SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

B748/07

 

APPEAL UNDER SECTION 22 AND SCHEDULE 2 OF THE EDUCATION (ADDITIONAL SUPPORT FOR LEARNING)(SCOTLAND) ACT 2004

 

 

 

DECISION

 

by

 

SHERIFF J K TIERNEY

 

 

 

in the cause

 

 

 

LYNNE MACAULAY, as parent of Rory Macaulay.

 

 

 

 

 

Pursuer

 

 

 

against

 

 

 

ABERDEENSHIRE COUNCIL.

 

 

 

 

 

Defenders

 

 

 

 

ABERDEEN, 2 September 2008.

 

The sheriff, having resumed consideration of the cause, allows the appeal; Refuses to confirm the education authority's decision not to meet the fees and other necessary costs of the child, Rory Macaulay, attending Camphill Rudolph Steiner school, Aberdeen; Requires the defenders as the relevant education authority to meet the fees and other necessary costs of Rory Macaulay's attendance at Camphill Rudolph Steiner school; Appoints parties to be heard on all questions of expenses and fixes 25 September 2008 at 10 o'clock within Aberdeen Sheriff Court as a diet for a hearing thereon.

 

 

 

NOTE

 

 

Introduction

[1] This is an appeal by way of summary application against the decision of the defenders' education appeal committee dated 28th September 2007 whereby the appeal committee confirmed the defenders' decision as education authority to refuse a request which had been made by the pursuer to place her child Rory in Camphill Rudolph Steiner School, Aberdeen.

 

[2] The child, Rory Macaulay, was born on 4th August 2004. He was a healthy child who developed normally until, at the age of 17 months, he fell ill and was diagnosed as suffering from pneumococcal meningitis. Although he survived this illness he did not recover from it. As a consequence of his illness Rory suffered significant diffuse brain injury, he was rendered profoundly deaf and with impaired vision; he has effectively lost most of the control of his limbs, torso and head, is largely immobile and needs to be lifted and positioned. He has no fine control or general motor co-ordination; he is doubly incontinent. He now lives at home with his mother the pursuer, and his father, the pursuer's husband. The pursuer and her husband wanted and continue to want Rory to attend the pre-school nursery of the Camphill Rudolph Steiner School, which specialises among other things in the care of seriously disabled children. The pursuer applied to the defenders for a placement in terms of the Education (Additional Support for Learning) (Scotland) Act 2004 (hereinafter "the Act") but her application was refused. She appealed to the defenders' education appeal committee but that appeal also was refused. In these circumstances she has appealed to this court for an order requiring the defenders to meet the fees and other necessary costs of the child's attendance at the Amber Nursery, being the nursery part of Camphill Rudolph Steiner School..

 

The statutory provisions

[3] Section 4(1) of the Act provides:-

 

"Every education authority must (a) in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person."

It was not disputed that Rory had additional support needs.

 

[4] Section 5(2) of the Act provides that every education authority must, subject to the provisions of subsection 3, provide such additional support as is appropriate for each child - (a) under school age (other than a prescribed pre-school child), (b) belonging to the authority's area and (c) who has additional support needs arising from a disability within the meaning of the Disability Discrimination Act 1995. It was not disputed that Rory fell within those categories.

 

[5] Section 22 and Schedule 2 of the Act make provision about placing requests in relation to children and young persons who have additional support needs.

 

[6] Paragraph 2(2) of the Schedule provides:-

 

"Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being (a) a special school, the managers of which are willing to admit the child; (b) ..... ; (c) ....., 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".

It was not disputed that Camphill Rudolph Steiner is not a public school and is a special school for the purposes of the Act

 

[7] Paragraph 3(1) of the Schedule provides that the duty imposed by paragraph 2(2) does not apply in certain circumstances of which the only one relevant for the purposes of this case is sub-paragraph (f). This provides:-

 

"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).

