Content Jurisdiction
Additional Support Needs
Placing Request
Decision file
Decision Text





  1. The appellant sought the placement of her daughter, an eleven-year old child with atypical autism spectrum disorder (“ASD”) with features consistent with pathological avoidance disorder, at an independent school exclusively for pupils with additional support needs arising from ASD. The respondents refused the request, deciding to place the child instead at their secondary school dedicated to children with additional support needs arising from a variety of conditions including ASD. The appellant has referred that decision to the Tribunal.





  1. We confirm the respondent’s decision.


  1. We are satisfied that a ground for refusal of the placing request exists (Education (Additional Support for Learning) (Scotland) Act 2004, sec 19(4A)(a)(ii)). We are satisfied that that the respondent is able to make provision for the additional support needs of the child in its secondary school (sch 2, para. 3(f)(ii)). We determine that it is not reasonable, having regard both to the respective suitability and to the respective cost of the provision for the additional support needs of the child in the independent school and in the respondent’s secondary school, to place the child in the independent school (para. 3(f)(iii)). We are satisfied that it is, in all the circumstances, appropriate to confirm the respondent’s decision (sec 19(5)(a)(ii)).


  1. Our decision is unanimous.




  1. Case conference calls took place on 20 June and 16 September 2019.


  1. The papers consisted of T1 to T67; A1 to A28, and R1 to R288. There was no objection by either party to receipt of any of the documents lodged. The papers included a joint minute of agreed facts and an independent advocacy report. That report stated that the advocacy worker was unsuccessful in obtaining the child’s views as the child had been unresponsive. At the outset of the hearing, the child was interviewed by an ordinary member in the company of the child’s maternal grandmother in a room adjoining the hearing room. The other tribunal members and the others attending the hearing observed from the hearing room through one-way glass and an audio link. The child was unresponsive to the ordinary member’s endeavours to engage in conversation with her.


  1. The witnesses were heard in the following order: (for the respondent) the respondent’s ASN strategic lead teacher (who gave evidence regarding the respondent’s decision making and also of the child’s transition to secondary school), the respondent’s educational psychologist, the acting deputy head teacher of the respondent’s secondary school; (for the appellant) the head teacher of the independent school, the appellant. This was followed by oral submissions, although the respondent’s representative also provided a written submission at the hearing.


  1. A summary decision was issued on 29 September 2019 intimating that the respondent’s decision would be confirmed.


Findings in Fact


  1. We found the following facts admitted or proved:


The child


    1. The child, the appellant’s daughter, is an 11 year-old girl.


    1. The child has a diagnosis of atypical Autistic Spectrum Disorder (ASD). She falls within the borderline range of overall intellectual functioning. There are features of her presentation that are consistent with pathological demand avoidance syndrome. The child has symptoms of inattentive attention deficit hyperactivity disorder. She suffers from anxiety. She has difficulty concentrating and has a need to be in control of situations.


    1. When focused and in a positive frame of mind, the child responds well to structure and copes well when she knows what is expected of her.


    1. The child has shown herself to be sociable and keen to interact with peers and adults.


    1. The child has shown an interest in her environment and asks many questions to understand it better.


    1. The child enjoys physical exercise.


    1. The child can articulate her needs and wants verbally and is always keen to share her views and opinions in class.


    1. The child is keen to use a variety of technology in class including electronic devices and board games.


    1. The child has learning difficulties that arise from her social and communication difficulties. This manifests itself in:


      1. Difficulties processing verbal information.


      1. Difficulties in understanding of verbal and written language


      1. Difficulties in learning and operating within social norms.


      1. Avoiding following adult instructions. 


    1. The child suffers from severe anxiety and concentration difficulties. [remainder of this finding in fact and the following finding in fact removed by the Chamber President for reasons of privacy and anonymity of the child under rule 55(3)(b) and (4) of the First-Tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 (schedule to SSI2017/366)]


    1. The child has issues with her behaviour. She has exhibited challenging and controlling behaviour. Her behaviour can become extreme and disruptive very quickly when she is feeling anxious, upset or angry. This can involve biting, scratching and hitting out at peers, shouting, screaming and lying on the floor. She will occasionally demonstrate defiant behaviour by refusing to complete tasks in class.


