ASNTS_D_16_2009_25.11.09

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

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

 

Reference:                              D_16_2009

 

Gender:                                   Female

 

Aged:                                       13

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Type of Reference:                 Placing Request

 

 

 

1. Reference:

On 7 September 2009 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 the Education Authority (“the authority”).

The reference was in respect of the decision dated 21 August 2009 where the authority refused a placing request made by the Appellant under paragraph 1 of Schedule 2 of the Act, for her daughter to attend the requested school.

The Tribunal has jurisdiction as the authority had agreed that the child should have a Coordinated Support Plan and one was being prepared when the placing request was refused.

 

 

 

 

2. Decision of the Tribunal:

 

The Tribunal sets aside the decision of the respondents dated and directs that the child be placed in the requested school.

 

 

3. Preliminary Matters

 

The case statement period was extended to 6 November 2009.

The authority sought permission to call three additional witnesses.

 

There was a pre-hearing conference call:   the authority was permitted to call two additional witnesses;    it was agreed that the authority would lead at the hearing;   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 to T22;

R1 to R185;

A1 to A52;

During the hearing an additional document was produced.   It was accepted and marked A53.

 

Oral evidence for the respondents was taken from:

Deputy Head Teacher, Specified School;

Visiting Support Teacher – Visual Impairment

Services Manager, the Authority

 

 

Oral evidence for the appellant was taken from:

The Appellant;

Vice Principal, Requested School;

Psychologist.

 

 

 

 

5. Findings in Fact:

 

1.         The child is aged 13.  She lives with her parents.    She has one older sister who lives in England.  Her father is a serving soldier, and the family home is accommodation provided by the Ministry of Defence.  

2.         The child has a complex range of additional support needs.    She has a learning disability which is global and profound, and an associated severe/profound visual impairment.    Her health related issues include hydrocephalus, cerebral palsy, epilepsy, and neurofibromatosis.   Her severe visual difficulties have a constant impact on how she can interact and learn.  She needs to be in an environment which can offer a multidisciplinary approach to her education and development.   She needs a specialised curriculum with a high level of adult support.    To allow communication she needs the consistent use of on-body signing.

3.         The child lived in the area with her family as an infant and young child.   She attended a mother and toddler group and then the Nursery at the Requested School.   She was placed at the Requested School on starting school education.  She benefited from her time at the Requested School particularly with the communication of on-body signing.   She was considered to have a greater understanding of the world both physically and socially than that which she was able to express.

4.         In October 2003 the child and her mother moved to England to join her father who had been transferred there some time before.    She was placed at a School, which was a special school with a unit for visually impaired pupils.    The Child was unable to access the V.I.  unit as there were no places.   Information about the child and her abilities had been sent to this school from the Requested School.    At the School there was no use of on-body signing and thus no opportunity for the child to communicate.   She was unsettled, disturbed and exhibited self-harming behaviour pulling her hair out.

5.         In April 2007 the Appellant and her daughter moved  to join the father who had been transferred in December 2006.   The child had been out of school for some months after undergoing hospital treatment.   She was placed at another School, a special school which did not have experience in on-body signing.    The staff were open to learn some signing, but were unable to use it consistently.   Two support staff members undertook a short course in on-body signing.    The Appellant assisted staff in preparing a book describing signs used and understood by the child as a basis of communication with her.  

6.         In early 2009 the father was transferred to Scotland for a three year posting.   The child and her mother joined him around the end of June 2009.    The father will be sent on duty to Afghanistan in March 2010 for a six month period.   He has now been given information that his brigade has been disbanded, and he will require to return to his unit which is based in the south of England.   On his return from Afghanistan it is likely that he will be transferred away from Scotland.

7.         Service quarters are made available by the Ministry of Defence for families of soldiers.    Within each location, priority is given to families of service personnel stationed nearby.   When the father is transferred from Scotland family accommodation will be made available close to his posting.   The present family home will only be available as long as no family of a soldier based in the area require it.

