ASNTS_D_09_2011_29.09.11

 

DECISION OF THE TRIBUNAL

 

Reference:      D_09_2011                

 

Gender:           Female

                       

Aged:               11                   

 

Type of Reference:     Placing Request         

 

 

 

1. Reference

 

This reference, made by application dated 23^rd May 2011, is made under s.18(3)(da)(i) of the Education (Additional Support for Learning)(Scotland) Act 2004 (‘the 2004 Act’).

 

 

2. Decision of the Tribunal

 

The Tribunal confirms the decision of the Respondent to refuse the Appellant’s placing request, in accordance with s.19(4A)(a) of the 2004 Act.

 

3. Preliminary Matters

 

1. The only such matter concerns the lodging of some late papers. The Child few days before the hearing, the Respondent produced a report by Educational Psychologist, dated 26^th September 2011. This report was anticipated (see final paragraph of Conference Call Record of 20^th September 2011, T41 in the bundle) and was added to the bundle by agreement at R53-R57. Secondly, Mr Grahame Whyte during his evidence made reference to a document, School A S1 Personal Interview which he said was a record of an interview between a guidance teacher at the school and The Child which took place on 27^th September 2011.  It was agreed that this should be added to the bundle and is at R58-59.

 

2. The bundle consists of: pages T1-T41 (Tribunal papers), pages A1-A93 (Appellant’s papers) and pages R1-R59 (Respondent’s papers). We took into account all of the information in the bundle in reaching our decision.

 

 

4. Summary of Evidence and Proceedings

 

1. Evidence and submissions were delivered over the two days set down for the case. It had been agreed in advance of the hearing, at the pre-hearing case conference, that the Respondent’s case would be presented first. Three witnesses gave evidence for the Respondent: Witness A, Education Officer, Witness B, Educational Psychologist, and Witness C, Headmaster at School A.

 

Two witnesses gave evidence for the Appellant: the Appellant herself and Witness D, Depute Headteacher, School B.

 

2. We also took the views of The Child herself into account. The Child attended and spoke directly with the Tribunal members in the presence of the case officer only. We considered the terms of rule 33 of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (‘the Rules’) before deciding whether to hear evidence from The Child, since she is under 12 years old. Both parties agreed that the conditions in rule 33(1) were satisfied and that we should hear from The Child. We agreed, and decided to hear from The Child. We asked the parties for their views on how we should take The Child’s views. Appellant Representative indicated that the Appellant would wish to be present with The Child while her views were taken by the Tribunal. Counsel for Respondent urged us to hear from The Child alone, since this would lead to The Child being as open as possible; The Child would be aware of the Appellant’s wish for her to attend School B. Appellant Representative also indicated that she would like to put some questions to The Child, while Counsel for Respondent indicated a preference not to do so. We decided that it would be best to speak to The Child in the absence of the parties and representatives, to take her views and to relay those views back to the parties and representatives afterwards. This decision was made partly taking into account The Child’s age and in order to make the experience as comfortable as possible for her. The option of allowing the parties and representatives (or even the representatives only) being present was unattractive, since this would have made the experience for The Child more formal and daunting. In addition, we felt that The Child would be more likely to be open and honest in a discussion with the panel alone. On advising the parties of our decision on this point, we set out the general nature of the questions we planned to put to The Child, and invited comments on those or suggestions for additional questions, but the parties were content with the questions we proposed to ask The Child. We also indicated that we would provide a full account of The Child’s views to the parties once the meeting with The Child was over.   Since the parties would have the benefit of an immediate account of The Child’s views, any questions or issues arising out of those views could be raised with any subsequent witness or during submissions. We were impressed with The Child’s open and honest responses to the questions from the Tribunal panel members. She stated her views clearly and confidently. The main points she made were as follows:

 

The Child was clear in her view that she would ideally prefer to be in smaller classes for her subjects since she finds that she is more easily distracted in larger classes. She also indicated that she does like some bigger classes. 

 

She feels that the subject she needs to concentrate most in is Maths.

 

She finds subjects such as technology, science, art and RE easier to cope with in big classes. Her favourite subjects are: Science, Technology, Art, RME and PSE. She feels these are the easiest ones and that she is good with those classes.

 

She has a lot of friends at school, most of whom are from her primary school, although some of her friends she has met at School A.

 

When asked what is not going well at school, she stated that she is often put at the same table in class as her friends and so is tempted to chat to them and she finds this distracting.

 

She indicated that she gets help with her maths and English while in the Base classes at School A and that she feels she needs more help with all of her classes. She stated that it would be better to have small classes in nearly all of her subjects and she would not chat with others.

 

When asked about School B and what she thought about going there, she said she wouldn’t mind going there. She had heard that there were relaxing rooms and a garden. Her friend had told that have a play area with swings there. Her friend goes there.

 

She stated that if she went to School B, she would miss her friends at School A, but she would keep in touch with them.

 

She agreed that it was nice to have her sibling in her registration class. She did have a Buddy during the 3 day visit to School A and for another week once she started there but she did not need one after that since she did not get lost anymore.

 

When asked about sport at school, she replied that she used to go to basketball club before starting at School A and that she was really good at it. However, at School A, there were bigger people in the basketball club and this had put her off joining. She was about to start rugby in PE class; they used to play hockey, which she was really good at and later they will do tennis.

 

When asked whether she would be happy or unhappy if she had to change schools, she stated that she would not mind going to a different school and if she did, School B would be the best for her.

 

 

5. The submissions of the parties

 

1. Counsel for Respondent asked us to confirm the refusal decision, in terms of s.19(4A)(a) of the 2004 Act. She urged us to find that all three of the grounds of refusal exist. She referred in particular to the evidence of Witness A and Witness D on the impact that the admission of The Child to the ASN Wing at School B, (‘School B Wing’ or ‘Wing’) would have on the school and the Respondent. On the appropriateness part of the exercise, she asked us to place particular emphasis on the conclusions of Witness B. She also directed us to Witness E’s concern about School B Wing, as expressed to The Child’s parents, and to the adequacy of the education being provided at School A, as evidenced by Witness C.

