DECISION OF THE TRIBUNAL

 

Reference:                              D_01_2011

 

Gender:                                   Female

 

Aged:                                       5

 

Type of Reference:                 Contents of CSP

 

 

1. Reference

 

The Appellant lodged a reference on 10 August 2010 under section 18 of the Education (Additional Support for Learning) (Scotland) Act 2004 (”the Act”) on the basis that the Appellant disagreed with the content of the co-ordinated support plan (“the CSP”) prepared by the Authority for her daughter (“the child”).

 

 

2. Decision of the Tribunal

 

The Tribunal requires the authority to make amendment of the information contained in the CSP for the child and to make the amendments detailed herein within four weeks of the date of this written decision all in terms of section 19 (4) (b) of the Act. The amendments required are as follows:

 

That those parts of the CSP which record; the factors from which additional support needs arise; the educational objectives that have been set taking account of these factors; the type of support proposed to help meet these objectives; and the person or agency who will provide that support should read in terms of the draft CSP produced by the Authority as pages R36-R44 of the bundle and annexed hereto subject to the following further alterations to the “Learning Plan” part of the CSP:

 

1. 1. Where in the final sentence of each section of the “Educational Objectives” column there are references to further details in the “Individualised Educational Programme”, “Occupational Therapy Supporting Learning Profile”, “Physiotherapy Supporting Learning Profile” and “Speech and Language Therapy Supporting Learning Profile”, these references shall moved to the  “Additional Support Required” column.
   2. There should be specific reference to KEYCOMM providing additional support in the part of the learning plan in the section headed “Expressive and Receptive Communication”.
   3. In the section headed “Gross Motor” the objective “to improve seating, positioning and balance” shall be added and “ appropriate seating will be provided” should be included in the “additional support required” column.

 

 

 

3. Preliminary Issues

 

·           Conference calls were held on 11 November and 13 December, both 2010. At the hearing on 11 January 2011 there were a number of further preliminary matters.

 

·           The Appellant’s representative sought to lodge late productions. The representative for the Authority did not object and the Tribunal, considering it fair and just to do so, agreed to allow them to be incorporated in the bundle as productions A15-36. The documents comprised a covering letter (A15), the Individualised Educational Programme from December 2010 (A16-23), the feedback from home on the said programme (A24-29) and correspondence on the use of Boardmaker software (A30-36).

 

·           The parties had confirmed during the telephone conference on 13 December that the only part of the draft CSP circulating between them that remained in dispute was the learning plan. The Appellant had produced an alternative to the draft learning plan produced by the Authority as pages A9-13. This draft learning plan was reproduced as pages R55-61 with annotated comments on behalf of the Authority. The Authority’s representative was asked to confirm what his position was in relation to those parts of the draft learning plan produced by the Appellant that were not commented on within pages R55-61 of the bundle. The Authority’s representative advised the Tribunal to the effect that he had issues with the format & wording of the draft beyond the specific parts commented upon and was inviting the Tribunal to direct that a CSP be issued in terms of the draft CSP produced by the Authority (R36-44).

 

·           The Appellant’s representative advised that her client wanted the learning plan part of the CSP to be less vague and that the two key things her client wanted included in the CSP for the child were access to Boardmaker software in the home and access to therapeutic input when the child was not at school.

 

·           Prior to the hearing the Appellant’s representative had alerted the Tribunal that one of her witnesses is a member of the Additional Support Needs Tribunal. The witness is known to two of the members of the Tribunal sitting. The Authority’s representative confirmed that he had no issue with this.

 

·           The Appellant gave evidence last on 11 January 2011 which included evidence on a material matter in terms which could not have been anticipated from the bundle and which was not put to any of the other witnesses. In his submissions lodged on 14 January 2011 the Authority’s representative sought to lodge an email from one of the witnesses addressing the said evidence. The Tribunal considered that they could not consider an unsigned email, that had not been spoken to, but had already agreed that they wished evidence on the said issue raised, which evidence the Appellant should be given the opportunity of questioning. Accordingly a third telephone conference was held on 19 January 2011 that resulted in Authority’s representative being directed to lodge a signed written statement from the witness addressing the particular matter. The Authority’s representative also agreed that the said witness would attend the re-convened hearing date on 31 January 2011 to allow the Appellant’s representative and the Tribunal to question the witness on the content of the statement lodged. A copy of the email signed by the witness was subsequently lodged as production R62-63.

