DECISION OF THE TRIBUNAL

Gender: Female Aged: 14

Type of Reference: Placing Request

DECISION OF THE TRIBUNAL

1. Reference

The reference is brought by the Appellant for her daughter, (“the child”) in terms of Section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) on the basis of a refusal of a placing request to attend a private residential special school, on a residential basis namely the School A (“the specified school”). The child currently attends a local authority secondary school, School B (“the nominated school”). The child attends the nominated school as a result of a placing request. The current placing request was refused by the Respondent on the grounds specified in schedule 2 paragraph 3 (1) (iii) of the Act, that placing the child in the specified school would be seriously detrimental to the continuity of the child’s education and schedule 2 paragraph 3(f) of the Act, that the specified school, not being a public school, the Respondent is able to make provision for the additional support needs of the child in a school other than the specified school and it is not reasonable having regard both to the respective suitability and to the respective cost of the provision for the additional support needs of the child in the specified school and in the nominated school to place the child in the specified school and the authority have offered to place the child in the nominated school.

2. The Decision

The appeal is refused and the decision of the Respondent is therefore confirmed in terms of section 19(4A) (a) of the Act.

3. Preliminary Issues

A conference call was held on August 2016 and a note of that conference call is in the bundle at T25. A Minute of Agreed Facts was lodged in the bundle on the first day of the hearing. We heard directly from the child, who gave evidence at the start of the second day of the proceedings. She was questioned by the Tribunal in the presence of the case officer, the Appellant’s supporter and a Child Advocate and after meeting with the child the Chair summarised the evidence given to the parties. A written statement was also received from the child, same having been taken from the Child Advocate and now contained in the bundle at A53-54. It was most unfortunate that the hearing took an unusually long time to conclude due to difficulties in identifying suitable dates for all.

4. Reasons for Decision

Agreed Facts

A statement of agreed facts was submitted by parties and is contained in the bundle at T49-64. Parties also lodged draft findings in fact, which are contained in the bundle as A 72-73 and R167-170. Many of the facts referred to in the drafts were agreed, particularly those listed as 1-3,6,9 and 18 on A72-73 and 1-8,12-19,21-24,29 and 31-32 on R167-170. A number of the other draft findings were partially agreed between the parties’ agents.

Findings in Fact

We found the following facts established, the majority of them by agreement between the parties who were in agreement about the vast majority of material facts. Where there was disagreement it tended to be about the degree to which a fact was established (such as frequency of incidents or the child’s difficulties) or the ultimate conclusions to be taken from the evidence.

1. The Appellant is the mother of the child.

2. The Authority is responsible for the child’s education.

3. The child is a 14-year-old school girl who is enrolled as a pupil at the nominated school. She is currently in s3.

4. The child has additional support needs in terms of section 1 of the Additional Support for Learning Act 2004. She has a diagnosis of Attention Deficit Hyper Activity Disorder, Neurofibromatosis, sensory issues and a learning disability.

5. The child has difficulties with attention and self-regulation. This has an impact on her ability to process information and her learning.

6. The child has low self-esteem and struggles with her confidence. She avoids situations which she perceives as challenging and struggles when she thinks she has made a mistake.

7. The child has had attachment issues relating to her mother, including sleeping with her at night and requiring accompaniment to the toilet.

8. The child needs support to develop her resilience, confidence, responsibility and independence.

9. As a result of her complex needs, the child has difficulties with social interactions. The child struggles to make friends and has been involved in numerous incidents at the school either as a victim or perpetrator. When things do not go as expected the child can, on occasion, be destructive and aggressive. These incidents have been much rarer since the child commenced S3.

10. The child is not always able to keep herself safe and appropriately assess risk when compared with most children of her age. Her risk taking behaviour has exposed her to harm. The child is vulnerable.

11. The Appellant, the child’s mother, made the Placing Request in respect of the child on February 2016. The Authority refused the Placing Request by letter dated March 2016.

12. The child has attended the nominated school since August 2014 when she was enrolled in first year.

13. The Appellant submitted a Placing Request in respect of the child so that she could attend the nominated school. The Placing Request was granted.

14. In addition to mainstream classes the nominated school has two supported classes in each year. The school also has an enhanced provision and a support for learning facility.

