ASNTS_D_17_2010_28.02.11

 

DECISION OF THE TRIBUNAL

 

Reference:      D_17_2010                

 

Gender:           Female

                       

Aged:               11                   

 

Type of Reference:     CSP no longer required         

 

 

 

 

1. Reference

 

The child, (born 1999), hereinafter referred to as “the child”, was issued with a co-ordinated support plan from The Respondent on 19 May 2009.  On 5 October 2010 the respondents notified the appellant that the co-ordinated support plan would be discontinued as the child does not have additional support needs which require significant additional support from an appropriate agency or from the local authority exercising functions other than education, additional to the support provided by the Education Authority, in order to meet educational objectives in the child’s school education. 

 

It is against this decision that the reference has been made, in terms of section 18(3)(b)(ii) of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended by the Education (Additional Support for Learning) (Scotland) Act 2009 (hereinafter called “the Act”)

 

 

2. Decision of the Tribunal

 

The Tribunal overturns the decision of the Education Authority dated 05 October 2010, in terms of section 19(2)(b) of the Act, and finds in favour of the appellant.

 

The Tribunal requires the Education Authority to prepare and deliver to the appellant a copy of the completed coordinated support plan within twelve weeks from 28 February 2011.

 

 

3. Preliminary Issues

 

A conference call was held on 12 January 2011 to agree the ordering of witnesses and evidence prior to the hearing.  The convener heard an objection by the appellant to the lodging of a production (marked R17 to R26) by the respondent and leave was subsequently granted to the respondent to withdraw the said production.  Directions were made by the convener that the respondent lodge a copy of the full Parliamentary debate referred to in his submission at production R2 and a copy of the full Court of Session judgement, City of Edinburgh Council [2009] CSIH 46 9 June 2009; which directions were subsequently complied with.

 

At the hearing on 21 January 2011, the appellant and respondent both sought leave to admit late productions into the process, marked A89 to A93 (The Scottish Parliament – Official report dated 4 March 2009); A94 to A102 (The Child’s Plan dated 02 October 2010); A103 to A104 (Letter from Dr D and AG, dated 22 June 2010); and R136 to R150 (Annex C of the Code of Practice).  Noting no objection by either party, the Tribunal granted leave to admit these productions into the process, being satisfied of their relevance to the reference and that, in all the circumstances, it would be fair and just to allow this, pursuant to Rule 34 of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006, as amended.

 

The parties clarified that the matter in dispute and upon which the reference was predicated are the provisions of section (2)(1)(d) of the Act.  The parties agreed that the provisions of section 2(1)(a) to (c) inclusive are met.  The Tribunal accepted their position after considering the written evidence lodged which referred sufficiently to and satisfied the Tribunal on these matters.

 

 

4. Summary of Evidence:

 

The Tribunal considered two lengthy bundles of evidence, including those productions lodged late, the case statement for the Education Authority and the written submissions lodged by the Education Authority.  In addition to which, the Tribunal directed the provision of a report by the Education Authority on 21 January 2011 which would list the frequency, nature, intensity and duration of involvement by each professional or group not employed by School A.  This was lodged in advance of the second hearing on 28 February 2011.

 

The tribunal heard oral evidence over two days from the following:

 

1. The appellant, the child’s father,
2. The child’s mother,
3. The Depute Head Teacher of School A, Witness A
4. The child’s social worker, Witness B.

 

 

5. Findings in Fact:

 

1. The child is a 11 year old girl who resides with her father, her mother and her younger sibling.

 

2. The child was diagnosed at the age of 14 months as having Smith Magenis Syndrome leading to developmental delay, short attention span and challenging behaviour, hypercholesterolaemia, sleep difficulties, enuresis, learning disability, poor motor coordination and conductive hearing loss.

 

3. The child is receiving ongoing cleft palate investigation by the Consultant Cleft and Plastic Surgeon and the Specialist Speech and Language Therapist, which will determine whether she would benefit from a submucous cleft palate repair or speech therapy, with or without a palatal lift.

 

4. The child is undergoing medical investigations for a chronic cough by the Consultant Paediatrician, which is progressing slowly due to the unsettling effect on her of hospital visits.  

 

5. The child’s chronic cough has regularly prevented the child from sleeping.

 

6. Tiredness has a big part to play in the child’s moods in school and illness can be a big factor.  For example, the child has found Monday afternoon sessions difficult to focus in as she is often sleepy. (School A, End of Year Report: June 2010 at R34 to R38).