 

[8] Paragraphs 4 to 6 of the Schedule deal with applications to the local authority and references of the local authority's decision to an appeal committee. Paragraph 6(1) provides that on such a reference an appeal committee may "confirm the education authority's decision if satisfied that - (a) in relation to the placing request one or more of the grounds of refusal specified in paragraph 3(1) or (3) exist or exists and (b) in all the circumstances it is appropriate to do so, but otherwise must refuse to confirm the authority's decision".

 

Paragraph 7(1) of the schedule provides a parent with a right of appeal to a sheriff against the decision of the appeal committee.

 

[9] Paragraph 7(6) provides:-

 

"The sheriff may on an appeal made under this paragraph confirm the education authority's decision if satisfied that - (a) in relation to the placing request one or more of the grounds of refusal specified in paragraph 3(1) or (3) exist or exists and (b) in all the circumstances it is appropriate to do so, but otherwise must refuse to confirm the authority's decision".

[10] Paragraph 7(7) provides that where the sheriff so refuses to confirm the authority's decision the sheriff "must require the education authority (a)....., (b) in the case of a placing request made under paragraph 2(2) to meet the fees and other necessary costs of the child's attendance at the specified school, and the authority must comply with that requirement".

 

[11] The case called for a hearing on the 13th, 14th and 15th August 2008 when the pursuer was represented by her solicitor, Mr Nisbet, and the defenders by Miss Williamson, advocate. At the outset of the hearing Miss Williamson indicated that she accepted that the onus of proof in terms of the statute lay upon her and that she proposed to lead her evidence first, this having been agreed in advance between her and Mr Nisbet. I heard evidence from Mrs Patricia Patrone, a child psychologist employed by the defenders, and Mrs Josephine Hughes, education officer, for the defenders and, for the pursuer, from Mr Barry Fry consultant psychologist. He had produced a detailed report and at the commencement of his evidence Miss Williamson helpfully intimated that this report could be treated as part of his evidence in chief. The pursuer herself gave evidence.

 

[12] The pursuer seeks to have Rory placed at the nursery unit at Camphill Rudolph Steiner School for the two school years commencing August 2008. Rory will be five in August 2009 but it was the pursuer's intention to apply for his entry to primary school to be deferred for one year because of his development problems.

 

[13] It is clear from the provisions of paragraph 7 of the second schedule of the Act that the appeal described therein is effectively a re-hearing of the issues in the case and in particular in this case those referred to in paragraphs 3(3)(f) of the schedule.

 

[14] The defenders consider that Rory's additional support needs can be met at a special nursery and primary school which the run namely St Andrews' Inverurie. Much of the evidence which I heard was directed towards the facilities available at each of the two schools, St. Andrews' and Camphill Rudolph Steiner. Rory has already attended Camphill for about 5 months in 2007. It is clear from all of the evidence, including the evidence of the pursuer herself, that the nursery school facilities provided by St. Andrews and Camphill Rudolph Steiner are both in general very good. That, however, is not the issue. The issue is whether the local authority have shown that all of the four conditions specified in sub-paragraph (f) apply.

 

[15] The first condition clearly does apply namely that the specified school, Camphill Rudolph Steiner, is not a public school. The second condition is that the authority are able to make provision for the additional support needs of Rory at another school,. The defenders say they can meet Rory's additional needs at St. Andrews, and have offered to place him in that school. Accordingly provided they are correct in their assessment of their ability to make provision for Rory's special needs at St. Andrews the fourth condition is also met. I will return to the question of the defenders ability to meet Rory's needs later in some detail.

 

[16] The third condition is that it is not reasonable having regard to the respective suitability and the respective cost of the provision for the additional support needs in the two schools to place the child in the specified school i.e. the private Camphill Rudolph Steiner School.

 

[17] Given that all of the four conditions must apply that third condition, namely the balancing of respective suitability and respective cost for the purposes of determining whether it is reasonable to place the child at the specified school only comes into play if the second condition is met, namely that the authority are able to make provision for Rory's additional support needs at St. Andrews. If they are not able to do that then the issue of the reasonableness of the placement having regard to respective suitability and respective cost simply does not arise. Looked at another way, the ability of the specified school to meet the child's needs only requires to be looked at if the other school, in this case St. Andrews, meets Rory's additional support needs.

