Additional Support Needs

The mother has referred to a Tribunal a decision of the education authority that her child does not require a co-ordinated support plan. The reference is under section 18 (3) (b) (i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

2. Decision of the Tribunal:

The Tribunal overturns the decision of the authority.

The Tribunal requires the authority to take the following action:

to treat the letter dated April 2006 to the Head Director of Education, from the parents as having been received by the authority on the date on which this decision is issued to the authority and to treat said letter as a request made by the parents under section 6(2) of the Act for the first time on the date last mentioned.

3. Preliminary Matters:

At the start of the hearing the Tribunal allowed the appellant to lodge further documents not already lodged as a production, namely 1) a copy letter from NHS Speech and Language Therapy Service dated August 2006; 2) a copy Occupational Therapy Assessment Report dated October 2006; and 3) a copy letter from Principal Teacher Guidance at the local high school to the parents dated October 2006. The authority did not object to the lodging of these documents.

In the course of the hearing the authority was allowed to lodge a further document not already lodged as a production, namely a copy email from a Schools Officer. The appellant did not object to the lodging of this document.

4. Summary of Evidence:

The Tribunal considered a substantial bundle of evidence containing case statements for both parties and supporting documents, including the further documents lodged at the hearing. The authority’s statement of case and supporting documents are numbered A 1-48; the appellants’ statement of case and supporting documents (all of them duplicates of documents lodged by the authority) are numbered 1-16.

The Tribunal heard oral evidence from the appellant; the deputy head teacher and the principal Support for Learning teacher from the local high school. The authority’s representative gave informal evidence on a number of matters.

5. Findings in Fact:

The child was born on March 1991 and is now aged 15 years. He is in his fourth year (“S4”) at the local high school. He lives with his parents and has a brother described by his parents as having a learning disability. He attended a special school and now attends a college in Edinburgh. The child has one other brother who is now adult.

The child is considered by the school to have “mild/global learning difficulty” or “mild learning difficulties which might be described as global difficulties.”

As a result of delayed speech and language development, the child was reviewed by his local NHS speech and language therapy service on various occasions between 1994 and 1999. He was discharged by the service in 1999. At that time his language skills were considered to be in line with his general attainment levels. While at primary school, he attended a Perceptual Motor Group in 2000, but was discharged in September 2000 having made good progress.

In late August 2006 the child’s language skills were assessed by a speech and language therapist using the Clinical Evaluation of Language Fundamentals test. On three subtests, he achieved standard scores equivalent to a performance which placed him at between the 5^th and 9^th centile for his age group. This means that between 95% and 91% of those assessed on the same test would have performed better. In the opinion of the therapist, however, his overall understanding and use of language was in line with his general attainment levels. He did not appear to her to have any specific area of difficulty in relation to his language.

Before moving to secondary school, he achieved the following 5-14 levels; level C in Listening, Talking and Reading, level B in Writing and level B in Maths.

After moving to secondary school, the child was placed on a Successmaker Programme and his skills in spelling and reading showed improvement. He has had, and continues to have in-class support, which has been made available to all pupils in his sets in Maths and English. He attended an after school homework club, on a few occasions, to work on his handwriting.

His current educational attainments are listed in his report for the year 05-06 (items 39-40 of the authority’s productions). In summary, he achieved overall grades for his coursework ranging for 5 to 7 in his standard grade subjects of English, Maths, History, Computing and Physical Education.

In June 2006 the child was given the British Picture Vocabulary Scale (long form) test by the Principal Support for Learning Teacher. His performance achieved a raw score of 80 which was equivalent to a standardised score of 61 (items 37-38 of the authority’s productions). His performance was recorded, wrongly, on the test pro-forma as a “moderately low” score. In fact, he achieved an “extremely low” score, indicating an age equivalent of between 8 years and 9 years and four months. His chronological age at the time of testing was 15 years and three months.