 

7. The child uses British Sign Language and makaton with some vocalisation to support as her main form of communication.

 

8. Developmentally the child is around four years of age.

 

9. The child has additional support needs arising from Smith Magenis Syndrome.

 

10. The Education Authority, currently have responsibility for the child’s education.

 

11. The child attends School A, a special school, which she has attended since 19 August 2008. 

 

12. School A provides education to four pupils with Smith Magenis Syndrome, one of whom includes the child, and has one of the largest cohorts for this in the country.  The remaining three pupils have coordinated support plans.

 

13. A coordinated support plan (CSP) was prepared by Council A on 19 May 2009 (R7 to R14).  Prior to that a CSP had been prepared by Council B.

 

14. A review of the CSP was conducted by the Education Authority on 4 October 2010 and the decision to discontinue the CSP was conveyed in writing to the child’s parents on 05 October 2010 (R29 to R31).

 

15. The child’s educational objectives are set out in the CSP.  Educational objectives are also specified in the report of the Educational Psychologist (22 June 2010; A103 to A104), the Child’s Plan (October 2010; A94 to 102) and in   the child’s individual educational plan (for 2010 to 2011).

 

16. A number of professionals are involved in providing support to the child, some of whom are directly employed by the Education Authority, by NHS, by the social work department or funded by the social work department and others through privately funded care, paid for by the child’s parents.

 

17. The professionals employed by the Education Authority, through School A, are:

 

1. Occupational therapist,
2. Speech and language therapist,
3. Speech and language therapist,
4. Class teacher,
5. Educational audiologist,
6. Depute head teacher, Witness A
7. Physiotherapist,

 

18. The professional directly employed by the Education Authority is:

 

1. The Educational Psychologist,

 

 

19. The professionals employed by the social work department of the Education Authority are:

 

1. Social Worker, Witness B
2. Team Leader Disability Practice Team,
3.  

20. The professional and groups funded by the social work department are:

 

1. Support Assistant, whose employment is funded by the social work department, through direct payments
2. The Y, which is run by and funded by the social work department
3. The C Project, which is run by Barnardos and funded by the social work department

 

21. The professionals employed by NHS Health Board are:

 

1. Associate Specialist Community Child Health,
2. Associate Specialist Paediatric Audiology Service Community Child Health,
3. Consultant Paediatrician,
4. Clinical Psychologist, operating within the child and adolescent mental health team – learning disability (CAMHS-LD)
5. Community Learning Disabilities Nurse,
6. Learning Disabilities Liaison Nurse,
7. Senior Community Respiratory Physiotherapist,
8. Consultant Cleft and Plastic Surgeon,
1.  

14. The child also attends “The T” which is an after school club, paid for by the child’s parents.

 

 

6. Respondent’s submissions

 

Respondent Representative, for the Education Authority, submitted that the amendment to section 1(3)(a) of the Act to insert “whether or not educational provision” represents no change in the law – the support required to meet additional support needs may be provided in school or out of school – but the support must be required in order to achieve educational objectives in school education.  He cited a speech made by Mr Adam Ingram, Minister for Children and Early Years, on 20 May 2009 during reflection on the Bill to amend the Act, as support for his position, when Mr Ingram stated “it was never my intention for the bill to alter the ethos or fundamental building blocks of the [2004 Act]”, and later, “we did not intend to make any significant differences to the overall ethos of the legislation .. or the resource envelope”. 

 

Respondent Representative referred to the Code of Practice (Revised Edition 2010) (hereinafter referred to as the “Code of Practice”) and the sections therein which refer to the CSP.  He referred to a case study (7) in Annex C and submitted this example bears relation to the child’s case.  In this case study the child did not require a CSP.  This is referred to later under the evidence of Witness B.

 

Respondent Representative relied upon the decision of the Inner House of the Court of Session in City of Edinburgh Council [2009] CSIH 46 9 June 2009 and referred in particular to paragraph 18, placing some emphasis where it is stated: “It is irrelevant how many agencies are involved with a child unless their involvement is for the purpose of providing additional support to the child to enable him to benefit from school education.”

 

Respondent Representative does not accept that any of the professionals or groups involved with the child, who fall within the meaning of section 2(d)(i) or (ii) of the Act are providing support that is required to meet educational objectives in school education.  He helpfully provided written submissions which set out his objection to each professional or group (not employed by the Education Authority or School A).

 

Respondent Representative accepts that support in terms of the CSP is not confined to a teaching environment.  He acknowledged that support outwith school may in certain circumstances create the need for a CSP.

 

He invited the Tribunal to prefer the evidence of the witnesses for the Education Authority and to form the view that the written and oral evidence is overwhelmingly in favour of the Education Authority and therefore the reference should be refused.

 

He submitted that the appellant’s reason for making the reference in relation to the closure of the CSP is that he considers the CSP to be a statutory guarantee and the only statutory guarantee of appropriate provision for the child’s additional support needs. 