 

[18] The first requirement therefore is to assess whether the defenders are able to make provision for Rory's additional support needs at St. Andrews school.

 

[19] I have set out at paragraph [2] above the immediate consequences for Rory of the dreadful illness he suffered some two and a half years ago at the age of 17 months. These have given rise to what will be very severe long term disabilities.

 

[20] Mr Fry deals with Rory's current situation, and the problems he faces and will continue to face, in paragraphs 42 to 64 of his report. In paragraph 42, he narrates that, "from having well established mobility, co-ordination and manipulation skills, Rory has effectively lost most of the control of his limbs, torso and head. He is largely immobile and needs to be lifted and positioned. Some gross body movement and gross directional arm movement has emerged, but fine control and general motor co-ordination is absence.

 

[21] In paragraph 43, dealing with Rory's social development he states that Rory has developed a responsiveness to people and to social approach, can orientate visually and react emotionally to touch and to voice. He is not able to initiate social approaches of his own from visual orientation and facial expression". Paragraphs 44 to 46 narrate his minimal language and vocalisation skills, the consequences of his profound deafness and cochlear implants and the fact that despite his hearing and language problems Rory is a responsive and expressive youngster who has developed a skill in expressing his feelings by visual and facial expression. Paragraphs 53 to 58 narrate Mr Fry's understanding of the pursuer's views on her son. She describes him as being extremely responsive to his environment and to familiar experiences, as being sensitive to subtle visual and auditory stimulation and clues and as being intuitive, picking up on people's emotional approach and response to him, of his speedier reaction to emotional stimuli rather than language, his ability to read the emotional content of what was said to him, of his negative responses to being talked over or talked to in baby language, or being talked about adversely. She considered that Rory in this respect needed to be treated with respect. Despite all his problems Mrs Macaulay commented that Rory smiled readily, focussed on people visually and orally, despite his deafness, that he had a high pain threshold but might not be able to communicate acute discomfort.

 

[22] In paragraph 61 of his report, Mr Fry assesses Rory as being "a youngster with profound physical, communication, sensory and cognitive needs".

 

[23] In paragraphs 63 to 65 he deals with Rory's curiosity about his environment, his ability to make limited choices and his impression that Rory has more cognitive skills than he is able to express, that he is able to assimilate environmental information but needs repetition and routine.

 

[24] In paragraphs 66 to 68 he deals with Rory's ability to communicate through body language, facial and visual expression and by hand movements, he was informed by the pursuer that Rory is learning basic Makaton signs, that he can understand simple language and that when he can look directly at people he can process social information and clues.

 

[25] Paragraphs 69 to 71 deal with Rory's physical abilities, the fact that he has no independent mobility, that his head control is a significant problem, and that his head control and arm movements are deteriorating because of increasing spinal curvature.

 

[26] Paragraphs 72 to 75 deal with Rory's social skills which Mr Fry describes as being well established for a youngster who is profoundly deaf. He is responsive to approach and is able to isolate and discriminate familiar people, and can "talk" to family members. Mrs Macaulay was of the view that Rory is certainly aware of being different, will be on his best behaviour when out with the family, will eat better when out. He no longer smiles at other children but is more disposed to study them. He recalls and recognises people whom he has met.

 

[27] Paragraphs 76 to 78 deal with Rory's potential for learning. Mr Fry is of the opinion that the curiosity which Rory shows, the attention that he pays to other people and their communication with him, and his quick emotional response to people and to animals suggest that he has a potential that he is not yet able to express. His mother believes that he will learn to communicate at some level. Mr Fry reports that so far he has learned to use some signs, has developed his swallowing reflex (which he lost when ill) can turn off lights using an adapted switch and understands a number of Makaton signs. He responds to specific speech including direction or questioning and can copy sounds.

 

[28] In paragraph 78 Mr Fry states that Rory "is certainly able to acquire skills and responses when they are repeated and when he is allowed time to respond".

