ASNTS_D_08_2015_21.11.14

 

 

 

DECISION OF THE TRIBUNAL

 

Reference:      R 056 2014                

 

Gender:           Male

                       

Aged:               15                   

 

Type of Reference:     Placing Request         

 

1. Details of the reference

 

A reference, dated 10^th July 2014 was received by the Tribunal Secretariat in respect of a placing request made by way of the Appellant’s letter dated 17^th April 2014.  This request was refused by the Education Authority, under paragraph 3(1)(f) of Schedule 2 to the Education (Additional Support for Learning)(Scotland) Act 2009 (hereinafter “the Act”).  It is against that decision that this appeal is made.

 

2. Summary of the decision

 

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

 

3. Procedural history

 

1. 1. There had been a conference call to discuss the witnesses in the case and other procedural matters in the lead up to the hearing.  It had been agreed that the Respondent would lead at the hearing, but that certain evidence from the Appellant may require to be interposed, in order to make best use of time. 
   2. Evidence was heard on 21^st and 28^th November and on 12^th December 2014.  Thereafter written submissions were directed.  These, plus comments on those of the other party, were received by 17^th December, as directed.  Thereafter, the Tribunal deliberated and reached a decision on 22^nd December.  That decision was issued in brief terms on 23^rd December and this is the final decision and reasons for it.

 

4. Preliminary Issues

 

The respondent wished to lodge late papers at the outset of the hearing, being an updated version of the school attendance.  The appellant’s representative indicated she was not opposed to this.  These papers were thus allowed.

 

5. Summary of Evidence

 

5.1

The bundle consists of T1-35, A1-94 and R1-233.  We considered and took into account all of this information in making our decision.

 

1. 2. the child’s views

The Tribunal spoke to the child at the beginning of the hearing.  His mother and the respondent’s representative were at the back of the room.  In the view of the Tribunal the child presented as a highly articulate and delightful young man, clearly interested and invested in his own education.  He responded fully to everything that was asked of him.  The main aspects of his evidence were, as follows:

a/  the child stated that he got on with most of the people in his class. However, he said that there were two or three who persistently annoy him. He named a particular boy, who he stated persistently annoys him. the child stated that he felt he would get on with other people better at School A as there were less people to worry about and he would have more time. Also, CW would not be there and that would be a “huge bonus”.

 

b/   the child stated that the school he is in is a lovely new building but that they have tried to cram everything in. He feels that it is “rush, rush, rush” all day. There is a staircase in the middle, which acts as a bottleneck. There is nowhere to get a break from all the people. At lunchtime he walks around the school with one of the deputy head teachers. He thinks the school feels like a prisoner of war camp. At School A, when he went there to visit, he liked the attitude far more.

 

c/  In relation to teaching and learning at School B the child said “the council tell a big lie,  that is that the teaching is fantastic”. He stated that some of his teachers, like his art teacher, were very good. Others were not. He explained that his additional support had been taken out of metalwork without anyone telling him or his mother. He expressed displeasure about that.

 

 

d/  the child gave evidence that he has full support in geography. He has help from a teacher of the deaf in English and physics and is very relaxed in those classes. In other subjects he has to wait for a teacher to come round and can sit there for a long time waiting. He stated that individual attention is the main reason that he would like to move school.

 

e/  the child’s aspiration was to go on to college and possibly to university. He felt that in School A he would be supported in developing as a person, which he would appreciate. He did not feel that the foundations were there for him to succeed at School B. He felt the biggest problem at School B is that the teachers rush things and try to cram as much as possible into a period. He finds that he can do the work, but the pace is just too quick. Homework is a big stress for him and his parents. The teacher is supposed to write a note of his home work in his study plan but that sometimes does not happen. Then his mother will not know what he is supposed to do. Furthermore the child feels that the school really lacks resources. He explained about occasions when he did not have access to a laptop computer or there was a difficulty in him accessing the sound field.

 

f/  In summary the child’s view was that he would be much more relaxed at School A and that it would be much better suited for his mum’s work. He felt it would make the day feel shorter.

 

6. Findings in fact

 