In school, he is regarded by staff as a pleasant lad. Reports indicate that his behaviour is generally good, although he does get involved in silly incidents. He sometimes shows what is regarded as lack of effort. He has difficulty in understanding what he is asked to do. Reports from staff (item 16 of the appellant’s productions) indicate that he struggles in most of his subjects.

While in S3, the child attended a pre-vocational course in motor mechanics at a local college and was reported to have shown aptitude. He hopes to become a motor mechanic. Since entering S4 he has attended a pre-vocational college course in the same subject. He is reported to have worked well and is regarded as having the potential to achieve the units worked on.

School reports state that his handwriting is legible, when he takes care, but is slow. He has been given the opportunity of using a laptop computer in his work in English. One subject has been removed from his curriculum to give him more time in his other subjects. He spends this time in a support unit doing “catch-up” work under supervision. Consideration is being given to a further curtailment of his curriculum. He requires differentiated tasks. The school is investigating the possibility of his using a scribe in his forthcoming SQA examinations.

In a letter to the authority dated April 2006 the child’s parents requested that he be assessed and examined to determine whether he had additional support needs and whether, those needs, once identified, required a co-ordinated support plan.

The parents stated in their letter that they wished him to be assessed and examined by (1) an educational psychologist to identify his level of intellectual functioning; (2) all involved in his education; and (3) a full medical, including speech and language therapy and occupational therapy, as they felt he had difficulty with communication and his fine and gross motor skills.

The authority convened a Staged Assessment and Intervention Consultation and Planning Meeting at the school. The meeting was held in May 2006. It was attended by the Head teacher, the Principal Support for Learning Teacher, the Principal Teacher Guidance, the Educational Psychologist; the parents and the child. A summary of key discussion points (item 26 of the authority’s productions) states that “The meeting agreed the preparation of a co-ordinated support plan was not appropriate but MGS [the school] would continue to support the child appropriately.”

It is not the case that the appellant and the child’s father agreed at said meeting that the child did not require a co-ordinated support plan.

In a letter to the parents dated 26 May the authority’s representative whose job title was then “Pupil Support Manager, stated that “it has been decided that a co-ordinated support plan will not be opened for the child.”

The Educational Psychologist prepared a report dated May 2006. It is prefaced by a note that states that attendance at the meeting of May, reading and responding to the information presented at that meeting and writing her report constituted the assessment by an educational psychologist requested by the parents in their letter of April 2006.

In her report, the Educational Psychologist states that the participants at the meeting considered a “decision making tree” used by the authority to inform the decision as to whether or not a co-ordinated support plan is appropriate for a child or young person. She states that it was agreed that the child’s [mild learning] difficulties, although recognised as having an adverse effect on his education, could not be considered as “significant”. Every one agreed that the difficulties would continue for more than a year, but would not require “substantial, direct and continuing” additional support from outside agencies. This “information” would be passed to the authority, who would inform the parents of the final decision.

In the letter of May 2006, the authority’s reasons for deciding that the child did not require a co-ordinated support plan were stated to be as follows:

Factors identified do not have a significant adverse effect on the child's school education, although he does have mild global learning difficulty;

Intervention in place/planned is not significantly different from that ordinarily available in schools for all children/young people. The child has had his curriculum reduced from 8 SQA courses to 7;

Intervention from education and local authority services or education and other agencies is not substantial.

The Educational Psychologist’s report contained a further paragraph headed “Further assessment and assessment through trialling intervention.” Her recommendations include: consider reducing curriculum for focussed support on handwriting/increasing keyboard skills; using “scribing” as a tool; use of a laptop extended to other subjects; consideration of a further assessment of reading/spelling skills; BPVS (British Picture Vocabulary Scale), to be carried out by the school’s Support for Learning staff, to give an indication of the child’s understanding of language; if concerns were verified, a re-referral to the speech and language therapy service should be made; the child’s parents to approach their GP regarding any hearing/visual assessment required; and possible referral to Occupational Therapy Service for advice on supporting him with fine motor tasks, particularly handwriting and keyboard skills.

