ASNTS_D_04_2011_13.01.12

 

 

DECISION OF THE TRIBUNAL

 

Reference:      D_04_2011                

 

Gender:           Male

                       

Aged:               14                   

 

Type of Reference:     Placing Request         

 

1.Reference

 

 The appellant lodged a reference under section 18(4) of the Education (Additional Support for Learning)(Scotland) Act 2004 (“the Act”) against a decision of City of Edinburgh Council (“the authority”).

This decision was in  respect of the decision dated 26 August 2011 where the authority refused a placing request made by The Appellant under paragraph 1 of Schedule 2 of the Act for The Child (born 1997) to attend School A.

 

 

 

2. Decision of the Tribunal

 

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

 

The Tribunal confirms the decision of the authority in exercise of its powers under section 19(4A)(a) of the Act.   In terms of section 19(4A)(a)(i) of the Act the Tribunal is satisfied that the grounds of refusal specified in paragraph 3(1)(a)(iii) (f) and (g) of Schedule 2 of the Act exist.    In terms of section 19(4A)(a)(ii) of the Act, the Tribunal is also satisfied that in all the circumstances it is appropriate to confirm the decision.

 

 

3. Preliminary Issues

 

There was a pre-hearing conference call when it was agreed that the authority would lead at the hearing.

The authority was permitted to call one additional witness, although he was not called by them, and did not give evidence.

Both parties were permitted to lodge additional documentation. 

 

 

 

4. Summary of Evidence:

 

 

The Tribunal had regard to the bundle of papers and the oral evidence as follows:

 

Documents numbered:

T1 – 124;

A1 – 175;

R1 – 94;

 

Oral evidence for the authority was heard from:

Witness A Educational Psychologist;

Witness B Principal Teacher Support for Pupils, School B;

 

Oral evidence for the appellant was heard from:

Witness C Headteacher, School A;

Witness D Headteacher, School C.

 

The Tribunal met with The Child for around fifteen minutes prior to the start of the hearing on the second day.     The parties were given a summary of what he had said to the Tribunal.

 

 

5. Findings in Fact:

 

1. The Child is aged 14.  He lives with his mother and step-father in Edinburgh
2. The Child has social emotional and behavioural difficulties.   He has dyslexia.  He needs additional support to develop his reading and writing skills, in a way that he finds interesting and engaging; support from a Learning Assistant in classes where literary content is high to explain what is required and help him to focus on his work; and clear, consistent boundaries.    It is of benefit to him to use ICT to support his written work; for teachers to remind him of their  expectations and ensure that he is calm before a lesson starts; for teachers to give him some legitimate reason to move around in class;  for teachers to use a calm approach when his behaviour is challenging.   He attends and benefits from F where he has safe opportunity to access extra curricular activities.    He has and benefits from access to support staff, both in the school chaplaincy and from a worker/counsellor from the CP.
3. He attended School C from P1 to P6.   He had displayed anti-social and aggressive behaviour from the outset.   He was assessed for ADHD in 2005 and commenced on Ritalin for a short period.  He does not have a diagnosis of ADHD.    In P6 he was given a place in a Support Unit, and spent half the school day being taught in this unit, and the remainder in the mainstream class at School E.   When the Unit closed he completed his primary education at School E.  He chose not to attend his local secondary school, School D because of a concern about other pupils there.    He and his parents chose School B for his secondary education and he started there in August 2009.   Although he had educational psychology support in primary school and during the transition to secondary school, these supports were withdrawn and his case closed on starting high school. 
4. School B is a mainstream day school under the management of the authority with a roll of around 930.   The school buildings were opened in 2009 and the facilities including sports facilities are modern and extensive.
5. From around February/March 2010 he was referred to the Pupil Support Group of School B.   He has had support with learning since then.   Application has been made three times for him to have audited hours of learning support.    Twice the application was refused, and finally in June 2011 he has been granted ten hours per week of learning support.    He has support in eighteen periods during the week.    The learning assistant supports other pupils in these classes as well as The Child.    From time to time in S1 and S2 he was taught in the Additional Support for Learning Base.   In S3 because of behaviour problems in chemistry classes he has spent time in the Base.   He is able to access the Base with permission if he feels the need to go there.   He was excluded twice whilst in S1, in November 2009 for four days because of persistent poor behaviour, in February 2010 for five days for physical violence to another pupil, and twice in S2, in March 2011 for three days, for bringing stink bombs into the school on the day of the HME Inspection, and in May 2011 for three days, for having cannabis in the school. 
6.  He has direct support from the educational psychologist around three times each term.    There is support through the Pupil Support Group.  There are Child Planning Meetings every eight weeks, when the plan to support The Child’s additional support needs is updated.   He has an Additional Support Plan.
7. The Child is studying eight subjects: English, maths, geography, administration, CDT and PE at Standard Grade, chemistry at intermediate, and French at Access 3.   CDT and PE are his preferred subjects.   He is predicted to achieve five Standard Grade passes at Foundation/General level.   At School B he will have the opportunity to carry out one week work experience during his fourth year.   He is likely to be able to access further education at college in area after he leaves school.   During S4 he will have assistance from staff including the school’s two careers advisers when considering his options and in making applications for college. 
8.   School A is an independent school.  It provides education and care to young people aged from 11 to 18 who have additional support needs relating to social and emotional difficulties.   There are at present 35 pupils at the school.  Seven pupils are privately funded, and the remaining pupils are funded by various local authorities, either by education or social work departments.  There is one group of pupils with significant learning disabilities who focus on life skills learning and pursue ASDAN courses.   The other group, of which The Child would be one, study a mainstream curriculum up to Higher grade
9.  School A does not offer Standard Grades.   Pupils of The Child’s age and stage study Access 3 to Intermediate 2.   Most of the pupils who would be in his class are studying at Intermediate 1.  Pupils usually study seven subjects.   IT is compulsory.   The School does not offer CDT.    The alternative to CDT would be a woodwork class in the evening and Art and Design.    The Child would be placed in a class with four others, two boys and two girls, of a similar age to him.     The two boys have diagnoses of Asperger’s Syndrome, and one has other diagnosed disorders; the two girls have attachment disorders, one having a global developmental disorder.    There are sporting facilities, an indoor games hall, outdoor tennis court where five a side football can be played, a field for football, badminton, basket-ball, mountain biking, and weekly swimming at a local pool.   Older pupils are taken to College in C once a week.   The school staff assist pupils with the transition on leaving school and possible moves to further education colleges in the pupil’s home area.
10.  The Child has the ability and aptitude to remain and be educated in a mainstream school.     He is able to access a certificate curriculum, with support.   
11.  Moving from School B to School A would be seriously detrimental to the continuity of his education.
12.  Fees at School A are £39,678 a year.   The cost of additional learning support hours and educational psychologist support for The Child at School B amount to £9342.
13. It is not reasonable having regard to the respective suitability and respective cost of School B and School A to place The Child in School A.

