ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/16/2006
Gender: Male
Age: 11
Type of Reference: CSP not required
1. Reference:
The mother lodged a reference in September 2006 under section 18(1) and (5) of the Education (Additional Support for Learning) (
2. Decision of the Tribunal:
The Tribunal confirmed the decision of the authority dated July 2006.
3. Preliminary Matters:
The case was first set down for hearing on December 2006. Late evidence was lodged by the appellant (pages L1 to L26). In November the appellant’s representative sought a postponement to enable further evidence to be obtained. In December 2006 a Convenor directed that the case be postponed. The case called for hearing on February 2007. Late evidence was lodged by the respondent (L27 to L43). No objection to the late lodging was taken and the documentation was allowed to be received as productions in terms of Rule 34 of the Additional Support Needs Tribunals for
4. Summary of Evidence:
The Tribunal considered the following evidence:
oral evidence of:
- The child’s mother;
- Head teacher, child’s Primary School,
- Educational Psychologist
- Inclusive Education Manager, of the Local Authority
the papers in the bundle which consisted of:
1. Copy reference to Additional Support Needs Tribunal for
2. Sundry correspondence from the ASNTS secretariat to the parties;
3. The respondent’s case statement and submissions, pages 1 to 54 (described further as “R1” to “R54”)
4. The appellant’s case statement and submissions pages 1 to 61 (described further as “A1” to “A61”)
5. The appellant’s further documents pages L1 to L26.
6. The respondent’s further documents pages L27 to L43.
5. Findings in Fact:
1. The child is aged 11. He lives with his parents and elder sister. He is presently a P7 pupil. He has been at his current school since starting primary school. He is due to transfer to secondary school in August 2007.
2. From April 2003 when aged 7, the child has been under the care of a Consultant Paediatrician. He currently attends the consultant’s clinic every three months. The consultant has attended meetings at the Primary School to discuss the child and his needs. After meeting the child and his parents in April 2003, the consultant suggested that the child had Asperger’s Syndrome. On assessment by his GP it was thought that a diagnosis of Asperger’s Syndrome was appropriate. The consultant’s opinion of the child’s present diagnosis is set out in full in his letter dictated on November 2006 to the, Educational Psychologist (page L34 to L37 of the bundle): namely that it is likely that he has developmental dyspraxia of mild to moderate type (although such diagnosis is contingent on a full OT assessment for clarification and confirmation), and probably has a pervasive developmental disorder of Asperger type.
3. The child also suffers from other medical conditions He is not presently attending any hospital clinics in respect of these conditions. He cannot use soap, and has a special cleanser for his hands which he carries with him for use in school hours. He sometimes requires additional medication for his skin from his GP. He has a tendency to suffer chest infections. He was able to join in the recent school swimming course with his class and completed the course to receive a certificate.
4. During the school session 2005/2006 when he was in P6, the child had attendance of 96.12% as at March 2006, and 95% for the whole year. During the school session from August 2006 to the date of the hearing, the child had attendance of 84%. His absences this session have included time off when he had an ear infection, a chest infection and a stomach upset. He has sometimes been sent home from school during the day because of complaining of feeling unwell.
5. The child has recently attended an optometrist at a hospital. He has been given eye exercises which he requires to do six times a day to aid the muscle function. The school was informed of this. The child is able to do the exercises himself. He takes the card to school and three times during the school day he carries out the exercises. The school have asked that a formal letter be provided by the hospital confirming the requirement to do the exercises.
6. Subsequent to observation by an outreach teacher and outreach manager of the Autistic Spectrum Base at another Primary School, transition work from the outreach service will be available for the child in the last term of P7 if it is felt to be appropriate, on referral by the Educational Psychologist.
7. The child has progressed and matured in the last two years, and is becoming more confident in school. He achieved level D in reading by the end of P6, and has recently achieved level D in maths. He is close to achieving level D in writing. This is appropriate educational progress for his stage, where it is expected that the majority of children should have attained level D by the end of P7. He has been commended and received awards, particularly for his drawing, in competition with other children in his class. He has volunteered to be involved in various activities within school, including being a “reading buddy” to a younger child and being a “meeter and greeter” at the door on the school open day. He is quiet and well behaved in school. He had not required learning support in class since P4. He has in the past had difficulties settling in to a new class and new teacher, but in the last two years has not had any significant settling in issues.
8. The child has access to a “quiet room” where he can go during break times. This has been available to him for around two years. He has rarely used this facility. A teacher with whom he had always had a good relationship is available as a contact for him if he has any issues of anxiety or problems in school.
