ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/02/2009
Gender: Male
Age: 8
Type of Reference: Contents of Co-ordinated Support Plan
1. Reference
“The Appellant” lodged a Reference with the Tribunal under Section 18 of the Education (Additional Support for Learning) (
2. Decision of the Tribunal
In terms of Section 19(4)(b) of the Act, the Tribunal requires the Education Authority to make amendment of the information contained within the CSP.
The amendments required are:-
i) Those already agreed between the parties as reflected within the joint document produced in advance of the Hearing on 10 June 2009 which is the document marked J1‑17. [This document reflects the CSP with agreed amendments (all in black type). This document also contains blue highlighted sections and red highlighted sections. The blue highlighted sections were matters which the Appellant sought to have incorporated within the CSP. The red highlighted sections were matters which the Education Authority sought to have incorporated within the CSP.]
ii) The further amendments agreed between the parties on 10 June 2009 and intimated orally to the Tribunal. These relate to the disputed matters highlighted in blue and red within the document marked J1‑J17. These are:-
a. On page J5 deletion of the words in blue in the third column, namely “under the direction of NHS AHPs” and the addition of “NHS (name) AHPs” at the foot of the persons listed within column 3 being the persons providing the additional support.
b. On page J5 deletion of the second blue highlighted paragraph within the second column commencing with the words “Daily programme …”.
c. On page J5 deletion of the words highlighted in red at the foot of the second column commencing with the words “once the child is …”.
d. On page J6 the incorporation of the first blue paragraph within the centre column, subject to the insertion of the word “relevant” before the word “physiotherapist”.
e. On page J6 deletion of the second paragraph within the centre column highlighted in blue commencing “Regular hands-on …” and replace with:-
“Regular physiotherapy from the Physiotherapist once the child is attending school 3 days per week: 2‑3 times a week at home for 2‑3 weeks in December 2009; then at school, 2 times a week for 2‑3 weeks in January 2010; followed by weekly physiotherapy, to be reviewed after 12 weeks.”
f. On page J6 deletion of the third blue paragraph within the centre column commencing “Weekly hydrotherapy/…” and replace with:-
“Assessment for hydrotherapy will be undertaken and hydrotherapy provided if indicated by that assessment.”.
g. On page J6 deletion of the last sentence of the last paragraph within the centre column commencing with the words “One to one…” and replace with:-
“Weekly individual therapy by OT commencing January 2010, to be reviewed after 12 weeks.”.
h. On page J7, paragraph 4, within the centre column the highlighted blue section commencing “… along with cross leg…” should be incorporated as amended to “… along with independent sitting and rolling.”
i. On page J8/J9 the highlighted red section will be incorporated subject to the addition of the words “reviewed and” following the word “and” and prior to the word “timetabled” at the foot of page J8.
j. On page J11, paragraph 4 the highlighted blue section is to be incorporated under deletion of the word “other”.
k. On page J12 within paragraph 3 the words (in black, blue and red) “…in August 2009 (completion by end August 2010/27 May 2010)” will be deleted. Within the same paragraph the red and blue sentences will be replaced with:-
“Initially centre staff will take the lead in training school staff in close liaison with AHPs. Subsequent to the 3 day attendance commencing at school, AHPs will take the lead in the training of school staff in collaboration with centre staff.”
l. The five phases highlighted in red on pages J12 and J13 will be incorporated.
m. The blue highlighted paragraph at the foot of the second column on page J13 will be deleted.
n. On page J14 at the top paragraph within the middle section the words (in black, blue and red) “take approx 10 12 months,” should be deleted and thereafter the following word “including” will be replaced with the word “include”.
o. On page J14 within the list of Staff training the highlighted blue words, namely “Facilited curriculum” will be replaced with “Facilitating access to the curriculum” and incorporated.
p. On page J14, being the last paragraph of the middle section of section 7 of the CSP, the blue highlighted words will be deleted. The red highlighted words “Periodic placement at the centre (4 weeks per annum)” will be incorporated but the remainder of the red highlighted section will be deleted.
Following the Hearing of Evidence in relation to the two remaining disputed parts of the CSP, the Tribunal does not require the Education Authority to make any further amendments and; for the avoidance of doubt therefore, the outstanding Disputed Issues between the parties as they appear, in blue, within the document numbered J1‑J17 are not to be incorporated within the CSP, namely:-
i. The fifth paragraph within the second column on page J5 commencing with the words “Supported stepping…”;
ii. The words provided as an example highlighted in blue added to the end of the third paragraph in the second column of J7 commencing “e.g. supported symmetrical…”.
3. History of Reference and Procedure:
This reference to the Tribunal has been outstanding for some considerable time. The Reference was earlier Case Managed by another Convener with an original Hearing set down on 14 November 2008. That Hearing was postponed under Rule 30.
The Appellant subsequently commissioned Independent Expert Reports from a Speech & Language Therapist, a Physiotherapist and Occupational Therapist (being the documents ultimately lodged A172‑A197).
A 3 day Hearing had been fixed to commence 29 April 2009. On that date the Educational Authority made a Motion to postpone because they wished to commission their own similar Expert Reports. This is something which they had appeared to be in two minds about for some time. On balance, the Tribunal felt obliged to accede to that Motion and given the earlier delays found it necessary to make specific Directions in terms of Rule 15; all of which can be found within the Order of the Convener dated 29 April 2009.