 

6.   Reasons for Decision

 

14. The Tribunal considered all the evidence and were satisfied that there was sufficient evidence available for the Tribunal to reach a fair decision on the reference.
15. The issue in dispute was whether or not the authority had established that an exception applied to their duty to pay the fees and other necessary costs of The Child’s attendance at School A, that being the school chosen by the parents and the subject of the placing request.
16. The relevant statutary provisions are as follows:

 

Section 19(5) “ ... the Tribunal may –

confirm the decision if satisfied that –

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

in all the circumstances it is appropriate to do so;

overturn the decision and require the education authority to

place the child or young person in the school specified in the placing request to which the decision related ...”

 

Paragraph 2(2) of Schedule 2 of the Act provides:

"Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being –

(a) a special school the managers of which are willing to admit the child,

...

it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school."

 

Paragraph 3(1) of Schedule 2 of the Act provides that this duty does not apply:

“(a)   if placing the child in the specified school would  -

          ...

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

....

(f) if all the following conditions apply, namely –

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

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

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

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

 

(g)      if, where the specified school is a special school, placing the child in the school would breach the requirement in section 15(1) of the 2000 Act.

 

 The 2000 Act is the Standards in Scotland’s Schools Etc Act 2000.

Section 15(1) provides that –

“Where an education authority, in carrying out their duty to provide school education to a child of school age, provide that education in a school, they shall unless one of the circumstances mentioned in subsection (3) below arises in relation to the child, provide it in a school other than a special school,

Section 15(3) provides –

“The circumstances are, that to provide education for a child in a school other than a special school –

(a)  would  not be suited to the ability or aptitude of the child;

(b)   would be incompatible with the provision of efficient education for the children with whom the child would be educated; or

(c)  would result in unreasonable public expenditure being incurred which would not ordinarily be incurred,

and it shall be presumed that those circumstances arise only exceptionally.