    1. When her behaviour escalates, she will run away from class or adults working with her anhide. There is a potential flight risk associated with behaviour which can increase with additional stressors.


    1. The child is impulsive and easily distracted by external stimulus. She is highly inquisitive and keen to be involved in what others are doing which can lead to interpersonal and class disruptions.


[the following finding in fact has been removed by the President for reasons of privacy and anonymity of the child under rule 55(3)(b) and (4) of the First-Tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 (schedule to SSI2017/366)]



    1. The child has a tendency to fixate upon or become obsessed with other individuals.


    1. The child is currently working on the First level of the Curriculum for Excellence, which is progression in learning aimed at mainstream children to the end of Primary Four, but earlier or later for some.


    1. The child has the following educational needs:


      1. To develop learning skills across the breadth of the curriculum.


      1. To develop life-skills, in relation to social norms and new adults.


      1. To develop social interaction skills with peers.


    1. The child needs the following additional support to help her achieve her educational aims:


      1. Small group education for a significant proportion of the day with a very high level of adult support.


      1. A differentiated curriculum with learning to be targeted at Curriculum for Excellence first level.


      1. Life-skills learning in personal skills and social domains and opportunities to experience success and develop confidence.


      1. Implementation of strategies and approaches commonly used in an autism friendly education including strategies to maintain engagement and reduce avoidance.


    1. The child is engaged in a range of out-of-school activities including dancing, singing, horse-riding, and church activities. The child will participate on her own terms: for instance, she might sometimes observe the dancing rather than take part. In some of these activities, she is taking part with children without ASD or other additional support needs.


    1. At her primary school, the child has sworn, hit other pupils and the windows of her classroom.


Assessment of needs


    1. On 4 March 2019, a general risk assessment (R252 onwards) was completed for the child in respect of the transition from primary to secondary school. The assessors were the respondent’s ASN lead teacher, the respondent’s educational psychologist and the depute head teacher of the child’s primary school. This was a fair and accurate assessment of the risks relevant to the child.


    1. On 6 March 2019, the respondent’s educational psychologist prepared a report regarding the child, which he later revised (partly due to observations of the appellant) on 4 April 2019 (R258 onwards). So far as that report describes the child’s condition, needs, risks, and steps to mitigate risk, it was a fair and accurate assessment.

The respondent’s secondary school: general

    1. The respondent has offered the child a place at the respondent’s secondary school.


    1. The respondent’s secondary school includes a “personal and social education flat” (to assist with life skills), a swimming pool and hydrotherapy room, an assembly room with a separate stage, and specialist classrooms (for Home Economics; Art; Science; and, Craft, Design & Technology).


    1. The school has recently been fitted with additional locks.


    1. The child will be in a class of four pupils.


    1. Of the other three pupils, two are from the child’s primary school, and one is a child with a similar needs profile (ie ASD but with particular strength in communication). All pupils in the child’s class have an ASD profile.


    1. The classroom itself has workstations arranged so as to limit distraction between pupils. There is a quiet area set up within the classroom.  It is in a relatively quiet part of the building with limited traffic outside in the corridor. The door has one small window. Persons passing by will likely be unnoticed by pupils within.


    1. There will be one class teacher and two Support for Learning Assistants (SFLA) for the class. There will be an additional SFLA provided for the child. This additional provision will be reviewed in October, and is dependent upon an assessment of the child’s need.


    1. The fitting of additional locks, the pupil composition of the child’s class, the type and location of the classroom, and the provision of an additional SFLA are all measures which have been adopted at least in part to address this child’s needs.


    1. Children are able to use rooms inside the school building, including their own classroom, to take their lunchbreak. This might be done, for example, if they find the playground with the other pupils too stimulating.


    1. The curriculum and teaching methods at the respondent’s secondary school incorporate an autism pedagogy.


    1. About half of the children in first year at the respondent’s secondary school have ASD.


    1. On Friday mornings pupils are offered a range of “life learning options”.


Transition visits to the respondent’s secondary school


    1. The child participated in enhanced transition visits to the respondent’s secondary school on the understanding that the appellant was still proceeding with the placing request appeal and that the respondent’s secondary school was the appellant's second choice of school placement.