After the decision that the child did not require a co-ordinated support plan was taken, the authority arranged for a BPVS test, the results of which are set forth in finding 8. They made a referral to the local NHS speech and language therapy service, which resulted in the report referred to in finding 4. They also made a referral to the NHS occupational therapy service, who have put him on a waiting list for assessment.

The Occupational Therapy Assessment Report, lodged at the hearing, concluded that the child had fine motor, visual perception and visual motor integration difficulties that had an impact on his handwriting skills. It was agreed that he would receive a block of occupational therapy intervention to address this.

The child’s views were available to the meeting of May 2006. He finds the computer helps him in some classes. He states that he found his exams in S3 “easy” without a scribe. He would like his handwriting to be better. He has greater difficulty with a pen than a pencil. He thinks he is getting on OK in his school subjects, though things are sometimes difficult. He feels happy at school. His mum and dad are a great help.

The child is regarded as a “young carer” of his brother. He is on the books of a local organisation for young carers. A worker there has noted that he “has to cope with more worries than other young people his age” (item 17 of the authority’s productions).

6. Reasons for decision:

The appellant’s representative pointed out that the appellant had requested the authority to establish whether the child required a co-ordinated support plan. The authority was therefore under a duty to comply with that request unless the request was unreasonable: section 6 of the Act. The authority had not suggested that the appellant’s request was unreasonable.

The appellant’s representative went on to point out that the appellant had requested, among other things, that the child undergo assessment and examination by an educational psychologist to identify his intellectual functioning. The appellant was entitled to make that request where the authority proposed to establish whether he required a co-ordinated support plan. The authority had to comply with that request unless it was unreasonable: section 8 of the Act. The same went for the appellant’s request that the child undergo “a full medical, including speech and language therapy and occupational therapy…..”

The appellant’s representative pointed out that the arrangements for speech and language therapy and occupational therapy assessment were made after the authority had decided that The child did not require a co-ordinated support plan. Accordingly, they were not made “for the purposes of the proposal” to establish whether the child required a co-ordinated support plan: section 8(1) of the Act. They were made in pursuance of an “action plan” to be implemented after it had been decided that he did not require a co-ordinated support plan.
The appellant’s representative submitted that the decision of the authority was flawed, since they had made their decision without waiting for the advice and information to be obtained from the speech and language therapy and occupational therapy services. In addition, the educational psychologist who attended the meeting at which the decision was made, and who subsequently submitted a report, had not formally assessed The child and had not undertaken any examination of his intellectual functioning.

The authority’s representative submitted that the decision that the child did not require a co-ordinated support plan was correct. At the meeting in May 2006 the participants had used the “decision tree” that is set out at page 53 of the Code of Practice under the Act, “Supporting Children’s Learning”. She pointed out, among other things, that the child and his parents had been consulted and attended the meeting. They had not demurred from the decision of the meeting and were therefore regarded as having agreed with it. She said that she was disappointed that the child’s parents had not sought mediation. She pointed out that the speech and language therapy report found no specific area of difficulty and said that the occupational therapy report would be taken into account in future. She referred to the view of the Head teacher, that it was reasonable to expect that the child could proceed beyond S4, go to college and in due course find employment as a tradesman. She submitted the parents’ request for an assessment by an educational psychologist of his intellectual functioning was “not reasonable” and that all the necessary information was before the meeting in May.

The Tribunal considered these submissions in the light of all the material before it and in particular the facts it has found established.

The Tribunal was satisfied that the authority had a duty to comply with the request to establish whether the child required a co-ordinated support plan. They proposed to do so and did not attempt to say that the request was unreasonable.

The Tribunal has found that the decision, that the child did not require a co-ordinated support plan, was taken before the authority had obtained reports from the speech and language and occupational therapy services, despite the parents’ request that such reports be obtained. The assessments requested by the parents were quite clearly made “for the purposes of the proposal” to establish whether the child required a co-ordinated support plan. It was not suggested that these requests were unreasonable. In the Tribunal’s view, the authority was under a duty to obtain the results of these assessments before deciding whether or not the child required a co-ordinated support plan. They failed in that duty and the decision is therefore flawed.