 

2. Appellant Representative asked us to overturn the refusal decision, in terms of s.19(4A)(b)(i) of the 2004 Act, and to place The Child in the School B Wing. She asked us to do so either on the basis that none of the grounds for refusal exist or on the basis that, notwithstanding the existence of one or more of those grounds, it would not be appropriate in all of the circumstances to confirm the Respondent’s decision.  Her position on each ground is summarised below. On the appropriateness in all of the circumstances part of the test, Appellant Representative’s argument was, in essence, that the provision at School B Wing was more appropriate to the educational needs of The Child than the provision currently in place for pupils who benefit from support at the ASN Base at School A (‘the School ABase’). She referred, for example, to the smaller classes in the Wing and how The Child can find it difficult to cope in larger classes, such as some of those she attends at School A and to the quiet environment in the Wing. She referred also to the extra-curricular support available at School B Wing, such as homework and study groups (given The Child’s difficulties with homework at School A) and to the more structured lunchtime arrangements at the Wing.

 

 

6. Findings in Fact

 

1. The Appellant is the mother of The Child.

 

2. The Child was in 1999. At the time of the hearing, she was 11 years old.

 

3. The Child attends School A, which is a mainstream secondary school within the Respondent’s control. The Child started attending that school in August 2011. The Child benefits from attendance for some classes at the ASN Base at School A.

 

4. The Child has additional support needs (‘ASN’) as defined in s.1 of the 2004 Act. She was diagnosed with Attention Deficit Hyperactive Disorder in June 2010. More specifically, The Child experiences difficulties with processing language and auditory memory. She has difficulty in maintaining concentration in class. Her short term memory is poor: she can have difficulty in retaining information over a period of time. She has difficulty in understanding long, complex instructions. She requires prompting to assist her to remain on task. The Child benefits from appropriate visual aids and from tuition in small classes, especially in non-practical subjects such as Maths and English. She also benefits from individual work space, to help her maintain concentration.  She can become distracted when she is hot, tired or there is noise from other children in her class. The Child’s listening skills are variable. Her reading skills are reasonable, although she has some difficulties with her reading. Although The Child has additional support needs, she does not have a coordinated support plan. The Child has an  Individual Educational Plan (‘IEP’) the most recent version of which is dated August 2011, and is at A89 in the bundle. This Plan is to be reviewed in October 2011. The previous, more detailed IEP is dated August 2010 and is at R12-13 in the bundle. The Child also suffers from Portal vein thrombosis and takes medication for this condition, which can impact on her educational development (see medical report of Dr Anon dated 22^nd June 2011 at A90-91 in the bundle).

 

5. The Respondent’s ASN provision is arranged in three levels (tiers) according to the level of support provided. This provision is explained in the Respondent’s Additional Support Needs (ASN) Provision and Admissions Process: The Child Brief Guide for Parents/Carers, which is at T27-29 of the bundle. Reference is made to the explanation of the three ‘Tiers’ at T27. School A has provision which falls within Tier 1 only (mainstream school with onsite ASN Base). School B has provision which falls within both Tier 1 and Tier 2, since it has an ASN base (Tier 1) plus extended ASN facilities (Tier 2). The Tier 2 facilities at School B are provided in a discrete part of the school known as the ‘School B Wing’.

 

6. Prior to attending School A, The Child attended School C, The Child attended a Language Unit during her time in years 1 and 2 at primary school. In primary 4, it became apparent that The Child was struggling to cope with mainstream classroom demands and an application was made for a place in the ASN Base at School C in May 2008. That request was granted in June 2008. The Child received support from that base for the remainder of her primary education. Between June 2008 and June 2011 at School C, The Child spent around 40% of her time in the ASN Base there and around 60% of her time in mainstream classes. In the Base classes over that period, The Child received support mainly in core subjects such as Reading, Writing, Maths and Personal Development, in classes averaging 5 pupils, but consisting of no more than 10 pupils. Much less support was required in practical subjects such as PE, Art and Music. Witness E was one of The Child’s teachers at School C. She works in the ASN Base there. She has been a teacher at that school for 22 years. She has taught in the ASN base there for 10 years. Mrs Anon was jointly responsible (with her job share partner) for the preparation of the IEPs in place for The Child while she was at School C, the most recent of which is at R12-R13 in the bundle. She was also jointly responsible for the preparation of the ASN Forward Planning Sheets for The Child, the latest of which are at R14-R41 in the bundle. Following The Child’s attendance at the Base from June 2008, Witness E was jointly responsible for having an input into reviews of The Child’s ASN provision. The minutes of the review meetings held on 20^th May 2009, 20^th May 2010 and 22^nd April 2011 are to be found at R45-R51 in the bundle.

 

7. Witness A is the Service Manager for Primary Education and Additional Support Needs with the Respondent and has held that post since August 2010. He was a secondary school teacher in the past and has held, among other posts, Director of Education positions in Scotland and England. As Service Manager, part of Witness A’s role involves managing the Respondent’s ASN provision, including managing the services relevant to that provision (with the exception of the Educational Psychology Service). Included in this remit is the management of placing requests from parents for ASN provision in schools within the Respondent’s control.  