15. The child struggled greatly in first and second year at secondary school.

16. The child was placed in the mainstream part of the nominated school during S1. Due to the child’s inability to cope with mainstream education at that time the child was subsequently placed in Enhanced provision.

17. After Christmas 2014 the child spent a significant period of time in Enhanced provision where she attended English and Maths classes. She continued to attend other subjects in mainstream, however, with the support of classroom assistants.   At that time she was working at an early level standard of academic work.

18. It was agreed by the teaching staff, the Appellant and child that at the start of her second academic year the child would be based primarily in Enhanced provision. It was considered that she had previously benefitted from her time spent there.

19. The child had two friends who were also based in Enhanced provision and who had previously attended Primary School with her. The child’s placement in Enhanced provision was not however as successful as it was hoped it would be. The child found it difficult to be in an environment where she considered herself to be different from the other children who were permanently based in Enhanced provision. The child did not see herself as being the same as these other children. She did not see herself as an Enhanced provision pupil. As a result, her behaviour at that time became very challenging.

20. The staff at the nominated school continued to review the child’s progress and it was decided to look again at the provision which was being made for her. The child stated that she did not want to be based in Enhanced provision. She intimated that she wanted to return to mainstream education. At this time the staff at the nominated school did a considerable amount of work on what the child’s timetable should look like and how her additional support needs could best be accommodated within the school framework.

21. It was considered that the child did not have a strong sense of belonging either to mainstream schooling or to Enhanced provision provision.

22. In or around December 2015 those involved with the child’s education met to produce her single child’s plan. The purpose of this was to determine the best way forward for meeting the child’s educational needs. The child was also spoken to in this regard to determine what subjects she was interested in taking forward.

23. It was determined that Witness A, Principal Support for Learning Teacher would work specifically with the child in the context of the support for learning facility and in mainstream education. In particular, Witness A worked to instil in the child a sense of belonging within the support for learning facility.

24. On or about 14 March 2016 the child was excluded from the nominated school for one day. This was as a result of a verbal attack on a young boy who was educated in Enhanced provision facility. Comments made by the child were very hurtful and the young boy was traumatised

by what had happened. This is the only occasion on which the child has been excluded from the nominated school.

25. The child has on many occasions left the school grounds unannounced and used abusive and language to both staff and pupils. Such incidents have significantly reduced at least since the child commenced S3.

26. The child has an individualised timetable which includes some time at work experience, time in mainstream classes, and in the supported Enhanced provision facility. She attends English in Enhanced provision, Maths in a small mainstream set and Hospitality, PE, RE, Music and Craft and Design Technology and PSE (Personal and Social Education) in mainstream classes.

27. The child attends a local nursery for work experience once per week on Monday mornings from 8.40 to 10.00am. This provision was reviewed at the start of the child’s third year at the nominated school and it was agreed that she would continue to attend the nursery placement. The child indicated that she enjoyed the nursery placement and was happy to continue attending there.

28. In addition to the life skills which the child experiences when attending work experience in the nursery she also engages in community based life skills such as attending the Retail Park on Wednesday mornings. She attends these with an Additional Support Needs Assistant.

29. The child’s timetable addresses her curricular needs.

30. The child’s attendance at school is excellent with approximately 95 to 96% attendance.

31. The child has clear routines boundaries and expectations within the structure of her school timetable. She has access to quiet space in the support for learning facility and also has the support of an Additional Support Needs Assistant.

32. The child’s behaviour has significantly improved under the current arrangements at the nominated school.

33. The child’s academic work has improved under the current arrangements at the nominated school.

34. The child’s additional support needs are such that she requires support from staff with experience in working with children with complex needs.

35. The staff skills at the nominated school meet the additional support needs presented by the child. The staff has significant experience of working with children with additional support needs. They work with children with acute needs in Enhanced provision facility. They also provide additional support for other children in the school through the

support for learning facility. The staff have worked with the child for over two years now and are experienced in dealing with her additional support needs. The child has a particularly strong relationship with the Additional Support Needs Assistant, and also with Witness A.

36. The child has recently experienced difficulties with her use of social media out with the school. She has displayed a naivety and vulnerability in the use of this media which has potentially exposed her to risk. The child has been referred to Barnardo’s for further guidance in respect of the dangers of social media.