    1. On Tuesday 12 March 2019, there was a visit and tour of the respondent’s secondary school by primary school groups. The child attended along with other pupils from her primary school. On Monday 18 March, there was a curricular visit in one subject, Home Economics, which the child attended along with other pupils from her primary school. On Wednesday 24 April the child attended along with other pupils from her primary school at a further familiarisation visit.


    1. On Thursday 9 May, there was a curricular visit in one subject, Craft Design and Technology, which the child attended along with other pupils from her primary school. On Friday 17 May, there was an afternoon visit with pupils and parents to meet form teachers and new classmates which included the child.


    1. On Wednesday 29 May, Thursday 30 May and Friday 31 May, there was a three-day induction programme attended by all pupils including the child, the first day concluding immediately before lunchtime and the next two days concluding immediately after.


    1. In the course of the transition visits, the following incidents occurred:


      1. On the first day of the three day visit, the child required a substantial amount of time before being ready to return to class after break time.


      1. At times the child would not be able to manage a situation, such as on the third day of the three day visit, when her and her classmates found a music class overstimulating after twenty minutes.


      1. Also, on one or two occasions the child did not wish to get on the school bus. On one occasion she waited at the front door for some time before leaving. On one occasion, she spent around twenty minutes at the toilet.


      1. The child was required to be picked up by the appellant on two occasions, one of those occasions being when she spent around forty minutes out in the playground.

During none of these incidents or otherwise did the child exhibit stress or attempt to flee whilst at school.

    1. The child was able to socialise and make friends in school during visits.

The child’s initial time attending the respondent’s secondary school

    1. In the first three weeks since starting attendance as a pupil at the respondent’s secondary school, there have been incidents by the child of bad or poorly regulated behaviour. These include:


      1. Two incidents where the child has refused to re-enter class after lunchtime, kicking out at a wall and kicking and hitting staff (A25; ST – R286, 4.4))


      1. There has been one incident where the child confined herself to a toilet cubicle for around two hours at the end of the school day, despite the efforts of the appellant and staff. Ultimately the child left once the toilet door was removed.


      1. The child has been reluctant, and on two occasions, has refused, to take her medication during the school day.


    1. The child has been permitted to take part in activities such as additional “rebound” (trampoline) therapy, additional swimming, and yoga, with a class of pupils with graver conditions, in the afternoons. This is an adaptation made as the child was observed to have difficulty re-engaging in the afternoons.


    1. The child’s behaviour outside of school has deteriorated. For instance, she is requiring more time and being less willing to get ready for school. She has become more defiant and more engaged in stress-related behaviours.


    1. The child has currently opted to work on the school show as her “life learning option”. She has been participating contentedly in activities such as the school show. She has been socialising with other pupils during break times.

The independent school


    1. The independent school is run by a charity concerned with the interests of persons with ASD. It is co-located with the administrative and training facilities of that charity.


    1. The teachers of the independent school are trained by the charity.


    1. The school has 25 pupils aged 8 to 19. All pupils have an ASD profile, some are cognitively able but socially challenging, some are non-verbal and some have a pathological demand avoidance profile. They have a maximum class size of six pupils. There are currently the following classes:


      1. 1 class of five pupils – aged 8 to 13 – relatively more able to communicate.


      1. 2 classes – of S3 to S5 stage – at an early stage of communication.


      1. 2 classes – of S3 to S6 stage – relatively less limiting conditions, of typical cognitive ability for their age.


    1. The school provides activities for pupils through connections with a local farm and horticultural centre, as well as providing horse riding.


    1. The school provides occupational therapy such as rebound therapy, as well as speech and language therapy.




    1. The approximate cost of the SFLA provision specific for the child is £21,055 per year.


    1. There will be no additional taxi costs for transporting the child to the respondent’s secondary school. If a parental contract is required (where the parent conveys pupil and is paid a mileage allowance) this would cost approximately £700 per year. 


    1. The fees for the independent school for a non-resident student would be £74,267.68 per year.


    1. The additional cost of providing a taxi and escort to the independent school would be an estimated £19,000 per year. If a parental contract was agreed it would instead cost an estimated £2,700 per year. 