 

8. In November 2010, Headteacher of School C, made an application on behalf of The Child to the Respondents for provision of ASN support at secondary school. This application is at T10-11 in the bundle.  That application was for ASN provision for The Child, with a stated parental preference for a place in the “School B ASN Base”. That application was considered via the Respondent’s internal panel process for all such requests. The said application was considered as an application with a preference for the ASN provision at the Base at School B (Tier 1 provision) and not as an application for the ASN provision at the School B Wing (Tier 2 provision). As a result, The Child was offered a place at the ASN Base in School A. This offer was communicated to the Appellant by a letter of 3^rd February 2011 from Head of Schools and Educational Establishments for the Respondent. That letter is at T22 in the bundle. Subsequent to that letter, there followed a series of correspondence between the Appellant and the Respondent, to be found at: T20-21, T24, T25-26, T30-32 and A86 in the bundle. Witness A was responsible for chairing the meetings at which all such requests from schools within the Respondent’s control were considered. Witness D had also seen the application at T10-11 in the bundle. He had passed it onto his colleague at School B who deals with Base applications for the school. He has an input into such applications carrying a parental preference for the School B Wing only.

 

9. The Appellant’s letter of 19^th February 2011 (T20-21 in the bundle) is a placing request under the 2004 Act. The letter of 19^th February 2011 is a placing request seeking a place for The Child in the School B Wing. The School B Wing is a special school within the definition of that term in s.29(1) of the 2004 Act.

 

10. Witness C is the Headteacher of School A, Aberdeen. He has held that post for 3 years. He was a Depute Head Teacher for 10 years prior to that and has spent a total of 26 years in the teaching profession. The current school roll at School A is 642. Of that total, 21 pupils have additional support needs. These pupils receive support in the ASN Base at the school. The level of that support varies from child to child. Most of the ASN Base provision is around Maths and English. The ASN staff are listed in page 5 (under “Support for Learning”) of the school prospectus for 2011-12, to be found at R52 in the bundle (with the exception of one of the part-time staff members who has since left the school). There are 5.1 full time equivalent Support for Learning Staff allocated to School A. Of those, 2.1 are allocated to the Base (0.7 for each 7 children). As well as providing support during periods in the Base, the Support for Learning (SFL) team provides support via Pupil Support Assistants (PSAs) in some non-Base classrooms.  The SFL support is organised and allocated according to need, and Witness C has the authority to be flexible in the allocation of those resources. There is a constant reallocation of these resources according to changing needs during each academic year. The pupils at the school are arranged into three Houses, each with an SFL teacher attached. There are weekly House meetings chaired by the Principal Teacher in the SFL Team, at which the provision for each child with ASN is discussed, and this can lead to alterations in support for children provided by the school. The House structure is ‘vertical’ with each House comprising pupils from different age groups from across the school.

 

11. The typical Base class at School A consists of between 3 and 6 pupils. The maximum size for a non-Base class is 33 pupils. The ASN Base provision for The Child at School A consists of 8 periods per week out of a total of 30. This provision consists of support for English and Maths. While in the Base, The Child works in a group of four pupils (three others) for English; for Maths, she works in a group of three pupils (two others). The Child’s current class timetable can be found at A87 in the bundle. The periods which are marked with the letter ‘B’ represent classes in the Base. The periods marked with a dot are those in mainstream classes where there is PSA provision. While not in the ASN Base, The Child is in mainstream class with class sizes of up to 33 for non-practical subjects and up to 20 for practical subjects. The periods in the timetable at A87 marked ‘IY2’ consist of classes of 33 pupils; those marked ‘IY3’ consist of 19 pupils. There is an electronic database of all of the pupils in the school who have ASN and all staff members can access this. This database contains information about the needs of the children and strategies for dealing with them. All staff members are expected to access the database and be aware of the information on it and to use it. Teaching staff members are regularly reminded about the database and it is drawn to the attention of all new staff members. Within each House Group at School A, there is a ‘vertical’ registration group structure. Each registration group contains a number of pupils from each school year. There is a ten minute registration class at the beginning of the school day, during which the registration group meets. In the House (which The Child is a member of) there are 215 pupils and within this House there are registration groups of around 23 pupils from Year 1 to Year 6, each with a registration teacher. The main reason for this structure is that information gained from visits by staff members to other schools demonstrated that under such a structure, younger pupils meet with older pupils in the school and this is beneficial. Siblings are kept in the same registration group. The Child’s older sibling who also attends School A (and who has ASN too) is in The Child’s registration group.

 

12. Voluntary clubs are available to School A Base pupils both at lunch and during breaks. PSA staff are timetabled over these periods to supervise pupils who choose to attend these clubs. In addition, the Houses offer lunchtime clubs which are run by senior pupils. The SFL staff also run social skills groups during class time where a group of students work together on developing their social skills. The Child is not currently a member of the social skills groups, but the school would like to offer this facility to her.

 

13. Witness D is a Depute Headteacher at School B. He took up this post in October 2010. His teaching career began in 2000 and more recently he became Principal Teacher of Physics at School B before becoming an Acting Depute Headteacher there. In his current role, he is in charge of the provision at the School B Wing, which is a Tier 2 ASN provision (see finding in fact 5 above). Witness D has day to day control over the operation of that Wing and he teaches one class in the Wing. The roll at School B is 746 pupils, of whom 650 are in mainstream education, the remaining 96 being pupils in School B Wing.  In the mainstream part of the school, School B operates two ASN Bases, one a MICAS base (for children with autism), which currently caters for 7 pupils, the other an ASN base, catering for 14 pupils. As with other ASN provision in mainstream secondary education, the children in the MICAS and ASN Bases at School B are educated in mainstream classes, with additional support being provided according to their needs. The proportion of time spent by School B Base children outwith normal timetabled classes varies widely from child to child – up to 50% in the case of some children, much less in the case of others. 

