ASNTS_D_16_2015

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

                    

Gender:        Male  

         

Age:   5       

                    

Reference:    Placing request

 

 

 

 

 

1. Reference

 

 

The reference is brought by the Appellant for her son, (“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 for a special school, namely School A (“the specified school”). The placing request was refused by the Respondent on the ground specified in, schedule 2 paragraph 3 (1) (g) of the Act, that placing the child in the school would breach the requirement in Section 15 (1) of the Standards in Scotland’s Schools Act (“the 2000 Act). The requirement in Section 15 (1) of the 2000 Act being commonly referred to as the presumption of mainstream. The appeal was also resisted on the basis of schedule 2 paragraph 3(1) (b) of the Act, that the education normally provided at the specified school is not suited to the age, ability or aptitude of the child.

 

 

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

 

 

The reference appeared to have been submitted late, contrary to rule 5 (5) of the Tribunal Rules. The Appellant made representations as to why the reference should proceed and the Respondent was given an opportunity to respond. Having considered those representations the Convener allowed the reference to proceed. A note of that decision is in the bundle at T18.

 

Both parties’ representatives were in agreement during a pre-hearing conference call that the child was not capable of giving an opinion. At the conference call the Convener agreed, based on the child’s difficulties. The Tribunal as a whole further considered whether the child was capable of giving a view and concluded that he was not. This was partly given his age and difficulties but primarily because he had not visited either the nominated or the specified schools and accordingly would not be in a position to compare the two schools.

 

4. Findings in Fact

 

 

In coming to our decision we found the following facts established.

 

1. The child is five years old.
2. The child lives with his parents, two older siblings and young baby sibling.
3. The child has autism.
4. The child has difficulties with communication and social interaction. He can be anxious and can become emotionally heightened.
5. The child has additional support needs within the meaning of the Act.
6. The child attended The nursery (hereinafter referred to as “the nursery”) from 2012 until June 2015. The nursery is a mainstream provision.
7. The child was due to attend The nominated school (“the nominated school”) from August 2015. The nominated school is a mainstream primary school.
8. The Appellant made a placing request in March 2015 for the child to attend The specified school (“the specified school”) from August 2015. The specified school is a specialist resource within the same campus as the nominated school.
9. The Respondent refused the placing request by letter dated 28 April 2015. The ground for refusal was paragraph 3(1) (g) of Schedule 2 of the 2004 Act (the presumption of mainstream).
10. The child has not attended the nominated school and is being home educated.
11. There were numerous violent incidents involving the child during the nursery school year 2013/14. Incidents continued but decreased significantly after August 2014.
12. When the child left nursery school in June 2015 he was able to communicate his needs within the nursery, could understand nursery routines and have a conversation.
13. An enhanced transition process was planned to assist the child’s transition to primary one but it did not proceed as the child’s parents did not engage with the process.
14. There is a peer group in primary one of the nominated school, appropriate to the child’s age, ability and aptitude.
15. All staff within the nominated school have received at least one day’s training in autism.
16. Staff within the nominated school have some experience of children with autism.
17. With appropriate support to assist with his needs, particularly his anxieties and communication difficulties the child can access a mainstream education curriculum in the nominated school.
18. Were the child to attend the specified school he would not access the mainstream curriculum. Instead he would follow a curriculum which would be accessed using sensory and supported interaction.
19. The nominated school is suited to the child’s ability and aptitude.

 

 

We also found in fact and law that:

 

1. The nominated school would provide education suitable to the child’s ability and aptitude. Accordingly it is not the case that educating the child in a school other than a special school would be not suitable to the ability and aptitude of the child.
2. Educating the child at a school other than a special school would not be incompatible with the provision of efficient education for the children with whom the child would be educated

 

 

5. Reasons for Decision

 

 

In reaching our decision we took into account the evidence of the five witnesses and all of the documents in the bundle. Both parties were represented with submissions substantially submitted in writing but supplemented orally.

 

Broadly the evidence provided by the witnesses is described below:

 

Witness 2 is the Head of Inclusion for the Respondent and also has responsibility for all schools and nurseries in the North East of the Respondent’s area. She is responsible for the nursery school the child attended but not the nominated school, although she is familiar with it. She spoke to the Respondent’s practice of staged intervention when considering what additional support should be provided to children with additional support needs. She also spoke to the change in how children with additional support needs are educated following the introduction of the presumption of mainstream and how far more children with support needs now attending mainstream provision. She spoke to the rationale behind the presumption of mainstream. In her view which was based on research, children with additional support needs who attend mainstream schools have better life chances.