It is true that the speech and language assessment showed no need for intervention, but the occupational therapy assessment did. Had the information in that assessment been before the meeting in May, it is at least arguable that the view could reasonably have been taken, at that time, that the child had additional support needs arising from complex or multiple factors, likely to continue for more than a year, that required significant additional support to be provided by an “appropriate agency”, within the meaning of section 23(2) of the Act.

Education authorities and others have a duty to have regard to the code when carrying out their functions under the Act, but the code cannot be prescriptive about what is required in individual circumstances. Education authorities and appropriate agencies must ensure that their practices take full account of the legal requirements of the Act. The Tribunal is not satisfied, as at present advised, that section 2(d) of the Act requires additional support by an appropriate agency to be “substantial, direct and continuing” before it can be regarded as “significant”. It may be sufficient that it simply “makes a difference” as far as meeting a child’s additional support needs is concerned. Some caution, therefore, should be exercised in making use of the “decision tree”.

The authority did not comply with the parents’ request for an assessment by an educational psychologist of the child’s intellectual functioning. The Tribunal did not consider the request to be unreasonable, especially in the light of the subsequent BVPS test, which provided the child with age an equivalent performance of between 8 years and 9 years and four months.

A central feature of this case is that the factor or factors giving rise to the child’s additional support needs have been consistently described as “mild learning difficulties”. This formulation of the cause of his difficulties goes back to his early days in primary school and has never, it seems, been further questioned or examined. The educational psychologist put it at the forefront of her report. The authority maintains that “the level he is working to at school is commensurate with his ability”. In other words, they are saying that his attainment is commensurate with “mild learning difficulties”; and because his attainment is low he can be labelled as having “mild learning difficulties”. What the parents want assessed is the true level of The child’s intellectual functioning and whether his attainment, or rather lack of it, is a consequence of that. It may be due to other causes. At a meeting with the parents in September 2006 (item 48 in the authority’s productions) the educational psychologist told the parents that “there would not be an IQ test”. She explained that “these are not carried out in this authority’s area as they are not found to be appropriate or particularly helpful”. The Tribunal does not accept that psychometric testing by an educational psychologist is of no use in assessing the level of intellectual functioning of this child.

The Tribunal was not satisfied, therefore, that the findings of the assessment sought by the parents, by an educational psychologist, would not have made a difference to the result.

For all of these reasons, the Tribunal has decided that the authority’s decision cannot be confirmed. The Tribunal’s view is that the authority must now consider the parent’s request anew. They should comply with the parents’ request for an educational psychologist’s assessment of the child’s intellectual functioning. The information from the speech and language therapy and occupational therapy services is now available, although the authority will no doubt consider whether that information requires to be up-dated. They may want to obtain further information from the young carers organisation. The evidence suggested that a full medical examination is not now required. If further information regarding the child’s eyesight or hearing is required the parents can approach his general practitioner. The authority should bear in mind the Tribunal’s observations about the code of practice.

The Tribunal would further point out that there is no obligation on the parents to seek mediation, although they may like to consider that course of action in the event of further dispute between them and the authority. The Tribunal attached no weight to the authority’s assertion that the parents and the child agreed with the decision of the meeting in May. The Tribunal questions whether it is appropriate for the authority to seek such agreement from a child and his parents at a meeting when complicated questions of fact, law and professional judgement necessarily arise. Once a request is made, it is for the authority to decide whether or not the child requires a co-ordinated support plan.

ASNTS_D_15_2006_06.11.06

The mother has referred to a Tribunal a decision of the education authority that her child does not require a co-ordinated support plan. The reference is under section 18 (3) (b) (i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

The Tribunal heard oral evidence from the appellant; the deputy head teacher and the principal Support for Learning teacher from the local high school. The authority’s representative gave informal evidence on a number of matters.

Needs to Learn