ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/015/2008
Gender: Female
Age: 12
Type of Reference: CSP not required
1. Reference
The father, (“the Appellant“) made a reference to the Tribunal in respect of the alleged failure of the Education Authority (“the Authority”) to comply with a request made to them to establish whether or not his daughter, (“the child”) requires a Co-ordinated support plan. There was no agreement reached between parties as to when this request was formally made. Pending the Tribunal Hearing the Education Authority complied with the said request and determined that the child did not require a Co-ordinated support plan. The Reference is in terms of Section 18(3) (b) (i) of the Education (Additional Support for Learning) (
2. Decision of the Tribunal
In terms of Section 19(2) (a) of the Act, the Tribunal confirm the Decision of the Education Authority that the child does not require a Co-ordinated support plan.
3. Preliminary Matters:
Following the case statement period ending, the Appellant lodged a number of further documents. These were formally received late. The Education Authority had no objection.
There were two further documents of relevance which had been produced to the Tribunal in advance of the Hearing but not formally lodged by either of the parties. These were ordered to be received into the bundle of papers. The first was the formal letter issued by the Education Authority, dated 26 September 2008, being their formal determination that the child does not require a Co-ordinated support plan. The second document was a further letter issued by the Education Authority dated 2 October 2008 advising that having given due consideration to the Appellant’s request for discretionary funding to be made available for, in effect, a home education package, that on the basis of the information they had been provided they were not prepared to provide such financial support.
The Tribunal intimated that they wished to deal with the Reference in an inquisitorial way. This was, in part, to assist the Appellant who was unrepresented. Both parties agreed to this. All representatives of the Education Authority present at the Tribunal were in attendance throughout the proceedings.
4. Summary of Evidence:
The Tribunal carefully considered the evidence comprised within the bundle of documents submitted by both the Appellant and the Education Authority together with oral evidence from:-
- The Appellant.
- The Education Officer who is Senior Manager, Additional Support for Learning.
- The Additional Support Needs Team Leader.
5. Findings in Fact:
1. The child is currently 12 years of age. She lives with her parents and siblings.
2. There are two issues of relevance so far as the child’s education is concerned.
- The child has a slight auditory processing difficulty.
- The child is a young talented musician; in particular with reference to her cello and piano playing.
3. The child attended school throughout her primary education which concluded in June 2008. Until the conclusion of primary 4 she was taught within the Gaelic Medium class. The Appellant transferred her to the English Speaking class at the commencement of primary 5.
4. The Appellant and his wider family have a keen interest in music. The child’s elder sister attends classes at the
5. The Education Authority has fully recognised the child’s individual circumstances and has held meetings, and proposed further meetings, in connection with the progress of her education. In particular a meeting was convened on 20 June 2006 to consider an Individualised Educational Programme (IEP). It was determined that an IEP was not required but a “proposed education programme” taking into account the child’s individual circumstances was prepared.
6. Following the meeting on 20 June 2006 the Education Authority indicated that it would make funding available under the Gifted Pupils’ Scheme to meet the costs in relation to the child’s music tuition. It was stipulated that it would be necessary to receive details of the names and addresses of the tutors and that detailed invoices of the associated costs would require to be produced. The Appellant has lodged invoices with the Education Authority seeking payment in terms of the Scheme. The information provided has not been sufficient to satisfy the Education Authority’s strict auditing standards. Accordingly, no payments have ever been made.
7. The Appellant remained unhappy at the Education Authority’s assessment of the child’s educational needs. He commissioned a private report a Chartered Psychologist in February 2007. The Report concludes that the child had a significant weakness in short-term auditory and working memory and indicated within its conclusions that it would “probably be helpful to agree an individual education programme…” This had already happened. (See Finding 5)
8. With the consent of the Education Authority the Appellant removed the child from her Primary School on Wednesdays throughout her primary 6 year. This was in order that she could attend private lessons for cello and piano.
9. From the commencement of primary 7, in the absence of any consultation with the Education Authority, the Appellant withdrew the said child from the Primary School on Thursdays also. The Appellant has indicated that this was for the purpose of private tuition in order to assist with the child’s auditory memory issues but has been somewhat vague in respect of the tuition provided and has produced no vouching in connection with such provision.
