Primary School qualified as a teacher in 1976. In 2003 she gained her headship qualification. She taught in a number of schools and became the acting Head Teacher at the first Primary School in 1999.  She remained in that post until 2000.  She was not at the school from 2000 to 2002 but returned there as the appointed Head Teacher in 2002. She gave evidence that the first Primary School was inspected by Her Majesty’s Inspectorate of Schools in December 2005. The Report was a very positive one.  In particular the school was deemed to be excellent in three categories; pastoral care, leadership of the Head Teacher and effectiveness in meeting pupil need. 

 

The Head Teacher of the first Primary School had been aware of the child’s attendance at the nursery provision attached to the first primary school in 2000, when she was acting Head Teacher.  Her evidence was that the child himself was quite happy at nursery but that his mother was not keen to leave him in the nursery’s care.  Initially the child’s mother made arrangements to stay in the school building.  The child himself was reported to be enthusiastic and happy.  When the Head Teacher of the first Primary School returned to the school in 2002 the child was in primary 2.  She met with the Appellant many times thereafter in response to many difficulties that the Appellant identified in relation to the child’s schooling and always tried to re-assure her and find solutions.  She gave evidence that the child’s academic performance was average.  It was age and stage appropriate from primary 1 to 3. She stated that the child loved play-time, loved playing football and running and chasing. At the end of primary 2 the child was moved to a different class with a different teacher after the Appellant had raised issues surrounding his existing teacher.  From the school’s perspective the child had a few medical issues; in that he had an inhaler for asthma and Aloe Vera for an urticaria skin condition (the school never had to use this).  The Head Teacher of the first Primary School’s evidence was that meetings with the Appellant could be quite difficult. Her evidence was that the Appellant often made allegations and personal attacks. However, the Appellant had a close relationship with the child.  He depended very heavily on her for support. He was much more confident when his mother was not there. 

 

The Head Teacher of the first Primary School’s evidence was that the child’s schooling in primary 3 was less disrupted by absence. His reading and writing was fairly average.  He loved his primary 3 teacher and a decision was made to leave him with the same teacher for primary 4. However, in October 2004 things became very difficult and the child was withdrawn from school by his mother.  The Appellant made a complaint to senior managers about events in the school. She refused to return the child to school unless a Record of Needs was opened for him.   As a result the Head Teacher of the first Primary School arranged to employ a Pupil Support Assistant for ten hours to support the child. She employed an extra teacher for half a day.  She agreed to a principal learning support teacher being brought in from another school. She agreed to open a Record of Needs.  Despite agreeing to those things it was her evidence that the child was at an appropriate level for his age and stage and was simply lacking confidence when he returned to school after (his many) long absences. 

 

In terms of wider achievement the Head Teacher of the first Primary School indicated that the child loved football.  She observed him to be quite confident playing football. She gave evidence that he liked to take the ball and try to knock tiles out of the ceiling.  Nonetheless she gave evidence that at some point between March and May of 2005 the paediatrician diagnosed the child with mild dyspraxia. There was discussion about what supports would need to be put in place to accommodate this.  For example an angled board for him to write on was recommended. The school never got a chance to put any of these strategies into place because he never returned to school after March 2005. 

 

In cross-examination the Head Teacher of the first Primary School did not agree that the child showed extreme anxiety in coming to nursery.  It was her clear view that the anxieties were on the part of the Appellant and not the child. She denied that the nursery had ever asked the Appellant to stay with the child, making it clear that it was her view that the Appellant did not want to leave the child. She did not know of the child’s referral to the CAMHS team; her evidence was that she was not allowed to contact medical people involved by the Appellant.  She did not recall attending a meeting with the CAMHS team, although she had attended a meeting with the paediatrician.  In connection with meetings generally she was uncomfortable with the child’s attendance at meetings but this was something that the Appellant insisted upon.  The witness was clear that the child did not show any upset or anxiety whilst at school either. She stated that he would leave school happy, singing and skipping.  There would then be an issue raised by the Appellant and the child would not be returned to school. Following meetings a solution would be found.  When the child returned to school he would still be happy and chatty. The Head Teacher of the first Primary School last saw the child in March in 2005 and agreed that she had no direct knowledge of his present difficulties. 

 

 

The Head Teacher of the second Primary School

The Head Teacher of the second Primary School graduated with a first class honours degree in education in 1995. She has an additional Diploma in Special Education. She was head teacher at the second Primary School when the child was a pupil there.  At the second Primary School’s last inspection by Her Majesty’s Inspector of Schools it was also highly praised. 

 

The Head Teacher of the second Primary School gave evidence that she found the child to be a lovely boy. When she first met him he appeared very happy to be starting at the second Primary School.  He had a phased introduction to school and settled there very well. He made friends very quickly and got on well with his male teacher.  She found the Appellant to be very much involved with the child. The Appellant came across to the witness as a concerned parent, at times overly concerned. The child was making very good progress in all areas of his development at the second Primary School.  A regime was put in place whereby the child was handed over to a pupil support assistant each morning by his mother so that any concerns could be expressed. The school’s understanding was that the child’s additional needs came from his mild dyspraxia, a possibility of dyslexia and slight intoeing and motor skill problems. The witness considered that it was entirely within the capacity of the second Primary School to meet those needs.

 

Concerns began to be raised by the Appellant pretty quickly after he began to attend the second Primary School. The child himself did not seem demonstratively anxious. He loved football at playtime and participated in a skiing trip. There were many meetings between the Appellant and the Head Teacher of the second Primary School. The Appellant wished the child to attend all such meetings. The witness was not comfortable with his but this was, ultimately, the Appellant’s decision.

 

The child had a full time pupil support assistant in class. He had a very good relationship with her. The child’s ideas and comprehension were very good but his recording of work in terms of his handwriting could be a concern.  This could vary in quality.

 

In May 2006 the child tripped on the stairs in the second Primary School. His pupil support assistant was there and rudimentary first aid was applied. The child was quite happy to carry on with his day.  The school did not view it as a major incident at all.  Prior to this incident he had been caught running on the stairs and swinging off the bottom of the stairs by using the banisters. 

 

The child returned home on the day of this incident. The Appellant was unhappy. She withdrew the child from school. She wanted the child not to have to use the stairs any longer. Eventually, the four classrooms within the school were moved so that the child’s classroom (which had previously been on the upper floor) was on the lower floor and vice-versa. This was done despite resulting operational difficulties such as children not being near the toilets that were age and stage appropriate for them.  The witness considered the child to be able academically but hampered by his poor attendance.  Bullying was often raised as a concern by the Appellant but the Head Teacher of the second Primary School’s evidence was that the child was able to stand up for himself and there were no ongoing incidents involving the child. 

 

In June 2007 a meeting was convened to talk about the child’s progress. Prior to the meeting the Head Teacher of the second Primary School had become aware of a concern raised by the child’s pupil support assistant. The assistant was concerned that in a recent discussion with American students placed in the school the child had asked many questions about disability. The pupil support assistant was concerned that the child’s focus on disability was causing his peers to seek to disengage from him.  The Head Teacher of the second Primary School, aware that this would have to be raised as an issue, gave evidence that she asked the Appellant to attend the meeting without the child. The Appellant refused  to do this. The Head Teacher of the second Primary School tried to raise the subject sensitively during the meeting but the child became very upset. The Appellant became very angry. Following the meeting the child was withdrawn from the second Primary School and never returned there.  At the stage where he left the second Primary School the Head Teacher would have been thinking of main stream secondary school education for him. 