 

14. The School B Wing is a separate part of School B. It is housed within the premises, but in a separate part of the building from the mainstream class provision. It occupies two floors of that part of the building. The Wing began operating in October 2009, when School B opened.  There are currently 10 classes in the Wing, 8 of which consist of 10 children, the remaining 2 classes consisting of 8 children, giving a total roll for the Wing of 96 children. There is specialist equipment in the Wing classes including height adjustable desks, sink and whiteboard, additional computing equipment and booths for that computing equipment. All Wing classes are plumbed for water and fridges which are used for specialist dietary provision, water in the classroom and packed lunches. In addition to the 10 classrooms in the Wing, there is a soft play area, a sensory room, and a hydrotherapy room. The Wing caters for children with a wide range of difficulties which impact on their education including children with: moderate - severe learning difficulties, social and emotional difficulties, physical difficulties, ADHD, autism, dual diagnosis ADHD and autism, hearing and vision difficulties and communication difficulties. The educational provision in the Wing is similar to that available in a primary classroom environment. Wing pupils receive some tuition from specialist teachers in the mainstream school, in order to offer a desirable breadth of curriculum. These specialist teachers are currently on their maximum contractually permitted teaching contact time and so could not be asked to undertake any additional teaching duties. The curriculum is very different to that in the mainstream school and varies from pupil to pupil according to needs. Very few pupils in the Wing would be expected to take SQA examinations.  The Child high proportion of pupils who attend the Wing will be unlikely to be living an unsupported independent life in future. The classes in the Wing comprise pupils from different year groups, but they are arranged such that there are junior and senior classes. The two classes of 8 are senior classes, containing pupils at Year 3 and above.

 

15. In Wing classrooms, there will routinely be one teacher plus a minimum of 2 PSAs. The need in class would dictate how these are distributed. In addition, there are 4 nursery nurses on the Wing. The PSAs are in class with the children all the time unless they need to take a pupil out of the room, for example to calm him/her down, or for a medical reason. Most of the Wing teachers are currently on their maximum contractually permitted teaching contact time and so could not be asked to undertake any additional teaching duties.

 

16. At lunchtimes, the Wing children eat separately from the mainstream pupils – lunchtimes are staggered. There is insufficient capacity in the dining room for all pupils in the school to dine together. The Wing pupils are supervised during lunchtime as well as when going to and from the dining room. Break times at the school are not staggered, all pupils take the same breaks. There is little interaction between the Wing and mainstream pupils during break times since the Wing pupils play in a different area from that which is used by the mainstream pupils. Opportunities for participation in voluntary lunchtime clubs by Wing pupils is limited, given the staggered lunchtime arrangements. There are extra-curricular activities at the school (such as Rock Challenge and Drama Club). There are homework classes and study groups for mainstream pupils out of class time, but these are generally not accessed by Wing pupils since almost all Wing pupils are transported to and from home. Wing pupils can take part in certain other activities, such as the John Muir and Caledonian Award schemes (and more recently the Duke of Edinburgh Award Scheme).  The Caledonian Award scheme involves residential trips. Such trips are taken with the Wing pupils once per year. One example of a John Muir Award activity is the current creation of a community garden in the local community by a mixture of Wing and mainstream pupils.

 

17. The Wing was purpose built for 80 children with ASN. The original intention was to build 8 classes with a capacity of 10 in each. The Respondent realised during the building of the Wing that demand for Wing places would be higher than had been anticipated. This led to the decision to create two additional classes in the Wing, to increase the pupil capacity. These two classes are housed in two additional rooms which were not originally intended to be classrooms. These rooms are over 10 metres squared smaller than the other 8 rooms in the Wing. The maximum pupil capacity for these two rooms is 8.

 

18. There is insufficient space in the two 8-capacity rooms for the addition of another pupil. There is insufficient space in the remaining 8 rooms for the addition of another pupil. There is no capacity for the addition of a 97^th pupil within the Wing, since all 10 classrooms are currently full. The space in the 10 Wing classrooms is already tight. There are only two physical spaces in the Wing which are not used for teaching – two store cupboards, one on each floor of the Wing. These store cupboards are required for the storage of essential equipment required in the Wing such as wheelchairs, mobility equipment and hoists and there is nowhere else to put such equipment within the school.

 

18. In the event of The Child being placed at the School B Wing, an additional 11th class would require to be created for the Wing. The classroom accommodation for that class would require to be provided outwith the current physical space occupied by the school buildings. There are no spare classrooms in the Wing or in the remainder of the school. In addition, such a classroom would require to be furnished with essential equipment to meet the needs of the children likely to occupy that class such as: height adjustable furniture, whiteboard and a sink. One option for the creation of the space for that 11^th class would be for the Respondent to lease a mobile classroom to be situated in the school grounds. The costs of leasing such a classroom are prohibitive, and as a result, the Respondent is phasing out its current provision of such classrooms. The cost of equipping such a mobile classroom with the essential equipment detailed above would be significant. The cost of a height adjustable whiteboard alone would be in the region of £5,000 - £6,000.

 

19. The Child further option for the provision of an 11^th class in the Wing would be to displace a mainstream class and use their classroom for the 11^th class of Wing pupils. This would necessitate the significant costs of alterations to that mainstream class (noted above) and the cost of providing alternative accommodation in a mobile classroom for the displaced class. In addition, the creation of such a class would involve splitting the Wing provision across two locations. This would cut across the purpose of the Wing. The creation of an 11^th class (which would be required if The Child is placed in the Wing) could have a detrimental effect on the educational wellbeing of the pupils in the Wing, since the Wing classes may have to be reorganised, with pupils changing classes to spread the Wing pupil population (including any new intake as a result of the expanded capacity) across 11 classes. For some Wing children, moving classes could cause stress and difficulties, given some of their social, emotional and learning needs. In the event of an 11^th Wing class being accommodated in the mainstream part of the school (displacing a mainstream class) there could be disruption to the education of the mainstream pupils, since some of the Wing children have behavioural difficulties. There have been instances of Wing children destroying classrooms.

 

20. Witness B is an Educational Psychologist employed by the Respondent. She has been an Educational Psychologist for three years and she has a Bachelor of Education degree, and a Masters degree, the latter being in Educational Psychology. Prior to her career as an Educational Psychologist, Witness B was a primary school teacher for 15 years. School A and its associated (feeder) schools are within her remit as an Educational Psychologist. She has dealt with The Child since 2009, since at that time School C was also within her remit.