 

Witness 3 is the Head of the Nursery that the child attended prior to the end of term in June 2015. She spoke to the child’s experience at nursery and to the improvements made by him , particularly as regards communication, interaction with others and behaviour in his time at nursery. It was clear from her evidence that there were difficulties with his communication and that he could become very anxious and was initially “quite solitary”. She gave evidence as to the plans for the child’s transition to primary school being frustrated as his parents would not co-operate, withdrawing the child from school for a period. She spoke at length to the supports available to the child in nursery and the strategies employed by nursery staff educating the child. Concentrating on how the child was when he left nursery she was clear that the child communicated well, he could communicate his needs and wants and while they would use simplified language such as “The child wash hands” he could understand. He understood the routines and he could have a conversation. Witness 3 gave evidence that the child had an appropriate peer group in the nursery and that he had friends who did not have additional support needs. He was a happy and well settled child when he left nursery. When asked her views regarding the child going to mainstream, she responded that he deserved a chance of mainstream education. He has communication needs and would need extra support, but she was of the view that he could be supported in mainstream education

 

During the school year 13/14, there were numerous incidents (many of them violent) involving the child but over time those incidents had reduced with the last recorded incident being on 22 August 2014. They are as described at R67-R81 of the bundle. Witness 3 was challenged in relation to the number of incidents and said she couldn’t recall any after August 2014. She stated that she wasn’t saying there had not been any since then, but she hadn’t seen any record of them. This contrasted markedly with the Appellant who was explicitly clear that there had continued to be incidents involving the child of which the school made her aware. Given the doubt Witness 3 expressed and that we found the Appellant to be an honest witness we preferred her evidence on this point. It seemed to us that the lack of any recorded incident since August 2014 was more likely to be due to poor record keeping than there being no incidents. However it was also clear to us, and not suggested otherwise by the Appellant, that the number of incidents had drastically reduced.  This was important as one of the Appellant’s concerns was that the child could become excluded from a mainstream school if similar incidents occurred.

 

Witness 4 is the Head teacher of both the nominated and the specified school and has been in that post since August 2015. She spoke to the composition of both the nominated and the specified school. The witness spoke in detail to the supports that would be available to the child if he were to attend the nominated school and the strategies that could be employed to assist the child. She had considered the class the child would be put into and advised that she had a depute whose remit includes additional support needs (“asn”), supporting and finding resources to assist children with asn. Pupil support assistant resources would be allocated according to need within the school, all staff within the school had received at least a full day’s training in autism and she planned to put staff on more intensive autism training. The staff in the nominated school were used to working with children with a variety of needs. There are children within primary one who, unlike the child, have only non-verbal communication. Having the specified school on campus was useful as staff within the nominated school were able to learn from those in the specified school. She considered that from the information available to her that the child could be supported in the nominated school and he would be able to access the mainstream curriculum as he had in nursery. Were the child to attend the specified school he would follow a curriculum which would be accessed using sensory and supported interaction.

 

Witness 1 is an experienced paediatrician who has specialised in autism for the last 16 years. She first became engaged with the child in May 2013. She gave very detailed evidence of the nature of the child’s autism and how the autism manifests itself and could manifest itself if the child is not properly supported. Witness 1’s evidence was largely contained in her submitted statement (A86) and was supplemented by her oral evidence. She has seen the child at her clinic on an approximately 6 monthly basis since August 2013, the most recent occasion being the day before she gave evidence.  In very general terms she is of the view that the child is at the severe end of the autistic spectrum. While she sees some children with no language, she considered the child’s behaviour and understanding to be at the severe end of the autistic spectrum. She described the child as very rigid in his thinking, that it was very difficult to get him to do anything, and the child struggles to understand verbal instructions. She was sceptical about some of the other evidence, for instance the suggestion that the child could play with other children as she had not seen any imaginative play with adults and that she would want to see the quality of any play, for example, if the child was playing co-operatively or just instructing other children. However she accepted that the child may be able to contextualise and show different behaviour in different settings.  Witness 1 felt that were the child to attend a mainstream school a great deal of effort would be spent trying to get the child through the day rather than educating him.  