 

[29] Paragraph 79 and 80 deal with Rory's visual and hearing impairment. His visual acuity is, however, normal when he wears his glasses. He is profoundly deaf but with his implants he can register loudness of conversation. Mr Fry could not comment on his ability to identify and to discriminate speech sounds.

 

[30] Paragraphs 82 and 83 deal with self care. Rory is not able to engage in any self care behaviour and requires an adult to take care of him. He is trying to co-operate in a number of ways including co-operation when being lifted, dressed and fed, is trying to use his own fork, his ability to co-ordinate hand and mouth is improving. He does, however, need to be bathed and washed. He has no independent skills at the toilet and requires full-time help. Although the pursuer recognised that Rory was totally dependent for self care she knows that he nevertheless likes to be as independent as he can.

 

[31] Summarising these matters at paragraph 84, Mr Fry states "Rory is a youngster with complex and highly significant additional learning, communication, sensory and physical needs as the result of the damage to his central nervous system from a Pneumococcal Meningitis infection." Mr Fry continues at paragraph 85 "Whatever his educational placement he will require a high level of learning, communication and physical support throughout his school life and in all probability beyond."

 

[32] These matters which I have related in paragraphs [20] to [31] were not contested and I find them to be established as fact. Given that catalogue of disabilities, given the summary contained in paragraphs 84 and 85 which I have quoted above, and given the statutory requirement for the local authority to demonstrate that they are able to make provision for the additional support needs of the child in the school which the local authority proposes, it is to my mind surprising that from the evidence which I heard it did not appear that any formal professional assessment of Rory's needs had been carried out by the defenders. It is difficult to see how a local authority can plan to make provision for the additional support needs of a child such as Rory when they have not acquainted themselves with just what these needs are. That is not to say they would have been wholly ignorant of his needs as many of them would have been apparent from the information provided by other agencies and in Mrs Patrone's and Mrs Hughes' discussions and correspondence with the pursuer. Nonetheless, given the statutory obligation incumbent upon the defenders in terms of paragraph 2(2) of the schedule to the Act to meet the fees and other necessary costs of the child's attendance at Camphill unless all of the conditions in paragraph 3(1)(f) apply, I would have expected that a formal assessment of Rory's needs would have been carried out in order that the ability of St. Andrews to meet these needs could be properly and systematically addressed.

 

[33] At paragraph 88 of his report, which was dated 27th April 2008, Mr Fry identified twenty six separate needs which would require to be included in Rory's total needs. Mrs Patrone, one of the council's educational psychologists, did not dispute any of these needs with the exception of the seventh last in Mr Fry's list namely "a quieter environment with reduced background noise and low signal to noise ratio", but she did not expand on this..

 

[34] Among the needs listed by Mr Fry are (1) a high level of continuous physical care, communication and learning support, often needing more than one person to be responsible for Rory; (2) the placing of a high priority on the development of all of his receptive and expressive capabilities through as many modalities as is possible; (3) focussed, cognitive, sensory language and emotional stimulation, (4) stimulation of his capacity for creative self expression; (5) developing language understanding; (6) time and help to process information, language and thought; (7) acquired environment with reduced background noise and low signal to noise ratio.

 

[35] In his evidence, Mr Fry expanded on these needs. In particular he considered that the provision of a single designated teacher for Rory was very important. This would develop a feeling of familiarity in Rory which would help him feel more comfortable and therefore more able to build on his communication skills, and ability to understand what people are trying to communicate to him. He considered the one to one relationship with the teacher as being crucial and described this as "very, very important". Specifically, Mr Fry said in his evidence that he "Rory needs one teacher" and "he needs to establish a primary relationship with one teacher because of his nature and his needs".

 

[36] A second need which Mr Fry developed in his evidence was Rory's need for quietness. He needed this because of his tendency to sensory overload (the consequence of which Rory's mother described as him "shutting down"), and the fact that Rory found intense stimuli intimidating.

 

[37] Mr Fry spoke to the need for Rory to meet non-disabled children and his need for continuity and planning in such encounters, and the need for such contact to be provided without the sensory overload he had referred to.