 

In cross examination the Head Teacher of the second Primary School stated that the child came to school in a taxi provided by the EA. His mother was employed as a taxi escort. She denied having been told that the child had any particular or unusual difficulties with anxiety and certainly saw no evidence of that herself. She denied that there had been any other incidents of the child tripping or falling on the stairs within the school and stated that if there had been ongoing concern she would have acted on it. The witness was quite sure that she had asked that the child not be present at the meeting in June 2007. She felt it was not an appropriate place for him to be.  In general terms the witness felt that she had a good relationship with the child and was positive that she could have built that relationship up again had he been returned to school after the meeting in June.

 

Consultant Ophthamologist

The Consultant Ophthalmologist graduated Batchelor of Science in 1992. He obtained the degree MBChB in 1993.  He became a fellow of the Royal College of Ophthalmologists in 2004. He is a Consultant Ophthalmologist with a specialism in paediatrics.  During his medical training he has spent a great deal of time working with children with visual impairment. He spent two years visiting a range of mainstream and special schools.  He was responsible for setting up community based visual assessment teams in Scotland. He spent a year in Brisbane, Australia as a Paediatric Ophthalmologist and during that time set up the community based visual team for Queensland. He is the head of the Paediatric Ophthalmology Service in the Education Authority area. This involves him working with teaches, paediatricians, orthoptists and so on.  The child became his patient on 3^rd December 2008.

 

The Consultant Ophthalmologist’s evidence about Meares Irlen Syndrome was that Meares was a teacher in New Zealand in the 1980’s and that Helen Irlen was a Psychologist from California. They both noticed that some children could have their reading fluency improved by the use of coloured overlays. Their research showed that these children had a scotopic sensitivity, that is to say a sensitivity to the amount of light that they were exposed to. Helen Irlen set up the Irlen Institute as a business concern in order to promote the use of coloured lenses and overlays as a therapy. There have been a number of medical publications on the syndrome since. Some show evidence that it exists and some do not.  It is not considered mainstream by medical Ophthalmologists and is hard to define. There is a lot of scepticism. The Consultant Ophthalmologist himself knew of a number of children who have persisted in using coloured overlays because they felt them helpful. As against that the Royal College of Ophthalmologists feel that there is no reliable scientific evidence to show that this syndrome exists. There is still research ongoing. 

 

In terms of prevalence the Consultant Ophthalmologist indicated that he sees fifty or sixty children per week who have visual difficulties. He has only ever came across one or two children who he considers may have this syndrome.  He would expect all such children to be educated in a normal mainstream school. 

 

The Consultant Ophthalmologist considered that these difficulties would present when a child starts to read. He considered that the condition would become apparent and would probably be noticed because the child’s reading skills would not be commensurate with their IQ or progress in other areas and would then persist. In particular he would not expect any deterioration in the condition and it is not a degenerative condition. 

 

In relation to his assessment of the child, the Consultant Ophthalmologist felt that the child’s sight was presenting as if degenerating because of underlying stress or anxiety.  In other words his visual difficulties appeared to be worsening due to worsening stress or anxiety. This was something that the Consultant Ophthalmologist saw commonly, (out of a clinic of 20 to 25 children one or two would present in this way).  The management of such a condition was strong reassurance that there was nothing wrong with their sight and discharge of them.  Typically such children had an underlying issue such as bullying at school, marital disharmony at home or unhappiness at school.  In relation to the child, the Consultant Ophthalmologist was clear that his physical symptoms and visual difficulties were perceived as real and genuine to him.  He was not malingering. Whilst his eyes were physically healthy, it is the brain that creates the image, indeed fifty per cent of the brain is given over to this function.  In his view the child had a somatoform disorder. 

 

The Consultant Ophthalmologist indicated that he follows up all children that he sees where he thinks this is a feature. He has discovered that one of the main causes is bullying. Other issues can be difficulties with educational attainment, disharmony with siblings, friends or parents. In the child’s case he had a long discussion with the Appellant. He told the child and the Appellant his findings and explained them.  The Appellant’s response was to indicate that she was keen that the child attend the Specified School. The Consultant Ophthalmologist did not think that was an appropriate place for the child. When he made this view known to the Appellant she did not want to consider any other alternatives.

 

His view remains the same.  His evidence was that he felt that such a placement would be reinforcing the child’s own perception of himself as having a genuine visual impairment. He felt that the opposite tack should be taken in order to try to reduce the underlying anxiety. He was firmly of the view that if the child went to the Specified School it may make his condition worse. The Consultant Ophthalmologist felt that, with appropriate psychiatric support the child could get back into a mainstream setting.  One of the main thrusts of his career has been to integrate health and education services and he considers that the Education Authority area has the best model of integrated visual impairment support in Scotland. He felt, with time and with the appropriate psychiatric support, the child’s symptoms would improve.

 

In cross-examination the Consultant Ophthalmologist confirmed that the child’s conscious perception will be of visual difficulties. He indicated that it was not possible to say whether the child had Irlen’s because he was essentially not assessable at the present time. Despite considering himself as the individual in Scotland and possibly within the UK who had spent more time than any other working with children with visual impairments, in the context of education, the Consultant Ophthalmologist was very reluctant to give an opinion as to whether the child had Irlen’s.  He conceded that he had last been at the Specified School in 2002, that he respected the opinion of the Vice Principal of the Specified School but that he would only defer to the Vice Principal of the Specified School’s opinion as to whether the Specified School was suitable for the child if he was satisfied that the Vice Principal of the Specified School was fully aware of the child’s underlying psychiatric disorder. He confirmed that putting the child into the Specified School would, in his opinion allow him to adopt the behaviour and patterns of children around him and he would be concerned that that would occur. In stating this he very much put the emphasis on the fact that the Specified School was primarily a school for children whose main difficulty was a visual one.

 

 

 

Educational Psychologist

The Educational Psychologist has a BA Honours degree in English and Psychology. She has a teaching certificate in English and a Diploma in Education. She has a Masters degree in Education and Psychology and a Diploma in Special Education and Visual Impairment. She has worked in the field of education for thirty years. She had eight years teaching experience before becoming an Educational Psychologist. She has been an Educational Psychologist for twenty-two years. Whilst she holds a managerial position within The Education Authority area she continues to hold her own active case load.

 

Her evidence was that she has been involved with the child since June 2005. At that stage the Appellant wished to withdraw the child from the first Primary School.  She had little experience of working directly with the child because it was her evidence that the Appellant was never happy to leave her alone with the child. She last saw the child in September 2008 at the third Primary School.  She has not seen him at home since, because the Appellant would not allow that. Her assessment of the child’s ability and competence was that the fact that he was working within level C whilst at the third Primary School was remarkable given his age and stage and the amount of school that he had missed. Whilst at the first and the second Primary Schools he was working at the same level as his peers.  All things considered she felt he was doing rather well at school. In relation to evidence that the child did not wish to attend school she indicated that psychiatric advice would be to address the source of the fear. She considered that there was a full continuum of provision in the Local Authority area for such children plus a well equipped sensory impairment service. She advised that there were a number of resources, that, theoretically, could meet the child’s needs. She gave evidence that the sensory impairment service is very comprehensive. It had very experienced staff who support even the most severely visually impaired children in mainstream school.   A number of those youngsters also have anxiety difficulties. The staff are peripatetic but will prioritise the areas of greatest need. In terms of the child the Nominated School had been identified because it was a very inclusive school. The child would get learning support there, sensory impairment input would be provided.