9. The child is part of the transition group who will move to secondary school in August 2007. He requires individual familiarisation visits to the departments in the high school setting, he requires links to be established with home, school and key personnel in the local area support base who will support him in high school. He will have one session each week in the summer term regarding the transition, and this will be reviewed in June to determine his requirements from August 2007.
10. The child has a “befriender”, an adult male who meets with him and takes him out on Saturdays. They go to the cinema, bowling etc. The purpose of this is to help him become more socially confident.
11. An Additional Support Plan has been prepared for the child . It was started in October 2006 and last reviewed in January 2007.
6. Reasons for decision:
The Tribunal considered all the evidence indicated above and was satisfied that there was sufficient evidence available to the Tribunal to reach a fair decision on the reference.
The issue was whether or not the child satisfied the terms of section 2 of the Act and required a co-ordinated support plan (“a CSP”).
Section 2 (1) provides that a child requires a plan (a CSP) for the provision of additional support if:
“(a) an education authority are responsible for the school education of the child …,
(b) the child … has additional support needs arising from –
(i) one or more complex factors, or
(ii) multiple factors,
(c) those needs are likely to continue for more than a year, and
(d) those needs require significant additional support to be provided –
(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or
(ii) by one of more appropriate agencies (within the meaning of section 23(2) as well as by the education authority themselves.
(2) For the purposes of subsection (1) –
(a) a factor is a complex factor if it has or is likely to have a significant adverse effect on the school education of the child …,
(b) multiple factors are factors which –
(i) are not by themselves complex factors, but
(ii) taken together, have or are likely to have a significant adverse effect on the school education of the child …”
It was accepted by the authority that they were responsible for the child’s school education, that he had additional support needs, and that these were likely to continue for more than a year. What was in dispute was whether or not subsection (d) was satisfied.
For the mother
The mother did not accept that the school reports and level of attainments reported by the school were an accurate reflection of the child’s achievements. For example, from her observations at home she did not believe that he was working towards level E in reading. She felt that he could not have achieved and indeed had not been given the chance to attain these levels because his needs were not being met and he was not getting the help he needed. She felt he did not have the opportunity to work to his full potential and thought he could do better if he was properly supported. She stated that when the child had read the reports he had said that he did not think that he was anywhere near those levels. She had been surprised to read the typewritten letter from the child (page L2 of the bundle) when she had attended the parents’ night at school. She felt that the child would not say to the staff that he had too much to cope with at school. He said this however at home. He did not want to go to school because he could not cope. The statement at page 60 of the bundle had been written by the child at home, on his own, and gave his views.
She felt that the child needed practical aids such as a sloping desk, a laptop for writing, a tubigrip for his pencil because of his difficulties with fine motor skills, input from the autistic advisor, transport to school by taxi, a classroom assistant to explain things to him if he did not understand, and a visual timetable. She felt he was particularly concerned about the move to high school, where there would be 1800 people; it would be noisy, full of people he did not know. He had “face blindness” and could not read people’s faces. He would suffer anxiety, and would be unable to cope. At present he managed to get round the primary school, but he had told her that he was confused, and coped by “watching the smart kids”. He required for example photographs of the people he would need to recognise at school, the teachers and the taxi driver who would take him to school. She believed that a CSP was necessary to ensure that the authority would fulfil their obligations. She had been promised much by the school throughout the years, but nothing had been done for the child
She was anxious that the child be tested for dyslexia. She had been asking for this for some time. At present a social worker was preparing a community care assessment. This had been commenced in January 2006, and was not yet available. It was the social worker who had told her that the child would need Occupational Therapy for one hour a week and Speech and Language Therapy. No assessment by any OT or SALT professional had been carried out or arranged as yet.
The major difficulty was getting the child out to school in the morning. She described how he would cry and have tantrums. She described him as going into “meltdown”. She had to drive him to school to ensure he got there. By the time they reached the school he would go in without further upset. Some days however she was not able to get him to leave the house. If he had dressed for school he would undress and because he had exhausted himself would go back to sleep till lunchtime. He spent the rest of the day drawing or watching television. When he did not go to school because of such behaviour she normally made an excuse of some illness. Last Friday was the first time that she had told the school that he had failed to go to school because of tantrum and refusal.