 

·           At commencement of the re-convened hearing on 31 January 2011 the Appellant’s representative asked to lodge further written submissions prepared by the Appellant. The Tribunal adjourned briefly to give the Authority’s representative an opportunity of examining those submissions. After the adjournment the Authority’s representative confirmed that he did not object to the submissions being lodged and they were accepted as an addendum to previously submitted written representations. The Authority’s representative was given an opportunity of commenting on the late submissions.

 

 

 

4. Summary of Evidence:

 

The Tribunal considered a substantial bundle of documentary evidence and heard oral evidence from five witnesses including the Appellant. During a telephone conference on 13 December 2010 it was agreed that the Authority would call their witnesses first. The following details the witnesses on behalf of the Authority and summarises their evidence:

 

·           The Head of Speech and Language services for the Authority Area. She is a registered speech and language therapist and retains a small hands on roll in speech and language therapy (SALT), having conducted a regular session until last year. The witness had discussed the child’s case with the child’s Speech and Language Therapist and studied the child’s file. She stated that children in special schools are supported by SALT on site and the therapy is delivered in conjunction with the teaching staff. Therapy is not just direct but is about strategies that the child and teachers implement in the classroom on an ongoing basis. When children get to the holidays they are very tired and they need the rest and recuperation during the summer gap to consolidate their learning. It is not impossible to provide support if needed during the holidays but it is not a regular thing. Her staff are encouraged to use their annual leave during the school holidays when the need for their service is least. If a therapist considers a home visit is necessary during the school holidays they may have one but it is not normally necessary. If there were concerns a visit from a speech & language therapist per se will not be useful, someone who knows the child & how to work with the child is needed.

            The witness gave detailed evidence on the benefits and use of Boardmaker software. She explained how Boardmaker software was used in schools. She explained that it is a great system and she could understand that the family would find it to be useful at home. The benefits of the system are as a therapeutic tool.  Having said that if there was a need for an image from Boardmaker during the holidays arrangements can be put in place to ensure speech and language therapy could provide the image very quickly if the parents signed up to receive the emails. If the speech and language therapist was not available then arrangements could be made for Keycomm (a multi-agency funded service) to send symbols. The witness considered any request could be dealt with quite quickly; accordingly it was hard to see any disadvantage to the parents in not having the software at home. If the family were going to be away on holiday then SALT and the family could plan ahead and boardmaker is not the only way to produce images. A drawing or an image from the internet or a digital camera is a suitable alternative. There is a potential danger in the family having the software at home as they may think they can “hassle things along more quickly”. The need for new symbols should be occasional. There is a danger parents will cause overload for the child, it is essential to be very careful and to re-assess to ensure the child has a proper handle on the vocabulary taught. SALT require to be involved in how the software is handled, there is a need for dialogue and a child’s progress in developing a vocabulary has to be staged & stepped. The risks of the parents having access to the software at home outweighed any advantage.

            Following the Appellant’s evidence the witness provided further evidence, initially in the form of a signed statement (contained in an email), which had been discussed with the Speech and Language Therapist and thereafter verbally. The witness again expressed concern that the child could be overloaded. It is vital that learning can be applied in all settings that the child encounters and based on school performance she found it inconceivable that acquiring a large symbol vocabulary in the way described by the Appellant could be generalised to all settings. Vocabulary learned should be capable of transfer between home and school. SALT very carefully plan and “scaffold” vocabulary building through frequent use of the word and the context of the word. They ensure that the child learns the word and is able to use it again in all settings. By supplying the child with so many symbols that the child is not learning, as described by the witness, there is a real risk of overload and the inability to transfer vocabulary from home to school can confuse and frustrate the child.

 

·           The Head teacher of the school. She has been in post since May 2010. Prior to that she was a Deputy Head teacher in a secondary school for approximately 7 years during which time she was responsible for children with additional support needs. She described the school as being one for pupils with moderate learning difficulties with some having more complex needs. Approximately 40% of pupils in the school are autistic. The school has 5 classes of 10 pupils and one of 8. She explained the involvement of other professionals, speech & language therapists, educational psychologists and physiotherapists in the school. SALT will as a matter of course input to school reports, school review meetings and parental consultation. They will provide training to staff although there has been none since she arrived in the school.

She described the child and explained that she had settled well into the class routine. Assessment of the child is ongoing within the class & there are ongoing meetings with the speech & language therapist and occupational therapist that inform the provision made for the child.