8.         The Ministry of Defence provides funding for boarding school fees to support continuity of children's education.    At present the maximum payment they will make is around £28,500 per year.

9.         The Specified School provides education for children and young people with severe or profound complex learning difficulties from 3 – 18 years.   This includes pupils with significant physical and motor impairment and pupils with sensory processing difficulties.   There is a place available for the child.   There will be no additional cost to the authority apart from transport costs of £5 a day.    

10.       The specified School is purpose built and includes facilities such as hydrotherapy pool, soft play room, multi-sensory room and dedicated music, drama and expressive arts rooms.   On average, around one third of pupils have multiple disabilities and a visual impairment (MDVI); presently the figures are 19 out of a total of 50 pupils.    The school has a "Total Communication Environment", using many forms of communication. One form of communication used is on-body signing.   Many of the staff, including the support staff, have many years experience of children with severe or profound complex difficulties including sensory impairment.     One teacher has a post-graduate qualification in teaching visually impaired pupils.   This teacher is the principal teacher of the primary department, and is responsible for VI throughout the school.   She offers support to the staff throughout the school, including the secondary department.   She provides staff training.   The Visiting Support Teacher for Visual Impairment also supports the training of staff.   All staff are encouraged to attend courses offered by the University Sensory Centre.   Some staff are presently undergoing training and others have completed modules.   Of the 19 MDVI pupils in school and nursery, 6 are in the secondary department, and of those, 4 are of the child's age group.    The child is likely to be in a registration class of six pupils of her age group.  The teacher does not have a VI qualification.

11.       A Care Service provide holiday care at the specified school during school holidays for the school's pupils.   The manager of the service is based throughout the year at the specified school.   A number of the specified school’s staff members work for the care service during the holidays.    The Care service provide a two week holiday playscheme at the Requested School each year, where priority is given to pupils of the requested School.

12.       Keycomm who provide assessment, equipment and support with technology to pupils of both the specified school and the requested school are based at the specified School.  This allows staff at the specified school to borrow pieces of equipment to try them out before having to invest in items of equipment.

13.       Assessment of respite care needs is made under section 23 of the Children (Scotland) Act 1995 by the authority social work department.    Parents of children at the specified school may be offered respite in a facility or provided with a direct payment to access independent respite.

14.       The Requested School is a grant-aided school funded by the Scottish Government.   There is a place available for the child if requested by the authority.     The annual day fees for 2009/2010 are £38,152.    Transport costs for the authority if the child is a pupil there will be £15 per day.   

15.       There are presently 45 pupils attending the Campus.   All have a visual impairment as well as multiple disabilities.     The School is a purpose built school for MDVI pupils both primary and secondary age.   It has a hydrotherapy pool, multi-sensory room, soft play room.    Of the ten teachers, three have qualifications in the teaching of pupils with visual impairment, one is about to start the training, and the others are in the process of training for the qualification.   The child is likely to be in a class of six.   The teacher of this class has a qualification in VI.      All staff including support and therapy staff have experience of children with visual impairment.   It is a total communication environment.     Some staff members who had been known to the child when she attended previously are still at the school.

16.       The Requested School is a residential school, open throughout the year.   The residential care staff work within the school at lunch-times and at other events and are at those times involved with non-residential pupils.     A pupil can board either weekdays or full-time during the school term, and stay at any time for respite care.  Weekly boarding (Monday to Thursday) costs are £26,714 per annum; weekend residential rates (Friday to Sunday) are £2,502 per annum.   

17.       Both schools would assess the child over a number of weeks.  Both use Canaan-Barrie on body signing, song signifiers and switches.   Both could use signalong which the child may be able to progress towards.    The detail of the curriculum at each school would grow out of an assessment of the child's skills and needs.  Both schools would help develop daily living skills.   Staff pupil ratio is similar in each school, and the child would be in a small class of six pupils in either school.    Both schools would encourage children to be aware of other children.    Both schools are transdisciplinary.   Both schools would help with transition at all stages.   Both schools have links with Further Education colleges.