 

[38] Mr Fry gave evidence that Rory's need to develop his social and communication skills were, in his opinion, paramount. Rory needed to learn these skills now in order to be able to build on them later. This was a critical period for Rory. The pre-school years were critical in respect of the development of language, cognitive and social skills.

 

[39] Mr Fry felt confident that he had enough information to be able to get a good picture of Rory's needs.

 

[40] I accept all of Mr Fry's evidence in respect of Rory's needs both in respect of his written report and the additional evidence which he gave.

 

Does St. Andrews meet all of Rory's needs

[41] St. Andrews does not provide a staffing ratio which accommodates one teacher per child. Its staffing ratio at the moment is 2.5 pupils per member of staff. Mrs Hughes explained that there was one teacher, one nursery nurse, one learning auxiliary and one additional auxiliary. Mrs Patrone had never heard of such a request for a 1 to1 teacher/pupil ratio being made in the past. She referred in her evidence to the possibility of "one dedicated person" who I understood would not, or at least not necessarily, be a teacher and to the importance of "the team". She explained that if Rory attended St. Andrews he would be assessed and if the assessment indicated a need for further staffing, application could be made for such additional staffing. She explained that there would be a process of introduction of Rory into the school which would be preceded by a period of preparation before he attended the school. During both these periods his needs would be assessed.

 

[42] Miss Patrone had last seen Rory when he was two years old and he was now four. She accepted that she did not have an up-to-date picture of him. She had never carried out a professional assessment of him. She said she would need more time with him to do that

 

[43] Mrs Josephine Hughes was the education officer responsible for children below the age of six in Aberdeenshire Council's Education Department. She is the budget holder for the education of such children, and that includes the provision of the facilities at St. Andrews.

 

[44] Mrs Hughes explained that the school was registered for ten children with a staff of four, and that the staffing ratio was generous. She explained that if a child needed additional dedicated staff the education authority would fund this. The decision as to whether such a key worker was needed would be taken after discussion within the school and thereafter discussion between the school and herself as the budget holder. There was no evidence as to how long this process would take or, once the need for additional staff was identified, how long it would take to recruit such a person or of the cost of provision of such additional staff, be it teacher or support.

 

[45] I consider that the proper time for assessing whether the conditions contained in paragraph 3(1)(f) are met or are not met is, for the purposes of an appeal to the sheriff, the date on which the hearing proceeds. The wording of the statutory provision is that "the authority are able to make provision for the additional support needs of the child in the school". The defenders are the "authority" and their position as spoken to by Mrs Hughes is that the local authority will be able to meet these needs if the child is admitted to St Andrews and they then determine that the need exists.

 

[46] I consider that that does not meet the statutory requirement. I can understand that the local authority will not be able to determine whether or not they can or will meet a particular need until they have determined what these needs are. That determination should, in my opinion, have been made by the time Mrs Hughes as education officer had to take the first decision on the application for a placement and thereafter should have been available for consideration by the appeal committee referred to in paragraph 5(1) of the schedule. In the absence of such an assessment the procedures giving rise to each of those decisions might be seen as flawed.

 

