ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/07/2007
Gender: Male
Age: 12
Type of Reference: A) Placing Request B)Timescales
1. Reference:
The mother (“the appellant”) made a reference to the Tribunal in September 2007 under section 18(3)(e) of the Education (Additional Support for Learning)(Scotland) Act 2004 (“the Act”) in relation to the refusal by the local authority (“the authority”) in June 2007 of a placing request made on behalf of her son, (“the child”).
The appellant also made a reference to the Tribunal under section 18(3)(c) in relation to the authority’s failure to prepare a co-ordinated support plan for the child within the timescales specified in terms of the Additional Support For Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005.
2. Decision of the Tribunal:
The Tribunal confirms the decisions of the authority and refuses the placing request that the authority places the child in the school specified in the placing request in terms of section 19(5)(a)(i) and (ii) of the Act.
The Tribunal directs the authority to produce a Co-ordinated support plan in respect of the child within 20 working days of the date hereof.
3. Preliminary Matters:
A number of preliminary matters were dealt with during a conference call in late September 2007. These included the additional witnesses the parties wished to attend at the Hearing. The appellant’s representative indicated that she wished to have four witnesses, possibly five if she included the author of the letter refusing the placing request. For the authority, their representative indicated that they wished to have five witnesses. It was agreed that evidence would be taken from these witnesses. The means of how a specific witness’s evidence was to be taken was continued until the hearing.
It was also indicated that an Advocate had been instructed to represent the authority at the hearing. The appellant’s representative wished it noted that she objected to this course of action. [Following the conference call the appellant’s representative lodged a written complaint with the President of the Tribunal. Her complaint was dealt with by the President. The matter was not raised again by the appellant’s representative in the context of the hearing.]
Various items of late evidence were moved and parties were directed to intimate them prior to the hearing.
It was agreed that the hearing would deal with both case references.
Following the conference call a direction was issued a copy of which was intimated to the parties.
At the hearing in late October 2007, a number of preliminary matters were raised at the outset. These were as follows:
- The appellant moved that further evidence be allowed, namely an Occupational Therapy report and a draft CSP. These were allowed.
- A motion was made by the authority to lead a further witness, a Social Worker; this was granted by the Tribunal. She would not be available until December 2007.
- It was intimated that a witness for the authority would not be called.
- The authority sought to introduce a late item of evidence, namely a school brochure. This was allowed.
- It was intimated that the matter for consideration by the Tribunal was the reference relating to the refusal of the placing request. It was accepted by the authority that a co-ordinated support plan has not been produced.
- The appellant’s representative intimated that the appellant had to be home by 4.30pm and that she would require to have her phone on (silent mode) during the hearing in case of any emergency,
On the second day of the hearing in October 2007, the appellant made an application to lead evidence from a specific witness, namely a sibling of the child. Consideration of the matter was continued.
In November 2007 a conference call was convened with parties.
- The question of how the sibling’s evidence might be taken was discussed at length. The Tribunal were concerned about a 13-year old being subject to examination in the hearing, especially in light of the Vulnerable Witnesses (
- The running order of the remaining witnesses was discussed.
- The question of whether a certain person could be contacted on behalf of the appellant was discussed and it was confirmed by the authority representative that it would be open to the appellant to precognise him in advance of the hearing.
On day 3 of the hearing in December 2007, the hearing was adjourned on the motion of the appellant due to the ill health of the appellant’s representative.
In late January 2008 a further conference call was convened.
- Running order of witnesses was discussed.
- Further dates were identified.
- It was intimated to the appellant that the case officer had intimated that the Direction of 26th September 2007 had not been complied with.
- Notice was given by the authority that if the appellant sought to lead evidence that the school specified in the placing request was more suitable that any such line would be objected to given that there had been no challenge in relation to the suitability of the provision at the current school. It was intimated by the authority that it was putting the appellant on notice in relation to the hearing.
On day 4 of the continued hearing in February 2008 the following matters were raised;
- Both parties sought to introduce late evidence.
- The statement from the child’s sibling was available. The appellant still wished the witness to come to the hearing to meet the Tribunal and expand upon the matters raised in the statement. Having considered the terms of the statement the Tribunal were of the view that it should be admitted as the evidence of the sibling in terms of rule 29 of the Additional Support Needs Tribunals for
- The appellant sought to introduce a video which had been made by the appellant at home. The Tribunal was advised that the video would show footage of the child which had been taken over a period of time and included interactions between the child and his parents. The video had not been seen by the authority. The authority voiced concerns about the value of the video and at the stage in the proceeding that its introduction was being sought. It had not been available to any of the authority witnesses to comment upon. The Tribunal considered that on the basis of the information provided about the content of the video footage it was not appropriate to allow the evidence to be admitted.
