ASNTS_D_10_2010_13.09.10

DECISION OF THE TRIBUNAL

Reference:                              D_10_2010

Gender:                                   Female

Aged:                                       17

Type of Reference:                 Contents of CSP

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1. Reference

The Appellant has made a reference to a Tribunal in respect of information contained in the co-ordinated support plan prepared by the Respondent (“the education authority”) for her child. The reference is under section 18 (3)(d)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

2. Decision of the Tribunal

The Tribunal considers it appropriate that the authority make amendments to the co-ordinated support plan as follows:

1. Factors giving rise to Additional Support Needs. Paragraph 1 of this section should be removed and placed as a preliminary paragraph in the Profile section.
2. Educational Objectives. Objectives regarding verbal reasoning, reading and maths are correctly placed in the IEP and do not need to be repeated in the co-ordinated support plan. Concentration, attention and comprehension should be included within the plan in so far as they relate to abilities which must be addressed in the transitions planning. The Transitions objective is necessarily vague having regard to the state of knowledge of the respondents at the time the plan was prepared. This objective should now be made specific having regard to the related placing request decision (D_08_2010).
3. Additional support required. The Social Worker, as the co-ordinator, should now be in a position to make more specification of the additional support required to identify supported work opportunities. The IEP is mentioned and no further reference to this document is required.
4. Persons providing additional support. The reference to “social work staff” is sufficient to include the transitions worker. The worker from Careers Scotland which is part of Skills Development Scotland should be included in relation to career planning. The inclusion of the parent in the section “persons providing additional support” is not necessarily inappropriate, especially during a transitions year. It is accepted that the parent cannot be placed under any statutory obligations in respect of any role in relation to the plan but the inclusion of the Appellant acknowledges the importance of her role in facilitating smooth transitions and ought to be unobjectionable. Reference to the Appellant may be removed by agreement with the authority but this amendment is not required by the Tribunal.

The Tribunal therefore requires the authority to amend the information contained within the said co-ordinated support plan accordingly; and to incorporate the information in the related Tribunal decision and to do so within a period of two weeks from the date on which this decision is issued to parties.

3. Preliminary Matters:

Reference is made to the decision of the Convener on the preliminary issue of competence appearing at T46 to T59 of the bundle.

The hearing on this reference was conjoined with the hearing on the placing request reference heard under D_08_2010.

There was a conference call with parties on 8 September to ensure that the hearing on the merits arranged for 13 and 14 September proceeded as planned. During the course of the call the appellant’s representative advised that the young person had returned to the specified school on the basis that the school was itself bearing the cost of the young person’s attendance until 17 September. The convener indicated that she would endeavour to issue at least a summary decision in respect of that separate reference by that date.

At the outset of the hearing the appellant’s representative produced a copy of a summary application made by the Appellant against the Education Authority to the Sheriff Court in terms of sections 21B and 21F of the Disability Discrimination Act 1995 (as amended) including a crave to ordain the respondents to make payment of the fees in respect of the specified school until the end of the academic year 2010/2011.  She advised that this application was to be heard on the afternoon of the following day. The respondents were unaware of the application and it was copied and handed to them for their information by the case officer.

4. Summary of Evidence:

The Tribunal heard from the witnesses indicated above and had regard to the bundle of papers T1 – 65, R1 – 76 and A1 – 79.