 

 

7. Appellant’s submissions

 

Appellant Representative, for the appellant, submitted that no notice had been given to the parents that the meeting on 5 October 2010 was to review the CSP.  They understood this to be a meeting for another purpose.  She referred to the persons present and expressed concern that not all appeared to have been invited to express a view before the decision was taken by Respondent Representative for the Education Authority.  Respondent Representative insisted he informed the parents in an email of the purpose of the meeting and that he informed them at the commencement of the meeting.  Appellant Representative was concerned that no formal minute was taken of this meeting.

 

Appellant Representative then referred to the Code of Practice at page 55, paragraph 85 and to the statement that, “Other plans cannot substitute for a co-ordinated support plan.”  This included the Child’s Plan.  She referred also to page 80, paragraph 17, that “one purpose of the co-ordinated support plan is to ensure that support is co-ordinated effectively when at least one service is required from outwith what the education authority provides as part of its educational functions.”

 

Appellant Representative reminded the Tribunal that “significant” is not defined within the Act.  She submitted that education goes beyond the provision at School A.  The strategies used by School A need to go over school into home and the wider community.  Appellant Representative referred to page 81, paragraph 19 of the Code of Practice and in particular to “Where a child has several professionals involved from the one appropriate agency, such as from an NHS Board, then the cumulative effect of these professionals involvement may amount to significant additional support from that agency even although the input from each professional individually is not significant.”

 

She submitted that none of the case examples specified in Appendix C of the Code of Practice related to the child’s circumstances, especially case study 7, which the respondent had relied upon.

 

She submitted that the child’s full time placement in a special school amounts to significant additional support.  She invited the Tribunal to consider the child’s educational needs and submitted these were stated most clearly in the report of the Educational Psychologist Dr D (A103 to A104), which sets out eight educational needs.  These include, a total communication environment in all learning and social situations, an opportunity to communicate with peers and develop relationships, to develop emotionally and behaviourally, self management skills, with an opportunity to further develop independent living and life skills.  The parents referred to an additional educational need in terms of health, and in particular the respiratory problems the child experiences, which affect her sleep and behaviour.  The end of year report from School A (June 2010) was referred to at the heading Health and Wellbeing, under which it is stated “Generally tiredness has a big part to play in The Child’s moods and illness can also be a big factor.” as support for their position.

 

It was submitted that the cumulative effect of the professionals involved who work within social work or are funded by social work amounts to significant additional support, even though their individual support may not be significant. 

 

It was submitted that the cumulative effect of the professionals involved who work within NHS, which is an appropriate agency in terms of section 23(2) of the Act, amounts to significant additional support, even though their individual support may not be significant.

 

Appellant Representative submitted that one service affects the operation of another service and a lot of work has to be done at home.  Services must cooperate with one another to understand how the child’s particular additional support needs may impact at any one time.  Parents commented that the review of the CSP by Council A was very helpful but at that time fewer “agencies” were involved with the child.

 

Appellant Representative referred to the invitation issued on 24 February 2011 by School A to an annual review (A105 to A106), which was sent to six NHS staff, social work staff and the C project and questioned why, if they are not providing significant additional support, they are invited to the school review.

 

She submitted that the written and oral evidence presented by the appellant shows that in order for the child to benefit from education and to be enabled to reach her full potential she requires educational objectives covering health, emotional and behavioural, independent skills, social interaction and communication skills.  All of these educational objectives require the various forms of support provided by health and social work to be coordinated if the educational objectives are to be achieved.

 

The Appellant invited the tribunal to uphold the reference, that the child’s CSP should not be discontinued.

 

Assessment of oral evidence

 

Witness A

The Tribunal found the Depute Head Teacher to be a reliable and credible witness, although her evidence was clearly limited to the involvement of professionals employed directly by School A.  She obtained a Bachelor of Education in 1982 and has worked in special education since 1984.  She was able to describe the child’s progress in School A very well.  She could not however advise or comment on the individual involvement of any of the professionals listed in The Child’s Plan (A94 to A102), apart from to state that the school received “no direct input” from them.  She did not consider social work involvement to be necessary in order to meet the child’s educational objectives set out in the individual education plan (IEP). 

 

She acknowledged that the child requires a lot of support to attend health appointments.  She was able to comment that there has been liaison between the school and the child and adolescent mental health team (CAMHS).  She imagined it would be very useful for the school to share information learned from the video work of the Community Learning Disability Nurse.  She acknowledged that where the child’s behaviour is different at home from school it is absolutely essential to share information between professionals.  When referred to the action point from the child’s plan (at A98), “Physiotherapist from respiration clinic to link in with school therapist.” she was unsure if this had been completed, or for how long this would last.

