Note: Parents Of Child J Against Dumfries And Galloway Council
| Jurisdiction | Scotland |
| Judge | Sheriff George Jamieson |
| Court | Sheriff Court |
| Date | 07 October 2015 |
| Docket Number | B186/15 |
| Published date | 03 November 2015 |
2015SCDUM69
Court Reference number: B186/15
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY
AT DUMFRIES
NOTE
By
SHERIFF GEORGE JAMIESON
in causa
PARENTS OF CHILD J
PURSUERS
against
DUMFRIES AND GALLOWAY COUNCIL
DEFENDERS
____________________________________________________________________________
Dumfries 7 October 2015
The Sheriff, having given Judgment orally after the hearing on 15 July 2015, now provides, at the request of the defenders’ solicitor, the following Note in relation to his interlocutor of 15 July 2015 allowing the pursuers’ appeal against the defenders’ refusal of their placing request in respect of their son J born 8 April 2010.
Sheriff George Jamieson
NOTE
Background
- [1]The pursuers made a placing request for their son J to start school in P1 of their specified PS (“SPS”). He had been attending nursery classes there. His older brother attends the school. His sister attends local high school. The defenders refused the placing request. The pursuers appealed to the appeal committee set up under section 28D of the Education (Scotland) Act 1980 (hereafter “the 1980 Act”) against the defenders’ decision to refuse their placing request, but it refused that first stage appeal. The pursuers then appealed to the sheriff. That appeal was initially made under section 28F of the 1980 Act. The pursuers later sought leave to amend the appeal to the sheriff to one under schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) (hereafter “the 2004 Act”).
-
[2]After hearing submissions from the parties’ solicitors, I found that the appeal might competently proceed before the sheriff under schedule 2 to the 2004 Act in accordance with the pursuers’ minute of amendment; accordingly, I granted the pursuers leave to amend their initial writ and for the amended initial writ to be received in process; and I found that there was in law and in fact good cause to hear it out of time in accordance with paragraph 7(5) of schedule 2 to the 2004 Act. I thereafter allowed the appeal, refused to confirm the defenders’ decision to refuse the pursuers’ placing request and made an order requiring the defenders to give effect to the placing request made by the pursuers.
Documentary Evidence
- [3]The placing appeal report at 6/1 of process reveals that SPS has a capacity for 323 pupils. The projected school roll for 2015/16 is 306, with 34 P1 pupils, accommodated in two classes: Class 1- 25 P1; Class 2- 25 composite P1/P2 (9/16).
-
[4]The defenders’ Enrolling in Schools Placement Policy at 6/2 of process reveals priority is given to pupils from the catchment area. Placing requests are then considered in order of priority – (i) pupils with additional support needs (“ASN”); (ii) siblings already in the school; (iii) proximity of children from other schools within DG; (iv) children from other councils. The policy emphasises attendance at a particular nursery does not give a child an automatic right to attend that school if the child does not live within the catchment area. Children with ASN will normally opt for their catchment school “unless there are particular grounds in relation to the child’s specific support needs which suggest enrolment at a certain school”. Priority will be given to pupils “who have significant Educational Visitor or Psychological Service involvement such that transition arrangements require planning prior to the enrolment date”.
Oral evidence
- [5]GB, Head of Service Strategic Support (Responsible for Placing Requests) explained that there are only 11 classes in the school. These are fully occupied for all P years.
- [6]The Class Size Regulations allowed her to admit only a maximum of 25 pupils to a P1 classroom. This had been achieved for the 34 P1 pupils in classes 1 and 2. She had had eight appeals. There was a waiting list of 25 pupils. J was third. If he were admitted the authority would need to employ an additional teacher at a cost of up to £43,900. There was a national shortage of teachers and recruitment could not be guaranteed before August.
