ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/07/2008
Gender: Male
Age: 13
Type of Reference: Content of CSP
1. Reference
The father, (“the Appellant”) lodged a reference dated November 2007 under section 18(1) of the Education (Additional Support for Learning) (
2. Decision of the Tribunal
The Tribunal find in favour of the Appellant and require the Respondent (the Education Authority) to make the amendments to the CSP referred to herewith, within four weeks of this written decision, all in terms of s19(4)(b) of the Act.
3. Preliminary Matters
The Tribunal was provided with several documents by both parties, well after the case statement period had ended and shortly in advance of the Hearing. Parties sought to lodge these documents late. Some of these had been provided in response to matters covered within a conference call in advance of the Hearing. Others did not fall into that category. There were also late statements. The parties were asked to state their position in relation to the documents that the other sought to lodge. Objection was taken by each party to certain of the documents that the other sought to lodge. The Tribunal therefore had to consider whether to allow the late lodging of these documents.
Having had regard to Rule 29(2) of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 and given that the Appellant did not oppose the late lodging of the statements by specific people, the Tribunal allowed those. Thereafter the Tribunal, being satisfied that, in all the circumstances it would be fair and just to do so, allowed the lodging of further documents in terms of Rule 34 of the same Rules.
4. Summary of Evidence
The Tribunal considered the papers in the bundle which consisted of:
1. Copy of the reference to Additional Support Needs Tribunal for
2. The Respondent’s case statement and submissions,
3. The Appellant’s case statement and submissions,
4. The written submissions provided by the Appellant in June 2008.
5. The oral submissions made by both parties in June 2008.
5. Findings in Fact:
1. The child is aged thirteen. He lives with his parents.
2. The child has spherocytosis, a condition where there is a high turnover of red blood cells, which are smaller than normal.
3. The child has additional support needs that impact on his progress in school. The difficulties are in the areas of language, cognition, motor control and sensory modulation.
4. The child is presently an S1 pupil at a mainstream secondary school. It has a support base for children with autistic spectrum disorder (MICAS- Mainstream Integration of Children on the Autistic Spectrum). It also has an ASN (Additional Support Needs) base.
5. The child obtains additional support in a class of twelve youngsters. Although the child does not have a diagnosis of autism he presents with some features of a child on the autistic spectrum. He spends four periods a week whilst at school within the ASN base. He also did belong to a lunchtime group run by one of the teachers from the MICAS base. The child does not actually live within the catchment area of the school but attends there due to a successful placing request made by his parents.
- The child meets the criteria for and has a CSP and the Appellant disagrees with the terms of the CSP.
- The child has been known to the local NHS SALT (Speech and Language Therapy) service since 1998. In the past he has received direct therapy and school staff have received consultative input.
- Since April 2000 the child has been assessed for OT (Occupational Therapy) input by OT’s from the local Children’s Hospital.
- The Appellant obtained private assessments in respect of the child from
- Both private assessments disagreed with the conclusions of the NHS in connection with the areas of SALT and OT.
6. Reasons for decision
The Tribunal considered all of the evidence indicated above and the oral evidence of three witnesses’ and the Appellant. The Tribunal was satisfied that there was sufficient evidence available to it to reach a fair decision on the reference.
There were many parts of the CSP of which the Appellant was critical. However, the main areas of disagreement surrounded the level and nature of support and input that the child is to receive from SALT and OT. As the Appellant wished to see the level and nature of that support contained within the CSP it was necessary for the Tribunal to form a view on these matters.
The Tribunal was impressed by the Principal Teacher Support for Learning at the child’s school. She is clearly a highly capable and committed individual. As the Appellant makes clear, her leadership is one of the main reasons that the child is able to be accommodated within mainstream school. The Appellant has no dispute with the school, only with the Education Authority.
The doctor who gave evidence has known the child for 10 years. He still sees him regularly. He indicated that there was “an expectation that health professionals attend meetings in relation to children with a CSP”. He was happy with the progress that the child has made in relation to school. In relation to therapy provision for the child he favoured a programme incorporated into his normal school day and essentially delivered by teachers. He stressed the importance of the learning environment and context while emphasising the importance of the therapists’ on-going support for school staff.
The Head of Planning and Policy for Services to Children and Young Persons in the authority was also a witness. Her evidence was relatively lengthy. The other person to give evidence was the Appellant. Both of their relevant passages of evidence are dealt with below.
There were various attempts made, throughout the days of evidence, to focus the areas of dispute and to try to obtain a clearer understanding from the Appellant as to his concerns. (Eventually the Appellant proposed twenty specific areas where he wished to see amendment.) The original papers submitted with the reference disclosed a long history of dispute between the Appellant and the Education Authority in relation to therapy provision. We were told of areas of dispute dating back to 2001, including an appeal to the Scottish Ministers that was upheld but which apparently resulted in no remedial action. The position of the Education Authority was that such matters were of no relevance to our present considerations. The position of the Appellant was that there was a “litany of failure” on the part of the Education Authority in respect of the child. Although he acknowledged that many of the issues were in the past he said that they were “indicative of the general approach taken to the child’s case by the relevant authorities.”