 

When referred to the letter of 05 October 2010 to discontinue the CSP (T13) and to the comment that the child’s additional supports needs are being met “almost entirely by staff directly employed by School A”, she remarked that “our professionals work in tandem with other health professionals”.  “It is not our sole responsibility.”  She would expect the school to be copied into all medical correspondence and school staff would accompany the child to health appointments.  Witness A attended the meeting on 05 October 2010.  She advised she was not asked for a view on the CSP before Respondent Representative took a decision on this.  No one asked the professionals who attended the meeting if the child still needed a CSP.

 

Finally, Witness A stated that she knew there was a “bigger picture” around the child.

 

It is worth commenting that Witness A indicated this was her first attendance at a Tribunal.  She had been unaware of the likely questions that would be asked of her.  She felt ill prepared.  Nevertheless the Tribunal records that within the limits of her evidence, she gave a reliable and credible account.

 

Witness B

The social worker obtained her Bachelor of Science in social work in 2008.  She has worked within the social work disability team for the last two and half years.  She was allocated to the child in August 2009.  We found her to be a credible witness. However, on some matters we found her evidence to be confusing and at times, unreliable, particularly when she was invited to comment on her own written accounts, and gave a view as to how these should be interpreted.

 

She was invited to comment by Respondent Representative on the various case studies set out in Annex C and in particular to case study 7, in which she described the level of social work involvement as similar, but more, to the work she does.  She does not believe the child needs support from her in order to maintain her school placement.  She gets sent copies of IEPs and updates.  If the school do not contact her she assumes everything is fine.

 

She was referred by Appellant Representative to her letter to the Head Teacher of School A on 02 March 2010 (A43), in which she states: “I completed an assessment of The Child’s needs and the family were provided with 6 hours Direct Payment per week.  I have just completed an update of this and have requested a further 2 hours per week be allocated to The Child and respite for the family.”

 

She responded that Parents had been requesting more hours at the beginning than she thought the child needed and that she agreed to request it because they continued to make the request.  She stated that this statement in her letter reflected the parents’ views only, and not hers.  The fourth paragraph in her letter reflects her views and the parents (that the child would benefit greatly from overnights at the school..).  However, she feels her views may now have changed, as the child is doing well in The Yard.  In the same letter she states that “part of my recent assessment update was advising that the family needed both services” (i.e. overnight respite and direct payments).  She stated that this was intended to mention what had changed slightly – they were not significant changes.

 

She was referred also by Appellant Representative to her professional assessment at A25 conducted on 11 September 2009 and the last paragraph at A28 where it is stated, in relation to the family request for self directed payments and a sitter service, “..I have explained I cannot justify asking for any more than this given the financial parameters within which I am working.”  She described this as being “massively misconstrued” and insisted that her assessment was on the level of need.  She stated however, that she has to take account of other children and the financial parameters.  She felt the child needed 6 hours self directed payments, but the parents wanted more.

 

She acknowledged that a child with Smith Magenis Syndrome needs to partake in a lot of play to assist with development.  She stated that any child who plays at school can transfer skills out into the community.  She accepted that the child needs help to transfer these skills but that it is not necessary to assist her in school.  It would mainly affect her interactions outside of school.

 

She advised that from the age of 9 years, uninterrupted self directed payments have been made for the provision of a support assistant to the child.  She confirmed that she referred the child to the C Project as the parents were struggling at home and they seemed to need guidance to manage the child’s behaviours.  CAMHS and social work would monitor this, but she herself would not have a role in monitoring.  She commented that the child has very different relationships with staff at school than her family.

 

She was referred by Appellant Representative to the Child’s Plan (October 2010) at A100 but could not comment on whether actions to inform the Educational Psychologist had been completed.

 

She is of the view that the child’s educational needs are all met within School A.  She cannot remember if she expressed a view at the meeting on 05 October when the decision was taken to discontinue the CSP.  She could not remember whether attendees were asked to express a view about the CSP.

 

Parents

Parents gave their evidence together.  The Tribunal considered them to be both reliable and credible witnesses.  Dad explained how and when the child was diagnosed with Smith Magenis.  He explained how this is characterised by rage and sleeplessness.  He advised she compares on the higher end of sleeplessness but could not comment on where she compares on rage.  He advised she has delays across all systems with a cognitive age of around 4 years. He explained that not all children with Smith Magenis cannot speak.  After the child was diagnosed at 14 months, he and Mum decided she needed the maximum intervention as soon as possible and this started at the age of 2 years, with floor time and child centred play.