    1. If the child was admitted to the independent school, this would be as a non-resident student. It is likely that the child would be transported by the appellant, whether she attended the respondent’s secondary school or the independent school. In the event of the child attending the independent school, there would be the saving of the cost of one SFLA. As set out in the table below, this results in a difference of around £55,212,68 per year.



Respondent’s school

Independent school


















Reasons for the Decision


  1. The respondent relied on the ground of refusal of the placing request set out in the Education (Additional Support for Learning) (Scotland) Act 2004, Schedule 3, para. 3(1)(f). Of the four conditions in that ground, the appellant only questioned conditions (ii) (ability to make provision for needs) and (iii) (reasonableness in light of suitability and cost). The appellant also questioned whether, even If the ground of refusal was established, it would be appropriate in all the circumstances to confirm the respondent’s decision.


  1. We recall the responsibility falls upon the respondent to establish the ground of refusal, and to show that it is appropriate to confirm its decision (and not on the appellant to show the ground has not been established, or that it would be in-appropriate to confirm the decision).


Assessment of witnesses


  1. We accepted what each witness said as to matters they had direct knowledge of and on matters they had direct perception or impression of, such as the child’s manner at home and at the respondent’s secondary school. Their position on such primary facts was not specifically challenged in cross-examination, nor was there other oral or documentary evidence to contradict it.


  1. Each of the respondent’s witnesses gave a view in their oral evidence as to the suitability of the independent school, but the respondent’s representative only invited us to place reliance on the opinion of the respondent’s educational psychologist.


  1. The appellant’s representative made certain criticisms of the evidence of the acting deputy head teacher. He had speculated as to how the child was doing from observing that she was dropped off by her mother on time, without enquiring further. He had mentioned the class teacher’s comment about the child making progress, without enquiring as to the detail of what was said by that teacher. He knew of an incident regarding the child having occurred earlier in the week in which the hearing of this reference took place, but was unable to elaborate on what the incident was. He had limited knowledge of the child’s timetable. We acknowledge the force of these points. But we think his evidence as to matters which he did have direct knowledge of could be relied upon. The level of his knowledge appeared to us to be typical of what a deputy head teacher (rather than, say, a pupil’s class teacher) would be aware of and did not cause us to doubt those points upon which he did give specific answers, nor to have doubts as to how well the child was or would be served by the staff at the school.


  1. We accept the validity of the point made by the appellant’s representative that there were limitations on the educational psychologist’s knowledge of the independent school. He had only indirect responsibility for pupils placed by the respondent at the independent school; he was not the “link psychologist” there. His knowledge of the child was derived from having observed her twice (once she was unresponsive and the other occasion she was observed at a distance), and from having considered her reports and records. We felt able to form our own assessment of the independent school’s suitability from the evidence of the head teacher, without requiring to place reliance upon the psychologist’s expressed opinion, albeit our view does coincide with his.


  1. We had no reservation regarding the evidence of the independent school’s head teacher.


  1. The appellant was questioned extensively on her reasons, and her thinking behind that, for believing the independent school would be better for her child rather than the respondent’s school. She was articulate in her reasoning. It is also to her credit that she had engaged fully with the transition planning and with her daughter beginning attendance at the respondent’s secondary school, and she was restrained in her criticisms of it. Our assessment of respective suitability differs from hers (we explain further below), but we have paid careful attention to everything said by her and on her behalf.


  1. The findings-in-fact were based on the joint minute of agreed evidence, except as follows: Findings-in-fact at §§ 9.26, 9.28-9.29, 9.33-9.35, 9.40.1-9.40.3, 9.41-9.42 and 9.45 were made on the basis of the respondent’s witnesses written and oral evidence. Findings-in-fact at §§ 9.16, 9.20, 9.40.4 and 9.44 were derived from the appellant’s written and oral evidence. The finding at § 9.21 was derived from the appellant’s statement (A10, para. 23). The findings at § 9.46-9.50 were derived from the written and oral evidence of the independent school’s head teacher. The findings at §§ 9.22 and 9.23 were based on the documentary evidence which they refer to. The contents of those reports recited there was not in any way challenged in the questions to witnesses nor was evidence led to contradict it.