            She explained that she is developing a “parents’ room“ in the school to enable parents to meet, network, have access to resources they don’t have at home and that she was keen to have Boardmaker accessible within the room. The intention would be to give parents an ability to print off Boardmaker symbols although if the use of resources in the room became too expensive she may have to look at how it is funded. She considered that in the ideal world it would be good for every parent to have access to Boardmaker and training in its appropriate use.  The same Boardmaker symbols should be used for every child in the school. While she considered there were concerns that parents could overload a child if given unrestricted access she considered training on appropriate use could address that issue although once people are provided with the knowledge what they do with that knowledge is up to them.  The witness indicated she would defer to the Head of Speech & Language Therapy on whether the risks of parents overloading a child outweighed the benefits of home access but she was clear that parents needed to have access to the Boardmaker images but there was no need for them actually to have the software if other systems were in place to ensure images were obtainable.

            The witness had primarily drafted the draft CSP with input from the Educational Psychologist and therapists. She considers that the draft CSP in circulation describes where the child is at just now and all things that are in the CSP will help the child to learn in the classroom environment in accordance with the curriculum for excellence. Consequently in the witness’ view there was no need for the curriculum for excellence to be specifically listed as an educational objective.

 

The following details the witnesses heard on behalf of the Appellant and summarises their evidence:

 

·           The Speech and Language Therapist. She has worked in the NHS since 1979, previously as a nurse before retraining as a speech & language therapist, qualifying in 1999. She has a degree in speech and language therapy and had worked as a speech and language therapist in Edinburgh since 1999 with the exception of two years working in Glasgow.

The witness spoke about her work in the school generally and the particular work she undertakes with the child. She has one to one time with the child every week (unless the child is not at school as during recent bad weather) and is available for group sessions, aiming for two per week. The child has skills she has previously developed and she has to spend time with the child to build up a relationship with her so that the child shows the witness the skills she shows to her mother. She indicated that the child’s mother advises that the child has spoken and has a significant vocabulary but then lost the ability to speak so the child’s retrospective knowledge outweighs her expressive abilities. After a parents’ meeting she felt she needed to visit the family at home. This was not an unusual thing for the witness to do, when circumstances change in a child’s life she responds to what is happening. She would do a home visit again if something significant changed but there would need to be a purpose to it. If it is not needed then she was unsure why she wouldn’t do it for others.

The witness spoke to her relationship with the teaching staff in the school. She discusses matters with the teachers not just during team meetings but also in the corridors or the coffee room. Teachers use her in different ways depending on their experience; the primary one teacher has known the witness for a long time so already knows the answers to some questions. Where possible she attends reviews, contributes to the setting of IEP targets and contributes to reports, these tasks being expectations of her role.

In relation to the use of Boardmaker software at home she considered the advantage of having it at home would be to replace a lost symbol. However she spoke at length on why, in her view, home access to Boardmaker software was not appropriate. When SALT decides what symbols are going to be used a lot of thought goes into it, and the same symbols are used in the whole school. If the parents are choosing symbols then there will be symbols that the school doesn’t know. It is not a problem if there is the occasional difference but if masses of different images are created at home that will create problems with change. She couldn’t say definitively whether there would be a problem for the child but changing symbols does cause a problem for other children. As the school and SALT can ensure that new symbols can be with the parents quickly there is no need for home access.  Lots of things are in place to ensure new symbols can be sent to the parents very quickly; the parents know how to get in touch with SALT and can telephone the witness on her mobile telephone. An email system to send the images is available. There is a real danger a child can be pushed along too quickly, she was concerned when it was put to her that the parents have created their own book as a lot of thought requires to go into what the child should be given.

When asked whether it would be possible to manage home use of Boardmaker she responded that it could be done, but if she did it for all children she could not work effectively with them all.

The witness was firmly of the view that a formal speech and language assessment of the child is not appropriate at this stage or in the near future. She considered she needs to get to know the child better and a formal assessment would not reflect the child’s skills at this time, the assessment would reflect the child’s capabilities better if based on informal, in situ assessments.

 

·           The Occupational Therapist. The witness qualified in 1980 and thereafter held a number of paediatric and a research positions. In July 2010 she was appointed to Special Schools and she started in the school in September 2010.

            She has only seen the child since November 2010 and the occupational therapy input into the CSP largely came from the previous clinician. When referred to both parties’ drafts of the learning plan as requiring specific occupational health input she said she felt the Appellant’s draft “reads like less”. She has seen the child but the group sessions were disrupted due to adverse weather. As indicated in the Authority’s draft learning plan there will be 6-8 weeks of group sessions working on sensory skills and she described in detail the programme envisaged. Thereafter a review will be held to identify the next steps.

            She agreed with the Authority’s position on some of the suggested entries on the Appellant’s learning plan related to fine motor skills. She considered daily use of theraputty was not appropriate as the child may not wish to use this every day and the most important thing was for fine motor skills was practice and there are other ways of practising. Similarly she does not consider the child is ready for the Teodorescu programme. She did not consider the CSP should include a reference to a Heathfield chair as she is not always in her chair, if doing supported work in groups she would not be in it.