1. 1. The appellant is the mother of the child, a male child and who lives with her in Fife. 
   2. the child was born in April 1999.
   3. the child’s father lives separately from the child but has him to stay frequently and is greatly involved with him.
   4. the child has two older brothers.
   5. the child lives in a village and attended his local mainstream primary.  He completed an additional pre-school year and had an agreed deferred entry to primary one.  the child  made good progress at primary school commensurate with his individual learning targets. 
   6. the child has additional support needs, as defined in section 1 of the 2004 Act. He was born prematurely and suffered moderate to severe bi-lateral sensory hearing loss and has mild cerebral palsy.
   7.  the child is on the autistic spectrum, consequently he experiences difficulty with social interaction, communication, and has an adversity to change. He also has difficulties with flexibility of thought and behaviour.  He experiences anxiety in certain social situations, can be negative in his thinking and has anger management issues. 
   8. the child wears two digital hearing aids and lip reads.  the child’s development has been delayed and he has information processing and working memory difficulties, due to cerebral scarring.  He has organisational difficulties and benefits from reassurance.
   9. On 17^th April 2014 the appellant made a placing request for the child specifying School A (elsewhere “School A”) .
   10. On 29^th May 2014 the education authority refused the placing request.  They offered a place at School B (elsewhere “School B”), the Council’s mainstream secondary with an integrated resource for the deaf.   School B is not the catchment school for the child.  the child has attended this school since S1 and is currently an S3 pupil.
   11. the child has had involvement with the Educational Psychologist attached to School B.  He has a key worker from Child and Adolescent Mental Health Service (CAMHS).  the child receives additional support in some classes from a pupil support assistant (PSA) and in others from a teacher of the deaf.
   12. School B is a new build mainstream high school with an approximate roll of 1,200 pupils.  It has a specialist base for deaf pupils.  Some areas of the school are fitted with a sound field system.  This amplification system supports deaf pupils to hear in the assembly hall. the child carries a portable system to class that he and the teacher use.  This allows him to hear the teacher wherever he is sitting in class.
   13. School A is a single sex, independent special school with a current roll of 18 male pupils.  It is not a public school.  Of these 17 are residential pupils and 1 is a day pupil.  Every pupil has a keyworker.  Class sizes are small, with an average of four boys in each class.  There are currently twelve pupils at S3 level, which means three classes of S3 pupils.  All pupils are on the autistic spectrum, have complex barriers to learning and have failed to manage at mainstream school.  None of the pupils currently attending the school have a hearing impairment and consequently the school is not resourced to meet this need.  There are nine teachers and twenty care workers employed by the school.  School A has made an offer of a place to the child.
   14. the child has made very good progress, commensurate with his ability and individual targets, in each of his years at School B.   He has received consistently positive school reports and is meeting his potential.  the child’s attendance rate is very high at 98.68% in the last academic year.  His punctuality is very good.

 

7.  EVIDENCE LED

 

The Respondent led evidence from two witnesses: Witness A, Depute Head Teacher at School B, and Witness B, Council Educational Psychologist for School B and the child.

 

The Appellant led evidence from Witness C, an independent Educational Psychologist, Witness D, Social Work Manager from School A and both parents of the child.  We shall comment on each witness, where appropriate, within the decision below.

 

8. SUBMISSIONS FOR THE RESPONDENT

 

Representative for the Respondent, submitted that the statutory ground contained in paragraph 3(1) (f) of Schedule 2 to the Act applies, so there is therefore no duty on the education authority to comply with the placing request. It should be noted that this was the only ground on which the Respondent sought to resist the appeal.

 

It was submitted that parts (i) and (iv) of paragraph 3(1)(f) were not in dispute and that focus should therefore be on parts (ii) and (iii).  The Respondent pointed out that the child has always attended mainstream provision and  has made progress consistent with his ability level.  The evidence demonstrated, it was submitted, that the child was coping within the mainstream setting and that there were benefits to him in continued attendance there.

Furthermore it was submitted that it is not reasonable to place the child in School A as a result of the respective suitability and cost.  School A is substantially more expensive and School B is more suitable.

 

 

9.  SUBMISSIONS FOR THE APPELLANT

 

Representative for the Appellant submitted that there is no clear, consistent approach at School B about how to address the child’s additional support needs.  It was submitted that the many emails sent from home to school about supports “falling down” showed this.  Thus it was submitted that the authority were not able to make provision for the child’s additional support needs in School B.

 

It was also submitted that School A was more suitable and in relation to cost the cost of School B was £14,555 per annum.

 

It was submitted for the appellant that none of the statutory grounds for the refusal of this placing request have been met and the Tribunal was asked to overturn the decision of the local authority and grant the placing request.

 

 

10.  DECISION

 

10.1    The Tribunal considers that the correct approach is that informed by Section 19(4)(A) of the Act. Firstly, the Tribunal requires to consider whether grounds for refusal exist and secondly whether, in all the circumstances it is appropriate to confirm the decision of the education authority. We consider that only where a ground of refusal is established do we then have to go on to consider whether, in all the circumstances, it is appropriate to confirm the decision of the authority.  This, then, is a two stage test; with the second stage only becoming applicable if the first stage is passed.

 

 

 

10.2    Schedule 2, paragraph 2 of the Act requires education authorities to comply with placing requests, unless they consider that one or more of the circumstances set out in paragraph 3 apply. In this case the Respondent state that the circumstances set out in paragraphs 3(1)(f) apply and mean that they correctly refused the placing request. Against that decision an Appeal has been taken to the Tribunal.

10.3    Para 3(1)(f)

“if all the following conditions apply, namely- (i) School A is not a public school (ii) the authority are able to make provision for the additional support needs of the child in a school [in this case School B]  (whether or not a school under their management) other than School A (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 School A and in the school referred to in paragraph (ii), to place the child in School A, and (iv) the authority have offered to place the child in the school referred to in paragraph (ii)”

 

10.4    This requires the authority (the onus being on them) to demonstrate that all of the conditions set out in the sub paragraphs of 3(1)(f) apply. In this case it is, as we understand it, accepted that sub paragraph (i) applies in that School A is not a public school. It is also accepted that the authority have offered to place the child in School B.  However, the application of sub paragraphs (ii) and (iii) is in dispute in this case.