The respondents are able to make provision for the child’s needs at their secondary school


  1. We are satisfied that the respondent is able to make provision for the additional support needs of the child in its secondary school. We are satisfied from the evidence of the respondent’s witnesses that their secondary school provides an appropriate environment with skilled teachers and learning assistants, and sufficient staff, catered to the child’s particular needs.


  1. The appellant’s submissions to the contrary centred around four topics: (1) a contention that the respondent did not adequately understand and had not made an up-to-date assessment of those needs; (2) the size of the school (both in physical terms and with respect to the numbers of staff and pupils) and its layout, (3) lack of specialism in pupils with ASD by the school, (4) general management of the child’s education.


  1. We are satisfied that the respondent has made an assessment of, and is aware of, the child’s needs in view of the following considerations.


    1. Detailed and comprehensive risk assessments and a psychological report were prepared in respect of the child in March 2019. The report of the educational psychologist contained a recommendation that the child be placed in the respondent’s secondary school and not the independent school. But apart from that, there was no criticism advanced on behalf of the appellant as to what was said in either document regarding the child’s needs, risks and conditions.


    1. The child’s needs have been considered with respect to fitting locks in school, the choice of classroom, the choice of classmates and, once the child begun attendance as a pupil, the activities the child would take part in (§§ 9.31,9.43).


    1. Each of the respondent’s witnesses gave an accurate account of the child’s needs. The acting deputy head teacher of the respondent’s secondary school gave a detailed account from memory of the child’s needs when questioned by the legal member.


    1. The appellant’s representative relied upon the educational psychologist’s comment in cross-examination that he would wish to have been made aware of incidents at the school and that he might have sought an early meeting to review the child’s progress in light of that. However, the detail of those incidents was not raised with him when he gave evidence. We are not of the view that the extent and nature of the incidents is such as to allow any significant conclusions to be drawn as to the child’s progress. Rather, it appears to us to be within the range of what was and ought to be anticipated given the child’s conditions and past behaviour. We took account of the appellant’s evidence that the child’s behaviour has deteriorated outside school and appears to be worse than that when she started at her last primary school. But we do not think any conclusion can safely be drawn from that, as the child did have incidents of poor behaviour at that primary school, she might be at a materially different stage of mental or emotional development now, and to some extent all pupils (including neurotypical pupils) will find the secondary school transition a mentally demanding one.


    1. The appellant’s representative relied upon the decision of Sheriff Tierney in M v Aberdeenshire Council 2008 SLT (Sh Ct) 126. In that case the sheriff held that the local authority had failed to establish that they were able to make provision for the child's additional support needs where they were yet to formally assess those needs. We think this case ought to be distinguished. There has been a formal assessment of the child’s needs made in March 2019. That assessment will need to be updated. It is reasonable that such an updated assessment has not yet taken place; the child being in her third week of secondary schooling at the time of the hearing.  This is not a case where no assessment of needs has taken place, or where any previous assessment is completely outdated or entirely overtaken by new developments.


  1. We do not believe the larger size of the respondent’s secondary school makes it unsuitable. We have found that the child’s main classroom is situated in a place where there will be little immediate distraction. There are also quiet rooms children can use during lunchtime, rather than the main hall or playground, albeit the child has not made use of these. As we understood the appellant’s evidence, her concern is less with the immediate distraction posed by hearing or seeing other pupils or staff, but with potential preoccupation with the knowledge of those others; the greater number of adults and children there were, the greater chance she might become fixated or obsessed with  one or more of them. We recognise this as a limitation, but meeting a large variety of individuals is an aspect of growing-up. We are not satisfied from the evidence we have heard that the difficulty is substantial enough to make the school unsuited to meeting the child’s needs.


  1. We do not think the fact that the respondent’s secondary school does not exclusively cater for children with ASD prevents it being able to meet the child’s needs.


    1. The school employs an autism pedagogy. Many of the techniques concerned with the education of children with ASD and the management of their behaviour are also employed with children with other conditions.


    1. We also think the mix of pupils, with around half of first year pupils having ASD, is significant.


    1. Finally, we place some weight on the child being able to participate in out-of-school activities with neurotypical children. We appreciate these activities can also be challenging for the child. But it shows the child has a reasonable capacity to participate in activities that are not exclusively catered for children with ASD.