- The appellant sought to introduce a number of items of late evidence:-
- a letter from the appellant to Children and Families
- a Risk assessment dated 21.11.07
- a Risk Assessment dated 8.2.07
- Incident reports.
The Tribunal considered the further documents and considered it was not appropriate to allow them to be received as they did not appear to be relevant to the issue before the Tribunal.
4. Summary of Evidence:
The Tribunal considered a substantial bundle of evidence containing the case statements and items of late evidence referred to above.
The Tribunal heard the oral evidence of the witnesses listed above. The Tribunal also considered the evidence of a witness that had been submitted in written form. The appellant also gave oral evidence during the course of the hearing.
5. Findings in Fact:
1. The child is 12-years old having been born on in 1995. He lives at home with his mother, his father and a sibling, aged 13. He is currently a pupil at a local authority special school. He has attended this school since the age of five. He is very attached to the appellant and has a good relationship with his father.
2. The child has a diagnosis of autism and severe learning and communication difficulties. His needs have been assessed and it has been agreed that he requires a co-ordinated support plan. A draft CSP planning template has been issued to the appellant (October 2007). Its contents have not been agreed by the appellant.
3. His current school is a special school providing education for primary and secondary age pupils. It is situated in the southeast of the city. The school caters for pupils with severe, complex learning difficulties. 65% of pupils on the school roll have autistic spectrum disorders. The current roll is 57. Class groups are organised according to age. There are four primary and five secondary classes. Classrooms have been designed to provide designated areas for specific activities and to cater for small group and individual work. Each class team consists of a qualified teacher, a qualified nursery nurse and two learning assistants. In addition to the teaching staff, there is a high input from occupational therapy, speech and language therapy, physiotherapy and music therapy. The staff are trained in the CALM technique. The school has developed a Wood School Project.
4. The school named in the placing request is an independent residential and day school managed by the National Autistic Society. The junior campus can house 32-34. There are presently 31 in the junior campus. A place is being held open for the child. The school offers a 24 hour curriculum and is open 52 weeks per year. The school caters for children from 5 to 19. The school offers a high quality education and care for children in a safe and structured environment. The pupil population is mainly residential, with a small number of day pupils who live locally. The school follows a 5-14 elaborated curriculum. There are regular reviews and parents can remain in close contact with telephone updates and liaison to enable IEPs to be followed through at times of home leave. There is a facility available for parents to stay overnight.
5. The appellant contacted the school directly to see whether the child’s needs could be met there. The appellant has attended at the school with the child.
The Principal Psychologist at the school named in the placing request has visited the child’s current school and has reviewed the child’s records.
6. The child is making progress in many areas at his current school. Two members of his class group are without autism. He appears to learn well as part of a group. He follows class routines well. He has awareness of his peer group. He has a dislike of noise. There are some pupils who are prone to making “autistic type” noises which are difficult for the child to deal with. Efforts are made to keep him away from this type of behaviour. As a result of the child’s distress arising from the behaviour of another child who travelled to school on the same bus, an arrangement was made for the child to be taken to school by taxi. It was necessary for the appellant and her husband to be involved in the arrangements in the early stages until the child was settled into the change in the routine. He takes his lunch in the classroom rather than the dining hall because it is a quieter environment.
There have been historic issues in relation to the child returning home soiled. These issues arose at the time when the transport situation was difficult.
7. The child enjoys going to the beach with his father. He enjoys going to the park and the appellant takes him in the evening when it is quiet. The child enjoys the School Wood Project and was involved in winning an award for the school in 2006.
The family have been able to enjoy a holiday.
8. The child attends respite and has been doing so for three years. He gets on well with the other children attending at the same time. Not all the children attending are autistic. His group are all roughly the same age. He attends on alternate five week cycle [Monday – Friday; then a weekend]. He sleeps well there. He does not need to be restrained. He has familiar items with him when he stays.
9. The child has input from a local group. Twice a week he receives respite after school. One objective that this local group worked on was social interaction when eating out. This was done successfully until the child began to associate these support workers with food. His behaviour became difficult. The local group spent some time taking the child to his other respite provider in order to take the emphasis away from food. There is no issue in relation to food when the child attends respite.
10. There was an incident when the child became upset when he attended a pantomime.
11. There is a joint care plan between the respite and the local group. Both services are focussed on the child and giving respite to the family.
6. Reasons for decision:
The Tribunal considered all the evidence before it which included all the productions and the oral evidence of the witness in the course of the hearing. The Tribunal also considered the submissions made orally and in writing on behalf of the parties.
Section 19 of the Act provides:
“(5) 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.”
Paragraphs 2 and 3 of schedule 2 of the Act provide the basis on which the Tribunal must determine the reference.
Schedule 2, paragraph 2 of the Act (headed “Duty to Comply with Placing Requests”) provides:
“(1) Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.