 

21. In the event of The Child being placed in the School B Wing, the Respondent will require to take an additional teacher into employment. This requirement would arise as a result of the need (in the event of The Child’s placement there) for the creation of an additional (11^th) Wing class. There is no spare teaching capacity at School B.

 

22. The Appellant has certain concerns about the education of The Child at School A, principally around: the education of The Child in larger mainstream classes of up to 33 pupils; The Child’s difficulties in forming relationships with her peers; tiredness of The Child at the end of the school day; the volume of homework The Child is set (that it is too much for her); The Child’s ability to follow instructions in class about homework tasks; the lack of a positive attitude by The Child towards school, especially since the end of the first week at School A; the lack of a small, quiet classroom environment for The Child in some classes; the lunchtime supervision arrangements for The Child.

 

23. The Child is progressing well at School A. School A is adequately providing for The Child’s educational needs. Although there have been some negative reports regarding The Child while at School A, most of the reports about The Child have been positive. No significant concerns about the educational progress of The Child while at School A exist. School A Base provision is currently more suitable for the education of The Child than the provision at School B Wing.

 

7. Reasons for Decision

 

1. We should note here that we accepted the evidence of all of the witnesses as being credible and reliable. This was not a case where any of the central facts were disputed; our decision involved an interpretation of the facts and circumstances  before us.

 

 

(a) The placing request and the response

 

2. As per finding in fact 8. above, the placing request in this case is found in the Appellant’s letter of 19^th February 2011. The term “placing request” is defined under the 2004 Act with reference to Schedule 2, paragraph 2(3) (see s.29(1) of the 2004 Act) as a request made under Schedule 2, paragraph 2(1) or (2). In this case, Schedule 2, paragraph 2(1) applies. Also relevant is the definition of “request” in s.28(1); the letter of 19^th February 2011 clearly meets that definition.  Although that request letter refers to the ASN Base at School B, it became clear from the evidence that the Appellant’s intention was to make a request for a place at the School B Wing, not the Base. The Respondent has treated the request as such, and we feel this is an appropriate concession. There seems to have been genuine confusion on the part of the Appellant as to the distinction between the Base and the Wing, and it would be unfair, given the concession by the Respondent on the point, to treat the request as one for the Base. The Respondent conceded that its response to the letter of 19^th February (23^rd March 2011 - T25-26) did not comply with the requirements of the 2004 Act. In particular, we refer to s.28(2) of the Act which obliges the local education authority to respond in a certain manner, including, in particular, information about appeal rights against a decision not to comply with the request. In these circumstances, it seems to us that there occurred a deemed refusal of the placing request in terms of regulation 3 of The Additional Support for Learning (Placing Requests and Deemed Decisions)(Scotland) Regulations 2005 (SSI 2005/515). Although the Respondent did reply to the Appellant’s letter of 19^th February, this response could not, in our view, be a refusal of the placing request, since the Respondent did not understand the letter of 19^th February to be a placing request.  However, this situation was regularised by the Convener’s Order of 1^st June 2011 (T33-34 in the bundle) in which the Convenor decided that the current reference could be made late. Given that the Respondent has set out its reasons in full for refusing the placing request in its response to the case statement (R4-R7 in the bundle), there has been no prejudice caused to the Appellant as a result of the failure by the Respondent to comply with s.28(2). We also take the view that although the refusal of the placing request was a refusal of a request for a place at the Base, had the request been treated by the Respondents as one for admission to the Wing, it would have been refused for the reasons now stated by the Respondent in its response to the case statement (R4-R7 in the bundle). Having reached this view, we need not explore in detail the process of the allocation of ASN places following upon the application at A7-8 of the bundle. However, we have some observations to make on this below and we have considered that process as it relates to the appropriateness test, also below.

 

3. Having established that the placing request (and the deemed refusal of it) should be treated as one in relation to School B Wing, we were urged by Counsel for Respondent to regard it as a request in relation to a special school. In the evidence, we heard that the Wing is in a separate part of the building of School B and it provides education specially suited for children with additional support needs, who are selected for attendance on the basis of those needs. In these circumstances, it is clear to us that the School B Wing is a unit which falls within part (b) of the definition of a special school in s. 29(1) of the 2004 Act. For this reason, s.18(3)(da)(i) is engaged. Appellant Representative did not dispute these conclusions.

 

(b) Ground of refusal 1: employment of an additional teacher (Schedule 2, para 3(1)(a)(i) of the 2004 Act).

 

4. In our view, this ground of refusal of the placing request exists. We heard clear evidence from Witness D and Witness A to the effect that if The Child is placed in the School B Wing, there is no room in any of the existing Wing classes and so a new 11^th class would have to be created somewhere to accommodate The Child. This class would require to be assigned a teacher and there is no such teacher currently available in School B. We heard no evidence to suggest that the Respondent could make a teacher available from elsewhere, and Witness A confirmed that a new teacher would have to be taken into employment to teach this new class. Appellant Representative during her submission recognised the difficulty of countering this argument in the absence of any contrary evidence, so she limited her argument. She argued that since the classes of 8 in the Wing were not at full capacity compared with the classes of 10, The Child could occupy a place in one of those two classes. However, Witness D was clear in his evidence that there was simply no room for an additional child in those two smaller classes; at 8 pupils they stood at capacity. He explained that they were smaller by over 10 square metres when compared with the other 8 Wing classes. Again, there is no contrary evidence and we accept Witness D’s evidence on this point.

 

(c) Ground of refusal 2: significant expenditure on accommodation/facilities (Schedule 2, pare 3(1)(a)(ii) of the 2004 Act).