 

The Educational Psychologist considered that the service had been dealing with the child’s anxiety for some time and that addressing this was dependant on a programme of desensitisation. It was also entirely dependant on the Appellant working with the service. The witness did not consider there was any other way. She felt that if there was a shift of focus to the Specified School the child’s anxiety would never be addressed.  She was prepared to stake her professional career on that view. Her view was placement at the Specified School would be entirely to the child’s detriment, psychologically and emotionally. It would not address the source of his fear or problems. It would lead him to believe, quite wrongly, that he has a physical disability. She felt that the child needed to be told the truth about what he can and can’t do. She herself had observed the child run about the playground in the third Primary School very happily. She could not understand how, one month later, he could be behaving as if he had a serious visual impairment.

 

In terms of specifics she indicated that the Nominated School would offer the child a comprehensive support package. The initial phase would be a gradual reintregation to school. The sensory impairment team were familiar with such a phase. There would be a one to one pupil support assistant for the child. The sensory impairment unit would also support this. None of that could be done without parental co-operation. In terms of the Education Authority Area’s support for children with anxiety this was a general bread and butter thing for psychological services.  The Educational Psychologist would have direct involvement in putting into place the advice offered by the Psychiatrist. There would be a gradual building up of the child’s time at school.  This may not be to a whole class situation initially.

 

She was aware of a number of other youngsters who had phobias, for example about secondary school, so a small environment was introduced and they might simply do a favourite subject to begin with but this would be done on campus. 

 

In cross-examination the Educational Psychologist confirmed that she had been involved in referring the child’s case to the Reporter to the Children’s Panel. She considered that compulsory measures of care would be in the child’s best interests.  She confirmed that there had been a significant downturn in the child’s performance between the school term ending in 2007 and beginning again in 2008. She did not consider that the Children’s Referral proceedings caused the downturn in the child’s performance. She agreed that the Education Service had a different view from Health and Social Work, who did not feel that any compulsory measures of care were necessary. However, she felt that education, in terms of history, had more information then anyone else.  She considered that there were a number of key themes that were placing the child at risk. The witness was asked how she could say the Specified School was not appropriate for the child when papers at A38 stated that the child’s visual needs still had to be clarified. The witness responded that this was a young boy who was “normal” at one time or at least only had very mild difficulties attributed to him. The Local Authority area had a highly experienced sensory impairment service. Thus she considered they could meet his need whatever issue he presented.  The witness conceded that she had not been at the Specified School for a few years. She had not spoken to the Specified School about what provision they would make for the child.

 

 

 

 

Witnesses for the Appellant

 

The Representative of the National Blind Children’s Society

The Representative of the National Blind Children’s Society comes from a teaching background. She was a mainstream teacher for a time then spent twenty years in special needs schools.  Her subject background was mathematics.  She then completed the qualification to teach visually impaired pupils and took up a role with the Royal National Institute of the Blind in the North West of England.  She then became Education Advocate for the National Blind Children’s Society, where she remains.  Her role is to support families where there is visual impairment.  In this case she was asked to carry out a comparison between the Nominated School and the Specified School.  She had some background information and then met the child at home.  She visited the Nominated School and the Specified School.  She was also present when the child visited the Specified School.  It was her impression that the child found it very difficult to even go into the building.  However once he did he then made tremendous progress.  He went into a couple of classrooms.  His progress on the stairs was very difficult.  It took him at least fifteen minutes to descend two short flights.  Having seen the child in the Specified School the witness considered it would be very hard to even get him into a mainstream school, if not impossible.  She was convinced by her visit with the child to the Specified School that he could not attend a mainstream school.  The child had to be led around the Specified School by the Depute Head holding his elbow.  He was almost carried down the stairs.  He was very, very anxious.

 

In her separate discussions with the child he had told her of his negative experiences at primary.  For example he talked about a football hitting him and him thus becoming a target for fun and about a teaching assistant who said she could not cope with him.  He was very, very negative in talking about school.  In terms of his vision the child told her that words move around on the page.  He could not read very well.  Some people had an aura around them when he looked at them.  Stairs were moving up and down as he tried to climb them.  She considered that the child required an adapted, individual, specialist curriculum.  The witness had seen one or two of the child’s previous school reports.  She agreed that he had previously been making progress but felt that any progress would be difficult for him now.  She would not have expected the deterioration or regression that has been apparent in the child. 

 

The Representative of the National Blind Children’s Society considered the size of the school that the child attended would be important.  She observed that the Nominated School is much bigger and busier.  In the Specified School staff would have more chance to know a child individually.  She considered that the child’s placement there would address his anxiety and his visual impairment.  She considered that the child does not want to be different.  At the Specified School all of the children are learning in different ways so the child would not stand out.  She considered staff at the Specified School would be well able to cope with ensuring that the child did not become channelled into seeing himself as visually impaired.  She agreed that there are children with a more severe visual impairment than the child who are working in mainstream schools but she considered that his need for extra psychiatric support made the Specified School necessary.  She was very firmly of that view.  Despite being quite impressed by some aspects of the Nominated School she felt that the child did not want to go there and would not go there.

 

In cross-examination the witness agreed that it was still unknown as to whether the child had any underlying visual impairment.  However, in her view the fact remains that he has a visual difficulty and a diagnosis of his visual difficulties might not be needed in order to help him now.  She agreed that she had spoken to the Nominated School about a curriculum that could be provided and understood that there was room for one to one provision.  However, she felt that by dropping subjects that would create non-inclusion.  The much more individualised curriculum at the Specified School would be advantageous.  She could not see the child functioning at the Nominated School.  She could not reconcile the previous position where the child enjoyed football and was quite active with his current presentation, but felt that stress was probably the main trigger in relation to his deterioration.

 

Vice Principal of the Specified School

The Vice Principal of the Specified School has been in the Specified School since 1978.  He has been in the Senior Leadership Team for more than twenty years.  He has been the Vice-Principal since 2001.  He has a Masters of Education degree and a Teacher of the Blind qualification.

 

He explained that the Specified School operates over two sites but is one school.  It is a grant aided school and covers the full range of visual impairment.  At one Campus they have some very emotionally fragile young people, most of whom have blindness.  At the other Campus they have a primary and secondary facility covering most subjects of the curriculum but the bulk of the pupils are in secondary.  Pupils’ classes are organised, in general, in one of two ways, namely base or form.  Base students remain in the same place and subject teachers come to them.  Form pupils proceed round the school in more mainstream fashion. 

 

The school has service level agreements with occupational therapists, speech and language therapists, and physiotherapists.  The school has access to dieticians and so on and all of these staff come into the school.  A general class size is six pupils with a maximum of eight.  That would be for a form pupil.  A base pupil would have fewer in their class.  If the child were to become a pupil they would be looking at him being placed in an S3 or S4 base class of about four pupils and he would also be part of a larger form group of eight or nine.  In the initial phase he may need some enhanced support.  The small group setting would help his confidence.  When visiting the school he had been extremely anxious in terms of his mobility, particularly on stairs.  A small group would help confidence because there would be fewer pupils to get to know.  However in break time there would be communal activities with a larger peer group.