 

The Tribunal also heard evidence from the Appellant and the following summarises her evidence:

 

·           She indicated that the child had spoken, that she used to speak clearly, appropriately and purposefully; with a vocabulary of hundreds of words but that she lost the vocabulary. She described the child’s difficulties in detail and the very significant efforts of the parents to secure and, where they could afford it, pay for help she needs. The child has had a lot of change and disruption in her life but her home environment has always been consistent, nurturing and supportive. The Appellant and her husband believe the child is entitled to a specific, quantifiable and smart CSP. The wording in the current draft is too vague.

Much of the Appellant’s evidence related to the suggested use of Boardmaker software at home. The child’s means of communication is Boardmaker symbols and she should not have to rely on her parents begging, borrowing or stealing to supply her with words and a capacity to be understood. The Appellant spoke passionately and in detail about how the PECS (personal exchange communication system) which Boardmaker is part of has significantly enhanced the child’s life. Not having 24-hour access to Boardmaker software further disables the child. Having Boardmaker software at home has educational benefits, facilitating the learning of new words, enabling the child to learn to communicate faster with a range of other people, building living skills, increasing independence and self worth and assisting the child in making better sense of the day. Access to Boardmaker software over the holidays minimises the risk of regression. She did not consider it acceptable for professionals to tell her what words her child could learn, as they wouldn’t be doing this with verbal children.

The Appellant gave evidence on the nature of home usage of Boardmaker. Over the Christmas break approximately 70 new symbols were needed - many for specific songs or DVDs. Every day she wishes she had access to Boardmaker software and has to work round not having it. About 20 of the 70 were for things the child was now spontaneously requesting or needing, objects like toys she had received over Christmas. The Appellant had not discussed the greater acquisition of new symbols at home than at school with the speech and language therapist as the school term had only just started.

She gave evidence to the effect that photographs are not a suitable alternative to Boardmaker symbols. The child uses sentences that rely on verbs, which are not easy to capture in photographs. Also photographs work for simple objects but not others, the ‘something else’ symbol is unsuitable when the child could be using the actual symbols.

The arrangements the Authority is proposing to allow access to new Boardmaker symbols are not practical for a number of reasons; emphasis was made of them not being available 24-7. She compared the child’s situation to that of a deaf child who would never be deprived of access to communication.

She indicated that the parents can achieve consistency between the images used at home and school because the parents have employed a former Prospect Bank member of staff to assist them on Saturday afternoons.

The Appellant said that she had no problem with the reference to theraputty being altered in the learning plan to something like “a hand strengthening programme to be used on a daily basis and reviewed by the occupational therapist, this might include Occupational Therapy”. Similarly the reference to the Teodorescu programme could be replaced with a reference to a handwriting programme. The Appellant explained that the support suggested in the draft CSP prepared by her had not come from the parents but from the professionals involved and that the reference to the Teodorescu programme had originated from the previous occupational therapist.

The Appellant indicated that she considered home visits from a speech and language therapist would help the parents understand how best to enable support for communication at home, which will increase performance and behaviour in the classroom.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

5. Findings in Fact:

 

1. The child is a five year old girl who lives with her parents.
2. Since August 2010 the child has attended a special school operated by the Authority. The school caters for pupils with moderate to severe learning difficulties; speech and language difficulties; attendant motor difficulties and attendant social/emotional difficulties.
3. The child has been diagnosed with autism with an as yet unspecified learning disability and associated difficulties with communication, social skills and sensory integration.
4. The child has significant dyspraxia presenting in difficulties with gross and fine motor, oromotor, sensory and daily living skills.
5. The child requires significant input from an occupational therapist and a speech & language therapist and is likely to do so for the foreseeable future.
6. The CSP currently in place for the child is out of date and does not reflect the child’s current situation at primary school or her current needs.
7. It is important that the child’s acquisition of new vocabulary is carefully planned to ensure that the child has a proper understanding of the vocabulary taught and is able to transfer that vocabulary to different settings.
8. Boardmaker software produces symbols that can be used to assist children with autistic spectrum disorders to communicate using a picture exchange communication system.
1. There are benefits for the child in the child’s parents having access to symbols produced by Boardmaker during school holidays however those benefits can be realised through appropriate preparation by the parents and speech and language therapy for significant events such as family holidays and the arrangements being put in place by the authority to facilitate the parents’ access to new Boardmaker symbols during holiday periods.
10.  There are risks to the child in providing home access to Boardmaker software to the child’s school education. In particular there is a risk that the child could become overloaded with the result that the child becomes confused and frustrated in school. There is also a potential risk of the child acquiring symbols that the school does not use which can cause difficulties when the child has to change symbol, although the parents have taken steps to minimise this risk by employing a former member of school staff to assist them. 
11. Keycomm, a multi-agency funded service are to assist with the arrangements being put in place by the local authority to provide Boardmaker symbols to the parents during school holidays.
50. The child’s communication skills will develop best from a coherent planned learning programme agreed between the child’s parents, the Speech and Language Therapist and the school.
1000. The child will normally not require home visits from a speech and language therapist during school holidays due to her parents’ abilities to deliver appropriate strategies related to speech and language therapy, the child being likely to benefit from a break during school holidays from the intensive speech and language strategy applied during the school term, and the child’s family not being under the type of severe stress that would normally warrant home visits.
14. The child’s seating requires to be supported to enable her to focus comfortably. The use of a Heathfield chair currently assists with this.