  1. There were also certain criticisms made of the teaching and general management of the child’s time at the respondent’s secondary school.


    1. That several posts at the school were filled by an acting or supply teacher was mentioned, but we did not think we could infer (nor did we have direct evidence) that this had or would result in any detriment to this child.


    1. It was suggested that the respondent’s school were being too flexible with the child in a manner that might indirectly incentivise bad behaviour. But we agree with the acting deputy head teacher that a reasonable priority at this early stage is to ensure the child feels secure and comfortable at school. It might be that a stricter or more rigid approach will be appropriate later.


    1. It was noted that there was no behaviour plan yet in place for the child at the secondary school. Our impression of the acting deputy head teacher’s evidence was that the plan prepared by the primary school was regarded very much as that school’s plan, and thus viewed by the secondary school’s staff to be of limited relevance to them. In our opinion, this is a reasonable approach for the secondary school to take. Given the new environment that secondary school represents, and the need to react to how the child is now presenting, we do not think the absence of a plan at this stage is necessarily a shortcoming. A plan will be required, but this can be prepared once more is known about how the child is adapting to secondary school.


    1. The secondary school, unlike the primary school, did not use “ABC charts” to identify triggers. The appellant’s representative suggested that active steps should be made now to identify triggers rather than wait for the next “Team Around the Child” meeting. Again, this approach is not one which necessarily indicates a shortcoming. Some time is required in this new environment to determine to what extent the child’s behaviour is influenced by particular triggers. Some impact on the child is likely simply due to the change of environment and routine.


    1. The appellant expressed a concern in her evidence that no timescale had yet been put in place for the child to be provided with sex education and, in particular, preparing the child for the onset and management of menstruation. We recognise the importance of this and we understand the appellant’s concern. However, we are not satisfied that such education be provided separately and/or in advance of the other pupils at the school, and we do not think we have any basis in the evidence to conclude that such education will not be provided at the appropriate time to the child.


It would not be reasonable to place the child in the independent school


  1. We are of the view that the respondent’s secondary school is more suitable than the independent school.


  1. The independent school enjoys several positive features. It has a smaller school roll than the respondent’s secondary school. The teaching staff have a high level of expertise regarding ASD. The school takes an individualised approach to care planning and has systems in place to analyse potential triggers for breakdowns in behaviour. However, in our view, these features are outweighed by consideration of the school pupil composition and what can be offered at the respondent’s school. Although we did not hear evidence as to what class the child would be placed in (our understanding was that this had not been decided), the most likely candidate would be a class of five pupils aged eight to thirteen years of age. Any other class would be more poorly matched in terms of age. Thus, on any view, the child would be placed in a class with a broad range of ages. By contrast, at the respondent’s secondary school, the child would be educated with three other pupils close in age, including two classmates from primary school, and one pupil with a similar needs profile. The respondent’s school also has certain advantages deriving from its size, in terms of onsite facilities and the ability to provide a broad range of activities to pupils.


  1. In terms of respective cost, we reject the respondent’s submission that the money set aside for the child’s dedicated SFLA should effectively be regarded as already committed or budgeted for, so that the money would not be saved by the child being sent to an independent school. The money that otherwise would have been spent on the child’s SFLA could be reallocated in any way the respondents saw fit. This still leaves a substantial additional cost to placing the child at an independent school. However, even if school choice was cost-neutral, we would have found placement in the independent school not to be reasonable because of relative suitability.


In all the circumstances, it is appropriate to confirm the respondent’s decision


  1. We have decided that the respondent is able to make provision for the child’s needs at its  secondary school, and that the secondary school is both more suited and would involve less cost than education at the independent school. We cannot identify any countervailing consideration that might make it nonetheless inappropriate to confirm the respondent’s decision.


  1. We place some weight on the appellant’s wishes and views as mother of her child. On the other hand, that the child has undergone transitioning and begun attendance is an additional factor supporting confirmation. This together with the strength, in our view, of the considerations relevant to the respondent’s ground of refusal are such as to make confirmation appropriate.




  1. The respondent’s decision to place the child at their secondary school is confirmed.



Needs to Learn

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If you're 12 to 15, have additional support needs and want to make a change to your school education, then yes you are.