 

The Vice Principal of the Specified School’s view was that it was not about putting a medical label on the child but in assessing how he functioned and about dealing with where he is now.  There had never been a pupil with Irlen’s in the Specified School but he was aware of research that suggested that it was exacerbated by anxiety.  The Vice Principal of the Specified School also confirmed the cost of school attendance.

 

The Vice Principal of the Specified School’s evidence was that the child would be appropriately placed within the Specified School, although he conceded on questioning from the Tribunal that he had not seen the child’s earlier school reports. They would work hard to make him feel safe and secure as those were key core areas.  As his class mates there would be a young man in the Specified School since late primary.  He was confident within his environment but was not at a high level of numeracy or literacy.  He has some degree of generic learning disability.  There would be a young woman who started the Specified School in S1.  She read by Braille and was shy and anxious.  She may be able to complete intermediate qualifications but not Highers.  There would also be a new young person who has suffered trauma.  She has very low functional vision and her academic level would need assessment.

 

In cross-examination The Vice Principal of the Specified School indicated he could not comment on whether an Education Authority area secondary school could provide what the child needs as he had not been in any of their schools.  In relation to the danger of the child’s “learned helplessness” if he were to attend the Specified School the Vice Principal of the Specified School indicated that he would be mindful of that and working to ensure that that did not occur, as was the case for all pupils. 

 

 

The Representative of the Irlen Institute

The Representative of the Irlen Institute’s background was working with Renfrew education department as a non-teacher counsellor where she became involved in visual dyslexia.  Through that work she discovered and became trained as an Irlen diagnostician.  She trained with Helen Irlen in California in 2005.  The training course was three weeks.  Helen Irlen then visited her for one week after a year had passed.  In addition, The Representative of the Irlen Institute has a Post Graduate Diploma in Dyslexia from the Hornsby Institute.  She has no medical qualifications.

 

The Representative of the Irlen Institute assessed the child on 28^th March 2008.  She explained that the research that has been done about Irlen talks about light sensitivity.  An individual’s sensitivity to light can cause things to move on a page for them or in a room.  Ninety-nine different coloured lenses or overlays have been created and screening devised to work out which coloured overlay is best for an individual.  Different colours are designed to exclude a different wavelength of light. 

 

In assessing the child he was exposed to a variety of visual tasks. The lighting in the room had to be modified for the child straight away. He was very stressed and it was very hard to gain his confidence.  A lot of the kind of things that the child spoke about were things that the Representative of the Irlen Institute comes across quite regularly, but not normally all in one child.  It is her position that the child had the worst case of Irlen that she had ever come across.  Stairs were a particular problem as he says it feels that trees are rolling down towards him and even with a coloured lens they looked like an escalator. The assessment that she carried out takes about an hour.  She finds Irlen in about fifty percent of children she sees.  However, she generally sees children that have dyslexia and those children are already far more likely to suffer from Irlen.  She was asked about the perseverance rate by children in relation to the use of coloured overlays. She said that those with lenses had a higher rate of perseverance than those with overlays.  Adaptations commonly made to provide for children with Irlen’s are to keep a blackboard clean, use coloured paper, large font, different coloured writing, encourage a child to follow letters with a finger and so on. 

 

In cross-examination the Representative of the Irlen Institute agreed that the strategies required to deal with Irlen’s can easily be delivered within the context of a mainstream school, although she qualified this by saying that that was for the normal child with Irlen’s.  In relation to the child she could not imagine how he would even make his way around a mainstream school.

 

 

Child Psychotherapist

The Child Psychotherapist is a Registered General Nurse and a Registered Mental Health Nurse.  She is a registered child psychotherapist.  She has worked for 29 years in the Child and Adolescent Mental Health Service (CAMHS).  She did her Psychotherapy training in 2002.  She began work on the child’s case in January 2008.  She carried out a home visit and gave evidence that it was difficult for the child who did not like new faces.  She worked in collaboration with the child and the Appellant.  She considered him to have a preoccupation with thoughts of not being good enough.  She wanted the child to set his own goals to give him ownership of his progress.  Initially her work was focused on having him return to the third Primary School.  The child talked of wanting to be part of a peer group and was very motivated to get back to school.  When he returned to school he started to talk about little things that were getting in the way and were causing an increase in his anxiety.  For example, taxis not working out in the first few days of school and small things like that.  The child also talked a lot about his fears and worry of being taken away from his mother and had intrusive thoughts about this all the time.  He would become more and more agitated and the witness saw him having panic attacks in the room.  The Child Psychotherapist did not support the child’s name being placed on the Child Protection Register.  She had to tell him that had happened.  She stated that he was extremely, extremely distressed.  She attended a review meeting in November 2009 in relation to registration. At that meeting her position was that his name should not remain on the register because she believed he was in an environment that was safe, he was being supported by the Appellant and having regular therapy sessions.  She did not consider that he would be able to return to school at that point.

 

The Child Psychotherapist agreed that the child has an anxiety disorder.  She stated that it was all to do with the way he thinks and the way his body responds to that.  She considered him to be hyper-vigilant to his thinking and to have a lot of catastrophic thoughts.  Physical responses to these caused by adrenalin meant that he would struggle to get words out, his skin would react with a rash and he was unable to grasp reassurance.

 

She wished the child to see the intensive therapy team based at CAMHS.  They dealt with severe or complicated cases and sometimes provide a daily service.  It was about promoting positive self-esteem. Whilst its primary function was not about getting a child back to school that is something that would be looked at in the child’s case.

 

The witness was aware that the child was absolutely determined that he should attend the Specified School and that that was the only school that he was willing to go to. She considered that that was because in his own head, he has tried and failed at mainstream schools.  Because he has visited the Specified School and had good experiences and feels that he will not be viewed as different there, he has the motivation to attend there.

 

In relation to the question of whether he should simply be facing his fear she considered that whichever school the child attends he will have issues; she would hope that his motivation to attend the Specified School is what would make it successful.  The fact that he was quite determined not to go to mainstream school meant that unless something happened to change that, she could not see mainstream school working.

 

In cross-examination she considered that the child has been taken to past medical appointments appropriately by the Appellant.  She considered that a lot of work had been done to expose the child to mainstream school but that he had a generalised anxiety.  Although the child has achieved getting back to school in the past, when he then began to feel internally that things were overwhelming him he could not work through that.  However, his capacity to understand how to do so was developing and maturing.

 

 

The Appellant

The Appellant gave evidence that the child’s time at the second Primary School ended after a meeting in June 2007.  The Head Teacher of the second Primary School had said she wanted to speak to the child about some concerns she had.  It was the Appellant’s position that she said that the child should not attend the meeting but that the Head Teacher of the second Primary School indicated that it was important that he be there.  When the Head Teacher of the second Primary School began to talk about the child’s preoccupation with disability and that this was causing other pupils to back off from him, the child became very distressed.  He was shaking.  He felt like he was going to be sick, his breathing was affected.  It was a panic attack.  On getting home the child became withdrawn. He refused to come out of his room.  He was picking at his food, crying and staring into space.  It was not possible for him to return to school and his GP signed him off school with anxiety. 