 

 

6. Reasons for Decision

 

 

(i) submissions of parties

 

The Tribunal were assisted by the submission of parties, which are set out in summarised form below.

 

The submissions of the Authority’s representative were as follows: -

 

The Authority continued to found upon the points made in its case statements and the representative made references to them in his submissions.  The Authority objected to the late request (made during the Appellant’s evidence) for occupational therapy visits during the holidays and also indicated that granting the request would unduly prejudice the Health Authority in the discharge of their functions.

Regarding the request to provide the Appellant with Boardmaker software the Head of Speech and Language services explained that Boardmaker is one element of the PECS. The Appellant’s case is that the issue is about denial of access to an entire communication system comparable to denying access to communication – but he submitted this is not the issue - the issue is about the arrangements for producing single symbols on an occasional basis additional to an already existing symbol vocabulary- this issue, he submitted, refers to just one small component, part of a hugely larger system for communication. The Appellant suggests it can take weeks during the holidays but the evidence heard entirely disproves that point. The said witness gave evidence that the need for new symbols should be occasional. She gave further evidence as to the arrangements in place during school holidays that could take as little time as 30 minutes. The Speech and Language Therapist gave evidence that images can be e-mailed to parents very quickly, the parents can telephone her on her mobile phone and if she is on holiday a colleague’s telephone number can be provided. The Appellant gave evidence that she has access to email during holidays, The Head Teacher gave evidence that access can be arranged at the school at very short notice at the beginning, end of, or during the school day.

Given the foregoing submissions the Authority’s position is that granting the request would represent unreasonable public expenditure in and of itself and would set a precedent that might incur very much greater unreasonable public expenditure, not all parents having computers.

Regarding the request for home visits by a speech and language therapist during the holidays the Head of Speech & Language Services gave evidence that in general children receiving SALT in school, particularly younger children like the child, require a break from this therapy during the school holidays. She was quite sure that the therapy team are correct in their assessment that the child does not require home visits by a speech and language therapist over the summer holidays. The speech & language therapist was of the view that the parents are able to apply the necessary strategies during the school holidays and there is nothing to indicate a need for home visits. In those circumstances granting the request would unduly prejudice the Health Board in the discharge of its function to provide SALT services.

The Authority’s representative maintained the Authority’s position on the draft learning plan produced by the Appellant as detailed in red on R55-R60 referring, inter alia, to the evidence and lack of contradictory evidence.

The Authority’s representative submitted that the learning plan prepared by the Education Authority at R39 to R42 should be preferred in its entirety to the learning plan proposed by the Appellant. The Education Authority’s learning plan being consistent with the principles that should apply to CSPs. He concluded by stating that his intention in his submissions was to demonstrate how evidence heard at the hearing overwhelmingly supports the case of the Education Authority and the summing up must be read in conjunction with the case statements at R1-R5 and at R31 to R33.

 

 

The submissions of the Appellant’s representative were as follows: -

 

 

The Appellant’s position is that the version of the learning plan presented by the Appellant is the preferred version – but taking into account some refinements that were brought out during the hearing. The Appellant’s representative submitted it would be helpful to the Tribunal to lay out what the Appellant’s position is following the evidence with reference to the draft learning plan at A9-13.

 

“A.9. Learning and curriculum – the Appellant feels that all columns in this section remain and are set out as they are in accordance with the guidance found in the Code of Practice ( Annexe - p. 181). There was mention of the input of an educational psychologist in the drawing up of the CSP, but no indication of the role this person would play in the child’s education. A.6 refers to a request by the Appellant in this regard. The Appellant would like this to be mentioned under both Additional Support Required and Persons Providing.