For the authority
The head teacher knew the child well. He considered he was becoming increasingly confident and more outgoing in school over the last two years. He had never displayed tantrums or been violent or destructive in school. There were supports in place such as the quiet room and the link with his teacher if the child had any anxieties or problems during the school day. He was working at an appropriate level for his stage, and had volunteered for various tasks in the school. He took part in all activities. In earlier years he had taken time to adjust to a new class or a new teacher and needed reassurance. In the last two years there had not been any significant issues in settling in to class. There had been one incident just after the start of P7 when two classmates had caused the child problems, but this had been dealt with immediately and no further incidents had occurred. He was not concerned at the child’s attendance levels, understanding that he had had some consecutive days off due to illness. He had been told by the child’s parents that the child had made statements that he could not cope any more and that he would rather die, but it had never been reported to him by any teacher that the child had said anything like that in school. The child appeared to cope well.
He had been involved in the preparation of the Additional Support Plan, which was an open document, to be constantly reviewed. The ASP was to recognise the individual arrangements needed for the child over and above the extensive programme of transition for all his P7 pupils. If, after future assessment, input from social work or the health board was thought necessary and it was relevant to his education, this would be included in the ASP.
The educational psychologist was employed by the authority. He had met the child briefly in 2004 when he had been referred because of school attendance. No further meeting had taken place because the parents did not want the child to be seen on his own. He had had no concerns about the child at that time. In May 2006 he had been contacted by the mother because of concerns about the child at home. He had met the child the following day when he had been in the school for other business. He spent around thirty minutes with him. There had been no concerns reported by the school. At the conclusion of the meeting he had found no cause for concern. His third meeting with the child was in November 2006 to find out his views with regard to the reference to the Tribunal. Page R7 is the typed copy of his notes of what the child said at that meeting.
The education manager was in charge of the CSP assessment. She had had regard to the criteria in the Act, and the Code of Practice and guidance. The authority would continue to monitor and assess the child’s needs throughout his life at school.
Submissions
The solicitor for the authority submitted that neither subsection (d) (i) nor (ii) was satisfied. She submitted that the evidence produced for the authority showed that there was no significant additional support from the authority either as an education authority or in the exercise of any of its other functions, nor was there any significant additional support from any other appropriate agency.
The mother’s solicitor submitted that it was immaterial that there was no ongoing additional support from the authority or another appropriate agency; the child’s needs required significant support and they should be in place. She maintained that the child required Occupational Therapy and Speech and Language Therapy. These should be provided by the Health Board or the authority Social Work Department. The Health Board was an appropriate agency in terms of section 23(2), and the Social Work Department was another function of the authority. The ‘befriending service’ was provided through a voluntary organisation after referral from the GP. She submitted that this could be considered to be support provided by another agency. Further, his asthma was a factor. With reference to R v Lancashire County Council (Ex parte M) [1989] 2
Reasons
The Tribunal accepted the weight of evidence from the school and in particular the report from the Autistic Spectrum Base (pages L28 to L31) that the child is coping well at his primary school and is receiving additional support appropriate to his needs. Although the description of his behaviour at home is worrying, the Tribunal considered that there was no evidence of this having a significant adverse effect on his school education.
Although the mother was adamant that there was a need for Occupational Therapy and Speech and Language Therapy, there had been no professional assessment. The Tribunal concluded that it was not possible, without evidence of what support may be needed, to find that either the social work department or the Health Board required to provide significant additional support in the form of such therapies.
The child was receiving support from the doctor by attending a clinic every three months. He had had one appointment with the optometrist and presumably would return after finishing his exercise programme. He attended his GP with general health issues, including treatment as required for his asthma and eczema. In the view of the Tribunal none of these attendances could be construed as significant additional supports from a health board.
Although the full community care assessment had not been carried out, the recommendations in the letter page 58-59 were for home care respite for a few hours each month and for a youth group placement for the child in the view of the Tribunal this could not be taken to be significant additional support from the social work department.
The only information about the befriender service was that it was arranged by a voluntary organisation. As the Tribunal understood it, it was not submitted that this organisation was an appropriate agency in terms of section 23(2). It was stated that the referral to the service was made by the GP. Whether this was a formal referral or simply the provision of information about the service was unclear. In any event, even if a formal referral, the Tribunal did not accept that this could support the submission that this showed significant additional support by the health board.
The Tribunal accordingly found that neither section 2(d) (i) of (ii) was satisfied in that the child’s needs did not require significant additional support from any function of the authority other than education, nor from any other appropriate agency.
The authority submitted that the child did not require significant additional support from the education department. However given that the Tribunal had found that there was no significant additional support required from another agency or department, there was no need to reach a concluded view on that matter.