18.       There is a significant difference in the cost of the two schools.         

 

 

6. Reasons for decision:

 

1.         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.

2.         The issue in dispute was the respective suitability of the provision available at the Requested School and the Specified School, and the respective cost of the provision, for the additional support needs of  the child.

3.         The local authority submitted (in short) that the Specified School was at least as suitable for the child as the Requested School.   There was very little difference between the two schools.  Any perceived difference would not justify the annual expenditure of in excess of £38,000.   Accordingly the statutory grounds for refusal of the placing request were established.

4.         The appellant submitted that the parents had a right under the legislation to choose a school and make a placing request.   The authority's refusal of the placing request was made without direct knowledge of the child.   The only report by an authority employee who had met the child (Psychologist’s report) did not prefer one school to the other.    The emphasis by the authority on the financial pressures and constraints was inappropriate.   Whilst the Specified School could meet the child's educational needs, a placement there would not meet her social and emotional needs and enable her to reach her full potential.  It was submitted that respite care was critical and the ability to access respite care within the residential facilities of the Requested School using the authority direct payment was a significant factor.    Regard had to be had for the family's particular circumstances and the pressures upon them.   The Requested School was more suitable for her needs. 

5.         Section 19(5) of the Act provides:

"Where the reference relates to a decision referred to in subsection (3)(e) of that section, the Tribunal may –

(a)        confirm the decision if satisfied that –

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

            (ii)       in all the circumstances it is appropriate to do so;

(b)       overturn the decision and require the education authority to _

            (i)        place the child or young person in the school specified in the placing   request to which the decision related, and

            (ii)       make such amendments to the co-ordinated support plan prepared for    the child or young person as the Tribunal considers appropriate by such time  as the Tribunal may require..."

6.         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."

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

             "(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).

8.         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 at the Requested School unless one of the circumstances in paragraph 3(f) is established.

9.         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)(f); then, the Tribunal has to consider whether in all the circumstances it is appropriate to confirm the decision of the authority. 

10.       Para 3(1)(f)(i) and (iv) are not in dispute.   The Requested School is not a public school and the authority have offered to place the child in the Specified School. 

11.       The Tribunal considered the evidence before it of the ability of the authority to make provision for the child's additional support needs in the Specified School, and concluded that this was clearly established.   Para 3(1)(f)(ii) is satisfied.

12.       The Tribunal required to consider the respective suitability and respective cost in terms of para 3(1)(f)(iii).

13.       The child had enjoyed what her mother described as "gold standard" of education in her early years at the Requested School.   The family had learned Canaan Barrie signing and use it with her.    This has helped her to retain this communication skill despite the difficulties she has experienced in her other two educational placements.  At a visit to the Requested School in March 2009 she was greeted by members of staff who spoke to her and asked permission to touch her or shake her hand.    Although it is six years since she left there she seems to have a memory of some of the staff, and at an assessment in September 2009 she was noted as demonstrating a preference to being with these individuals during the assessment.  

14.       The child visited the Specified School with her parents in May 2009.     They had travelled from England and arrived later than planned.   The Psychologist, who had visited the School and met the child there, was present for part of the visit.  No-one else present had previously met the child.    At the Specified School  the child met a number of staff who were keen to welcome her.    Most of the staff tried to greet her by touching her and speaking to her without realising that the child does not like being touched without her consent.   She bit one of the staff members, clearly stressed by the situation.

15.       The child does not cope well with change.    She had a very difficult experience when moving schools to England.   Because of the family's moves between various local authorities due to the father's service commitments, the family have been unable to access regular respite care.   Earlier in 2009 she accessed respite care on several occasions, six nights in all.   The respite took place after considerable preparation, and despite this, on two occasions the Appellant was called because the child could not settle. 