 

5. In our view, this ground of refusal of the placing request exists. Given our conclusion on the first ground of refusal, the admission of The Child to the Wing would necessitate the creation of a new 11^th class. Witness D stated that there were no spare classrooms in the Wing or in the mainstream part of the school which could be used to accommodate that new class. The only two areas in the Wing which could be available were two store cupboards, but Witness D confirmed that these cupboards were used to store essential equipment for Wing pupils and if they were lost, there would be nowhere to store this equipment. We also note that the Wing was originally planned to accommodate only 80 children, and that this had already been expanded to 96 by the conversion of space not originally planned for classroom accommodation. Given the lack of space within the school, in our view, any new classroom would have to be built either as an extension to the school building or as a free standing mobile classroom. On the latter, Witness A indicated that the leasing costs for such a classroom were ‘prohibitive’ and that for this reason, the Respondent was taking steps to phase out the provision of such classrooms across the city area. Wherever a new Wing class was situated, it would have to be furnished with special equipment to meet the needs of the children likely to occupy it, as the other Wing classes currently have. Witness D gave evidence on this and made reference to height adjustable furniture, computer booths, a height adjustable sink and a height adjustable white board. He priced the latter item at around £5,000-£6,000. Appellant Representative argued that we did not hear any evidence on the cost of provision of a mobile classroom and could not infer that the cost of such a provision would be significant. We disagree. While it would have been preferable to have evidence of the likely costs of provision of a mobile classroom, we feel there is sufficient evidence before us to allow us to infer that the cost of such provision would be significant. Witness A referred to ‘prohibitive’ costs. He was referring to the costs of hiring a mobile classroom. In addition to that, there is evidence to suggest that the adaptations required to such a classroom to make it a suitable Wing classroom would be substantial; those costs alone are likely to be significant, given Witness D’s evidence about the cost of one piece of equipment. Taking both cost-types together (the classroom hire and adaptation costs), we can (and do) infer that the costs involved in providing a mobile Wing classroom would constitute significant expenditure on accommodation and facilities. We did not hear any evidence about the possible costs of an extension to the current building in order to add a new classroom. However, Witness A gave evidence about the cost of a conversion at another modern-built school within the control of the Respondent involving the removal of a wall and associated works. The cost was £30,000. The work required to create a whole new classroom would be considerably more than in the example given by Witness A, and the special furnishings would require to be installed in addition. From this, we can (and do) readily infer that the costs involved in extending the building of the school to create a new class would constitute significant expenditure on accommodation and facilities at the school. We repeat that it would have been preferable to have estimated costings available for mobile classroom facilities. Given that these are used in other schools under the control of the Respondent (given Witness A’s reference of them being ‘phased out’) such costings are likely to have been readily available. In addition, it seems to us that it might have been possible to obtain a basic estimate for such provision, even although such provision would only be necessary in the event of the Appellant being successful in this case (see the case of Dundee City Council, Petitioners 1999 Fam.L.R. 13, where the sheriff heard evidence of the cost of providing a Portakabin). We heard evidence from Witness A around the contractual obligation of the Respondent to make good the property of the school to its original condition given the mortgage arrangement the Respondent had entered into. However, we did not take that evidence into account in considering this ground of refusal, since those costs would not be incurred on account of placing The Child in the Wing; or at least not directly so. Those costs would arise more directly out of the Respondent’s contractual arrangements.

 

(d) Ground of refusal 3: likelihood of serious detriment to pupils attending the school (Schedule 2, para 3(1)(a)(v) of the 2004 Act).

 

6. In our view, this ground of refusal of the placing request does not exist. An interesting point of interpretation arose here. As indicated above, we are considering a placing request for a special school within the meaning of the 2004 Act (the Wing). This ground of refusal refers to the detriment of “pupils attending the school”. Counsel for Respondent asked us to conclude that “the school” should mean School B and not only the special school (the Wing). We agree that this is the correct approach. Firstly, the plain wording of the Act makes it clear that pupils of the whole school should be considered. Secondly, it is sensible that this interpretation is adopted since the s.29(1) definition of “special school” envisages the situation of a class or unit within a public school which is not itself a special school. It is clear then that Parliament must have had in mind the current situation, and the possibility of movement within the class or unit affecting other pupils within the school who are not in that class or unit. However, even adopting that interpretation (which favours the Respondent) we are not persuaded that this ground exists.

 

7. As we have concluded above, the admission of The Child to the Wing would necessitate the creation of an additional class and, due to lack of space in the Wing and school, an additional classroom. We heard evidence about the possibility of a mobile classroom. It was not clear to us what that classroom would be used for. Witness D gave evidence about the possible displacement of a class from the mainstream school. It is possible, then, that the new 11^th Wing class could, if formed, occupy a mobile classroom unit or a mainstream class (leaving the displaced class to occupy the mobile classroom unit). It was not clear to us which would apply. In either event, we accept that there would be disruption caused to the education of some of the pupils in the Wing, especially to those who would have to be moved, but also perhaps to those who would stay in the current Wing, but in re-organised classes. Witness D gave evidence about the stress such a move out of the Wing might cause to those children with learning difficulties. He also gave evidence about the impact of re-allocating some of the Wing pupils into the mainstream school might cause (this would be if this course were adopted). He referred to behavioural problems in the past with some Wing pupils and about how the containment of such behaviour in the Wing was much easier than it would be in the mainstream school. However, despite this evidence, even if we assume that if The Child is admitted this would lead to a re-assignment of some Wing pupils to the mainstream part of the school, there was insufficient evidence to allow us to infer that the placing of The Child would be likely to cause serious detriment to the educational well-being of pupils in the Wing or in the mainstream school. We do not know which pupils would be moved, and what their particular difficulties are and we do not have any medical evidence to suggest what the impact of a move on those pupils (or pupils with their difficulties) might be. Witness D also referred to the knock on effect of an additional class in relation to specialist teaching for both Wing and mainstream pupils – the additional class would lead to a dilution of such teaching since the teachers concerned are on maximum contact commitments at the moment.  Considering all of this evidence, we do not doubt the possibility of detriment to the educational well being of some pupils, but we need to be satisfied, on the balance of probabilities, of likelihood of serious detriment. We do not feel that evidence from which we could come to that conclusion exists.