 

Appellant is the child’s mother and appellant. She gave detailed evidence regarding the child’s needs, difficulties and support he requires. She articulated the reasons why she made the placing request and why she continued to be of the view that the child would be best educated in the specified school. The Appellant suggested the child’s needs were greater than his needs according to the views of the education professionals. She described greater degrees of anxiety than the education professionals, more frequent “meltdowns” and greater difficulty communicating. She was for example, like Witness 1, extremely sceptical about the child’s ability to play with other children, indicating that the child cannot play with other children, that he does not include them when playing. While the Appellant was glowing regarding the progress the child made while placed within the The D Assessment Centre (a local authority pre-school assessment resource) from 1 December 2014 until 27 February 2015, she disagreed with many of the strengths the assessment centre recorded in their report (A56-63). She had never visited the specified school and had not participated in the transition process for the child attending primary school which meant she had very little knowledge of the support that could be provided in the nominated school, indicating that the information given at the Tribunal was the first time she had heard what support would be available. She explained that she wants the child ultimately to attend a mainstream school but feels he needs to have structures in place provided by the right education staff to enable the child to progress to a point where the child is able to transfer successfully.

 

A written statement was also lodged by Witness 5, an Educational Psychologist for the Respondent. He had observed the child for approximately one hour in the nursery setting. His findings are documented in his statement (R229). He had also spoken with the child’s key worker from nursery and considered psychology reports and a report from The D Assessment Centre.  It is noteworthy that he observed behaviours inconsistent with the evidence of the appellant or Witness 1 (described below), such as the child engaging in cooperative free play with other children. His observations being consistent with the evidence of Witness 3. His professional view was that he had “no concerns with regards to [the child] attending, accessing and engaging within mainstream school environment.” He said that “with appropriate support strategies (e.g. clearly defined routines and expectations; a structured day; modelling appropriate social interactions) [the child’s] needs can be met within a mainstream establishment, allowing him to access the mainstream curriculum and engage in positive learning experiences.”

 

The parts of the schedule 2 of the Act that the Tribunal required to consider are:-

 

Paragraph 2(1)

“Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.”

 

Paragraph 3(1)

 

“(1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply...

(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child…

(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” being the Standards in Scotland’s Schools etc. Act 2000, section 15 of which provides:-

 

“15 Requirement that education be provided in mainstream schools

(1) 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…

 

(3) The circumstances are, that to provide education for the 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.

(4) If one of the circumstances mentioned in subsection (3) above arises, the authority may provide education for the child in question in a school other than a special school; but they shall not do so without taking into account the views of the child and of the child's parents in that regard.

 

The Solicitor for the Appellant did not argue that educating the child in the nominated school would result in unreasonable public expenditure being incurred but argued the other two grounds for not applying the presumption of mainstream, which we consider in turn.

 

 

Schedule 2 Paragraph 3(1) (g) – Presumption of Mainstream

 

The Solicitor for the Appellant argued that providing education for the child in a school other than a special school would not be suited to the ability or aptitude of the child. In relation to this argument the evidence of the Education professionals who provided evidence, with the exception of Witness 2 whose evidence was about the process and rationale behind the presumption, as well as the Respondent’s Education Psychologist, Witness 5, in his written statement (R229) was that the nominated school was suited to the child’s ability and aptitude.

 

Of those witnesses Witness 3, the Head Teacher of the Nursery, was the most familiar with the child, having known him since she took up post approximately 22 months before the hearing. It was suggested for the Appellant that the value of Witness 3’s evidence was limited as much of what she spoke to was second hand being derived from others, particularly the child’s key worker. We did not agree with this. As Head Teacher a small nursery with only nine teaching staff she clearly had a detailed knowledge of the child derived from her own personal observations, discussions with and notes taken by staff. In our view she was very well placed to describe the difficulties the child presented in the nursery and the strategies the nursery employed to assist the child.

 

Witness 4 as Head of both the nominated school and the specified school was able to give evidence as to the respective suitability of both establishments. A weakness in her evidence was that she had not met the child, that being due to the lack of engagement by the parents of the child in the transition process from nursery to primary. Necessarily she required to respond to questions about how the nominated school would educate the child based on the information supplied to her by the nursery. She was asked specifically what she knew about the child and impressed us with the knowledge she had. She was clearly of the view that the nominated school could provide for the child and that the school would employ strategies to assist the child based on working with the parents, considering information from the nursery and their own experience with the child.