 

 

17. In the circumstances of this case, in terms of paragraph 2(2) set out above, the  authority is required to meet the fees and other necessary costs of The Child’s attendance School A unless one of the circumstances in paragraph 3(1)(a)(iii),(f) or (g)  is established.
18. There is a two stage test in terms of section 19(5) (a) as set out above:   firstly the Tribunal requires to determine if the authority has established any of the circumstances in paragraph 3(1)(a)(iii)(f) or (g); then, the Tribunal has to consider whether in all the circumstances it is appropriate to confirm the decision of the authority. 
19. It was accepted that The Child is a pupil with additional support needs and that School A is a special school, the managers of which are willing to admit him.
20. The authority relied on three grounds for refusing the placing request:   (i) in terms of Schedule 2 para 3(1)(a)(iii),  that placing The Child in School A would be seriously detrimental to the continuity of his education; (ii) in terms of Schedule 2 para 3(1)(f) that the authority are able to make provision for The Child’s additional support needs in School B, that School B is a more suitable school for The Child than School A, and the costs of placement at School B are much less; and in terms of Schedule 3 para 3(1)(g) that placing The Child in School A breached the authority’s duty to provide education in a mainstream school.    It was submitted that The Child is appropriately placed in the mainstream school where his additional support needs can be met, that his attendance there is not incompatible with the provision of efficient education for the other children with whom The Child will be educated, and that placement in School B did not result in unreasonable public expenditure being incurred which would not normally be incurred.    Counsel for the authority submitted that   the statutory grounds for refusal of the placing request were established.
21. The Appellant’s representative submitted that The Child required 24 hour supportive educational environment offered by School A.  He would be able to start at School A almost immediately, and the staff there, specialised and very experienced in working with students with social and emotional behavioural difficulties, would be able to support him during the transition into life at the school.   There would be no detriment to the continuity of his education to be placed there. 
22. She submitted that School A was more suitable than School B for The Child.  The school had a recent positive HMIe Report; it has a whole school approach, appropriate to The Child’s needs; it is a residential weekday school; there is a constant teaching staff, allowing familiarity and a greater ability to support; The Child would benefit from the safe, accepting and consistent stable environment;   he would be taught in a class with a maximum of six, offering him greater opportunity to maximise his potential; he could choose from a number of activities each evening; he would have the opportunity to choose extra-curricular activities including sports, social activities and skill-building opportunities.  She maintained that School B is unable to offer a consistent and collaborative approach across the whole school to support The Child’s needs;   The Child’s difficulties retaining and processing information are not being adequately supported, the large and busy classroom is not a suitable environment;   he is missing class teaching by spending time during the school day at F as well as when he was removed from class because of his behaviour.     It was submitted that although the costs of attendance at School A would be £30,336 more than the costs of his attendance at School B, this cost was necessary as The Child’s additional support needs cannot be met at School B.   She submitted that School A would be suitable for The Child’s aptitude and ability.  
23. As suggested by counsel for the authority, the Tribunal first considered the provisions of para 3(1)(g).   This was described as “the presumption of mainstream”.   Counsel provided a copy of the Explanatory Notes to the Act which states “This section aims to establish what is effectively a presumption in favour of “mainstream education” for all children in Scotland.”   In effect, only if one of the exceptions set out in section 15(3) of the 2000 Act apply can the presumption be rebutted.    We carefully considered the evidence of the witnesses and the documents relating to The Child’s aptitude and ability.    Witness C had only limited knowledge of The Child, based on information provided to her, and The Child’s visits to School A.    Witness A, Witness B and Witness D all knew The Child well.   They all considered The Child to be a “mainstream” pupil.    We accepted their opinions as reliable.  Witness D had been The Child’s headteacher at School C, and had known him from P3 until P6.   She told the Tribunal that at no point had she thought that The Child needed to go to a special school.  His behaviour was the biggest challenge to his learning.   He required support.  Even when he was attending the specialised unit, he was there for only half a day, the remaining time spent in the mainstream class.  Witness B explained the additional learning support available at School B.   She has a good personal knowledge of The Child, teaching him PSE in S2 and this year.     She confirmed that The Child is making progress, and was expected to achieve at least five passes at Standard Grade.        Whilst at times The Child’s behaviour was disruptive for the class, and interfered with the learning of the other pupils, this was dealt with by The Child being removed from the class and taught either under the care of another teacher in another year group, or by removal to the Base.   The authority had agreed to provide additional funding to enable ten hours of learning support for The Child.     Witness A spoke to The Child’s abilities and the supports that he needed and that would be of benefit to him.    She explained that all these were available and were provided to him at School B.  She was able to give him direct educational psychology support.   This was a cost of £342 a year.    The additional learning support cost was £9000 a year.