 

(e) Appropriateness in all of circumstances (s.19(4A)(a)(ii) of the 2004 Act).

 

8. Having concluded that two grounds of refusal exist, we require to consider whether, nonetheless, it is appropriate in all of the circumstances to confirm the decision to refuse the Appellant’s placing request, or whether we should overturn the decision and place The Child in School B Wing.

 

9. In considering this part of the test, we must take account of all of the circumstances, including those which are relevant to the consideration of the grounds of refusal. The relevant circumstances in this case can conveniently be grouped into three categories: (1) circumstances relating to the internal allocation request embodied in A7-A8; (2) circumstances around the impact that placing The Child in the School B Wing would have on the Respondent and on School B and its pupils; and (3) the suitability of the educational provision for The Child at School A.

 

We will deal with each category in turn.

 

(1) Internal Allocation Request

 

10. As discussed above, the request made for the allocation of a Base place to The Child (A7-8 in the bundle) is not a placing request. However, it is clear that the Appellant wished that request to be treated as a request with a preference for The Child to be placed in the Wing, not the Base. Since it was treated as an application with a stated preference for the Base, we cannot say for sure what would have happened had it been treated as an application with a preference for a Wing place. By the time it was understood that this was the Appellant’s intention, all of the Wing places for academic year 2011-12 had been allocated. However, in our view, this series of events should have no impact on our decision. Firstly, the Respondent was entitled to treat the request as one with a preference for the Base. This is what the request form at A7-8 states in more than one place, and in particular under “Parental Preference” on page A8, where “School B ASN Base” is clearly stated. No mention is made of the School B Wing in the application, and we heard evidence from Witness E, who had some input into the content of the application, that she did not understand that there was a Wing and a Base as separate provisions within School B. Secondly, Witness A gave clear evidence to the effect that when this application was considered, The Child was clearly identified as a priority Base applicant. He explained that certain other Base applications considered were refused, despite the attendance of those children at a primary school Base. He stated in his evidence that, looking back, The Child would not have been considered as a suitable candidate for a Wing place. We take the view that this would have been the most likely outcome. We take account of the fact that Witness A chaired the internal committees which considered all such requests. He is therefore in a position to make a retrospective judgement about what would, most likely, have happened in the event of the application having been considered as one for the Wing. Even if we had taken the view that the application, had it been considered as a Wing application, would have been likely to succeed, this would not lead us in itself to the conclusion that it would not be appropriate to confirm the decision. It would have been one relatively limited factor only.

 

 

(2) The impact of placing The Child in the Wing

 

11. We take account of evidence of such impact, but to a limited degree. It is clear from our findings above that if The Child is placed in the Wing, a new class would have to be created, considerable expense would be incurred by the Respondents (including the cost of employing an additional teacher) and there could be a detrimental effect on the education of pupils in the school following on from the inevitable reorganisation of classes which would take place. We have taken all of this into account. However, it is of limited significance compared to the considerations in category (3) below, since the Respondent is under a statutory duty to place all children according to a request (2004 Act, Schedule 2, paragraph 2(1)) subject to certain limited exceptions. In addition, under s.4 of the 2004 Act, the Respondent is under a statutory duty to make “adequate and efficient provision” for additional support required for the educational needs of a child with ASN, for whose education they are responsible (again, subject to certain limited caveats). We note also the reference to the meaning of “school education” in s.1 of the 2004 Act, as explained in s.1(2), where there is reference to the development of the child to his or her fullest potential. Taking these into account, we have given limited weight to the impact on the Respondent and the school of any decision to refuse to confirm the outcome of the placing request. However, some weight is due, since this evidence represents part of the circumstances of the case.

 

(3) Suitability of School A for The Child

 

12. At this second stage of consideration of the case, we place considerable weight on the evidence and argument in this category, compared to that afforded to factors falling within categories (1) and (2) above.

 

13. Perhaps inevitably, the evidence here amounted to a comparison between the suitability of the facilities at School A Base (where The Child presently attends) and the School B Wing (where the Appellant wishes The Child to attend), as they relate to The Child’s needs.  The Appellant indicated a number of concerns around the current provision for The Child at School A. In addition, the Appellant suggested that The Child is not as happy at School A as was suggested in some of the other evidence. We accept that the concerns held by the Appellant are genuinely and strongly held, and that she wants what is best for her daughter. We also accept that as The Child’s mother, the Appellant is in a very good position to judge whether her daughter is happy or unhappy at school. However, we need to take account of all of the evidence before us and to weigh it. In our view, the evidence suggests that The Child is happy at School A and that her educational needs are currently being met. 

 

14. On The Child’s attitude towards School A, we note that she provided a very positive response in her interview with her Guidance Teacher, conducted on 27^th September (the same day as Witness C was giving evidence). An account of that interview is at R58-59 in the bundle, and discloses that The Child enjoys a range of subjects at her school and has a very positive attitude towards School A. We note that the Appellant gave evidence that The Child had said she did not want to say anything to hurt her Guidance Teacher’s feelings, and we did not hear direct evidence about the interview from the Guidance Teacher herself. However, we note that this evidence of a positive attitude by The Child towards School A accords with the evidence of Witness B, who stated that The Child had given School A a score of 10 out of 10 on how her first week had been and she seemed form what she said and from her demeanour to be very positive about her experience. We accept that this view was expressed very early in her experience of School A- on The Child’s 5^th day there. We note the Appellant’s evidence about The Child being excited during the first week, and that that excitement waned once The Child realised the work she would have to carry out. We also note Witness B’s reference to a ‘honeymoon period’. We also take account of how The Child presented to the Tribunal panel during our period hearing from her. It seemed to us that she spoke with enthusiasm about School A, and she did not express a clear view that she wanted to leave, saying that she “wouldn’t mind” going to a different school. Taking everything together, in our view, The Child holds a positive view of her education at School A.