At item 3 – on reflection, under Persons Providing, this should also include the SALT, O.T., as they will be delivering their programmes in this environment also allowing assessment and monitoring of how the child accesses the curriculum.

A.9/10. Language and communication – we feel that that this section remain as worded and set out as per in the guidance found in the COP (Annex p 181.) In particular, item 6 in the Additional Support Required section should remain as worded i.e. “school and home must have direct access throughout the year to Boardmaker software to replace/provide new symbols.

A great deal of evidence was heard in respect of this and the Appellant could not be clearer in her reasons why this should be provided for the child. It is imperative that this aid to the child’s communication is as accessible to her as would hearing aids be to a child with a hearing impairment. She cannot do without it at this stage of her life. Her communication difficulties do not disappear at the end of her school day. Boardmaker is her lifeline.

The Authority’s view-at R32, para.10 and 11 - suggests that, by putting this in the CSP, it “would set a very significant precedent” and would result in “unreasonable public expenditure being incurred”. If the provision of Boardmaker is deemed to be a need, then the Authority has a duty to meet that need. The arguments put forward by the Authority to prevent recognition of this are poor in comparison to the case for it put forward by the Appellant who, knowing her child best of all, wishes her to take advantage of every opportunity to enhance her skills. Setting a precedent is not illegal nor is it an unreasonable request if this child would benefit from it, which she clearly will and does. Her parents have demonstrated that they have an excellent grasp on what would benefit the child. It is disingenuous of the Authority to suggest otherwise.

Additionally, in the section (language and communication), reference was made to A.7 -regarding the request for Home Visits from the SALT service over the holidays. The Appellant disputes the arguments set out in the Authority’s submission at R32, paras. 12 and 13. (i) – (iv) that this was not required. Part of the reasons given was that the service has assessed that the child was unlikely to require it. However, evidence was heard from both the Head of Speech and Language Services and the speech and language therapist that if such a request was made and there was a need, then it was “not impossible” for this to happen, and it “would not be unusual to offer home visits”. In addition, the therapist stated that she had not as yet carried out a formal assessment and indicated that this would happen over the next few months, once they had got to know the child better. As far as the suggestion that children like the child positively benefit from a break during the summer and that all children need to “chill out”, this is a fair point, but this does not mean that children shut down during this period. Rather, their learning and experiences should be enabled to continue to develop and progress over school breaks so that regression is prevented. Provision of SALT would greatly assist the child over the long break in her routine. We would therefore wish that this option be included in the CSP.

A.10/11 Fine motor, Gross motor and Sensory – under item 3 – an error was highlighted and requires to be changed to weekly.

Fine Motor Skills - item 1. after hearing from the O.T., the Appellant would agree changes to reflect her opinion today that there should certainly be reference to a hand strengthening programme, not exclusively the Theraputty, and reference to the Teodorescu programme be omitted. The Appellant feels however, that the provision of the Heathfield chair should remain.

In conclusion, the Appellant’s representative: -

(a) Re-affirmed objections to the use of the words “normally”, “regularly” and “as required”, considering them to be to be unhelpful in specifying what must be provided in meeting identified needs. Guidance in the Code of Practice (P.181) states, “The statement of the support to be provided should be clear and specific”.

(b) Pointed out that an IEP or Therapy Support for Learning Profile is not an Educational Objective and should be in the relevant section i.e. Additional Support Required.

 

Therefore, the Appellant’s representative submitted that the CSP document lodged by the Appellant be accepted, with the inclusion of the refinements referred to above, and requested that the Tribunal uphold the Appellant’s appeal direct the Authority to amend the child’s CSP accordingly.

 

The Appellant’s representative lodged further written submissions prepared by the Appellant. These restated some of the views expressed during the Appellant’s evidence and addressed some of the points made in the Authority’s submissions

 

 

(ii) Tribunal’s reasons

 

The Tribunal carefully considered all of the evidence heard, the written evidence produced and the parties’ submissions on the matter in dispute.

The CSP currently in place for the child was written while the child was at nursery school and it was accepted by both parties that it does not reflect the child’s current situation at primary school or her current needs. Parties had been in discussion and correspondence regarding a revised CSP which has resulted in all parts of a revised CSP being agreed with the exception of the Learning Plan. Accordingly the Tribunal’s decision is partly based on what the parties themselves agreed. In relation to the learning plan part of the CSP both parties had produced draft learning plans and invited the Tribunal to direct that a CSP be issued with the learning plan in terms of their respective drafts.