5. Findings in Fact

1. The young person, was born in October 1992. She will therefore attain the age of 18 years in October 2010 and cease to come within the definition of “young person” as laid down by Section 29(2) of the Act.
2. The young person lives with her mother, the Appellant, who is the young person’s sole carer. There are no siblings.
3. The young person attends an independent special school, the specified School, as a day pupil in terms of Joint Minute of a Sheriff Court appeal entered into in January 2009.
4. The school is situated 13 miles from her home. Her mother takes and collects her. She stays over at school one night each week. She has been able to go on weekends away and trips. The respondents have met the fees associated with the young person’s attendance at this school from January 2009.
5. Since the commencement of the Autumn term on 10 August the school has met the young person’s fees and has agreed to do so up until 17 September.
6. The young person has been happy at the school. It has been suited to her additional support needs and she has made progress.
7. There are 6 young persons in the young person’s class all aged 18 or 19 who have high level support needs.
8. The young person’s developmental level is around 7 years. The factors giving rise to her needs and how these needs are met are set out in her co-ordinated support plan. The young person has moderate learning difficulties bordering on severe learning difficulties. She has a history of seizure disorder, although she has not recently suffered fits. She is diagnosed as having attention deficit hyperactivity disorder and features of an autistic spectrum disorder.
9. The young person’s understanding of language is such that she was able to engage in planning for her future using a person centred planning tool.
10. It is difficult for the young person to express herself and understand the meaning of what others are saying to her. She has limited understanding of other people’s feelings and lacks the skills needed to solve problems with which she is confronted. Her self care skills are limited and require constant monitoring.
11. The young person finds it particularly difficult to form or maintain any kind of relationship with people of her own age.
12. The young person’s behaviour, in and out of school, can be challenging and she has difficulty dealing with her emotions. Since attending the specified School her behaviour has improved and she is more able to express herself and less prone to angry outbursts.
13. The young person is capable of being lively, happy, friendly and co-operative. She can and does relate positively to those she knows well and is helpful and supportive to younger children. She enjoys swimming. Since 2009 she has had a job at a nearby ASDA store organised by her mother. Originally it was for four hours on a Sunday and now for three hours. It involves stacking shelves and tearing up boxes for which she is paid. She attends both school and her job regularly. Much of her leisure time is spent with her mother.
14. The specified School has, by letter dated 20 April 2010, made an offer of a place for the young person for a further year for the full school year August 2010 to June 2011. The young person’s parent wishes to accept this offer.
15. The young person has already completed her thirteenth year in full time education. Some of her previous schooling was subject to interruption. She has now embarked on a fourteenth year from 10 August. Had she remained at her special public school she would have left school in June 2010.
16. Her class at the specified School was composite in that two pupils in the same class to whom the young person related most closely have left the class and gone on to other destinations.
17. At school she relates most closely to the staff and to the teaching assistants who are almost the same age as she is rather than other pupils in the class.
18. A co-ordinated support plan (CSP) was opened for the young person on 29 October 2007.    
19. There is a related reference lodged in respect of the authority’s failure to timeously review the CSP. This reference is not opposed as the review was not timeously completed.  A revised plan was issued with letter dated 15/05/2010. The issue of this plan gave rise to the current reference.
20. The co-ordinator of the plan is now the Social Worker. The previous co-ordinator, the Educational Psychologist, has left the respondent’s employment. The Educational Psychologist had developed the person centred planning tool to which the young person contributed at A42 – 45 on 19/01 and 02/02.
21. Meetings in respect of planning for the young person have been held at various other dates. Minutes of the meeting held on 16/03/2010 disclose that the “meeting agreed that the young person should stay at the specified School until summer 2011.” Letter from the specified School dated 20 April 2010 states that “The Education Department have indicated that they will cease to fund this placement upon The young person’s 18^th birthday.” 
22. Development of any post school transitions is ongoing. Any amendments to the plan and work on post school transition have been delayed as a result of the transitions Social Worker, and her Social Worker, being denied access to interview the young person after an initial meeting at the school due to the young person’s mother’s opposition to the young person being interviewed outwith her presence. The young person’s eligibility criteria to access adult services still require to be assessed. This might include placement at a school but it would not be a decision for the education authority.
23. The young person’s own views are that she is consistently opposed to remaining at the specified School. She has also expressed the view that she does not wish to attend college. A placement at Shelter arranged for her broke down as she did not wish to return and her views in this regard were respected.

6. Reasons for Decision

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The appellant’s position with regard to the co-ordinated support plan was set out in the reasons attached to the reference (T25). As the authority noted in their response at R6 and R7, they were prepared to negotiate on the contents of the plan. This negotiation had not taken place owing to the illness of the representative at a crucial time in the progress of the reference. It is regrettable that this reference was not capable of agreement prior to the hearing especially as the currency of the plan is very short, just two months, following the hearing.

The solicitor for the authority submits that the nature of the changes sought are not sufficiently specific to be implemented and we are conscious that in view of the young person’s age it may have a fairly limited school application but could be helpful in signposting work on transitions. In particular at R7 in the response, it is highlighted that the Appellant’s criticism of the plan was limited to her commenting that it was not detailed enough despite indicating in February that the plan could be less detailed in view of the detailed content of the IEP.

However, having considered parties’ submissions and the evidence as a whole, the Tribunal decided unanimously that the authority should make the further minor amendments to their final revised version of the plan as indicated above. It may be that negotiation could have achieved this but it did not seem likely that negotiation, at least during the two days of hearing, would achieve this end given the poor relationship between the Appellant and the social work department.