(2) 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,
(b) a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs, or
(c) a school at which education is provided in pursuance of arrangements entered into under section 35 of the 2000 Act,
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.
(3) A request made under sub-paragraph (1) or (2) is referred to in this Act as a "placing request" and the school specified in it is referred to in this schedule as the "specified school".
(4) Where a placing request relates to 2 or more schools being-
(a) schools under the management of the education authority to whom it is made, or
(b) schools mentioned in sub-paragraph (2) (a), (b) or (c) the managers of which are willing to admit the child in respect of whom the request is made,
the duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) applies in relation to the first mentioned such school, which is to be treated for the purposes of this schedule as the specified school.”
Paragraph 3 of Schedule 2 of the Act (headed “Circumstances in which duty does not apply”) provides:
“(1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply-
(a) if placing the child in the specified school would-
(i) make it necessary for the authority to take an additional teacher into employment,
(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,
(iii) be seriously detrimental to the continuity of the child's education,
(iv) be likely to be seriously detrimental to order and discipline in the school,
(v) be likely to be seriously detrimental to the educational well-being of pupils attending the school,
(vi) assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child's primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at the school, or
(vii) though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers,
(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,
(c) if the education authority have already required the child to discontinue attendance at the specified school,
(d) if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,
(e) if the specified school is a single sex school (within the meaning of section 26 of the Sex Discrimination Act 1975 (c.65)) and the child is not of the sex admitted or taken (under that section) to be admitted to the school,
(f) if all of 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 a school 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 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), or
(g) if, where the specified school is a special school, placing the child in the school would breach the requirement in section 15(1) of the 2000 Act.
(2) An education authority may place a child in the specified school notwithstanding sub-paragraph (1) (a) to (e).
(3) The duty imposed by sub-paragraph (1) or, as the case may be sub paragraph (2) of paragraph 2 does not apply where the acceptance of a placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the education authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school.
(4) Nothing in sub-paragraph (3) prevents an education authority from placing a child in the specified school.
(5) In sub-paragraph (3), "reserved places" means such number of places (not exceeding such number or, as the case may be, such percentage of places at the school or relating to the particular stage of education as the Scottish Ministers may by regulations prescribe) as are in the opinion of the education authority reasonably required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1st August to which the placing request relates.
(6) In sub-paragraphs (3) and (5) "catchment area", in relation to a school, means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c)of the 1980 Act.”
Accordingly, in terms of paragraph 2 (2) of the Act above, the authority is required to meet the fees and other necessary costs of the child’s attendance at the school named in the placing request unless one of the circumstances in paragraph 3 of the Act is established.
Section 19 (5) (a) of the Act provides a two stage test. At the first stage, the Tribunal is required to determine whether the authority has established one or more of the circumstances provided in schedule 2, paragraph 3 (1) of the Act. If the Tribunal determines that the authority has succeeded in establishing one or more of those circumstances then, and only then, the Tribunal is required to move to the second stage of the test. At the second stage, the Tribunal is required to exercise its discretion and determine whether, in all the circumstances, it is appropriate to confirm the authority’s decision.
First Stage
The Tribunal were only required to consider in terms of schedule 2, paragraph 3(1) (f) (ii) and (iii), whether
“(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school 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 school and in the school referred to in paragraph (ii), to place the child in the specified school”.
On behalf of the appellant the Tribunal heard evidence from the Principal Educational Psychologist at the school named in the placing request. He visited the child’s current school on one occasion in 2006. He observed the child for a short period [approximately one hour] and he spoke to the head teacher. He has had access to the child’s educational records and psychological assessments, health reports and speech and language therapy reports. He was of the opinion that his school could meet the child’s educational needs. The Tribunal heard detailed evidence about the provision available at the school named in the placing request, about the school’s links with the local community, the communication with parents and flexibility of home visits. The Tribunal also heard in detail how transition is managed at the end of the school period and how the senior campus offers vocational opportunities. The Psychologist recognised the starkness of the schools classrooms and the communal areas. He described the bedrooms as being planned to the wishes of the children. There is a high level of security at the school because the children need to be safe, although they can be independent within that environment. Some of the children that attend his school have quite severe difficulties.
On behalf of the appellant, the Assistant Unit Manager at the respite centre gave evidence. She has known the child through work with both respite and the local group for a number of years. These are two separate services which work in tandem. She described a very recent session with the child as being “very good”. She gave detailed evidence in relation to the respite provision available to the child and to his engagement with the respite providers. She spoke very highly of the appellant and her care of the child and the attachment that the child has to his mother. Her evidence included details of the difficulties that have been experienced with the child and how they have been successfully addressed.