The Reference was carefully Case Managed with a number of Conference Calls taking place (10 March, 27 March, 6 April, 27 April, 1 June and 8 June). The Appellant had been directed to lodge a draft CSP with the amendments which they sought (which appears at A202‑A216) which ultimately advanced matters and indeed ultimately led to the jointly prepared CSP with revisals agreed and issues outstanding produced at J1‑J17.
A number of witnesses had been identified to give evidence. However the Tribunal, having had an opportunity to consider the matters remaining in dispute, the terms of all of the documents and reports lodged and; having regard to principles of good practice and the Code of Practice, indicated to parties, on a without prejudice basis to the hearing of any oral evidence thereafter, the provisional views of the Tribunal so far as the remaining Disputed Issues were concerned.
This provided an opportunity for the parties to enter into further discussions and negotiations.
This ultimately obviated the need for any oral evidence to be heard from the parties’ health professional witnesses. The remaining dispute between the parties consisted of two disputed paragraphs which the Appellants sought to have incorporated within the ‘Additional Support Required’ section of the CSP; within Section 1 on pages J5 and J7 - as referred to within Section 2 of this Decision.
The parties were agreed that the evidence could be constrained to the oral evidence of the Appellant only, with some comments being made by the Education Authority in response. Brief submissions were made thereafter which were constrained to submissions on the facts. The parties agreed that the Tribunal would, in effect, be exercising their discretion on the facts as they presented themselves and there were no relevant issues of law to be carefully considered.
4. Summary of Evidence:
The Tribunal considered the substantial bundle of evidence for both parties. The Tribunal also heard oral evidence from the appellant which the parties agreed was the only oral evidence required for the Tribunal to ultimately determine the outstanding dispute between the parties.
5. Findings in Fact:
1. The child was born in 2000. He is currently 8 years of age. He resides with his mother, the Appellant.
2. The child has quadriplegic cerebral palsy. This impacts upon inter alia his communication skills, physical skills, social skills and his educational and cognitive development.
3. The child is currently educated within an Independent Specialist Grant-Aided Special School. Such resource is also known as the Centre. The child has attended there since 10 May 2007. The centre follows a conductive education curriculum.
4. The child is a regular attender at the Andras Peto Institute of Conductive Education and College for Conductor Training situated in
5. On 29 November 2007 a Decision was made to place the child at a
6. The transfer of the child to Primary School will take place in a phased way. There will be a period of transition which will take place throughout the academic year 2009‑2010.
7. On 6 March 2008 a draft CSP was issued by the Education Authority. The Appellant was unhappy at the content of this CSP. It was accepted by the Education Authority at that time that there required to be more detail and further requests were made to professionals.
8. A Multidisciplinary Meeting took place on 11 June 2008. The final CSP was issued by the Education Authority on 8 August 2008.
9. There have been limitations with regards to the assessment of the child by relevant NHS Allied Health Professionals. There are guidelines for collaboration between NHS and his current school. Although there remains liaison there is a temporary disengagement of NHS Allied Health Professionals with those pupils at the child current school.
10. The Appellant and the Education Authority commissioned Reports in the field of Speech & Language Therapy, Physiotherapy and Occupational Therapy. Such Reports have clarified the nature of supports which he will require to fulfil his educational objectives.
6. Reasons for Decision:
The Tribunal carefully considered all of the evidence available. The Tribunal used its special expertise and knowledge of good practice in determining the Reference. The Tribunal had specific regard to the Code of Practice.
There were, ultimately, as referred to within Section 2 of this Decision, only two matters upon which the Tribunal required to make a Decision.
The Tribunal was not satisfied on the basis of the evidence available that the two paragraphs earlier made reference to within this Decision, within Section 1 of the CSP, at pages J5 and J7 ought to be incorporated.
The further proposed incorporations were:-
1. Supported Stepping (including Side Stepping) – to be monitored closely as there is an increase in muscle tone. Continual evaluation and close discussions with Orthopaedic Surgeon.
2. e.g. Supported symmetrical lying on a wedge in a variety of positions prone, supine and side lying [proposed to be added to the existing agreed paragraph regarding Regular postural changes].
The Tribunal carefully considered the oral evidence of the Appellant. The Tribunal considered all of the relevant Professional Reports including the Peto Institute Report A198‑A201.
It was accepted by the Parent’s representative on behalf of the Appellant that there was, in fact, no relevant professional assessment to support the incorporation of such References within the CSP.
In fact, having regard to the terms of the Report by the Team Leader, Paediatric Physiotherapy, being document R190‑R195, the Tribunal concluded that there had not, to date, been a specific assessment of such activities. In particular at pages R193 and R194 of said document issues are raised regarding the potential disadvantages of such physical activity.
The Appellant advised that such activities are currently undertaken at home. Given all of the evidence available it would not be appropriate to place an obligation upon the Education Authority to provide such activity at this time. Further assessments may of course take place in due course in relation to this. This may also require health and safety assessments in the context of such provision being made within Primary School.