37. The child attends different groups out with the school setting. In particular, she attends an ADHD group on Monday evenings and an Inclusion group on Wednesday and Friday afternoons between 3.00 pm and 6.00 pm. The child engages in activities, which include playing pool and football and baking. The Respondent also arranged for the child to attend activities during the summer school holidays, which she enjoyed. These activities are targeted towards enhancing the child’s self-esteem and her ability to interact with her peers.

38. The nominated school has begun to look at the future planning for the child and what provision for her might look like in her fourth year and when she reaches the age of 16. The nominated school has strong connections with College A. In particular, there are supported places at College A for young people moving on from secondary school at the age of 16. These courses could provide the child with the vocational skills, which she would require to obtain employment. There are different courses at different levels, which the child could be supported in attending from the nominated school.

39. Provision could also be made for the child could to continue in her education at the nominated school until the age of 18.   Classes could be accessed for her there as could further work experience.

40. The Authority in the form of the nominated school is able to make provision for the child’s additional support needs as identified in the assessment carried out by Witness B, Depute Principal Educational Psychologist (R57-66 and A39-48).

41. The Authority can and does make suitable provision for additional support needs of the child in the nominated school.

42. The specified school can make provision for the additional support needs of the child.

43. The cost to the Authority for the child’s educational provision at the nominated is nil. She has potential taxi costs of £6000. The child does not currently make use of this taxi provision preferring to travel to and from school by bus. The cost of a residential place at the specified school is approximately £51,500 per annum. There would be incidental

escort costs of approximately £3,800 per annum. Over a four year period the cost of the residential placement at the specified school would be approximately £197,200. This would be a significant cost to the Authority.

Reasons

In reaching our decision we have taken into account the evidence of the witnesses and the documents in the bundle. Both parties were represented with submissions substantially submitted in writing and contained at A60-71 and R155-R166 of the bundle, consequently those submissions are not set out in detail below but referred to where appropriate. The witnesses the Tribunal heard from were as undernoted. Their evidence is only very broadly described below, although parts are referred to in our reasoning where appropriate. Without exception we consider every witness gave their evidence and views honestly and credibly.

Witnesses

Witness A, Principal Teacher of Support for Learning at the nominated school. Witness A is responsible for Support for Learning for those pupils in the mainstream of the nominated school. She works with another Principal Teacher of Support who looks after children attending the Additional Support Needs base or “Enhanced provision”. She has known the child and the Appellant since the child started at the nominated school in s1. She described the facilities available for the child and her, and the nominated school’s, experience of working with children with additional support needs. She was able to describe in detail the education provision that has been provided to the child in the nominated school from s1 onwards including the current provision.

Witness B, Depute Principal Educational Psychologist, School C. Witness B is the Education Psychologist for the nominated school’s cluster (the nominated school and feeder primary schools). She gave evidence about a report she had completed (R57-66) which had been prepared to assist the Respondent in considering the placing request, the child being assessed against the eight SHANARRI well-being indicators (safe, healthy, achieving, nurtured, active, respected, responsible, included) and the report proceeding to summarise and analyse the child’s additional support needs and the support required before identifying both protective and risk factors relating to the two possible placements. She spoke in detail to the report, how she assessed the child, describing the actions taken to promote the well-being factors in detail. She also spoke to the risks identified in her said report in the child attending the specified school.

Witness C, Head Teacher of the specified school, spoke to the provision of Education in the specified school and how the specified school addresses issues with children and would with the child, if placed there. He explained the

assessment process undertaken for the child when she visited the school in January 2016 and spoke in detail regarding the strategies to deal with the issues that could arise should the child be placed in the specified school.

The Appellant gave evidence about the history of the child’s education, about the issues the child experienced since starting in the nominated school and why as a result of the child’s experiences at the nominated school she sought out an alternative for the child in the specified school. She spoke about her concerns for the child, the importance of keeping the child safe and the benefits she considered the specified school would bring to the child. She spoke about the difficulties she has with the child’s behaviour out with school.