The Tribunal considered that, save for the main points of contention that are addressed below, much of the content of the rival learning plans to be in similar terms and of similar effect. Given the duty to prepare a CSP falls upon the Authority in terms of s9 the act the Tribunal considered it appropriate to consider whether the terms of the draft learning plan produced by the Authority were consistent with the requirements of the act and the supporting children’s learning code of practice (“the code”). In considering this the Tribunal noted that much of what is contained within the draft prepared on behalf of the Appellant is also contained within learning profiles referred to in the plan. The Tribunal had particular regard to paragraphs 61 and paragraph 50 of chapter 5 of the code, the latter of which provides that the CSP: -

 

“should be clear and succinct, and refer to needs that will, or are likely to, continue for more than a year. Short-terms objectives would continue to be contained within personal learning planning or an individualised educational programme or other plan. In cases where there is an individualised educational programme or other planning approach in place, the co-ordinated support plan should refer to these but not duplicate the content of the plans unless this is required to meet the statutory requirements for the plan...What is important is that the co-ordinated support plan contains those educational objectives which require the various forms of support to be co-ordinated if the educational objectives are to be achieved”

 

The Tribunal considered that the form and content of the draft learning plan produced by the Authority (”the draft”) was substantially consistent with both the act and the code. Indeed no argument otherwise was made to the Tribunal. In producing the draft the Authority have in the view of the Tribunal come to an appropriate view as to what support and objectives require to be included in a CSP and what more appropriately sits in other plans. Consequently the Tribunal considered the learning plan should be in the form of and with the content of the draft learning plan produced by the Authority, subject to the Tribunal’s further consideration, which follows, of those parts of the learning plan where evidence had been produced or arguments made to suggest the draft does not appropriately reflect the child’s needs.

 

One of the Appellant’s specific concerns regarding the draft is that it used wording such as “normally”, “regularly” and “as required” considering such wording neither specific nor quantifiable. So, for example, in a passage on SALT input the Appellant’s draft provides that it “will be provided on a weekly basis”; whereas the Authority’s draft provides that it “will normally be provided on a weekly basis”. The only difference being the use of the word normally in the Authority’s draft.  Both parties cited the code as authority for their respective arguments on this point, the Appellant’s representative referring to page 181 of the code, which provides that “the statement of support provided should be clear and specific.” The Tribunal’s view is that the wording used by the Authority is sufficiently clear and specific. The Tribunal accepts the argument made on behalf of the Authority that to use the wording suggested by the Appellant is too constraining and does not allow for logistical circumstances such as pupil or staff illness or some other intervening event such as a school trip. Indeed evidence was led about the disruption in the child’s education caused by the severe weather in December 2010. The Tribunal considers to impose the very specific requirements suggested by the Appellant would impose an unrealistic and unnecessary burden on the Authority. The Tribunal considers that the use of words mentioned above provides sufficiently specific detail of the support to be provided to the child. In the event of the Authority falling short of the commitments given the Appellant would, of course, have a right of recourse to the Tribunal in terms of s18 (3)(d)(ia) of the act.

The Appellant’s representative clearly stated that one of the two key items the Appellant wanted included in the CSP was access to Boardmaker software in the home and much of her evidence related to this request. In considering this point the Tribunal started by considering the terms of s 1(1) of the act which provides “a child… has additional support needs…where…the child…is, or is likely to be, unable without the provision of additional support to benefit from school education.”  Section 9 (2) (a) of the act provides, inter alia, that the CSP must contain the additional support required by the child to achieve the specified educational objectives. This point is re-enforced at chapter 5 paragraph 61 of the code. Accordingly the purpose of providing additional support to a child must be to enable the child to benefit from school education. While the code at chapter 5 paragraph 56 envisages a wide view of school education, school education is defined in s29 of the act by reference to s135 (1) of The Education (Scotland) Act 1980 which in turn refers to section 1(5) thereof which provides school education as meaning “progressive education appropriate to the requirements of pupils, regard being had to the age, ability and aptitude of such pupils…”

As detailed previously, the Appellant gave significant evidence regarding what she believes to be the benefits of unrestricted access at home to Boardmaker software. Against that evidence was the evidence of the Head of Speech and Language services and the Speech and Language Therapist regarding the dangers and risks of allowing unrestricted access to the software for the family at home. Most significant was the response provided by the Head of Speech and Language Therapy, following discussion with the Speech and language Therapist, regarding the level of acquisition of new symbols described in the Appellant’s evidence. As detailed above as well as expressing concern regarding the possibility of overload she questioned the ability to use symbols acquired through rapid acquisition of new symbols at home in other contexts which could leave the child confused and frustrated in school. The said witnesses’ evidence on this point was subject to particular scrutiny by the Tribunal who were impressed with the witnesses’ ability to support her views.