10. The child’s deficiency in her auditory working memory can be addressed by differentiation by the Class Teacher within the classroom in the absence of any additional services or agencies.
11. Despite the child’s auditory working memory deficiency she progressed well throughout Primary School. Further progress, in particular in relation to maths, has been hindered by the amount of time the child has had out of school due to other commitments. In addition to the child being absent throughout primary 7 on Wednesdays and Thursdays, there was also a high number of further absences. The child’s attendance rate for the school session 2007/2008 was only 48.72%. Inadequate explanation has been given for such further absences.
12. In March 2008, following a successful audition the child was offered a Saturday place on the RSAMD Talented & Gifted Young Musicians Programme.
13. The child’s name is on the school roll at the local High School. The Education Authority envisaged that she would commence attending there from the commencement of the new school term in August 2008. The child’s name appears on the roll there are a result of an automatic process since the Primary School is a feeder school to the High School.
14. The child did not attend any of the transition days in June 2008 to attend the High School in order to become acquainted with the environment and routines there. The child has not attended any classes or sessions at the High School since the new school term commenced in August 2008.
15. The Education Authority has no direct knowledge of the arrangements presently being made for the education of the child by the Appellant. The Appellant is currently controlling the child’s education or lack of it. The Appellant has withdrawn the child from educational provision being provided by the Education Authority.
16. The Appellant sought discretionary funding from the Education Authority to support a proposed home education package which would include additional classes being organised at the RSAMD over and above the Saturday programme which had been offered to the child. This would also have comprised home tutoring for some academic subjects.
17. Following due assessment, the Education Authority refused to open a Co-ordinated support plan for the child. They intimated their formal decision to the appellant by way of letter dated 29 September 2008.
18. The Appellant was prepared to withdraw the Reference to the Tribunal in respect of the refusal of the Education Authority to open a Co-ordinated support plan in the event that discretionary funding for the purposes outlined in finding 13 above, were to have been made available.
19. By way of letter dated 2 October 2008, the Education Authority intimated to the Appellant that having given consideration to the information provided they were not prepared to provide financial support to the Appellant’s proposed education programme for the child.
6. Reasons for Decision:
The Tribunal was particularly impressed by the evidence given by the Education Officer who was the main witness for the Education Authority. He has a First Degree in Philosophy and Psychology; a Postgraduate Qualification in Teaching and is a Registered Teacher; a Masters Degree in Educational Psychology and a Diploma in Management in Education. He has been involved in the case of the child by supervising the Additional Support for Learning Co-ordinator. He has been involved in the decisions and judgements made regarding the child. He has consulted with both the Head of Education Services and the Director of Education and is the most Senior Specialist Adviser in the field of Co-ordinated support plans and Additional Support Needs within the Authority. He gave his evidence in a very careful and fair manner. There were certain issues which the Tribunal raised with him by way of clarification which he had not earlier considered but gave careful thought and consideration to such issues.
The Appellant was a less impressive witness. He appeared to have fixed views regarding the history of matters as he saw them and fixed views regarding how he sees the future unfolding for the child. A number of inconsistencies in the Appellant’s position became apparent. In the Appellant’s original Reference to the Tribunal, the Appellant made reference to the child having a “slight learning disability”. Within his case statement he made reference to the child having a “significant learning disability”. The Tribunal found no foundation whatsoever for the suggestion that the child has a significant learning disability, and reference is made later in this respect to the findings of the report by the Chartered Psychologist, commissioned by the Appellant.
Similarly, within the Appellant’s original Reference to the Tribunal he indicates that the Education Authority has refused to recognise the child’s circumstances. Again this very clearly is not the case given the individualised planning which has taken place and which is evidenced within the bundle of papers and spoken to by the Education Authorities witnesses.
The Tribunal found that the Appellant was vague regarding some of the provisions which he says have been made by him for the child. This was particularly so when the Tribunal questioned the Appellant regarding the educational programme put in place by the Appellant on Thursdays throughout the child’s primary 7 year. He initially simply made reference to “personal friends” assisting the child and it took considerable prompting in order to elicit further information. No vouching has ever been produced. Similarly the Appellant has lodged invoices for payment in terms of the Education Authority’s previous offer to make payment for music tuition in terms of the Gifted Pupils’ Scheme. Insufficient details have been provided however to enable any payments to be made.