The Tribunal found that they were not able to dismiss the background as wholly irrelevant. On the other hand they were not able to conclude that the fact that there had been past failings, as described by the Appellant, automatically meant that there were failings at the present time.
The Tribunal did not consider that it was, broadly speaking, for it to be left in the position of essentially re-writing a CSP for a child whom they knew only through the reports and descriptions of him by others, including his parents. (The Appellant advised us that he had taken the decision, in the child’s interests, for him not to attend the hearing as he thought it would cause the child undue anxiety). However, during the course of the Tribunal process both parties had agreed that it would be useful to seek the Appellant’s specific input as to where he sought to have changes made to the CSP. Therefore, faced with the situation here, whereby twenty proposed points of alteration were made by the Appellant, we could see little alternative but to work through these and make a decision in respect of each of them.
Therefore, looking at the alterations proposed by the Appellant, we decided on each point, as follows:
Point 1
We agreed with the Education Authority that this insertion was not supported by evidence.
Point 2
This point was withdrawn by the Appellant.
Point 3
We agreed with the Appellant’s criticism of this paragraph. We agreed that the amendment to this paragraph.
Point 4
An insertion in these terms was agreed by the Education Authority.
Point 5
Parties were unable to agree on the best method of summary of the OT assessment, carried out in December 2006. The Tribunal decided that the information given in the top section on page T77, as amended on that page, was sufficient to fulfil the requirements set out in paragraphs 49 and 50 of the Code of Practice.
Point 6
This point did not require a decision to be made.
Point 7
This point was withdrawn by the Appellant.
Point 8
This point dealt with the first of four main areas of dispute in relation to the CSP, being the attendance of NHS professionals at meetings in respect of the child and his CSP and their assistance in setting targets. The Appellant’s position was that such professionals should be required to attend. The Education Authority’s position was that they could not compel the NHS professionals to attend their meetings; the most they could do was to request their attendance.
During the course of the evidence that we heard this area was dealt with. The Appellant’s evidence was that no representative of SALT had been in attendance at the CSP meeting in November 2007 or in March 2008. He gave evidence that input was needed from those with professional qualifications into the child’s CSP targets, on a much more regular basis. His evidence about the lack of attendance at meetings by SALT and OT was uncontraverted.
The Tribunal were very concerned that a child such as the child in question, who had had regular and relatively intensive SALT and OT involvement at one point in his life, was still receiving support for his language delivered by ASN staff and had continuing issues relating to balance and to gross and fine motor skills, was now in a position where no professional in those fields was even attending important meetings about him.
The Tribunal considered that the Education Authority needed to be proactive in this area. If a practice has arisen where invitations are issued to colleagues in SALT and OT purely as a formality, with no expectation that they will attend meetings then such a practice is unsatisfactory. That did appear to be the position disclosed in evidence.
The Tribunal decision is that the CSP should be amended in this area to comply with the wording on page T78. In stating that request the Education Authority should formally approach the NHS trust, stating that they consider such attendance to be help required in terms of section 23(1) of the Act. That, in turn, requires the health board to comply with such requests, unless they are able to invoke the exceptions contained in s 23(3).
Point 9
We decided this was an appropriate insertion as an educational objective.
Point 10
We decided that the same insertion as that made in point 8 should be made here for the reasons referred to above.
Point 11
This is the second of the four main areas of dispute.
The position is different in respect of SALT and OT, with OT being dealt with at point 15 below.
SALT-
The child was assessed by the health board’s SALT Department in August 2007. Part of their conclusion was that the child did not require regular, direct SALT input at that time. This conclusion is contradicted by an assessment carried out at
The child had direct therapy at primary school during p1-p5. It was halted in February 2006. The Appellant’s position in evidence was that that was despite a continued need for it. According to the Appellant, that was the child’s last direct involvement with SALT.
We heard much of the fact that SALT in schools in the authority is now delivered by way of a “rotational model”. This was introduced, according to the doctor’s evidence, due to the lack of availability of SALTs in the region. It involves the SALT team moving from one school to another, on a rotational basis. It effectively means a short burst of fairly intensive SALT input, followed by no direct SALT provision within the school until their turn comes around again. The Tribunal had some difficulty in establishing from any of the witnesses how long a school would go until each turn came round. It appeared to be anything from one to two years. We were told by the Head of Planning and Policy for Services to Children and Young Persons that the child’s school was to be visited in a rotation beginning June 2008. However, the Principal Teacher Support for Learning who concluded her evidence on in June 2008 seemed unclear as to when that was to start. The Tribunal were unable to obtain clarity as to how the school summer holidays would affect the rotation, given that each rotation is for a six week period. We found this to be a wholly unsatisfactory state of affairs.
The Principal Teacher Support for Learning’s evidence was that SALT had provided worksheets for ASN staff to work through with the child. These were provided when the child started school. The school would only request review of the child, outwith rotation, if he was “struggling”. She, in evidence, agreed that as she was not a SALT, she could not be completely confident that she would be aware of all factors that might make qualified SALT necessary or advisable for the child at any time.