Consequently, the Tribunal were persuaded not only that the potential risks to the child’s education of providing the Appellant with access to the software at home outweigh the benefits but also that there is a significant material risk that unrestricted access to the software will actually be detrimental to the child’s school education. Accordingly the Tribunal cannot recommend the inclusion of access to Boardmaker software at home.

Arguments were also made to the Tribunal by the Authority that granting the request for home access to Boardmaker software would result in unreasonable public expenditure within the meaning of s4 (2) of the act having regard to the precedent it would set for other children. Given the Tribunal were not persuaded that it would be in the child’s best interests for the Appellant to have access to Boardmaker software at home the Tribunal do not consider it necessary to come to a view on this point. 

Evidence was led regarding arrangements that are being put in place to ensure the parents have appropriate access to Boardmaker symbols and the organisation KEYCOMM would be a part of those arrangements during the school holidays. Consequently the Tribunal consider it appropriate to direct that KEYCOMM should be listed among the persons providing additional support linked to the Educational Objective heading of “Expressive and Receptive Communication”.

The other key item the Appellant’s representative wanted included in the CSP was access to therapeutic support when the child was not at school. This primarily related to a request for home visits from SALT services over the school holidays. However during her evidence the Appellant also made a request for home visits by occupational therapy during school holidays. The Authority’s representative objected to this request being admitted into the proceedings at such a late stage. The Tribunal noted that this request was not mentioned in the Appellant’s representative’s submissions and that no evidence was before the Tribunal on the need for, and the benefit that was hoped would be derived from, occupational therapy visits over school holidays. Consequently the Tribunal were not convinced that the CSP should include a reference to home visits by an occupational therapist.

In relation to the request for visits by SALT services over the school holidays the Tribunal preferred the submissions of the Authority that were supported by the evidence of both the Speech and Language Therapist and the Head of Speech and Language. The view of both professionals was clearly that the child did not require home visits over the summer holidays and that the child and children like her benefit from a break from the intensive term time strategies. Accordingly the Tribunal considered granting the request is not in the child’s best interests and accordingly would unduly prejudice the Health Authority in the discharge of its functions if it were acceded to.

The Appellant requested that references to the Individualised Educational Programme or therapy support for learning profile be included in the CSP in the column headed “Additional Support Required” rather than as an “Educational Objective”. The representative for the Authority considered that the CSP should make reference to these shorter-term plans but he did not mind where they were included. The Tribunal agree with the Authority’s representative that it is important that these plans are referred to and that where they are included is not as material. Members of the Tribunal have seen CSPs with such plans referenced in both columns. Nevertheless having been asked to form a view on the issue the Tribunal considered the references to the plans fitted marginally better in the “Additional Support Required” column as they contain significant further details of the level of support. Accordingly the Tribunal has determined that where in the Learning Plan section of the CSP there are references to further details in the “Individualised Educational Programme”, “Occupational Therapy Supporting Profile”, “Physiotherapy Supporting Learning Profile” and “”Speech and Language Therapy Supporting Learning Profile”, these references shall be in the “Additional Support Required Column” rather than the column headed “Educational Objectives”.

The Tribunal had before it evidence to the effect that the child’s seating requires to be appropriately supported to enable her to focus comfortably for longer periods. The Appellant made a specific request that reference to a Heathfield chair be included in the CSP. The Tribunal considered that the objective to improve seating and balance by the provision of appropriate seating was sufficiently significant to be contained in the CSP requiring co-operation and co-ordination between the occupational therapy service, the physiotherapist and the school. The Tribunal considered a specific reference to a Heathfeild chair being required was too inflexible, although clearly the existing provision of such a chair assists with the said objective.

The Tribunal were very impressed with the professionalism of all the witnesses and the loving, dedicated commitment shown to the child by her parents, as evidenced both in the bundle of productions and the oral evidence heard. However the Tribunal were most concerned that SALT and the authority did not appear to be aware of the extent to which the child has been acquiring new vocabulary at home when the witnesses from SALT both gave evidence to the effect that the need for new symbols outwith school is occasional. It is clear to the Tribunal that the child’s communication skills will develop best from a coherent planned learning programme agreed between the child’s parents and the Speech and Language Therapist with the work of each (and the school) complementing and guiding the other. The Tribunal considers such a plan requires (a) the authority, the speech and language therapist and the school to have a better knowledge of the efforts being made by the parents to assist the child than was evidenced before the Tribunal, and (b) that the parents are supported by the Speech and Language Therapy service in developing their understanding of and participation in such a plan.