 

10.5    In dealing with sub paragraph (ii) the Tribunal has to consider the ability of School B to make provision for the child’s additional support needs. 

 

10.6    “Additional support needs” is referred to in the interpretation section of the Act, being Section 29 and specifically in Section 29(1) where it is stated “additional support needs” is to be construed in accordance with Section 1(1). 

 

10.7    “S1(1): A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.”   Section 1(1) of the Act also creates a link to section 1(2) of the Act. The term “school education” is first mentioned in Section 1(1) of the Act where it is then detailed in Section 1(2) to include, “In particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential”.

 

10.8    the child’s additional support needs arise, partly, from his hearing impairment.  From the evidence we heard the inbuilt sound field system and portable equipment provided at School B appears to allow the child to benefit from mainstream education.  There are instances where glitches arise, for example where the teacher does not have the correct equipment.  Such instances are regrettable as they undoubtedly cause anxiety for the child.  Nevertheless we are unable to concluded from the evidence that we heard that such instances are of such frequency or duration as to affect the child’s benefit from school education.

 

10.9    the child also has additional support needs arising from his autistic spectrum disorder and mild cerebral palsy.   He has scarring on his brain which leads to difficulties in transferring information from one hemisphere to another and attendant problems with information processing, working memory and language development.   We heard evidence that these problems, rather than the child’s hearing impairment, were now his main barriers to learning.

 

10.10  Nevertheless the clear and uncontroverted professional evidence before us was of a pupil who was making good progress at school and clearly benefitting from mainstream school education.  His subject report cards demonstrate entirely typical and age appropriate progress commensurate with his ability.  We accepted the evidence of Witness A who spoke of the child making “very good progress”.  He felt the child was meeting his potential.  He gave evidence that progress was being maintained and referred to the S3 reports issued the day before he gave his evidence and to the fact that the child’s reports contained some “very, very positive comments”.  In response to the suggestion (emanating from Witness C) that the child should be achieving at a much higher level Witness A’s evidence was that pupils at S3-4 should be working at up to and including level 4 and that the child’s profile was that he was doing so and was now accessing material at level 4, making Witness A optimistic about the child progressing on to university.

 

10.11  Having weighed all of these matters in the balance and having considered the sections of the Act detailed above the tribunal is of the view that the authority is able to make provision for the child’s additional support needs in School B.  Essentially the Tribunal accepts the evidence of Witness A and Witness B in reaching that decision.

 

10.12  In considering subparagraph (iii) we observe that it is not, in our view, an academic exercise requiring us to assess whether School A is a better school than School B, or whether the child wants to go there more than he wants to stay at School B. Instead what we require to do is consider the respective suitability of the schooling for the child. In addition we have to look at the respective cost of the two provisions.  We have to consider both of these matters in the balance, with neither outweighing  the other. 

 

10.13  In considering the respective suitability we are of the view that each of the schools in this case has advantages and disadvantages for the child.  At School B the child gets the benefits of mainstream education, including a neuro-typical peer group on which to model; he is achieving academically; he trusts and likes key staff at School B and is familiar with all aspects of the school.  Weighed against that is that the child and his parents feel their relationship with School B has broken down; they do not feel (inaccurately in our view) that School B is meeting the child’s needs.   Advantages at School A include the small class sizes, the fact that the child has expressed a wish to attend there and the reported nurturing environment.  Disadvantages include a single sex environment, that it might encourage dependency in the child in that it is less like the “real world”, the child’s previous adverse reaction to his peers with communication and behavioural difficulties and the restricted nature of the timetable.

 

10.14  We go back again to the evidence that the child is making good academic progress at School B.  In our view the advantages of School B, even when considered against its disadvantages, are greater than those of School A. 

 

10.15  In considering the respective cost we note that both parties agree that the figure to use in this case in respect of attendance at School B is £14,555 per annum.  They both agree that the cost of School A is £43,963 per annum.  We observe that this cost is considerably higher.  Had School A been clearly, in our view, the much more suitable school for the child this additional cost might be justifiable.  Given our previous comments we do not consider this additional cost can be justified in this case.

 

10.16  As a result the tribunal considers grounds for  the refusal of the placing request exist, in terms of subparagraph (f).  That then requires us to return to consider section 19(4A)(a)(ii) and the appropriateness of the refusal in all of the circumstances.

 

10.17  We do accept that there have been failings at School B.  For instance there have been occasions when the sound field equipment has not been to hand.  There was an instance of the child’s pupil support assistant being removed from metalwork, without any prior warning or consultation.  There have been examples of the child’s homework not being provided to him before his departure from class and not therefore noted in his homework planner.  Nonetheless, in considering the evidence as a whole we are not satisfied that these are any more than hiccups in an otherwise excellent provision that is suitable for the child.  As a result it is appropriate to confirm the refusal of the placing request.  In doing so we observe that it would be appropriate for the management team at School B to look again at how these shortcomings can be addressed to prevent their recurrence.  It would also be our suggestion that staff and parents work together to consider the child’s current timetable and whether this should be modified to assist him in his overall learning and achievement.