The Appellant’s position in evidence was that when the child was assessed for SALT it was made clear to him and his wife that assessments were being carried out with a predetermined outcome, namely that those children would not require individual support. He expanded upon this in his submissions. These were to the effect that the child’s SALT needs were assessed according to the availability of therapists rather than on the basis of his support needs per se. He made the point that the rotational model of SALT means that the additional support needs are not identified independently of the resources available.
When assessed at Bladon House, the child was a 12 year old boy, functioning in terms of speech and language, broadly at the level of an 8 year old. He required direct SALT in primary one to primary five. The Bladon House report makes several conclusions that the NHS therapist agrees with, save for the conclusion that direct involvement with the child is required. Against this background the Tribunal’s view was that the CSP requires to take account of the definition provided in s1(2) of the Act, namely the “development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.” We did not consider that the current SALT provisions within the CSP assist that development. In reaching this conclusion we preferred the evidence and submissions of the Appellant. .
We decided that the CSP should be amended to “request direct assessment twice each year by a SALT of the child’s progress in both receptive and expressive language, notably in relation to accurate phonic discrimination, listening and attentional aspects to facilitate auditory processing and understanding, intelligibility of oral expression and social appropriateness of communication. These assessments should then be used by the SALT in developing appropriate advice, guidance and materials for ASN staff and subject teachers.” This should be done in the manner described in point 8 hereof.
Point 12
The wording referred to in point 8, above, is to be inserted here; for the reasons given in point 8, above.
Point 13
The words, “…and gross and fine motor skills to enable (the child’s) physical development to reach its fullest potential”, to be inserted.
Point 14
We consider it is appropriate to mention the PE teacher and the member of ASN staff with a specialism in motor skills. We further consider that a qualified PE teacher should be enabled by any additional training necessary, to address the curriculum and support needs of pupils in PE classes to a greater extent than evidenced in the two reports from the PE teacher to date.
Point 15
OT-
This relates to the third and fourth of the main areas of dispute, namely the question of whether there should be direct OT therapy and the nature of support offered by the NHS. They offer a functional skills based therapy rather than the sensory integrative approach that the Appellant believes would benefit the child.
The child was assessed by the local health board OT Department in December 2006. Part of their conclusion was that regular OT treatment was not required. That contrasted with the conclusion within the Bladon House assessment report already mentioned. It concluded that the child required “an OT programme……a mixture of both direct and indirect intervention with annual review, target setting and evaluation.”
The child has never received regular OT support. The Appellant’s position in submissions was that the NHS therapists had never considered the scope for promoting the child’s development, nor the possible outcomes, through a programme of regular OT intervention and that their decisions were based on consideration of resources rather than on assessments of children's individual needs and unmet potential.
When asked about OT assistance and the child’s progress in PE the Principal Teacher Support for Learning gave a telling piece of evidence. She pointed out that every child would have strength in different areas of PE, which operated on six week cycles. She pointed out that the child would be good at trampolining when that came round, as he had as he had already had support in learning to use a trampoline in a club and been encouraged by his parents. She was doing so in an attempt to highlight the fact that the child was not good at ball games as that was not where his strengths lay. However, the Tribunal was left wondering what progress the child might also have made in areas other than trampolining, had more support been made available to him in them. Again, the Tribunal felt that there was a requirement for regular overview of the child by a qualified OT. We decided that the most appropriate way to ensure this was to insert the words “An OT led programme for the development of postural control and motor-planning skills and the further development of sensory modulation. This would involve a mixture of both direct and indirect intervention with at least twice yearly direct OT assessment, target setting and evaluation.”
Point 16
An insertion in these terms was agreed by the EA.
Point 17
The wording detailed at point 8 to be inserted here. In addition the following to be inserted: “An OT led programme for the further development of the child’s sensory modulation as applied to concentration and distractibility.”
Point 18
This point was withdrawn by the Appellant.
Point 18A
This is the insertion of the words “SALT to assist with communication, support strategies to support the work of school and other colleagues” proposed by the Education Authority. This insertion was agreed by the Appellant and should be made.
Point 19
The wording detailed at point 8 to be inserted here.
Point 20
The Tribunal did not wish any alteration to be made in this area.
Separately, the Tribunal was asked to enter a stipulation about the child’s free school transport into the CSP. The Tribunal, having regard to the Education Authority’s transport policy, did not consider this to be necessary as the child plainly comes within a group identified in the policy as entitled to this provision.
In conclusion the Tribunal found the Bladon House report and the Appellant’s arguments to be persuasive. The absence of any persuasive evidence to support the rotational model for SALT and the Head of Planning and Policy for Services to Children and Young Persons’ evidence did not promote confidence in the system. Our interpretation of the witness statements from the SALTs and OTs within the local NHS was that they suggested that the provision they make is influenced by the resources available, document A88 added to this interpretation, as did the Appellant’s evidence. Our duty and what should be the Education Authority’s duty, to consider the individual child, as encapsulated by the 2004 Act is uppermost in our minds when making the above decision.