 

Parents were unable to advise with any degree of accuracy on the nature, frequency, intensity and duration of the various professionals’ involvement and it was with this in mind that the Tribunal directed the provision of a report on these matters.  Parents took no exception to the content of the report and appendices later submitted.

 

They advised that they did not know the meeting on 05 October 2010 was to review the CSP.  They commented that no minute has been taken of the meeting and they cannot therefore be sure who was present at the meeting.  They were not invited to express a view on the CSP.

 

They were clear that they can definitely transfer skills from School A to manage the child’s behaviour at home and in the community.

 

They wish the CSP to be in place as they believe their daughter has additional support needs which require significant additional support to be provided by a range of professionals employed by social work and NHS.  They believe it is necessary for this support to be coordinated, and that they are unable to perform this function to the standard necessary to benefit the child.

 

8. Reasons for Decision

 

As the legal tests set out in section 2(1)(a) to (c) were not held to be in dispute, the only matter which the Tribunal required to determine was whether the legal test set out in section 2(1)(d) (i) or (ii) was met, that is –

 

“(d) those needs require significant additional support to be provided –

 

(i) by the education authority in the exercise of any of their functions as well as in the exercise of their functions relating to education, or

 

(ii) by one or more appropriate agencies (within the meaning of section 23(2)) a well as by the education authority themselves.”

 

Educational Objectives

 

Before determining this matter, the Tribunal proceeded to consider what educational objectives were set for the child. 

 

Section 19(7) of the Act requires the Tribunal when exercising its powers under section 19 to take account of any code of practice published by the Scottish Ministers under section 27(1), so far as it is relevant. 

 

The Tribunal found assistance from the Code of Practice at paragraph 56, page 93, where it is stated: 

 

“The coordinated support plan is designed to enable children or young people to work towards achieving their educational objectives within the meaning of the Act.  School education, within the meaning of the Act, includes, in particular, education directed towards the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.  Educational objectives should be set to secure that the child or young person benefits from school education provided or to be provided.  The objectives will cover relevant experiences beyond the classroom including those in the community, for example.  They should be viewed in the widest sense as encompassing a holistic view of the child or young person.  They should be specific to the child or young person and his or her additional support needs.”

 

Section 1(2) of the Act states:

 

“(2) In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.”

 

The Tribunal considered the educational objectives set out in a range of documents, which are specified at statement of fact 5.15, and include those in the CSP, dated 19 May 2009 and the report of the Educational Psychologist, Dr D, dated 22 June 2010.  Some of these include:

 

• The Child needs support to develop emotional and behavioural self management skills. (A103, Educational Psychologist’s Report , dated 22 June 2010)
• The Child needs opportunities to further develop her independent living and life skills (e.g. travel, shopping, cooking, attending clubs). (A103, Educational Psychologist’s Report , dated 22 June 2010)
• To postpone oromotor and voice therapy until investigations into cleft palate have been completed (R11, CSP)
• Social Policy: Communication methods/Developing independence skills (R12, CSP)
• Community Child Health: To promote physical and emotional health/Improve behaviour (R12, CSP)

 

We accepted the submission for the appellant that education goes beyond that which is delivered directly by School A staff and that the strategies employed by School A need to go beyond the school into the child’s home and her wider community.  The Tribunal accepts that this is in keeping with the Code of Practice that educational objectives will cover relevant experiences beyond the classroom.  The respondent stated in submission that it has never been the view of the Education Authority that support in terms of CSP criteria is support confined to the teaching environment. 

 

Finally, on this point, the Tribunal considered the particular effects of the child’s disability, Smith Magenis Syndrome.  The Tribunal found the evidence of the parents compelling in this regard.  Dad explained the child’s sudden rages, which on occasion have led her to put her head through a door and to place objects into orifices.  He described the importance of child centred play, which he and mum have endeavoured to expand upon and to pass on to the support assistant.  They emphasised the link between the child’s health and education.  By way of example they cited a recent deterioration in the child’s health in her lungs which has led to her coughing and not sleeping, which they described as having a “massive impact” in school.  Mum stated that when The Child is tired or unwell, this translates into school, which is noted in the school End of Year report for June 2010.  The Tribunal accepted the appellant’s submission that one service affects the operation of another service and each service must cooperate with another to secure the right timing for each approach; and a lot of work has to be done at home.

 

Significant additional support provided in the context of section 2(d)(i) or (ii)

 

Having considered this particular child’s educational objectives, the Tribunal then considered the involvement of each individual professional or group, in order to determine (1) which of these fell within section 2(d)(i) or (ii) and (2) what, if any, of their involvement is required to meet the child’s educational objectives.