The Tribunal sensed a certain lack of candour on the part of the Appellant so far as the offer of tuition to the child from RSAMD is concerned. Within the Appellant’s case statement the inference is that the child has been offered a place for tuition on both a Friday and a Saturday. In fact, following investigations by the Education Authority it became apparent that the offer is in relation to the RSAMD Talented & Gifted Young Musicians Saturday Programme only. The reference to additional tuition on a Friday is something which the Appellant desires to organise unilaterally.
The Tribunal concluded that the Appellant’s responses to the Education Authority were not conducive to the establishment of a partnership based on trust. He has not always supplied information requested and has not taken up opportunities for assessments offered. An example of this is that the Education Authority offered to refer the child to Educational Psychological Services if the Appellant wished that. This was an offer not taken up yet a number of months later the Appellant commissioned his own report by a Chartered Psychologist. The Appellant presented as someone mistrustful of the Education Authority and his views in this respect are clear from the terms of many of the letters written by him forming part of the bundle of papers. Whilst there was an independent enquiry into failings by the child’s primary 4 Class Teacher, this does not, in the Tribunal’s view, justify the Appellant’s position.
The Appellant was unable to point to any of the conclusions within the independent report prepared by the Chartered Psychologist which would suggest that a Co-ordinated support plan is necessary. Whilst the Appellant indicated that he did not accept the terms of the child’s most recent School Report for the academic session 2007/2008 he was unable to suggest why he considered the School Report defective. The Appellant was similarly unable to suggest any basis as to why the assessment carried out by the Additional Support Needs Team Leader was flawed or defective in any way.
The Education Officer indicated that the conclusions of the report by the Chartered Psychologist were broadly accepted and that the terms of the report were generally helpful. The conclusions however would weigh against the suggestion that a Co-ordinated support plan was required for the child.
The Education Officer described the child’s memory issues as “slight”. They can be addressed by appropriate differentiation within the classroom setting by the Class Teacher. In effect, the classroom issues which arise for the child from the conclusion that she has an auditory working memory deficiency do not make her very much different from other children. It is a small individualised issue. The Education Officer described in detail how such differentiation can be implemented within the classroom setting. The Education Authority has also provided materials to be used at home by the Appellant and the child which are documented within the Respondent’s bundle of papers.
The Education Officer indicated that the Education Authority do recognise that the child is musically talented. The child should clearly be congratulated upon winning a place upon the RSAMD’s Saturday Programme. Despite various requests for other information and testimony regarding the child’s musical abilities they have not been forthcoming. The Appellant has accepted that the child’s musical talents are not on the same level as her elder sister who has been provided with discretionary funding by the Education Authority. The Education Authority do not feel that it would be justified to invest further in the child’s musical progression to the undoubted detriment to her progression in wider academic subjects at High School level. The Education Authority would however be prepared to encourage and support the progression of her musical talents were she to attend High School; for example ensuring her participation in the Youth Orchestra.
The Additional Support Needs Team Leader spoke regarding her assessment of the child dated 25 January 2007. In that Report she refers to a “slight” difficulty with memory. The Authority has three classified stages to describe a child’s individualised needs. The child was assessed as being within the lower stage i.e. stage 1 and requires support within a classroom setting by the Class Teacher only. No external supports are required.
The relevant issue for determination by the Tribunal is whether or not the child meets the statutory test for a Co-ordinated support plan as set out within Section 2 of the Act.
The first prerequisite is that the Education Authority is responsible for the education of the child. This was in dispute. The Education Authority relied upon the circumstances described within our Findings 13‑15 and argued that they were not responsible for the child’s education. The Appellant argued that since the child had been educated by the Education Authority at Primary School that the Education Authority was responsible.
Clarification was sought regarding the Appellant’s future intentions so far as the child’s education was concerned. The Appellant indicated that he had no intention whatsoever of deviating from his plan for the child to attend RSAMD on both a Friday and a Saturday. The child would also be unable to attend High School on a Thursday due to travel arrangements. His most recent proposal which was intimated to the Education Authority only throughout the course of the Tribunal proceedings was that he would be prepared for the child to attend at High School on Monday to Wednesday each week.