 

The Appellant was worried about the child.  She arranged for him to begin to attend the Child and Adolescent Mental Health Service.  She began to visit other schools.  On the visit to the third Primary School she had to stop the car four times on the journey due to the child’s negative reaction.  Outside the school he nearly collapsed.  He was shaking in the Head Teacher’s office.  However, he agreed to attend he third Primary School.  She considered that that process was affected by the referral to the Children’s Reporter.  As a result of this a Children’s Rights Worker visited the child to explain the options available to a Children’s Hearing in relation to him.  One of the options explained to the child was that he could be removed from his mother’s care.  The Appellant gave evidence that the child became fixated by this.  He was very anxious about it.  When a neighbour would leave his home in the night the child would think that people were coming to get him and would wet himself.  It was difficult to persuade him to leave the house. 

 

The Referral proceedings were eventually abandoned by the Reporter.  Paradoxically the child did not react well to that as he had seen those as a chance to make people understand his situation.  The child has not attended school since September 2008 when that decision was made.  He had a Social Worker from the disability team.  He arranged for the child to attend Disability Sport such as swimming and football.  He did not agree to the child’s name being put on the Child Protection Register.  When the child was told of that decision by the Child Psychotherapist he had a major panic attack.  His name was removed from the Register at the end of 2009.

 

The witness considered that the child had always had visual problems.  He had always said that stairs were moving.  He saw auras around things and would have problems judging things, for example he would knock a glass over when trying to pick it up.  The witness agreed that his visual impairment problems had become more severe and considered that when he was going through a lot of stress that is what happened.  The witness spoke of the child being bullied at the third Primary School and the Auxiliary there indicating that she could not cope with the child.  She explained about the child being diagnosed with Irlen’s and that she had the same condition herself.  The coloured overlays that he has are not a cure.  At present his mobility issues tend to cause him to fall over things.  He will touch things or hold on to them as he moves along.  He has real problems with stairs.  Going up or down stairs is a very slow process.  He gets so anxious that he sometimes forgets to breathe.  She agreed that the child has a very fixed view regarding not returning to mainstream education.  It was her view that the child’s health had deteriorated.  It was hard for her, as the child’s parent to see her child go through that.  She is surprised that he wants to go to the Specified School as she never thought he would set foot in another school.

 

A visit to the Specified School was not easy.  The child was still panicked outside the school.  He did not want to go into the Head Teacher’s office.  He asked the Deputy Head Teacher if the school would be able to cope with him.  He asked the Deputy Head if she had heard of Irlen’s.  He was much improved on his second visit to the school. He loves the thought of the Specified School and feels that they understand him. He has now been there a lot, at the Friends and Family day and so on.    The Appellant does not consider that the Nominated School Secondary is an option. She does not feel that the child could cope with it either in terms of mobility or psychologically. 

 

In cross-examination the Appellant did not agree that the child made steady progress at the second Primary School. She considered that he had problems with the stairs, problems academically and problems caused by Irlen.  She did not agree that the child had got on with his peers in the playground.  He experienced incidents of bullying.  The Appellant disagreed that the child had been seen by school staff behaving in a way very different from the behaviour described by the Appellant, that is to say playing and moving around normally.  The Appellant rejected the Consultant Ophthalmologist and Educational Psychologist’s evidence that a placement at the Specified School could be detrimental to the child.  She indicated that she tried to work with education even though that had not been easy.  She agreed that the child had a generalised anxiety disorder and in fact felt that he was a shadow of his former self.  She looked at photos of him in the past, happy and smiling and wanted him back. 

 

Placement at the Specified School had initially been suggested by the Appellant’s solicitor.  She had thought it was only for children with severe disabilities, however having looked at the school she felt it was very relaxed and had never been in a school like it.  She had previously been an Advocate for children with special needs and knew a lot about special schools and considered that the Specified School was the only option for the child.

 

 

The Child

The Tribunal were told that the child wished to speak with them but that this would undoubtedly be difficult for him.  Special arrangements were made to meet the child first thing in the morning with only the Convener and Members present.  The child refused to enter the room without the Appellant and so she was also present.  The Tribunal spoke to the child for more than an hour.  He explained that his uncle attends at his house every day to give him private tutoring.  His uncle understands that words fall off the page and move around for the child.  His glasses help a little bit but he won’t ever get completely better.

 

The child had completed a project on the Specified School and showed this to the Tribunal.  It included pictures of the child and of the school.  The child told us that it was about how the Specified School understands him.  When the child visited the school he said the kids were brilliant because they understood him.  He explained that he thought he enjoyed football in the past but other kids had bullied him and that that really upset him.  He used to go to football and racket sports but because of what the Head Teacher of the second Primary School had said to him about other children backing off him he did not want to do that now.  When the Head Teacher of the second Primary School had said these things he was really upset because he could not see it happening.

 

The child told us that he likes to do gardening and grows his own vegetables.  He had done a previous project about his garden.  He talked about his distress after being placed on the Child Protection Register and indicated that it was not nice what people say about him and his mum and it is not the truth.  The child told us that he was trying really hard to go to school but when he got to the door he froze and got really worried. 

 

The Tribunal asked the child if he had had happy times at school and he said that he had when he was not being bullied but that was pretty rare.  The Tribunal asked the child if he was the Head Teacher of a school what kind of things he would want there.  He said he wanted a place where children would not get bullied and where you didn’t accuse the kid of being a liar.  He wanted the school to understand about Irlen’s like the Specified School.  He wanted it just to be a really good school.  He thought the children at the Specified School were just like him.  His first thought had been that it was for blind people but after visiting he knew that the pupils there were just like him.  When it was pointed out to the child that he used to get good grades at primary school he replied that when he was sitting National Assessments the Auxiliary used to help him with those.  He also talked about the Friends and Family day at the Specified School where the pupils were having a good time.  He met the Chief Executive and had his photo taken with him.  The child said that he knew that he needed a lot of help and the Specified School was a place for him to get that. 

 

As the meeting with the child had been conducted in private the contents of it were relayed to all parties prior to the hearing being recommenced. 

 

Submissions by the EA

The Education Officer appearing for the EA submitted that the powers of the Tribunal in relation to this matter were set out in Section 19(5) of the Act and laid these powers out.  He indicated that the letter refusing the placing request was found at T13 and was dated 9^th February 2010.  It constituted a refusal in terms of Schedule 2, Paragraph 3(1)(f) of the Act.  This provision was set out by him.  Parts (i) and (iv) of that paragraph were not in dispute in that the Specified School is not a public school and that the EA has offered to place L in the Nominated School.  However, it remained in dispute and for the Tribunal to consider parts (ii) and (iii) of the paragraph, namely whether the EA are able to make provision for the additional support needs of the child in the Nominated School and to consider the respective suitability and respective cost of the two schools. 

 

It was submitted on behalf of the EA as stated by the Consultant Psychiatrist at Page A23 and as confirmed by witness, the Educational Psychologist during the Tribunal, that the tried and tested way to manage anxiety was graded exposure to the fear.  It was submitted that if the Appellant was prepared to work with CAMHS and the psychiatric service then it would be possible to phase the child’s return into an EA area school.  It was said that various services were ready to implement a programme of support for the child and there was no evidence to contradict the appropriateness of this approach. 