 

The Tribunal accepted that it was bound by the authority of the Inner House of the Court of Session in The City of Edinburgh Council [2009 and, in particular, that “It is irrelevant how many agencies are involved with a child unless their involvement is for the purpose of providing additional support to the child to enable him to benefit from school education.” at paragraph 18.  In light of this, we did not feel it necessary to explore further the statements lodged that were made by the Minister for Children and Early Years, Mr Adam Ingram.

 

The Tribunal accepted that full time placement in a special school or unit counts as significant additional support from the Education Authority.  This complies with the Code of Practice at page 81, paragraph 20.  The Tribunal also accepted that School A is not an appropriate agency in terms of section 23(2) of the 2004 Act. 

 

A considerable volume of written evidence was laid before the Tribunal regarding the range of involvement by a several professionals, which included the report produced by the Education Authority in response to the Tribunal’s direction.  The individual email responses from each professional were appended to this.  In addition to which, Respondent Representative attached a further seven appendices to his final written submission, which referred to the later responses from a further seven professionals or groups.

 

The Child’s Plan

According to the Child’s Plan (A94), dated October 2010, which is the product of the child’s assessment of need and risk, prepared as part of the “Getting it right for every child” policy and practice (Girfec), there are 11 professionals, not employed by School A, who are involved as “Plan Partners” in delivering the range of supports specified in this plan.  In addition to this, a further 7 professionals are specified who are directly employed by School A.  We found the Child’s Plan insightful and helpful when trying to determine the extent to which professionals were expected to work in partnership and the overlap created between the home, health and education.  For example, a communication profile is to be pulled together by May 2011 by all professionals working with The Child and her parents, which has a clear impact on her educational objectives.  Elsewhere, physiotherapists from the respiration clinic have to link with the school physiotherapist by February 2011, feedback from cleft palette team needed for SALT in school by February 2011; and Educational Psychologist to coordinate what supports are in school looking at how this can translate into home and to liaise with support workers at home to update them on strategies used in school, by February 2011.

 

Eight of the professionals not employed by School A are invited to attend the annual review in School A on 2 March 2011 (A105).  The Educational Psychologist is recorded in the body of the invitation as having accepted the invitation to the meeting.

 

In the report prepared at the Tribunal’s direction (R151), it is recorded that a further three “organisations” were added at the request of the parents; these are the support assistant, The Y and The C Project.

 

The tribunal assessed the frequency, nature, intensity, and duration of involvement by each professional or group not employed by School A or the Education Authority.  We were then able to form a view which of these were providing additional support to the child that is required to meet her educational objectives. 

 

We discounted from this ‘calculation’ any professional whose involvement was transitory, prospective or lacking in specification and any group whose involvement was time limited.  In so doing, we nevertheless acknowledge that on conclusion of current time limited work such as that conducted by The C Project and the Community Learning Disabilities Nurse, there is potential for further and perhaps increased involvement with the child.  We also discounted The T Club, which is not an appropriate agency. 

 

Of the remaining professionals and groups we were left with, we were able to determine that section 2(d)(i) and (ii) were met.

 

Section 2(d)(i): significant support provided by the education authority in the exercise of their other functions

 

The Tribunal accepted the submission for the appellant that the cumulative effect of the following professionals’ involvement amounts to significant additional support from the social work department required to meet the child’s educational objectives:

 

1. Support Assistant, whose employment is funded by the social work department through direct payments
2. The Y, which is run by and funded by the social work department

 

There is no dispute by the respondent that both are funded by the social work department.  The Tribunal accepted that the social work department is a part of the Education Authority acting “in the exercise of their other functions”.

 

Support Assistant

The support assistant is employed to work on the child’s behaviour, her social and interaction skills and the use of money.  She is involved in work produced by the behavioural specialist and the learning disability nurses.  Although the appellant promoted the view that it is likely that she will also be involved in whatever the C Project puts in place, we rejected that as prospective in nature and lacking in specification, at this time.

 

The support assistant has been funded by social work since the child was 9 years of age.

 

The CSP lists the support assistant as the person providing the additional support to the child in relation to social policy: communication methods and developing independence skills.  School A End of Year report (June 2010) (R34) lists numeracy as one of the subjects.  This includes counting and the use of money.  The support assistant gives the child sole control of the budget on outings and plays games of shops to address forgetfulness, which she considers teaches her the use of money.