[47] As I have indicated, however, this process is not truly an appeal as to how either the education officer or the appeal committee reached their decisions, but is effectively a re-hearing of the case. Standing the concession by the defenders' counsel, a concession which was in my opinion rightly given, that the onus was on the defenders to satisfy the court as to the 4 conditions contained in para. 3(1)(f), the very latest time at which the defenders' assessment of Rory's needs should have been made was before the commencement of the hearing of the appeal and in time for proper consideration and examination of what they considered to be Rory's needs at the hearing of the appeal. On the evidence which I have heard I am satisfied that Rory needs a "one to one" teacher. There was no suggestion by either of the witnesses for the defenders that the defenders would meet any need which I held to be established, and standing the evidence of Mrs Patrone and Mrs Hughes I cannot assume they would do so. Their position was that if the defenders were successful in opposing the appeal they would only then themselves assess what they believed Rory's needs to be, and then what steps should be taken to meet them. In her submissions for the defenders Mrs Williamson said that the need for 1 to 1 support had not been ruled out by the defenders, that this needed to be the subject of further assessment, that it was premature to suggest that Rory would not have 1 to 1 teaching at St. Andrews' and that it would be irresponsible to decide without further assessment. It seems to me that what the defenders are saying is not that I should refuse the appeal and confirm the authorities decision because they have shown that in terms of para 3(1)(f)(ii) they are able to meet Rory's additional support needs at St Andrews'. Rather they are saying that if I refuse the appeal then they will assess Rory's needs and decide how best to meet them. The statutory requirement is that the sheriff must refuse to confirm the authority's decision unless he is satisfied that one or more of the statutory grounds of refusal exists, in this case the four conditions that together make up ground 3(1)(f). If I was to accede to Miss Williamsons submission I would be deciding that Rory's needs for special measures would be met at St Andrews' without knowing what those needs were or what special measures would be taken at St Andrews' to meet them. That is manifestly not what para 7(6) of the schedule requires of me.

 

[48] The defenders have accordingly failed to discharge the onus which their counsel accepted fell upon them, namely to establish that the authority are able to make provision for Rory's additional support needs in St. Andrews, school.

 

[49] That being so it cannot be said that all of the conditions contained in paragraph 3(1)(f) of the schedule are met. That was the only ground which was argued before me. Accordingly, in terms of paragraph 7(6) of schedule 2 to the Act, I must refuse to confirm the authority's decision.

 

[50] The consequence of that in terms of paragraph 7(7)(b) of the schedule, is that I must also require the defenders as the education authority to meet the fees and other necessary costs of Rory's attendance at Rudolph Steiner at Camphill school.

 

[51] That is sufficient to dispose of the appeal but for the sake of completeness I should also deal with the other matters which were the subject of evidence and argued before me, namely the question of Rory's need for quiet and the question whether it could be said not to be reasonable to place Rory at Camphill having regard to comparative suitability and comparative cost

 

[52] . I am satisfied that the other major need referred to by Mr Fry in his report and in great detail in his evidence, namely the need for quietness, peace and tranquillity would be met at least to an extent at St. Andrews'. At the recommencement of his evidence on day three Mr Fry agreed that the nursery setting at St. Andrews is quiet, and that the greater space which it had would meet the need for low sensory impact. He made the point that Camphill was quieter, had an atmosphere of calm about it and had less hustle and bustle, but I consider that those factors more warranted the making of assessments in terms of condition (iii) of paragraph 3(1)(f) of the schedule than a finding that St Andrews did not meet Rory's needs for additional support in that regard It was clear from the evidence of Mrs Patrone and Mrs Hughes that there were special facilities available for quietness and the reduction of sensory input at St. Andrews' which were available to meet Rory's needs.

 

[53] Condition (iii) requires a decision as to whether "it is not reasonable having regard both to the respective suitability and to the respective cost" of the provision of Rory's additional support needs in the two schools, to place Rory in the specified school, namely Camphill Rudolph Steiner, rather than in this case St Andrews'.

 

[54] The matter in respect of which a decision on reasonableness is required is the placement of the child in the specified school. That placement would be made by the defenders' education authority and accordingly it seems to me that the question is whether it would not be reasonable for the education authority to place the child in that school, not whether it would be reasonable for the parent to seek to have him so placed. The two factors which have to be taken into account are suitability and cost. It seems to me that suitability involves an assessment of the respective qualities of the provisions from which Rory will benefit in each of the two schools. The respective costs, on the other hand, are the costs in respect of each of the two schools which the local authority will bear.

 

[55] Mrs Hughes made it very clear in her evidence that cost was not an issue in this case. She said that in those words. In her submissions on behalf of the defenders, Miss Williamson sought to distance the defenders from the opinion of Miss Hughes. She said that whatever Mrs Hughes' views were I still needed to apply the test set out in the statute. I consider that she is right in this submission, but the difficulty for the defenders in that approach is that the issue of cost can only be determined by evidence, and the onus of establishing all of the four conditions lies with the defenders. Mrs Hughes gave some evidence as to the figures involved as did the pursuer, but the only evidence as to the effect of these costs on the defenders contention that it is not reasonable to place Rory at Camphill is that of Mrs Hughes's, and she says that they are not an issue. Given that Mrs Hughes is responsible for administering the budget that opinion has to be accorded respect.