The Tribunal heard detailed evidence from the appellant in relation to her son and the difficulties in managing him at home, and the impact on his sibling and the relationship between her and her husband. The Tribunal had the benefit of the evidence from the child’s sibling in relation to the impact of the child on her and on her parents. There was evidence available to the Tribunal from a Social Worker in relation to the family situation and the supports that were available to them. The Social Worker had been absent from work for periods of time which had resulted in a delay in producing the section 23 report which was completed once this hearing has started. She gave evidence in relation to a number of resources that might be available to the family. The provisions with both respite and the local group came as a “package” and it was not possible to access NCH and retain the provision at the respite provider. [All the evidence supported the respite provider being a resource which the child enjoyed and benefited from.]
The Tribunal heard from another witness in relation to the educational provision being provided to the child at the child’s current school. She gave detailed evidence in relation to the school and her evidence indicated a detailed knowledge of the child. His educational needs are being met. He is making progress there. The have been issues in relation to transport. These have resolved. There are issues in relation to soiling. These are being addressed. She gave evidence of the child being unsettled with some of the other pupils who displayed loud or violent behaviour. Strategies are put in place to deal with these. The child gains much from the School’s Wood project.
There was evidence before the tribunal from witnesses for both the appellant and the authority that the child benefits from interaction with non-autistic children.
Having considered all the evidence the Tribunal is satisfied that each school is able to make provision for the additional support needs of the child. The Tribunal then went on to consider the respective suitability of each school.
The school identified in the placing request can make provision for the additional support needs of the child. It is autistic specific and offers a 24 hour curriculum which allows for a high degree of support for the child. There is a place available. The Tribunal gave weight to the evidence of another social worker in relation to the provision available to the child at the school identified in the placing request. She is a qualified teacher and since 1998 she has worked with children with disabilities and now specifically in the field of autism. Her evidence was that the level of the security was not what the child required. She was concerned that the child would be confronted by children who displayed violent behaviour and he would lean that type of violent behaviour. It was her evidence that she would worry about him being attacked by other children. She was concerned about the level of the staff turnover. It was her evidence that the school identified in the placing request was not for the child. He does not need the high level of security which that school provides.
A further authority witness’s evidence was that the child would miss the supports that he has. He is aware of his familiar others. His behaviour is not as challenging as some of the residents at the school named in the placing request. She was concerned that he might react to challenging behaviour. She described the child as being quick to notice aspects of others behaviour. She described his reactions in terms of shying away or holding his ears. In response to a question from the appellant’s representative, she expressed the view there were similarities between the two schools; however it was her view that moving away from family and his community would lessen the child’s quality of life. It was her view that the child does not require a 24-hour curriculum in a residential setting.
The next witness for the authority was a senior manager for Children and Social Work Services. He has been lead manager for residential care in the city since 2002. He chaired the committee which considered the placing request for the child. He has considerable experience in relation to educational and care needs and in considering requests where children may be in need of placement outwith the local authority.
He gave evidence that if the child was placed at the school named in the placing request he would become “looked after and accommodated” in terms of the Children (
The Tribunal heard evidence from both the Principal Education Psychologist and the senior manager for Children and Social Work Services in relation to how transition to adult services would be managed. The evidence of the senior manager was preferred by the Tribunal, because of his knowledge and experience in relation to children within the city and of the resources available and how young people are introduced to services at an early stage. The senior manager gave examples of specific projects.
Having considered all the evidence, the Tribunal considers that the provision at the child’s current school is more suitable than the provision at the school named in the placing request for the reasons referred to above. There was unchallenged evidence before the Tribunal that the child does not require 24-hour curriculum in a residential setting. There was unchallenged evidence before the Tribunal that the child does not require the high level of security that is delivered at the school named in the placing request. There was evidence before the tribunal that the child does not require continuous supervision. There was evidence before the Tribunal that there are positive benefits to the child from engaging with non-autistic peers. There was a body of evidence before the Tribunal that by removing the child from his family and his current placements that a transition to the school named in the placing request would be detrimental to him and his development.
The Tribunal considered the cost of the placement at the school named in the placing request being £168,690 together with an assessment fee of £6,000. There would also be the cost of travel to and from the school. There is no additional cost for the place at the child’s current school. The cost of transport and escort are £10,940. The cost of respite provisions and LAS vouchers is £17,651. In determining the cost of the provision at each school there is a significant difference in the cost which cannot be justified.
The Tribunal considers that in taking account of the difference in the respective suitability of each provisions and the significant difference in the cost which would be incurred in placing the child at the school named in the placing request, it would be unreasonable to do so.
Second stage
The second stage in terms of section 19(5)(a)(ii) requires the Tribunal to look at all the circumstances and exercise its discretion in deciding that it is appropriate to confirm the decision of the authority. Having considered all the evidence available, the submissions from the parties, the Tribunal does not consider that there are grounds to exercise any discretion and in this case it is appropriate to uphold the grounds of the refusal.