 

The support assistant is funded to provide four hours of support to the child every week.  She meets with the child for two hours after school every Wednesday and every second Saturday for approximately five hours.  Parent stop up any payment due when the support assistant provides more than funded allocation of total hours.  The support assistant has worked with the child since December 2009.  She considers this an ongoing requirement to support the child into her teenage years and young adulthood.  In her support hours she structures activities to facilitate improvement in her social and interaction skills, to further enhance her confidence and ability to act independently in every day situations.  She employs a two pronged approach, using imaginative play and planned excursions.  The support assistant also uses imaginative games to develop the child’s relationship with her younger sister.  She addresses difficult behaviours demonstrated by the child in way that is consistent with instructions from the child’s parents.  She is coached by the child’s parents on any new behaviour techniques that are being considered or implemented either on the basis of their experience or advice from the school.  The support assistant is included in the work carried out with behaviour specialists and learning disability nurses.  She expects to have minimum contact with the school but is informed by the child’s parents of her progress and behaviour at school.  She has access to the child’s school diary, which is updated daily by her teachers.  The parents use this diary to inform the school of the activities undertaken by the support assistant.

 

The Y

The Y is a project run by.  Support is provided to the child fortnightly, on a Saturday for eight hours.  This commenced on 2 October 2010.  It is a pilot project and is currently running for a year.  Duration thereafter is to be confirmed.  This is a respite project providing care for eight children and young people.  The use of respite is referred to in the CSP.  Their aim is to broaden the child’s experience of new environments in the wider community, to help the child gain a sense of achievement through overcoming challenges, to build confidence and socialisation skills within a well structured, safe environment and to have fun.  This fits with some of the educational needs set out by the Educational Psychologist at A103 which includes, “The Child needs opportunities to further develop her independent living and life skills (e.g. travel, cooking, attending clubs).”  The child requires a high level of support throughout the day.  Although she has begun to interact with some of her peers, a great deal of carer input is required to facilitate this.  When the child is in the community she receives close one to one support, at all times.

 

The Tribunal considered the support of the social work department through these two groups to be of sufficient duration to make it worthwhile preparing a CSP.

 

Section 2(d)(ii): significant support provided by an appropriate agency

 

The Tribunal accepted NHS Health is an appropriate agency.

 

The Tribunal accepted the submission for the appellant that the cumulative effect of the following professionals involvement amounts to significant additional support from an appropriate agency required to meet the child’s educational objectives:

 

1. Dr J, Associate Specialist Community Child Health
2. Dr T, Consultant Paediatrician
3. Z, Senior Community Respiratory Nurse

 

Dr J

Dr J, Associate Specialist Community Child Health would expect to see the child and her parents for medical review every 12 to 18 months.  She will continue to see the child from time to time as long as she is at school.  She has direct involvement with the child and her parents.  She performs a liaison role in writing to and speaking with other professionals involved with the child, when required.  She receives information from other professionals and shares relevant information with the school nurse.  She sends a copy of her report to the therapists based at the school and to the Head Teacher.  She will contact them directly if there is specific information that should be shared.

 

Dr T

Dr T, Consultant Paediatrician, normally reviews the child approximately every three months in the respiratory out patient clinic.  He is currently leading the investigation into the child’s chronic cough and is responsible for reviewing her progress in the outpatient clinic, which has increased the current frequency of contact with the child.  If the child’s chest improves on treatment he will be likely to continue to review child over the next one to two years.  If the child’s chest remains troublesome he will require continuing outpatient review for the foreseeable future.

 

Z

Z, Senior Community Respiratory Physiotherapist, was initially involved in the child’s respiratory physiotherapy care on a weekly basis from August 2010.  This involved assessment and treatment of the child’s chest, education to her parents about her respiratory condition and ways to manage it with regard to her chest physiotherapy.  She was heavily involved with the physiotherapist based at the school, L, in providing her with information regarding the child’s hospital admissions and results of investigations.  She worked alongside C to ensure the child receives physiotherapy daily at her school.  This involved four treatment sessions over the space of three months.  She remains in monthly contact with C.  Although she has not seen the child since her last one to one treatment in September 2010, she is always available for a consultation and a rapid response treatment should the child need urgent chest therapy in the community.  The child is unlikely to be discharged from her service until she moves into adult care.

 

The Tribunal accepted that the involvement of the above professionals were required to allow the child to meet her educational objectives in terms of her holistic needs.  More specifically, Community Child Health: To promote physical and emotional health, which is stated as an educational objective in the CSP.

 

The Tribunal considered the cumulative support of the appropriate agency, NHS, to be of sufficient duration to make it worthwhile preparing a CSP. 

 

Although The Tribunal had to discount a number of other professionals who are involved with the child for the reasons stated, it was obvious to us that there was an inter-connectedness between them.  It seemed to the Tribunal that if one was pulled the whole structure of support would start to wobble. 