The child also gave evidence to the Tribunal. She indicated her favourite subjects were Maths and English, although in her written statement she added craft, design and technology (CDT) to this. She felt she had friends in the school as people she knows and speaks to. She spoke about having one particular friend in the same year group. She liked the specified school when she visited it for 3 days, saying it was very good, having lots of people who spoke to her, she thought it was friendly and the classes were good. If she went to the specified school she wouldn’t miss her Mum as she would see her at weekends. She clearly gave us the impression that she liked both her current school and the specified school. She enjoys her work placement (at a nursery one day a week). At the nominated school there was always someone she could go to if she didn’t feel safe, in classes it would be her Support for Learning Teacher and outwith class she could always go to the additional support teacher in Support for learning facility – Support for learning facility being a room available for any S1 pupil or certain identified older vulnerable young people who need a place of safety at lunchtime. In the written statement produced the child felt 9/10 good about being in both schools, the nominated school would do better if she didn’t have to do PE and the specified school if she got to do CDT at the specified school.

Legislation

The parties agreed on the relevant legislation in all material respects and the parts of schedule 2 of the Act we had to consider are as follows.

Sch. 2, section 3(1)(a)(iii) - placing the child in the specified school would be seriously detrimental to the continuity of the child’s education

Sch. 2 section 3(1)(f)(i) – the specified school is not a public school

Sch.2 section 3(1)(f)(ii) – the authority are able to make provision for the additional support needs of the child in a school other than the specified school

Sch. 2 3(1)(f)(iii) – it is not reasonable, having regard to both the respective suitability and to the respective cost of the provision for the additional support needs of the child in the specified school and in the

school referred to in paragraph (ii), to place the child in the specified school

Sch. 2 section 3(1)(f)(iv) – The authority have offered to place the child in the school referred to in paragraph (ii)

Schedule 2, section 3(1)(f)(i),(ii),(iii) and (iv)

It was a matter of agreement that two of the conditions for this ground were met, namely that the specified school is not a public school and that the Respondent has offered a place to the child in the nominated school. Accordingly, we had to consider whether the authority were able to make provision for the child’s additional support needs in the nominated school. In our view it is clear from the evidence that they could. In coming to this view we have accepted the submissions of the Respondent’s agent, and had particular regard to the evidence of Witness B, the Education Psychologist. A detailed report had been provided by the said witness at R 57-66 in which Witness B assessed the child’s needs against the SHANARRI indicators, looked at the additional support needs and the support required and finally summarised the key protective factors and risks in the child attending either the nominated or the specified school.

We did consider that it had taken a very long time for the support provided within the nominated school to adequately meet the child’s needs. There could be various reasons for this including the child’s particular difficulties but it did seem to us that particular models of support that had not been successful had been persisted with for lengthy periods without success, particularly her education being based in the additional support base known as Enhanced provision. However we have to look at the education and support being provided to the child at the moment. Since the reintroduction of mainstream classes, in tandem with closer ties to Support for learning facility, the provision has been shown to be more successful for the child as was clear from the evidence of Witness A. The timetable is individualised with the child attending some classes in Enhanced provision and others in mainstream. It includes work experience at a local nursery as well as community based life skills. Looking at the child’s needs there did not appear to be any particular need that the school was not addressing. There was evidence from Witness A of progression not only in the child’s academic abilities but also in her life skills and we consider the evidence was that the child is receiving a very holistic education package that meets the child’s curriculum needs. Indeed the Appellant gave evidence that she was happy with the timetable in place for the child, that she was not getting so many calls regarding the child’s behaviour and that the child was no longer walking out of the school during the school day, which had been a problem in the past (she gave evidence initially that this had not happened in the current school year but on the final day of the hearing gave evidence that she had left the school in December, although later returned). When asked twice by the Respondent’s agent questions to elicit where she considered the child’s needs were not being met at on the final day of the hearing she repeatedly referred to previous difficulties and did not identify any current difficulty with the needs being met.

A clear view was expressed in cross-examination and when the Convener sought clarification that she felt that appropriate support only started to be put in place after she proceeded with the placing request. When again asked what was wrong now with the provision for the child she responded that she felt the changes had been made too late and that if the amendments to the child’s support package in the nominated school had been put in place at an earlier stage the child may have settled sooner and the Appellant would not be at the Tribunal now. The furthest the Appellant went in criticising the current provision for the child came under re-examination when asked if she considered the current placement was appropriate place for the child to be, she responded that she did not think she would get the grades she needs at the nominated school because too much time had been wasted. We do not agree with the submission of The appellant representative that the SHANARRI indicators are not being addressed by the nominated school, it was clear from the assessment of Witness B and the evidence of Witness A, particularly when referred to Witness B’s report at R57, that the school is actively addressing all of them, although obviously (as detailed, for example, in the said report) not without issues and risks arising.