 

In contrast it was submitted that placement at the Specified School would be entirely to the child’s detriment.  It would impact on his social and emotional welfare by confirming in his own mind that he has a severe disability in the form of a visual impairment. 

 

In that position the Educational Psychologist had been entirely supported by the Consultant Ophthalmologist.  It was submitted that he had additional experience and expertise in the provision of education.  He had spoken about the child’s general anxiety disorder and considered that placement at the Specified School would be detrimental.  He advocated a gradual reintegration into mainstream school with psychological support. 

 

It was submitted that the evidence from the two primary school heads was useful in that it showed repeated issues, which have intensified over time.  Both spoke of various complaints made by the Appellant, both had gone to considerable lengths to secure the child’s continued attendance at school, including moving whole classes within the second Primary.  The case should be viewed as entirely unusual in its high level of dispute with the Education Service.

 

It was submitted that the Educational Psychologist had given evidence that dealing with children with anxiety was a bread and butter issue for the Education Authority Psychological Service.  It was an area in which the psychological service had regular and ongoing experience.  The key to success was the parent’s engagement and that if a parent instilled confidence in the child, the child could overcome his fears.  There was a variety of flexible support arrangements that could be put in place to support the child’s return to mainstream school.  These included one to one arrangements, attending school in a quiet area, late start, part time arrangements, access to a very limited number of peers, flexible curriculum arrangements and so on.  All of these would be available to the child at the Nominated School.  Any anxiety that the child is said to suffer from does not justify over four years absence from education or placement at the Specified School.

 

In relation to Meares Irlen Syndrome, the evidence of the representative of the National Blind Children’s Society was that the child must always have had that syndrome.  Her evidence had been that pupils with Irlen’s were generally educated in mainstream school.  The Vice Principal of the Specified School’s evidence that he had never had a pupil at the Specified School with Irlen’s corroborated that.  The Consultant Ophthalmologist’s evidence was that there was a measure of medical scepticism about Irlen’s and in any event the measures recommended to deal with the syndrome are measures that are implemented in EA schools as a matter of course.  A diagnosis of Irlen’s did not justify a placement at the Specified School as pupils with more severe types of visual impairment are educated very successfully within the EA area. 

 

In relation to dyspraxia, the child has a diagnosis of mild dyspraxia. The evidence of the Educational Psychologist was that many pupils within the EA area also have this condition and their needs are being met in EA schools and monitored appropriately.  The oral evidence of the Child Psychotherapist about the management of the child’s anxiety is outweighed by the treatment advice of her more senior colleague, the Consultant Psychiatrist. 

 

In the EA’s submission the evidence given by their four witnesses was coherent and compelling.  The proven professional experience of all four witnesses was impressive, they were credible.  The two head teachers have many years of experience between them and have had recent excellent HMI Reports.  The child had attended the third Primary School for two terms and it similarly had a very good HMI Report.  The Consultant Ophthalmologist is a Consultant Ophthalmologist of international repute. The Educational Psychologist is a Psychologist from the service which has received the best HMI Report in Scotland and is herself highly experienced and well known nationally. 

 

In contrast it was submitted that strong criticism could be made of witnesses for the Appellant.  A representative’s role is that of an Advocate to support children and their families.  The information which she proceeded with was incomplete and unbalanced and had not been shared with the Education Authority prior to the Tribunal.  The Vice Principal of the Specified School was not in a position to say whether the child’s needs could be met in a mainstream school in the EA area.   It was submitted that the EA were able to make provision for the additional support needs of the child in the Nominated School.  Accordingly, it was submitted that the Tribunal should find that it was not reasonable, therefore, to place the child in the Specified School.  Regard also had to be had to the respective suitability and the respective cost.  The evidence from the most qualified witnesses, the Consultant Ophthalmologist and Educational Psychologist was that the Specified School would be most unsuitable, in fact it would be possibly detrimental to the child.  When cost was considered the Specified School would be a more expensive option. 

 

The EA submitted that they had tried to engage with the Appellant repeatedly.  When the child was left by his mother to be a normal lad in school he made good progress, could do his work, was relaxed and could get on with his peers.  It was submitted that the key themes in the case were an evidence of history of the Appellant seeking disability and medical diagnosis for the child, the Appellant’s strongly driven self-belief that there was something seriously wrong with the child, a family history of mental health difficulties and family relationship difficulties as described in the Consultant Psychiatrist Report and the Appellant’s registering of complaints in relation to professionals when they did not comply with her view.

 

It was submitted that the EA remained in consultation with their health and social work colleagues regarding the next steps that were appropriate to protect the child from harm.  They had confirmation from the Consultant Psychiatrist that she would work with the education service to offer a programme of support to address the child’s anxiety about attending an EA school.  Placement at the Specified School would not contribute to the child’s development to its fullest potential.

 

 

Submissions for the Appellant

On behalf of the Appellant, it was submitted that this was a reference under Section 18(3)(e) of the 2004 Act.  The powers available to the tribunal are set out at Section 19(5) of the Act.  It was submitted that the Tribunal could confirm the decision of the EA only if satisfied that one or more of the grounds set out in Schedule 2, Paragraph 3(1) exist and if in all the circumstances, it was appropriate to refuse the request.   At the outset it was pointed out that the  EA still seemed to be founding upon submissions that would be more appropriate to support a refusal in terms of paragraph 3(1)(b).  It was submitted that much of the evidence offered would have better supported a refusal under that paragraph.  However, it was pointed out that at various points during the Tribunal and in their submissions, the authority had made it clear that their refusal was only in terms of paragraph 3(1)(f).  It was accepted that Parts (i) and (iv) of that paragraph were not in dispute and therefore the areas for decision by the Tribunal were parts (ii) and (iii).  It was submitted that both have to be established by the EA before their refusal could be confirmed by the Tribunal. 

 

Paragraph 3(1)(f)(ii)

It was submitted on behalf of the Appellant that the EA required to lead evidence to show that they can provide for the child at the Nominated School (being the school in which they have offered to place him).  In the submission of the Appellant, what happened years ago at the first and the other primary schools is of no assistance.  The Tribunal had to make their decision on the basis of the evidence of what would be provided at the Nominated School.  It was submitted that there was a striking absence of evidence offered to support what would be provided at the Nominated School. 

 

It was submitted that we might have expected to hear from someone senior in the teaching staff at the Nominated School about that or from the Visual Impairment Specialist Teacher.  It was submitted that what the EA required to do was lead evidence on how the child would be supported at the Nominated School and that the only time they had got anywhere near that was from the Educational Psychologist in response to a question from one of the Tribunal members.  In that response it was submitted that she had stated that the Nominated School was an inclusive school, that learning support would be provided, that there would be a programme that addresses the child’s fears, that they would be dependent on the child’s mother addressing the source of those fears, that they would support the child in terms of his physical disabilities, that they would tell the child the truth (for example that at the first Primary School he was a normal boy) and that they would work on their desire to integrate him.