 

[56] The cost of the school fees for Rory at Camphill School according to the defenders pleadings would be £9288 per annum. According to a letter from the school dated 12th September 2007 and found within the papers available to the appeal committee they would be about £12500 per annum. From this falls to be deducted the basic funding of £1550 made available by the Scottish Government for each pre school age child, leaving a net cost for school fees of £10950 using the amount contained in the letter or £7738 using the amount contained in the defenders pleadings. To this the defenders sought to add the cost of transport.. They say in their pleadings that the cost of transporting Rory from his home in Newmachar to Camphill by taxi, together with the cost of an escort would be a minimum of £8560. The total cost to the defenders according to their own figures of Rory attending Camphill would be about either £19510 or £16298, depending on which figure one took for school fees. The pursuer said in her evidence, and had previously told the defenders that she would drive Rory to Camphill herself (as she had done throughout the five months Rory had attended Camphill), with cover in place for emergencies, and would not seek any payment for this. She was willing to give a binding undertaking to that effect. Miss Williamson submitted that if Rory went to Camphill the defenders would be under a statutory obligation to meet his transport costs and it was not open to the pursuer to waive this. Miss Williamson may or may not be right, but if she is there is nothing in the Act which entitles the defenders to determine the method by which the pursuer gets her son to school, or which requires her to tell the defenders the cost she incurs in getting him there. It is for the defenders to put forward some evidence of the cost of the transport which the pursuer had told them she would use - for example the costs of petrol. They have not done so and there is therefore no figure I can take into account. Accordingly for the purposes of this hearing the cost of Rory attending Camphill would be the amount of the school fees net of the Scottish government funding, either £10950 or £7738.

 

[57] If Rory attends St Andrews the cost to the defenders would be the taxi and escort's costs which I was told would be £8560. As I understand it the defenders do not encourage parents to bring their children to St Andrews.. There was no evidence that there were any marginal costs which would be incurred by the defenders in running St Andrews' if Rory was to be placed there though clearly if an additional teacher or other member of staff required to be employed there would be such a cost. I proceed on the basis that the total cost to the defenders at the moment for placing Rory at Camphill would be £8560. Depending on the figure for fees if Rory attends Camphill it will therefore be at a cost to the council of £2390 on the higher fee figure, or at a saving to the council of £822 on the lower figure. If additional staffing was required for Rory there would be additional costs incurred by the defenders and on either figure for Camphill fees they would make a saving if Rory went to Camphill. No evidence was led as to what the defenders education budget is, or their special needs budget, or even their budget for St Andrews, so I can not put the maximum additional cost of £2390 in context, but any way it seems likely to have a minimal impact and to amply justify Mrs Hughes' assertion that cost was not an issue.

,

[58] Were I having to deal with the question of whether it was reasonable for the local authority to place the child at Rudolph Steiner at Camphill I would also to have had regard to the respective suitability of the two schools. In this regard, and on the assumption that St Andrew's would also provide a dedicated 1 on 1 teacher for Rory, I would have held that the balance favoured the placement of the child at Camphill Rudolph Steiner rather than at St. Andrews. Both are good schools, both are staffed by excellent and dedicated teachers and both supply a degree of the necessary quietness. So far as suitability for Rory's needs is concerned I accept the evidence of Mr Fry that the whole atmosphere and ethos of the Rudolph Steiner school is one of quietness and calm which left a lasting impression on him. This atmosphere is very well suited to meet what it was clear from Mr Fry's evidence was the most important need in Rory's life at this stage of his young life, namely the need to develop his social and communication skills before he starts primary school. St. Andrew provided a degree of quiet, in the sense of location and premises but not at the same enhanced level of overall atmosphere. Mrs Patrone also conceded that on the quietness factor Camphill had the edge over St. Andrews.