Essentially the position therefore before the Tribunal was that there was no material evidence to suggest the nominated school could not meet the child’s additional support needs. The two witnesses for the Respondent gave detailed evidence to the effect that it could. The Appellant, while concerned regarding certain issues, such as safety, communication and likely progress in maths and English, did not provide evidence that would entitle us to conclude the school could not meet the child’s needs. Witness C, Head Teacher of the specified school, while naturally qualifying his evidence on this point, considered that on the face of it the timetable that the child is currently following appeared to be a good one.

It was very apparent from the child’s mother’s evidence that one of her principle concerns regarding the nominated school was what would happen when the child reaches 16 and that she believed the school would not make educational provision for the child beyond the age of 16 and that, instead, she would be asked to attend a full time college placement. This was in contrast to the position at the specified school where, according to Witness C’ evidence, children did not normally leave at 16 and that the school could provide a curriculum until the child reached 18. However the evidence of Witness A on this point was, as described in The appellant’s representative submissions that the nominated school would be happy to keep the child at school if she chose to stay on beyond her 16^th birthday. She advised the tribunal that there are a number of children who are not academically able who are currently in 5^th and 6^th year at School B. Witness A intimated that should the child wish to remain at school they would look to create a timetable for her at that stage which would be suitable to her individual needs. While The appellant gave evidence that the Tribunal hearing was the first time she had heard of this possibility, which was very unfortunate, we do not doubt the honesty of Witness A’s evidence.

Accordingly we are clear in finding that the nominated school is able to make provision for the child’s additional support needs both now and in the future. That is not, of course, to say that there are not issues or to minimise the Appellant’s concerns but there are likely to be issues wherever the child is educated.

The Respondent accepted that the specified school was suitable to meet the child’s needs and we accepted this. Accordingly we must engage in the comparative exercise between the two schools suitability for the child. We conclude that at this stage in the child’s education, the education provided by the nominated school was more suited to the child’s need than the specified school.

It was not a simple task comparing the suitability of the two schools, on the one hand there was clear evidence that the current approach in the nominated school was focussed individually on the child’s needs and was currently successful at meeting those needs. On the other hand there appeared to be at least the possibility that the arguably more individualised approach and higher staff to pupil ratio at the specified school might enable the child to achieve greater academic success. The Appellant was very concerned about the child’s ability to keep herself safe and it was clear to us that the specified school was a highly protective environment, particularly given issues the child had with keeping safe online and issues being experienced by the family in the community. However we consider this could well be at the expense of the child learning to cope with difficulties and building resilience to enable her to flourish after leaving school education. The Appellant indicated that the specified school remained her preferred choice even given that the child is more settled and following a more suitable timetable as she considered the size and noise of the nominated school to be detrimental to her child and that in contrast the specified school was significantly smaller, calmer, quieter and less busy. She also believed the staff at the specified school are better qualified to deal with young people with needs like those of her child.

The report from Witness B fairly outlined the protective and risk factors at both provisions. We carefully considered the submissions and views of parties, the evidence of all witnesses- including the child’s evidence that gave us the clear impression she would be happy at either school- and ultimately came to our conclusion for a number of reasons.

Firstly, we are concerned regarding the child’s peer group were she to attend the specified school. The evidence of the child’s education to date demonstrated that she progressed most in her current environment, with a timetable that includes mainstream work. When she was placed in a small highly supported environment but one restricted to children with additional support needs, Enhanced provision facility, her behaviour deteriorated badly. To be frank it appeared to the Tribunal that the placement in Enhanced provision while well intended and supported by all at the time was a failure. Witness A’s view from her observations was that the child did not see herself as a “Hub” child, that she considered herself more able than other children in

Enhanced provision, referred to the others in derogatory terms and wanted to return to mainstream schooling. We are concerned that there is a very significant risk that again removing the child from mainstream education would lead to deterioration in behaviour.