 

It was submitted that this information was not enough as these were merely statements of general support.  They were not about specifically meeting the child’s needs.  It was submitted that the evidence led was more in the area of “this is how we support children in general”.  We were not told what learning support would be provided, how information would be disseminated, whether workbooks would be put into larger type and so on.  Against this background it was submitted that the Tribunal has no information before it as to how these issues would be dealt with.  We were told in general terms that there would be a programme that would address the child’s fears but we can have no idea what the specifics of that would be.  It was pointed out that the Education Officer had said in submission that the Consultant Psychiatrist would assist the school but we had had no oral evidence of that and that was not contained within the Consultant Psychiatrist’s Report.  It was submitted that when the Educational Psychologist was asked about the special measures for the child, she had avoided the question and referred back to the situation that had pertained at the third Primary.  That was not appropriate in terms of an answer as this was a primary not a mainstream secondary school.  There had been nothing lead about how the EA would handle the child’s mobility issues.  There was no evidence of any thought or planning into the child’s return to mainstream school.  When one assesses the evidence offered, all we have are general statements.  It was submitted there was no evidence the Tribunal could rely upon as to how the EA could meet the child’s needs. The Educational Psychologist’s evidence was to the effect of “EA has a great system – one of the best in Scotland”.  That may be so but that was not the statutory test.

 

We were told that the Appellant’s main concern is that the EA cannot meet the child’s needs as they do not understand those needs.  It was submitted that the EA’s cross-examination of the Child Psychotherapist demonstrated that that was correct.  In particular the Appellant had noted the Education Officer to ask the witness whether issues surrounding the day to day running of a school that the Appellant took issue with could explain the child’s four years of absence and asking the witness to explain whether that was correct and whether some improvement would have been expected by now.  The witness had responded, recognising the Education Officer’s frustration but asking him to recognise what things were like for the child.  It was submitted that if the EA were going to satisfy the Tribunal as to the statutory test they needed to establish that they had a proper understanding of the child’s anxiety disorder and there was no such evidence before the Tribunal.  The authority have looked at the child’s past needs and “ignored the child and diagnosed the parent”. 

 

In relation to the child’s eyesight difficulties the witness, the Consultant Ophthalmologist had provided us with a working diagnosis that the child’s visual impairment was largely stress related. He had given evidence that the child was not faking his symptoms.  He was genuinely experiencing these difficulties.  It was submitted that the Tribunal ought to look no further than that.  The issue for the Tribunal is, “Does the child have a visual impairment?”  The Consultant Ophthalmologist says that he does.  There was a concern on the part of the Appellant that the child’s visual impairment has been somewhat dismissed by the EA.   In fairness there has been a deterioration in his vision over the last year or two.  The witness the Vice Principal of the Specified School said that we should look at how the child is functioning now and that that is the proper starting point.  The EA seem to say that the child would be treated as someone whose visual impairment is not severe and his anxieties would be worked on to integrate the child to mainstream.  It was submitted that it was not helpful to tell the child that he was a normal boy.  This instilled no confidence that the EA understood the child’s needs. 

 

In response to being asked whether the EA could give specific information as to what support would be offered for the child, given that they have not had him in school or had access to him for nearly two years, it was submitted that the question was whether it would have been possible for the EA to lead the sort of evidence that was lacking.  It was submitted that it ought to have been possible for such evidence to be led.  In particular, a professional person had produced a Report and could have given evidence to the Tribunal.  The Educational Psychologist had spoken to psychiatric services and CAMHS and had not given any evidence of what sort of guidance, support or direction would be sought from those services to assist in the reintroduction of the child to school.

 

Paragraph (iii)

It was submitted that the Tribunal had to weigh up the respective suitability and to find that the EA had weighed up the respective suitability.  It was submitted that there was no evidence that the EA had ever carried out that exercise.  Their witness, the Consultant Ophthalmologist had not been at the Specified School for eight years.  Their witness, the Educational Psychologist had also only been there historically.  In addition as we had not heard what the Nominated School was able to offer no-one could have carried out a weighing up of the respective schools. 

 

The one person who had carried out this exercise was the representative of the National Blind Children’s Society on behalf of the Appellant.  It was submitted that she was a persuasive witness who spoke very highly of the professional person, who she thought had done a thorough job.  The representative had given an independent view and cogent reasons as to why the Specified School was more suitable for the child, including because of its size, class size, auditory environment, in-house support and assistance to the child with mobility issues.  She had given coherent reasons as to her decision. She had seen both schools.  She had met the child. She had seen the child at the Specified School.  She was best placed of all the witnesses to make a judgment.  In fact she was the only witness who had carried out a comparative exercise.  The Consultant Ophthalmologist was not an educationalist.  He was unlikely to have fully understood the child’s anxiety. The Vice Principal of the Specified School’s evidence dealt more than adequately with the Consultant Ophthalmologist’s concern that placing the child in the Specified School would reinforce his behaviour.  In cross-examination the Consultant Ophthalmologist had readily endorsed any approach that could return the child to the level he had been at.  The Specified School do have a plan for the child.  They have a class for him to go to.  The Vice Principal of the Specified School is an impressive and objective witness.  All the evidence heavily favoured the Specified School.

 

In relation to costs the EA had fairly conceded that this was not a cost issue.  The Specified School cost was an inflated figure initially while intensive support would be needed and it would reduce to a figure nearer the cost of the Nominated School.  In the scheme of things it was submitted that this would not result in much difference in the respective cost. 

 

In general terms, the EA have not satisfied the statutory test and the Tribunal should refuse to confirm the Authority’s decision.  If the Tribunal were not with the Appellant on that, we were still obliged to look at all the circumstances and decide if the decision was appropriate.  In carrying out that exercise there were two matters of importance. 

 

Firstly, we were reminded of the child’s huge anxieties regarding the EA and the Council in particular.  How such a situation has been reached did not really matter.  The fact remained that the child’s anxieties are a major feature.  The EA say that the child is running away and they would only be reinforcing his fears if they agreed to his placement.  It was very apparent that the child has severe anxieties.  In that regard we were asked to consider very carefully the evidence of the Child Psychotherapist.  As the Appellant understood her evidence she was saying that it was important that a person sets their own goals as they are then far more likely to achieve them.  We had heard from the Appellant and from the child that he could not contemplate a return to mainstream and it was submitted that to push him down that road would worsen him.  It was submitted that this is the child’s last opportunity for education with his peers.  There is a door of opportunity open to him just now.  He feels he will be understood and supported at the Specified School and we should take all of that into account.

 

Secondly, it was submitted that the relationship between home and the EA was not good.  There were different views on how that had come about.  It was submitted for the Appellant that their push for child protection procedures to be instituted had set the child back very significantly.  The reality is there is very little trust between the parties.  It was submitted that when dealing with such a difficult situation and with a child who is so vulnerable, we should take cognisance of that difficulty between the parties.

 

Accordingly, the primary submission for the Appellant was that the statutory test was not met.  Thereafter we also had to look at all the circumstances, such as the level of the child’s stress, anxiety and desire to attend the Specified School.

 

 

 

Reasons for the Decision- Placing Request

The Tribunal considered all the evidence, both in oral and written form.  The Tribunal was satisfied that there was sufficient evidence available to it to reach a fair decision on the reference. 