24. The Tribunal carefully considered the evidence.     We were satisfied that a mainstream school was suitable for The Child’s aptitude and ability.    He can access the curriculum with support, and that support was available.   His disruptive behaviour can be contained and having The Child in the school is not incompatible with the provision of efficient education of the other pupils.    Although there is a cost involved, for the provision of learning support and educational psychology support, we were satisfied that this was not unreasonable public expenditure.
25. Having concluded that para 3(1)(g) applies, we can confirm the decision of the authority to refuse the placing request.    However, as we have to consider in an exercise of discretion if in all the circumstances it is appropriate to confirm the decision of the authority, we proceeded to assess the criteria for the other grounds relied on by the authority.
26. We had to consider whether or not the placing of The Child in School A would be seriously detrimental to the continuity of his education.      The evidence of Witness A and Witness B was that The Child was some months into his two year certificate curriculum, and it would be detrimental to him to move at this stage.    It would be difficult to transfer into a different examination system.    Although some of the skills based subjects would be similar, the topics covered by the different schools would not be the same. Both examination systems used internal assessment for most subjects, and these would be different between schools.   It would be difficult for any child to catch up at this stage in another school.     Even if the same topics were taught, they may be taught in a different sequence.   Witness C, however, was quite dismissive of any suggestion that a child could not easily change from one system to the other.   She told us that in a small class the teacher would ensure that The Child could catch up and cover all the elements which had to be assessed.  She considered that the Intermediate system suited School A pupils better, as there was internal assessment and they would be put forward for examination when they were ready.    In any event, Standard Grades were being phased out, and many schools no longer offered Standard Grades.  
27. School A did not offer the subject CDT, which was a subject identified by The Child as one he enjoyed and wished to use in the future.      In place of CDT the school would offer a woodwork class, taken in the evening, and Art and Design.    It did not offer Administration or French.   A compulsory subject at School A was IT, which The Child had not studied within his S3 curriculum.
28. Although School A had small classes, and it is likely to be easier to assist a pupil through the changes necessary in starting a new examination curriculum at this stage in his school career, we felt that Witness C was minimising the difficulties that The Child would experience in changing at this stage.  He would have to start from the beginning of the certificate course with IT.   We accepted the evidence of Witness A that The Child had invested time and effort in subjects such as French and Administration which would be lost if he were to move to School A, and that a major loss would be the lack of going forward with a certificate in CDT. 
29. Having regard to the present expectation of The Child’s achievement, we concluded that a change of curriculum at this stage was not in The Child’s interests and it would be seriously detrimental to the continuity of his education if he were moved.   
30. We considered the provisions of para 3(1)(f).   There is no dispute that School A is not a public school.    We accepted the evidence of Witness B and Witness A of the supports available at School B.   Witness A felt that the only support lacking at present was input from the Dyslexia Support Group.   It appeared from her evidence that she was likely to pursue this, which would be in The Child’s interests.    In addition to the academic input, the school had facilitated The Child’s involvement with external agencies, including the CP, which had introduced the counsellor CC, and F.     A referral to the Social Work Early Intervention services had been made, and was likely to be available if the family wished to use this service.   We concluded that it was clearly established that the authority was able to make provision for The Child’s additional support needs in School B.   Para 3(1)(f)(i) and (ii) are satisfied.
31. We considered  the respective suitability and respective costs of each school in respect of the provision for The Child’s  additional support needs in terms of para 3(1)(f)(iii).  
32. Attendance at School B enables The Child to remain in his local community.    We accepted the evidence of Witness A of her concerns about The Child moving to a residential school.   Both Witness B and  Witness C stated that the respective schools would assist in transition to further education, likely to be to a college in The Child’s local community.  We accepted the serious concerns of Witness A as to the appropriateness of the peer group of pupils at School A, and her concern on the effect on The Child of being educated with a group of pupils that she felt he did not fit with, and then moving back to mainstream society.    Although Witness C spoke strongly of the trust and respect shown by the pupils at School A towards the teaching and other staff, we accepted the concerns of Witness A how The Child would cope with the more informal methods of teaching.
33. There is a significant difference in the costs of placement of The Child at School A rather than School B.
34. We carried out the exercise of weighing and balancing the respective suitability and respective costs.   Having done so, we conclude that it is not reasonable that The Child be placed at School A.
35. Having reached the conclusion that each of the three grounds of refusal relied on by the authority should be upheld, we considered the second stage of the test set out in section 19(5)(a) of the Act.    In all the circumstances, it is appropriate to confirm the decision of the authority to refuse the placing request.