The amendments which the Tribunal considers appropriate should be made to the original co-ordinated support plan (T28 - 38) are incorporated in the above decision.

It was, perhaps, significant that after the Educational Psychologist left the authority that the Social Worker was named the co-ordinator. We understand why a person from Social Work may be a more appropriate co-ordinator during transition from school to an onward destination but it did not appear that she had been trained, or at least adequately so, and the support which it was indicated she had received to undertake this role was relatively perfunctory. It was a matter of concession that the Transitions team within the authority had been established fairly recently and had a large case load. It is understandable if resources were allocated onwards the needs of those who had indicated a positive preference in relation to a post school destination. The supports which the young person had previously received were all either delivered as part of the school resources or had ceased. The Speech and Language Therapy report, for instance, at page A10 and A11, indicates that such input was appropriate for review and provision of advice only and that assessment had not revealed any average age related progress since testing the previous year.

Despite the hearing we were no clearer either about the young person’s wishes for post school transition or those of her mother. It appeared that the Appellant was resolved to secure a further year’s schooling for the young person and did not indicate in her evidence that she was planning beyond this at the present time. It appeared that her approach was to fail to engage in discussions about any other options in the hope that her preferred option would emerge as the only possibility.

The respondents were hampered in their efforts to produce the plan in the detail they would have wished by the difficulty engaging with the Appellant and her reluctance, if not refusal, to allow direct access to the young person to permit discussion to take place. Although the authority could be criticised for their failure to observe the timescales for reviewing the plan, they were understandably reluctant to issue a plan which they would seek to impose on the young person and her mother without securing their comments and constructive input. Nevertheless their statutory obligation to issue a co-ordinated support plan, if they were satisfied that the criteria could still be met, far outweighed their perceived need to have parental “sign off” for the terms of this document. Section 9 of the Act does not require that the parent’s or child or young person’s views are included or that there is agreement. The document is not a contract between the authority and the parent but a plan based on the best evidence available to support the young person to ensure that they benefit from the support provided. Section 12 (2) of the Act provides for a duty on the authority to seek and take account of the views of the “young person or if the authority are satisfied that the young person lacks capacity to express a view, the young person’s parent.”

In this case the Appellant had taken steps to have herself appointed as the young person’s guardian but this does not mean that the young person’s own view could be capable of being ignored, particularly as she is well capable of expressing her opinion. However once the authority has tried to seek and take account of those views, if they are not forthcoming, this cannot justify delay in issuing the reviewed plan.

The Tribunal does not consider it necessary to give detailed reasons for its decision in respect of the proposed changes as these are cast in terms which permit parties to reach agreement on the detailed wording. The Tribunal appreciated that a co-ordinated support plan is designed to enable children or young people to work towards achieving their educational objectives, must describe the additional support required to achieve the educational objectives stated, and must state the “persons” who should be providing the support. In view of the very detailed IEP and the educational objectives set out we do not consider that these require to be repeated and the reference to the IEP in the plan is adequate. We have observed the difficulties in the authority identifying an onward destination for inclusion in the plan in view of the strong preference for a further year of school education indicated by the parent and the apparent lack of constructive dialogue about what options could be explored beyond that.

In the ordinary course we do not consider that the inclusion of the parent in the column for persons providing support is a matter which would merit a reference to a Tribunal. It is perfectly plain that there can be no compulsion, statutory or otherwise on the Appellant to actually deliver or assist in delivering any of the objectives but in view of her enhanced position as both parent and legal guardian it would be imprudent to refrain from reflecting the potential of her key role in any co-ordinated support plan, particularly during a transitions year.  It is a matter for the Appellant the extent to which she is able or willing to participate in this role but the Tribunal hope that she will endeavour to work in a spirit of partnership with those delivering support rather than in an atmosphere of non-co-operation.

The decision of the previous Tribunal in 2008 which addressed the then content of the young person’s co-ordinated support plan commented on the importance of reflecting relationships in the plan They said “it seemed to the Tribunal that the young person’s co-ordinated support plan should contain provisions that could help resolve the differences between parent and school.” Since the young person has attended the specified School since 2009 those differences now focus on the authority and the social work department in particular rather than the public school then referred to. Whatever the shortcomings of the authority in observing timescales and the inexperience of the social workers assigned, it did appear to the Tribunal that they had tried to achieve progress in spite of the Appellant’s lack of co-operation which at times bordered on hostility. Sadly it was clear that the young person is not unaware of this conflict. T62 shows that the young person is “fed up of the situation and people arguing all the time”.