Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 226 (AAC)

Fecha: 02-Jul-2025

Background and the First-tier Tribunal’s decision

Background and the First-tier Tribunal’s decision

At the time of the First-tier Tribunal hearing on 3 July 2024, C was aged 4 years and 5 months. She has a diagnosis of Autism Spectrum Disorder (ASD) and Developmental delay. She has difficulties with speech and language as well as social communication, emotional and sensory regulation. She had attended various nursery/pre-school provisions from autumn 2023 and had been receiving Applied Behavioural Analysis (ABA) provision at home since February 2022. In her most recent nursery placement she had been supported by an ABA tutor for 2 hours per day. She was otherwise in a group where the staffing ratio was 3 staff to 12-15 pupils, although some attend mornings only. C was due to start Reception in September 2024. (In the event, I am told that, as the appellant’s appeal did not succeed at the Tribunal, she has kept C out of school so that C has not yet started at primary school.)

Before the First-tier Tribunal, the appellant and the local authority proposed two different models for C’s education. The appellant sought a placement in a maintained mainstream primary school at School O, together with ABA provision of 32.5 hours per week during term time and 15-20 hours per week during holidays. The local authority, however, decided to name School S, a maintained mainstream primary school with a specialist ASD resource base. The appellant envisaged that, at School O, C would spend most of her time in a mainstream class of approximately 30 children, albeit supported at all times on a 1:1 basis. The proposal at School S was that C would spend most of her time in the resource base, which was a class of five children, but would have opportunities for interacting with peers in the mainstream classes. School S is ‘in borough’ (2.5 miles from parents’ home); School O is ‘out of borough’ (3.1 miles from parents’ home). The First-tier Tribunal confirmed at [14] of its decision that the appellant was ‘seeking transport costs’. The significance of that was that, if cost was in issue, the First-tier Tribunal would have had to take into account the cost of transporting C to School O; the appellant was not offering to provide transport herself.

The Tribunal decided that ABA provision was not reasonably required for C, but that she did require 25 hours of teaching assistant support, as well as occupational therapy, speech and language therapy and daily small group interventions. As to placement, the Tribunal concluded that School O was unsuitable and that School S should be named. It is appropriate to set out the whole of the Tribunal’s reasons on this issue:-

28.

The LA relied on the oral evidence of [Ms F] of School S to show that a suitable school was available, as well as her written evidence. Her evidence was that the school can meet needs and make the provision in section B and F of the EHC Plan. [C] would be in small class with 5 other pupils and 1 full time teacher and TA and one nearly full time TA. There is a high ratio of staff to pupils. The experience of the staff is that they are a specialist unit for pupils with ASD. They understand the communication and related difficulties associated with ASD. The assessment and transition plan was realistic. [C] will have the opportunity to access the mainstream as soon as she is ready. She will in any event be able to go on outings with the relevant group in the mainstream.

29.

The rate at which this happens is flexible and will depend on how [C] copes. This is eminently sensible. Mr Chothi seemed to suggest that this did not constitute mainstream provision, which is what the Appellant wants. This is plainly wrong. This is placement at a mainstream school, albeit in a unit within the school. [Ms F] was a persuasive witness and there was no reason to doubt her knowledge and commitment. With the 25 hours of 1:1 support as well as OT and SLT provision, there is no reason why [C] should not flourish. [Ms F] spoke about the provision and supervision at lunch times for eating in the centre, which will benefit [C]. The school is rated Good and outstanding for personal development and Early Years provision which is what [C] will be in.

30.

[AA’s] preference is for [School O]. No witness attended from that school but the bundle contains a statement from [the] Headteacher dated 16.1.2024 [239-240]. The Tribunal considered the letter from [School O] which states that [AA] has stated that Richmond Borough allow ABA therapists to support children in settings. [The Headteacher] makes clear that [School O], is not an ABA school and it does not follow or support ABA therapies. She refers to class sizes of 30 pupils. She states that the classes are oversubscribed. There is a waiting list and if [C] were to attend she would be number 31. She speaks about being tight on space and the adverse impact on other pupils. There is not sufficient information on this point) to meet [C’s] toileting needs. Additional support would be needed. There are no therapists on site for SLT and OT provision. Mr Frank stated that he had spoken to the school today and their position remains unchanged. [AA] suggested that she had spoken to the school recently and they had no problem with accommodating ABA support. This would be a major shift from the position in the letter, and from the no change discussion Mr Frank referred to. From the limited information available, the Tribunal do not consider that a class size of 30 pupils is suitable for [C]. The small group work in her plan in class sizes of 4-5 pupils may not be achievable, even if the additional 1:1 support was available to her. She displays sensory sensitivities and sensory avoidant behaviours and struggles with certain sounds and noises. A class size of 30 is bound to cause her sensory difficulties. Mr Chothi suggested that the parental preference for this mainstream school was conclusive. It is not. The Tribunal has concerns that the school is not suitable for [C’s] age, ability and aptitude on the basis of the limited information available to it. [AA] expressed a serious preference for [School O] and serious concerns that [C] would mimic negative behaviours from other children with SEN needs and she wanted a mainstream school as a consequence. It is not beyond possibility that she may pick up and mimic

negative behaviours from children in a mainstream setting. Moreover, with the level of 1:1 support the opportunity for doing so will be greatly reduced. [School O] had an Outstanding Ofsted rating but this is noted to be from 2014. Even if [School O] had the resources available to implement 1:1, OT and SLT support/therapies would not be available on site as is the case with [School S], which is an important benefit for [C]. The size of the classes, lack of onsite provision for therapies and lack of specialist provision for a child with ASD make this school unsuitable. School S is suitable and can meet the needs and provision in the EHC Plan and shall be named in section I.