- [7]The school has a learning centre. J receives SALT in a clinic, but his needs can be met by any school in DG. DGC has anti-bullying policies, applicable therefore in relation to his catchment school (“CPS”). It also has a breakfast club at 8:15 am. There is no after school care there but parents can make private provision. There are spaces available for him at two other local PS. Adding an additional pupil to a class reduced the space available to other children for active learning in the soft play, sand and water areas. Creating an additional classroom, such as via a Portacabin, would reduce the outdoor play area for all 306 children in the school. J’s ASN of which she was aware had not featured in the placing request.
- [8]In cross-examination, she did not know J, but was aware he had been assessed for and was receiving SALT. Had he been a learning centre child, he would “have been straight in”. She had spoken to the Head Teacher and this had not been “flagged up”. There were 33 catchment children and 34 places. Team teaching was possible but not recommended. In re-examination she explained some families refused a PR had decided to move siblings from SPS to allow them to go to school together.
- [9]KC, SAL Therapist said J had had six blocks of SALT. He was making slow but steady progress. He was very shy and timid. There was no reason why he could not access mainstream education. In cross-examination she opined it would be detrimental to his wellbeing to be moved to a different PS. However it was not felt necessary to refer him to an educational visitor. See 5/7 of process for her report.
- [10]In her evidence, J’s mother explained that she and her husband have three children: their daughter, E, 13, who attends local high school; JL, J’s older brother, who is going into P5 at SPS. Both E and JL attended SPS from the beginning. This was to allow the maternal grandparents to help as both parents were then working. J’s mother no longer works and her parents are in their 80s. JL finishes school at 3pm; E at 3:35pm; and J would finish at 3:25pm at CPS. It was logistically difficult for her to collect all three children by car within this timescale. If J attended SPS she could collect both boys at the same time. Otherwise, J would have to be picked up first, leaving JL waiting 25 minutes; neither she nor the school would be happy with that. If both boys were at SPS these difficulties would be avoided. The boys were not allowed out and about in their local area. JL had been bullied. He would not be available for J if anything happened to J in CPS. JL helped J to vocalise and would support him during their three years of PS together. Placing J in another school would not remove the logistical difficulties and she would have to consider removing JL from SPS so the two of them were together.
- [11]She also explained that J had taken 18 months to settle in to nursery; other children going from nursery into school classes at SPS had already made allowances for him and his speech difficulties.
-
[12]In cross-examination, she said she was worried for J because he still had difficulty forming words; he still could not pronounce his own name. She accepted the map at 6/2/1 of process showed CPS was within walking distance of her home. She and her husband had moved from another area. She did not want the boys to go to CPS. JL did not want to move. He had been bullied locally by boys in the park. He was a lot more sensitive than J. E did not want to make her own way to high school, such as by getting the bus.
Primary Legislation
-
[13]Section 1 of the 2004 Act defines ASN so far as school children are concerned:
- A child has additional support needs for the purposes of this Act where, for whatever reason, the child is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child.
- In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child to their fullest potential.
- In this Act, “additional support” means– (a) in relation to a child of school age provision (whether or not educational provision) which is additional to, or otherwise different from, the educational provision made generally for children of the same age in schools (other than special schools) under the management of the education authority responsible for the school education of the child.
- [14]Schedule 2 to the 2004 Act (introduced by section 22) provides that sections 28A, 28C, 28E, 28F and 28G of the 1980 Act (which make provision as to the making of placing requests and appeals in relation to the refusal of such requests) do not apply in relation to children having ASN and instead the provisions of that schedule apply in relation to such children (paragraph 1)[1]. Paragraph 2(1) of schedule 2 to the 2004 Act provides that where the parent of a child having ASN 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].
-
Paragraph 3: Circumstances in which duty does not apply
-
The duty imposed by sub-paragraph (1) does not apply, [so far as relevant to this appeal] – (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, […] (v) be likely to be seriously detrimental to the educational well-being of pupils attending the school.
-
The duty imposed by sub-paragraph (1) does not apply, [so far as relevant to this appeal] – (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, […] (v) be likely to be seriously detrimental to the educational well-being of pupils attending the school.
- [16]Paragraphs 2 and 3 (1) (a) (i), (ii) and (v) of schedule 2 to the 2004 Act are for all...
To continue reading
Request your trial