 

15. Turning to whether School A adequately meets The Child’s educational needs, the Appellant indicated in her evidence that she found, on visiting the Wing, that it was an impressive facility and that it would better meet the needs of The Child. She compared the facility to the SLG, The Child had attended early in her primary education. She did not hold any concerns about the prospect of The Child moving schools at this stage and she referred to the advantage of The Child having three friends who already attend the Wing. She felt that the Wing would be a more suitable environment than the Base at School A for The Child’s needs.

 

16. We refer here also to the evidence of Witness C. He indicated that although there had been some negative reports about The Child, the overall position was that reports about The Child were positive. He referred to the Guidance Teacher interview (R58-59 in the bundle) as “very positive”. He also indicated that the number and intensity of the negative reports were not such that would cause The Child to “stick out” as a pupil in comparison to her peers. He referred to The Child as “not being in the same league” as some pupils who he would come across every year as having difficulties settling in. He also indicated that if those teaching The Child were not coping with her settling in, he would have heard reports to that effect and he had not. He spoke of an occasion on the same day as he gave evidence when he had visited for 30 minutes an art class which The Child was attending and, although he knew she was in the class, having not met her before, he was unable to identify who she was and had to ask to have her pointed out. He indicated that she was working well in that class, which consisted of initial instructions followed by the pupils carrying out some independent work. We place some limited value on the account of this visit, given its duration, but we do place considerable weight on Witness C’s general evidence of The Child as being someone who is not presenting particular difficulties as a pupil at School A. In addition, we took account of the impressive structure in place for the provision and monitoring of pupils who benefited from the Base provision at School A, including the House and guidance group structures (including regular meetings) and the ASN database.

 

17. Of more significance is the evidence of Witness B. She is an educational psychologist and she prepared a detailed report (R53-R57 in the bundle) comparing the facilities at both schools, as they relate to their suitability for The Child. We took account of the content of Witness B’s report, none of which was challenged by any skilled witness. Witness B conducted some detailed investigations, including visiting some classrooms on the Wing, discussing the provision in each school with appropriate staff (including the educational psychologist for the School B Wing and Base) and reviewing the prospectus for each school. Witness B also relied on her direct contact with The Child, with whom she had been working since 2009, during her primary education and in the first part of her secondary education. She had viewed The Child in two classes, a Spanish and a Technology class, both of which took place the day before Witness B was giving her evidence.  School A and its associated (feeder) schools constitute Witness B’s current responsibilities as an educational psychologist and she was formerly responsible for School C.  Witness B concluded that although both provisions would be suitable for the Child (see the last sentence of her report at R57 in the bundle) her preferred option would be for The Child to attend School A and benefit from the Base provision there in the meantime in order to see if The Child would cope with the support School A could provide. She had considered, but rejected, the option of The Child attending the more intensive environment of the Wing, with the option of reducing support if it was found to be too intensive. She described The Child as being ‘borderline’ from the point of view of suitability between the School A Base and the School B Wing. However, Witness B expressed concern about the suitability of the School B Wing for The Child since she was concerned that the structure at the Wing, involving pupils remaining in their classes of 10 for the whole school day, would limit opportunities for The Child to develop her communication and critical thinking skills.  Witness B did attach a caveat to her view that School A was the better of the two schools for The Child – she indicated that The Child’s progress would have to be kept under review and that, following her observations of The Child in mainstream classes (in particular in the Spanish class, where there was a concern that The Child had been off task for some of the lesson, although no more so than around one-third of the class) more work might have to be done with The Child. She also indicated that she would ideally like a view across all of The Child’s classes, not just the two she had visited. In dealing with School B Wing, Witness B indicated that some of the teaching strategies used there would benefit The Child, given her particular needs. Despite the caveats attached by Witness B to her evidence, her overall opinion was that while both the School B Wing and the School A Base provisions would benefit The Child, the better option would be to allow The Child to remain at School A. We found Witness B to be a particularly reliable witness; she gave her evidence in a measured and clear manner, making appropriate concessions.

 

18. Also of relevance (although more limited than the evidence of Witness B on this point) was the evidence of Witness E to the effect that she had certain concerns about the limited opportunities at the Wing for The Child to interact with mainstream pupils there and she had expressed those concerns at the time to The Child’s parents.

 

19. We also take account of the absence of any skilled evidence which suggests that The Child should be placed in the School B Wing due to its ability to better cater for The Child’s educational needs than the provision at the School A Base.

 

20. Taking all of this together, in our view the evidence suggests that The Child is progressing adequately at School A, she is content at that school and School A is adequately meeting her educational needs. We accept Witness B’s evidence that continuing at School A Base is currently the preferred option for The Child’s education.

 

Conclusion on appropriateness

 

We take the view that it is appropriate in all of the circumstances to confirm the Respondent’s decision to refuse the Appellant’s placing request.

 

8. Further observations

 

Although that concludes the reasons for our decision, we want to make one further point. We are concerned about the confusion which arose over the distinction between the Base and Wing provision at School B and on the related issues of the status (whether or not the statement of a parental preference on that application is a placing request) and content (which ASN provision any parental preference statement is aimed at) of an application via the Respondent’s internal ASN allocation process. We understand from Witness A’s evidence that the internal allocation process has been reviewed and in future will be clearer, so that parents are clear about when they are or are not making a placing request, and on which provision is being indicated in any statement of parental preference. We welcome these clarifications, which we hope will avoid a repetition of the confusion which existed in this case.