16.       The Tribunal considered that if the child was unsettled, this would inhibit her ability to access education.     Whilst the Specified School can offer a good environment, it is another new setting for her, and the experience of the visit might suggest that the child would find it harder to settle there than if she were to be placed in the Requested School.   In the view of the Tribunal, it is impossible to ignore the perception of the parents:   with the history of the difficulties experienced in the last two schools, however well-meaning and enthusiastic were the Specified School’s staff, the Appellant does not have the confidence that, in comparison with the Requested School, the whole staff have the skills, training or experience that would allow the child to fulfil her potential.  

17.       The Appellant wants the best for the child.    She feels that due to the changes in schools, the child has not progressed as much as she may be capable of doing.    She felt she regressed after leaving the Requested School and entering an environment where she experienced difficulties in communication.   

18.   Because of the difficulties with change, and additionally, at the child's age, continuity of education is important.   There is a high possibility that the family will require to move from Scotland by 2011.   If the child attends the Specified School, she will require yet another change of school within a period of a year or eighteen months.   If she attends the Requested School there is a real possibility that she could become a residential pupil there, with the parents accessing funding from the MoD to assist with the boarding element, and this would provide continuity for the rest of her school education. 

18.       The child and her family have had limited access to respite care.   The Appellant explained the difficulties, as a service family, or moving from one authority to another, rarely reaching the top of a waiting list for such services.   The Tribunal were impressed that, despite the very considerable pressures on the Appellant on having to deal with the child on her own much of the time due to the father's absence on duty, the Appellant explained her wish for respite not primarily as a break from her duties as a carer, but as something that would enhance the child's experience, that would challenge her.

18.       The opportunity of accessing respite within the residential facilities of the Requested School, with staff who were likely to be known to the child, and who were all experienced in MDVI children and in the use of on body signing, was seen by the Appellant to be of benefit to the child.

19.       There was evidence that holiday provision by the Care Service would be available throughout the holidays at the Specified School, whereas it would be available for two weeks only in the summer at the Requested School.  In her evidence the Appellant did not suggest that holiday care was a particular concern.  

20.       Section 1(1) of the Act provides:

"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 ...

Section 1(2) provides that:

"... school education includes, 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".

21.       The Tribunal had regard to C v City of Edinburgh Council 2008 SLT 522 where Lord Wheatley stated:

"The whole burden of the test of what constitutes additional support needs clearly refers to educational support, and further to education support offered in a teaching environment.   This in turn must refer to the educational needs of the child, and not to anything else.    It cannot refer to the social and environmental needs of the appellant herself, or indeed of the child."

22.       The Tribunal accepted the submission for the authority that respite based on social care needs was not an additional support need without which the child would be unable to benefit from school education.   However, the opportunity of respite as seen by the Appellant was not directed at social care, but was an additional aspect of the child's experience and development.    We considered that if she were to access respite, she was likely to settle more easily and get more out of the experience using the residential facility available ancillary to the day school attended by her, and as a result, be in a better position to benefit from school education.

23.       The Tribunal required to look at the respective suitability of the two schools for the individual child.   We considered that the two schools were nearly comparable, but that the training required of staff at the Requested School was more rigorous regarding the needs of MDVI pupils and the school was thus more focussed on meeting these needs.   The teacher likely to be dealing mainly with the child in the Requested School was qualified in VI whereas none of the teachers in the secondary department of the Specified School had the qualification.   The environment within the Requested School is wholly directed to the visually impaired, and this is a significant factor for the child. Further, this was the school where she had learned her communication skills, and where these were used consistently, and in the way she understood, by all staff.   We considered that she would more easily settle and thrive there.     We also considered that we could not ignore the fact that this was a military family, and, with no choice in the matter, faced uncertainty when and to where they may have to move.   Were the child to be placed in The Specified School, there would inevitably be worry and concern about having to make another move and change of school within the next two years.  It is not clear of how much the child would be aware, but given the very close bond between her and her mother, the Appellant's worry about a future move - added to the inevitable concerns she will face when the father is on tour in Afghanistan – is, in the view of the Tribunal, very likely to affect the child and very probably have an adverse effect on her ability to access education.