 

Submissions on this issue for the Appellant were to the effect that we should prefer the evidence of Witness 1 to that of the Respondent’s witnesses; Counsel for the Respondent submitted the opposite.

 

We are of the view that the nominated school is suitable to the ability and aptitude of the child. In coming to our view we preferred the evidence of the education professionals to that of the Appellant and Witness 1. There are a number of reasons for this. Firstly they were the witnesses with experience of children with an autistic spectrum disorder within the education system. Witness 3 knew the child well and Witness 4 was very well placed to give evidence on whether from the information available to her the child could be educated at the nominated school. Witness 5 had knowledge of both Complex Learning Needs establishments and mainstream ones.

 

The Solicitor for the Appellant suggested we should prefer the views of Witness 1 given Witness 4 had never met the child, Witness 5 only for a short time and Witness 3 had in her submission little first-hand knowledge of the child. However Witness 1 had only seen the child on a few occasions and accepted that she had not seen the child interact with other children and that unfamiliar surroundings or people could impact on an assessment. Further, Witness 1 accepted that she was not in a position to advise on what would be the best education provision for the child and while indicating that the teaching methods used in a language and communication resource would be suitable for the child, she could not give examples as she was not a teacher.

 

The Appellant’s articulated views on the suitability of the nominated school seemed from her evidence to be largely based on her view of the lack of progress the child had made at nursery compared with the progress he had made while attending the The D assessment centre and the Scottish Centre for Autism. She seemed to be of the view that the resources in the specified school would be similar to The D and so the progress would be similar; this factor was possibly contributed to by her not having visited or being able to visit the specified school. They are both entirely different resources with different purposes and we can of course only base our decision on the evidence of the suitability of the nominated school (as regards the presumption of mainstream) and the specified school (regarding the other ground for refusing the placing request).

 

There was no reason for us to doubt that the Respondent’s witnesses were expressing genuine professional opinions based on their knowledge of the child and the education provision available.

 

Significant support for the views of the Education professionals is provided by the findings of The D Assessment centre which the child attended from 1 December 2014 to 27 February 2015. A very detailed report was produced which clearly demonstrated that the child has the skills necessary for mainstream education, albeit with significant support as described therein (A62). We also considered the child would have a peer group within the primary school. There was also evidence that the child could contextualise his behaviour to different environments. ,ild could contextulae child could contextulaise his behaviour to different environment, oes contextulaise his behavi

 

Accordingly we conclude that the nominated school is suited to the child’s ability and aptitude.

 

The solicitor for the Appellant also argued that the presumption of mainstream should not apply as it “would be incompatible with the provision of efficient education for the children with whom the child would be educated. She argued that the child has shown “ a spectrum of behavioural issues…which are likely to recur if he continues into mainstream school and therefore disrupt the classroom environment…Given the larger, more confusing environment that [the child] will experience in a mainstream school. It is submitted that the issues he experienced at nursery are likely to get worse rather than better, particularly when taking into account the reduction in support that [the child] will receive.”

 

We do not agree with those submissions. While there certainly had been a large number of incidents at nursery and we did not, as stated above, accept that they had ceased in August 2014, there was no doubt that the number of incidents at nursery had reduced. While there is certainly a risk that there could be further incidents in a mainstream secondary it was clear from the evidence of Witness 4 that with the support of the parents, strategies would be put in place to minimise the risks, and that the nominated school had significant experience with children with autistic spectrum disorders. Indeed there was another child with autism in the class which the child would join. Witness 4 gave evidence that should there be incidents they would look at the triggers to see if they could prevent re-occurrences.

 

We agree with Council for the respondent that there was no evidence before us that would enable us to come to a conclusion that the education of the child would be incompatible with the provision of efficient education of others. What was presented to the Tribunal amounted, in our view, to a fear of this possibility based on historic incidents at the mainstream nursery and which the nursery had been able to cope with.

 

Given the foregoing the presumption of mainstream applies.