 

The Tribunal agreed with both parties that they required to address the statutory test laid down in paragraph 3(1)(f) of Schedule 2 of the Act.  They agreed that parts (i) and (iv) of the paragraph are not matters of dispute and that therefore their attention should be directed towards parts (ii) and (iii).  They observed that much of the evidence and submissions did appear to be directed towards a refusal by the EA had this been in terms of paragraph 3(1)(b).  However, despite being asked on several occasions during the Tribunal, the EA were adamant that their refusal was only made in terms of Paragraph 3(1)(f).  Accordingly, whether it was appropriate to confirm a refusal in terms of that paragraph was the matter for consideration by the Tribunal.  The Tribunal also considered that much of the EA’s evidence and part of their submissions appeared to be directed towards vindication of the EA’s actions and criticism of the Appellant.  These were not matters that were relevant to the Tribunal’s decision.

 

In relation to the matters in dispute it was accepted by the Tribunal that they had to find that both the disputed conditions in paragraph 3(1)(f) applied before they could confirm the decision of the EA.

 

 

 

Sub Paragraph (ii)

It was accepted by the Tribunal that they had to be satisfied that the EA were able to make provision for the additional support needs of the child in the Nominated School.  In assessing that it was the view of the Tribunal that they did have sufficient evidence available to be so satisfied.  The Tribunal found the evidence of the Educational Psychologist particularly persuasive in this regard.  She has worked in education for thirty years.  She holds a Masters Degree in Education and Psychology.  She has known the child since June 2005.  She last saw him at the third Primary School in September 2008, which is only one month before he was last at school and thus available for assessment by the EA.  She had given evidence about the Council’s very comprehensive sensory impairment service.  She had given evidence that the service had very experienced staff who would be able to support even the most severely visually impaired children in mainstream.  Further, and importantly she had given evidence that a number of those youngsters also had anxiety difficulties.  She had given a passage of evidence that related to the addressing of the child’s needs specifically and had explained why the Nominated School would be the school appropriate to those needs.

 

Whilst the Tribunal are aware of the Vice Principal of the Specified School’s international reputation in the field of teaching of the visually impaired they did not consider that he had sufficient direct personal knowledge of the child and his circumstances.  In particular, he was not aware of the child’s past educational history, except in the most general of terms. He himself had not been involved when the child had visited the Specified School.  His experience lay in the field of teaching of the visually impaired rather than in psychology, psychiatry or the direct management of anxiety.  The same latter criticism applied to the evidence of the representative of the National Blind Children’s Society.  Whilst very qualified in the field of visual impairment she also lacked the full picture that was available to the Tribunal.  In particular, she could not reconcile a narration of the child’s past history such as his enjoyment of football and excellent mobility with his current presentation.  The Tribunal did consider that these were very relevant factors as they strongly pointed to the child’s current difficulties having their root in psychological or psychiatric problems, rather than in his physical functioning/health.

 

Sub Paragraph (iii)

In assessing the respective suitability the Tribunal required to balance the positive views given by the representative of the National Blind Children’s Society, the Vice Principal of the Specified School, the child himself and others in connection with a place at the Specified School with a view that such a placement would be potentially detrimental.  This was the view expressed in evidence by Educational Psychologist and the Consultant Ophthalmologist.  In carrying out this balancing exercise the Tribunal preferred the evidence of the Educational Psychologist and Consultant Ophthalmologist.  This was after weighing up the totality of their evidence, having had the opportunity to hear from the witnesses in person and having assessed the information available to them, the level of their individual direct contact with the child, their qualifications, and strength of views.  The comments made about the Educational Psychologist, the Consultant Ophthalmologist and other witnesses elsewhere in this decision are also relevant in this regard.

 

The Tribunal also required to have regard to the respective costs.  The Tribunal considered that there was sufficient difference in the respective costs (including necessary incidental expenses), which in this case involved an escort and taxis to school to decide that it was not reasonable to place the child in the Specified School.  In particular, at least at the outset the difference would be a minimum of £18,980 per annum.

 

Section 19(5)(a)(ii) of the Act

Having come to the decision that we were satisfied that the ground of refusal specified in paragraph 3(1)(f) of Schedule 2 exists the Tribunal then had to be satisfied that it was “in all the circumstances appropriate” to confirm the refusal by the EA. 

 

In doing that we did consider, as submitted by the Appellant, that it was appropriate to consider matters such as the child’s anxiety and the relationship between the parties.  In considering the former the Tribunal did have the benefit of their lengthy discussions with the child.  It was clear to the Tribunal that the child has manifestly deteriorated from the boy that he was at primary school.  Had we not heard and accepted the evidence of him running on stairs, skiing with the school and playing football in the past, such activities would have been unthinkable in terms of his current presentation. 

 

Having said that, we consider that opinions on the matter of anxiety are best given by those with qualifications in psychiatry or psychology.  The opinion by the Consultant Psychiatrist that appears at R147 makes it clear that she does not consider that placement at the Specified School is the way forward for the treatment of the child.  The Educational Psychologist is very firmly of a similar view.  The Child Psychotherapist obtained her qualification in Child Psychotherapy in 2002 and thus simply does not have the background and wealth of experience of the Consultant Psychiatrist or Educational Psychologist.  Thus we preferred their opinions on this matter.

 

In addition the Tribunal found the evidence of the Consultant Ophthalmologist highly persuasive.  He was a most impressive witness.  Whilst his academic qualifications are in the field of medicine, he undoubtedly has been involved with the interrelation between visual impairment and education for much of his seventeen year career.  His clear opinion that the Specified School would not be a suitable place for the child held considerable weight with the Tribunal.

 

Having heard and considered the evidence of the Educational Psychologist and Consultant Ophthalmologist together we considered that they were both more professionally objective, probably because they have had limited involvement with the Appellant.  We also considered that they took a more holistic and long-term view of the child’s education and its inter-relation with his future life.

 

In considering the latter matter we agree that the relations between the parties in this case could scarcely get worse. Nonetheless it was the opinion of the Tribunal that the EA in this case have no fault to bear in that regard.  Both the Head Teacher of the first Primary School and Head Teacher of the second Primary School impressed as highly committed and able individuals. Both impressed as wanting the absolute best for the child and doing everything possible to accommodate the Appellant’s wishes, even when these were, in the opinion of the Tribunal, prescriptive and unnecessary.  The Tribunal is very concerned at the situation that has arisen as it effectively serves as a major impediment to any ongoing communication in relation to the child’s education.  Such ongoing communication would clearly be in his best interests.

 

Nonetheless, for these reasons we consider that we are satisfied that in all the circumstances it is appropriate to confirm the decision of the Education Authority in terms of Section 19(5)(a)(ii) of the Act. 

 

In considering all of the above matters the Tribunal kept in mind the child’s own clearly stated and very strong views.  However, these views are only a small part of the full picture and we have been unable to reconcile the child’s views with his best interests or with the legal decision that had to be made.

 

This decision should not be seen, in any way, as a lack of desire on the part of the Tribunal to ensure that the child attends school.  It is to be hoped that the Appellant heavily engages with the CAMHS Team to ensure the intensive support that they are offering for the child is put in place and to ensure that the primary aim of that support is to access appropriate educational opportunities that would lead to school attendance for the child. 

 

 

Reasons for the Decision- Contents of CSP

 

As indicated above we were left with a broadly agreed CSP.  The only matter that remained in dispute was whether the CSP should contain reference to the Council Area in numerous places.

 

Having considered this matter and given that it is not normal practice for CSP’s to contain any geographical reference we decided that this should be deleted throughout.  In addition and given the decision provided above it seems to the Tribunal that the locus of the provision will be self-evident.