24.       A placement at the Requested School, which can offer a future option of a residential place, removes the anxiety of having to find a new school for the child.   In a time of uncertainty for the family, the Tribunal considered that the removal of that anxiety would do much to protect and promote the child's ability to benefit from school education.

25.       For these reasons we concluded that the Requested School was more suitable than the Specified School in providing for the child's additional support needs.

26.       With regard to the question of respective costs, we accepted that the annual fees of the Requested School, £38,152, was a significant cost compared to no additional cost being incurred by the authority for a placement at the Specified School.   Although we heard evidence of residential fees, there was no question that the placement sought, and the costs of the placement to the authority, was anything but day fees and incidental expenses such as transport costs ancillary to a day school.   There was evidence that this was a time of great financial pressure for the authority and that an equivalent annual sum would provide for example twelve children each with five hours a week additional support in a mainstream school, or the costs of one specialist teacher.     We did realise however that if the child's family had not moved away, as the child had been placed at the Requested School on starting her education, she would have remained there throughout, and the authority would have met the annual costs each year for the past six years.   The authority presently funded about eight children attending the campus of the Requested School, most placed before the new Specified School was built.  The costs of the placement would come in the first instance from the additional support for learning support services budget, part of the education department, itself part of the greater Children and Families Department of the authority.    The annual cost, though significant, would, we considered, be a small sum in terms of the overall budget.

27.       The Tribunal considers that where the suitability of the provision in both schools is almost identical, and where there is a significant cost to be incurred by the authority in placing the child in the Requested School, it would be unreasonable to place the child there.   However we have found clear advantages in the Requested School over the Specified School, and we are required to carry out the exercise of weighing and balancing the respective suitability and respective costs.   Having done so, we conclude that it is reasonable that the child be placed at the Requested School.

28.       If however we are incorrect in our application of the test in section 3(1) (f)(iii) of the Act, it would be appropriate to consider the second stage of the test set out in section 19(5)(a) of the Act, namely if, in all the circumstances, it is appropriate to confirm the decision of the authority to refuse the placing request.

29.       The Tribunal carefully considered all the circumstances applying to the child having regard to all the available evidence.     We had regard to the principle stated in the Education (Scotland) Act 1980 "so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents".    Given this obligation, there must be a heavy onus in determining that a placing request be refused.   Parental views are not determinative, but are an important factor to be considered in the exercise of discretion to the placing request.   The views and wishes of the child's mother and father are strongly held and based not only on the past and  unfortunate experience they have had in special schools apart from the Requested School, but also on the less than happy experience of their visit to the Specified School.    The question of unreasonable public expenditure must be considered having regard to the proportion of the total budget, and the relative costs of the provision in comparison to other costs of other special school provision paid by the authority, including residential provision.

30.       As noted above, at para 19, section 1(2) of the Act sets out the definition of school education and thus the guiding objective of the Act, to "developing the personality, talents and  ... abilities of the child ... to their fullest potential."     Regrettably since 2003 the child's experiences of education, albeit outwith this jurisdiction, have not been wholly satisfactory, and it is likely that she has not been assisted in recent years in development towards her fullest potential.    The educational environment provided by the Specified School would be adequate and in many ways suitable for the child, but the advantages for the child identified by the Tribunal in the Requested School are, in our view, most likely to give her the best chance to work towards achieving her fullest potential.           

31.       In all the circumstances, we conclude that it is not appropriate to confirm the decision of the authority refusing the placing request. 

32.       As the Co-ordinated Support Plan is still in draft, we did not require to order amendment of the CSP in terms of section 19(5)(b)(ii) of the Act.