 

Schedule 2 Paragraph 3(1) (b) – education normally provided at the specified school is not suited to the age, ability or aptitude of the child

 

While not a ground for originally rejecting the placing request the Respondent argued before the Tribunal that the education provided at the specified school in not suited to the ability or aptitude of the child. Counsel for the Respondent argued that the evidence of Witness 4 was clear that the children currently within the specified school have more significant difficulties than the child. They are more isolated and in the area of communication are much less able. The curriculum for those children is not at the same level as the mainstream children of equivalent age. The child being more able than the children currently placed there. Counsel also argued that Witness 5’s evidence demonstrated a marked difference between the child and children in the specified school, particularly in the area of communication, although Witness 5 did indicate he did not have an in-depth working knowledge of the population of the specified school.

 

This ground gave us some difficulty. We accepted the evidence of Witness 4 that the child would have a more appropriate peer group in the nominated school, that he would be able to access the curriculum whereas  the education provided at the specified school would follow sensory methodologies It also seemed to us from the description of the children in the specified school that the majority of them had far greater communication difficulties than the child (for example, in the class the child would enter three children were reported to be non-verbal in their communication) . However, we heard evidence from Witness 3 that there are children in the specified school whose difficulties, while more severe overall than the child’s, are able to access mainstream education for periods of the week. Evidence from Witness 1 suggested the child was also at the severe end of the autistic spectrum. We also considered that there  would be a benefit to the child derived from the higher staff support levels in the specified school, albeit Witness 3 indicated that the ratio was less than  two members of staff (teaching and PSA) rather than the one-to-one level the Appellant thought would be provided.

 

Ultimately we have come to the view that while the specified school would not be best suited for the child, particularly when compared with the mainstream school, we do not consider it can be said the education provided by the specified school is not suited to his ability and aptitude. While we have no doubt that the nominated school is better suited to his ability and aptitude, given the medical evidence from Witness 1, in particular that the child is at the severe end of the autistic spectrum, and the evidence of the Appellant regarding the child’s anxieties and isolation as a result, there is the risk that ultimately the placement in the nominated school might not be successful and in those circumstances it is possible that the child would receive a beneficial education in the specified school.

 

The circumstances

 

 

Having determined that one of the grounds for refusing the placing request applies, we then 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. We have no difficulty in doing so. In particular we consider that the reasoning behind the presumption of mainstream as spoken to particularly by Witness 2 is of relevance. We were also referred to Scottish Government Circular 3/2202 at paragraph 6 where it states “The intention behind the new duty is to establish the right of all children and young people to be educated alongside their peers in mainstream schools unless there are good reasons for not doing so”. We do not believe there are good reasons for the child not attending the nominated school and are of the view, as expressed by Witness 3, that the child “deserves a chance in mainstream education.”

 

 

Conclusion

 

 

Accordingly the appeal is refused and the decision of the Respondent confirmed.

 

 

Further Comment

 

 

While we have rejected the appeal which means that, subject to the parents’ continuing wishes regarding home education for the child and, if so, the Respondent of course being satisfied that efficient education is being provided, the child should now attend the nominated school, we are clear that for the child to succeed in the nominated school there will need to be a transition process to prepare the child for the new environment involving visits to the school and meeting staff who will work closely with him. Given the period the child has spent out with local authority education, it is likely this process will be more difficult than had it been undertaken while the child was in nursery. Accordingly should the parents now wish to accept the placement at the nominated school we consider it is essential that a carefully thought-out transition plan be developed by the Respondents in conjunction with the child’s parents. We also felt that more could have been done by the Respondent to inform the Appellant of the provision that would be in place were the child to attend the nominated school, the Appellant having given evidence that the Tribunal was the first time she had heard what would be available.

 

Finally, we were enormously impressed by the Appellant both in the manner in which she gave her evidence but more particular with how she has researched the child’s condition, accessed training to assist her bringing up the child and sourced resources for child. We absolutely accept that she passionately believes a placement in the specified school will give the child the best prospects in the future. We of course realise this decision will be devastating for her. One factor that was repeated several times in her evidence was a desire for the child ultimately to attend mainstream education, accessing the curriculum when he was ready for it. While not part of our rationale in coming to our decision, in our not insignificant experience of children educated in special schools it is very rare for children to transfer entirely to mainstream education and access the full mainstream curriculum. If a child is going to access mainstream education we consider the best chance of that being successful is normally when the child enters education.