 

[59] I also consider that in making this judgment on reasonableness it is relevant to take into account that Rory has already attended Camphill and benefited from that attendance His mother unquestionably knows him best. She is a highly intelligent, highly articulate person who has studied deeply the medical conditions from which Rory suffers and also the educational aspects of his overall condition. She knows her child's moods and preferences. She told me in very clear terms that she could tell that Rory had enjoyed his time at Camphill during the five months or so he was at the school and had benefited from his time there. She said that, since his illness, she had never seen him happier than during this time. If Rory felt like this it is possible that he is more likely to do well, at least in the short-term by returning to a place of which he may have some happy memories but, even if he has not, where he has been happy before and can be expected to be happy again. That is not to say that he would not be happy at St. Andrews, but that is simply not known.

 

[60] St. Andrews, in fairness, provided better for some of Rory's physical needs such as his manual handling and his toileting arrangements and, closely linked to his physical toileting needs, his emotional needs in that regard and in particular his entitlement and need for a feeling of personal dignity. . On the question of Rory's dignity his mother pointed out that although he was now four he had not achieved that level of maturity. His mental age was lower. She could still make these matters a bit of a game for him. At this very early stage in Rory's life, and having regard to the great damage that he has suffered and the importance ascribed to his need to develop now as best he can his social and communication skills, I consider that these other undoubtedly important needs must take second place.

 

[61] In the course of the evidence an issue was raised as to whether, if he attended Camphill Rudolph Steiner, Rory would benefit from the multi-disciplinary team of support in the areas of physiotherapy, occupational therapy and speech and language therapy. I was advised that Rory, as a patient, falls within the territorial boundaries of a particular division of Grampian NHS . The multi-disciplinary team providing the three services I have mentioned would visit St. Andrews' school, and would visit Rory at home because both the school and the home fell within the appropriate territorial division. They would not, however, I was told, visit Camphill Rudolph Steiner School because that falls within a different territorial division of Grampian NHS, namely Aberdeen City. They would therefore provide support only at Rory's home.

 

[62] That seemed to me on the face of it to be a potential problem which would have to be taken into account in the balancing exercise relating to suitability. Arguably it would be better if Rory could have the benefit of this multi-disciplinary team both at home and at school although the pursuer, having had the benefit of the provision of those services both at Raeden School when Rory was there and thereafter at home, said that she would prefer that the team saw Rory at home.

 

[63] Mr Nisbet for the pursuer, however, was able to direct me to Section 23 of the 2004 Act which provides, by subsection (1):- "Where it appears to an education authority that an appropriate agency could, by doing certain things, help in the exercise of any of the education authority's functions under this act, the authority may, specifying what those things are, request the help of that agency." Sub-paragraph (2) provides that an appropriate agency includes any Health Board. Subsection (3) provides that an appropriate agency must comply with a request made to it under subsection (1) unless it considers that the request (a) is incompatible with its own statutory or other duties or (b) unduly prejudices the discharge of any of its functions. I am satisfied that the existence of that statutory provision should mean that the defenders will be able to make immediate application to Grampian Health Board for the purposes of seeing that Rory obtains the benefit of the team of therapists at school if that is what he needs, and that he will obtain this unless the provision of it unduly prejudiced the discharge of the Board's functions.

 

[64] I was also told that Camphill has a GP medical practice on site and the GP would work in full consultation with Rory's GP, as he had in the past, should Rory require medical assistance. Further Camphill has its own resident speech and language therapist. In addition Camphill has facilities for residential respite care should this be necessary

 

[65] Even if the condition contained in para 3(1)(f)(ii) of the Schedule had been met I am satisfied looking at all the relevant factors and in particular the respective suitability and the respective cost of placing Rory at Camphill that it cannot be said that it is not reasonable for the defenders to place him there. The condition contained in para 3(1)(f)(iii) therefore also does not apply.

 

[66] In all the circumstances therefore the appeal succeeds.