 

The Tribunal noted the views of Appellant Representative that some more information may be missing from other professionals involved in supporting the child.  This was not raised in evidence but in closing submission.  We took account of the fact that Appellant Representative was not legally qualified and we would have been prepared to adjust the proceedings to allow the receipt of more evidence, however this was not requested and was raised more as a rhetorical question.  We placed no weight on this and agreed it was not appropriate for the Tribunal to speculate.  Ample opportunity was provided to both parties to raise any points regarding evidence at the commencement of proceedings and throughout.  We formed the view that we had sufficient information from the range of written and oral evidence to allow us to reach an informed decision. 

 

Coordination

 

The Code of Practice states at paragraph 17 of page 80 that “One purpose of the co-ordinated support plan is to ensure that support is co-ordinated effectively when at least one service is required from outwith what the education authority provides as part of its educational functions”.

 

It is clear that the parents have been carrying the burden of coordination of support for some time, possibly even during the period when the child had the CSP.  It was striking that no one could inform the Tribunal of the degree of involvement by professionals, such was their volume.  The Tribunal accepted the concerns of the parents that this was too much for them and that they could not do the job as well as necessary.

 

The Depute Head Teacher could not advise on who was involved with the child outside of school, despite the many records of partnership working and “planning partners”.  She advised the Head Teacher would have had the responsibility for coordination when the CSP was in place.  The social worker was unable to provide sufficient clarity or information on this, yet spoke of the child’s educational objectives being met entirely by the school, without having full knowledge of the range and extent of support being provided to her outside of school, despite being named as the Lead Professional in the Child’s Plan.  As best the Tribunal could understand, she has what seemed to be a ‘link’ role between social work and education and the child’s home, but that was as far as we could identify her responsibilities.  She seemed to have a laissez fair attitude to her role in education – “If the school don’t contact me, I assume it is alright.”   For this reason it was also difficult to calculate the extent of her support. The Educational Psychologist, Dr D, has an apparent role in coordinating educational support within the context of the Child’s Plan.  Dr J has a liaison role between health and education.  It seemed to the Tribunal that several professionals were all doing various bits, within limits, in the complicated jigsaw of support that is provided to the child, but no single person was coordinating the overall delivery of support that is required for the child to achieve her educational objectives.  There was evidence that this has already had a detrimental impact on the child, for example, Dr M reported in August 2010 that “J or G will liaise with the speech therapists at School A to advise on the appropriate therapy to pursue”. The parents were able to advise us that this has not yet occurred.  We accepted their submission this is due to a lack of coordination. Within this context it was quite clear to us that a CSP was necessary. 

 

The Tribunal did wonder if this lack of joined up awareness had led to the decision to discontinue the CSP.  In other words, because no one person was aware of the frequency, nature, intensity and duration of involvement of the range of professionals not employed by School A or the Education Authority, an assumption had been made that they were not required to achieve the child’s education objectives.  It appeared to us that the decision to discontinue was made on a rather narrow assessment of what School A were able to provide to the child, rather than a holistic assessment of the child’s additional support needs.  For example, one of the reasons cited in the letter of 05 October 2010 is that The Child does not present with any significant behavioural problems in school.  This discounts the fact that Parents were continuing to report significant behavioural difficulties at home.  No apparent account was taken at the meeting of how the child was achieving her education objectives outwith the classroom.

 

Respondent Representative stated that the parents always have the Child’s Plan (Girfec) when commenting on the need for a CSP.  We do not accept that this overrides or negates the need for a CSP, and the Code is clear on this point.  In any event, the Child’s Plan has failed to provide the necessary links between school, home, health and social work, despite specifying clear links to education.

 

Finally, we record our thanks to the parties’ representatives for their non confrontational approach to the proceedings.  It is worth note that compliance with the Tribunal’s direction of 21 January 2011 involved considerable coordination of information and we record our thanks to Respondent Representative in this regard.

 

Note

 

Review of the CSP (O4 October 2010)

 

Although we placed no weight on the events of the above meeting in reaching this decision, we note with some concern the circumstances in which it appears to have been conducted.  The parents were clearly unaware of the purpose of the meeting, despite Respondent Representative’s assurances.  Respondent Representative refers to the meeting in his case statement at paragraph 10 as being a “school review meeting”.  The failure to provide a minute of such a significant meeting, which led to the decision to discontinue the CSP, left the parents without any opportunity to scrutinise the detailed reasons for reaching such a decision.  We could not accept Respondent Representative’s position that the letter of 05 October 2010 amounts to a minute.  The parents cannot even be certain from this who attended the meeting.  The Code of Practice sets out the procedures, which should be followed, before proceeding with any review, at paragraph 75 of page 99, which includes notifying them of their proposal and inviting their views and notifying them about what is likely to happen during the review.