The Education Authority’s position in relation to this was that even in that situation they could not deem themselves to be responsible for the child’s education. The child latterly in Primary School ought to have been attending three days weekly. In actual fact her attendance rate fell far below the 60% attendance rate corresponding to that. Even the proposed maximum attendance rate would be unsuitable so far as the secondary curriculum is concerned. The Appellant has also stated in discussions that there may be other additional arrangements which would require the child to be further absent from school. The Appellant has specifically and repeatedly asserted that he will be in control of the child’s education even if she is attending High School on a part-time basis. The lack of trust and co-operation weighs against an appropriate partnership being in place between the Appellant and the Education Authority which would enable the Education Authority to take ultimate control and responsibility over the child’s education.
It was necessary to determine what the Appellant’s future intentions with regards to the child’s education was as Section 29(3) of the Act stipulates that an Education Authority are responsible where the child is “about to be” provided with school education in a school under the management of the Education Authority or in pursuance of arrangements made or entered into by the Authority.
The Tribunal were satisfied that given the facts in Findings 13‑15 and having regard to the Appellant’s proposals for the future education of the child that the Education Authority are not responsible for the child’s education in terms of Section 2(1)(a) of the Act. The Appellant is currently controlling the child’s education or lack of it. The Appellant intimated throughout the Tribunal a proposal whereby he would continue to control the child’s education. In coming to this conclusion the Tribunal have had specific regard to the terms of the Opinion of Lord Brailsford in the case of RB -v- A decision of an Additional Supports Needs Tribunal [2007] CSOH 126.
The Education Authority has no current control whatsoever over the education of the child or lack of education. Even in the event of the child attending High School 3 days each week, the Education Authority would still have no control over the balance of the child’s curriculum and no control or input into the identity or provision of additional tutoring. The fact that the child’s name appears on the roll of the High School for the reasons in Finding 13 is not sufficient in our view to render the Education Authority responsible for the child’s education.
Even if we were to have taken a different view on the issue of responsibility then given the evidence before the Tribunal we would not have been satisfied that the child meets the other criteria for the preparation of a Co-ordinated support plan.
The child’s needs in relation to her musical talents and memory issues are not factors which have a significant adverse effect on the child’s school education. We are not satisfied that either one of those issues is a complex factor nor taken together are they multiple factors for the purposes of Section 2(1) (b) of the Act.
Similarly, and for the avoidance of doubt, the Tribunal does not find that the child’s individual needs require any significant additional support to be provided by either 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 by one or more appropriate agencies as well as by the Education Authority themselves. There are no services or agencies that require co-ordination in support of the child’s school education. The tests contained within Section 2(1)(d)(i) and (ii) of the Act are not fulfilled.
The Appellant intimated that the child’s views were that she wished to take up all tutoring which was available at the RSAMD and that we ought to follow those views. It was never suggested to the Tribunal that we ought to hear from the child and the Tribunal did not consider it necessary to do so. The views of the child as expressed through the Appellant were had regard to by the Tribunal but are not determinative of whether the child meets the statutory criteria of the preparation of a Co-ordinated support plan.
It seemed to the Tribunal that the child’s education is suffering due to the Appellant’s focus upon receiving discretionary funding in order to put together a home education package similar to that of the child’s elder sister. Even in the days leading up to the Tribunal Hearing the Appellant was to withdraw the Reference to the Tribunal in respect of the Education Authority’s failure to open a Co-ordinated support plan if they had been prepared to make discretionary funding available to fulfil his education proposals for the child. In the proceedings the Appellant accepted that he had, in effect, left the child “high and dry” by focusing upon that proposal. It seems to the Tribunal that the child is currently being deprived of an appropriate education due to the position adopted by the Appellant and would encourage him to consult further with the Education Authority in order to agree an appropriate route forward as soon as possible.
In managing and determining this Reference the Tribunal has considered and given effect to the overriding objective contained within the Additional Support Needs Tribunals for
13th October 2008.