We consider that the entire child’s needs require to be considered in an all- encompassing way. Academic achievement is of course part of this but so is building life skills and abilities to improve the child’s independence. Clearly the child’s safety is of enormous concern to the Appellant and there was no doubt in our minds that the quiet, calm less noisy and comparatively isolated provision at the specified school would better protect the child when she was there from difficulties being experienced in her local communities and from exposure to social media due to access being extremely restricted at the specified school. While the Appellant considered safety to be at risk at the nominated school that did not accord with the evidence from Witness A to the effect that incidents involving the child (whether as victim or perpetrator) had greatly reduced in number since the child entered third year or tie in with the impression the child gave of being happy at the school and rating it as a 9 out of 10. Further, if attending the specified school, the child would still return to the community at weekends and holidays and have the potential for accessing social media, which could put her in danger. The protective environment of the specified school could come at a high potential cost to the child. While clearly the specified school, as evidenced by Witness C, would make efforts to build independence and life skills, the removal of the child from her peers in the community would, as articulated by Witness B, restrict the child’s abilities to develop resilience, skills to manage independently in the community and to develop strategies to manage her sensory sensitivity. We consider this risk to be a material one which could well have a long lasting impact on the child.

One of the child’s difficulties relates to her attachment to the Appellant. In particular there was evidence that the child would get anxious at night, insisting that she sleeps with her mother at night and accompanies her to the toilet. While The appellant gave evidence that these issues have been resolved of late we are concerned about the potential distress for the child were she to be separated from her mother for the school week and the impact that could have on her education.

The evidence from Witness A was clear that the child is doing well on her work experience placement at a local nursery, and the Respondent would be looking to increase that experience either by increasing the hours at the nursery or attempting an alternative work placement, perhaps in hospitality. We considered that the opportunities provided by the Respondent through the nominated school to benefit from bespoke work experience placements suited her needs. Under re-examination Witness C did give evidence to that the specified school would try to get the child work experience, mentioning links to a local hotel and ski-maker but it did appear that opportunities for work experience are significantly more limited at the specified school. Similarly lack of craft design and technology, a subject it is hoped the child will achieve a qualification in and that she enjoys, is not available at the specified school.

We considered the Appellant’s views that staff at the requested school were better qualified than those at the nominated school to deal with young people with similar needs to the child. We did not think there was evidence to support this view. Clear evidence was given by Witness C and the Respondent’s witnesses regarding the suitability of staff within both establishments, their experience of children with complex needs and there was no evidence that we considered would entitle us to conclude staff within one establishment were better qualified than in the other.

Accordingly for these reasons we conclude that the education provided by the nominated school is more suited to the child’s needs and given the specified school was more costly are satisfied that the ground for refusal contained in section 3 (1)(f(i),(ii), and (iii) is established.

Schedule 2, section 3(1) (a) (iii) – placing the child in the specified school would be seriously detrimental to the continuity of the child’s education

Having determined that one statutory ground has been established it is not necessary that we consider the other ground of refusal relied upon by the Respondent. Nevertheless, given we had heard and read submissions on this ground, it is appropriate to give our view that this ground was not established. We accept – as stated above- that both schools are suitable but considered whether the risks and issues we consider material to concluding the nominated school is more suited to the child’s needs than the specified school were sufficient to conclude that placing the child there would be seriously detrimental to the continuity of the child’s education. We considered The appellant’s representative submission that the child is currently experiencing the most productive period of her educational experience within the nominated school and that to remove her now would be seriously detrimental to the continuity of her education. However we are not of the view that the risks and issues associated with a move to the nominated school, which made the specified school less suited to the child’s needs, are such that we could go as far as concluding as a matter of fact and law that placing the child in the specified school would be seriously detrimental to the continuity of the child’s education.

The circumstances

Having determined that one of the grounds for refusing the placing request applies, we have to determine in accordance with section 19 (4A) (a) (ii) of the Act whether in all the circumstances it is appropriate to confirm the decision of the Respondent. Given we are satisfied that a ground of refusal has been established and that that assessment includes our conclusion, for reasons detailed above, that the nominated school is more suited to the child’s needs we are of the view that it is appropriate to uphold the Respondent’s decision and dismiss the appeal.

Conclusion