DECISION OF THE TRIBUNAL
Reference: D_12_2012
Gender: Female
Aged: 7
Type of Reference: Failure to establish whether a CSP is required
1. The Reference:
(“the Appellant”) made a Reference to the Tribunal in terms of Section 18(3)(b)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004 as amended (“the Act”). This was with reference to Section 18(5B) of the Act, namely that the Education Authority for Council (“the Education Authority”) had failed to establish whether the Appellant’s daughter, 2004 (The Child) requires a Co-ordinated Support Plan within statutory timescales. The Appellant disagrees with the deemed refusal of the Education Authority to open a Co-ordinated Support Plan for The Child.
2. Decision of the Tribunal:
The Tribunal refuses the Reference and accordingly in terms of the power contained within Section 19(2) of the Act confirms the Education Authority’s deemed decision that the child does not require a Co-ordinated Support Plan.
3. Preliminary Matters:
The Reference was Case Managed prior to the Oral Hearing in terms of Conference Calls. The identity of the Convener required to be changed in advance of the Oral Hearing due to the originally allocated Convener becoming unavailable.
4. Summary of Evidence:
The Tribunal had regard to the bundle of papers (T1-T37, A1-A58 and R1-R27).
The Tribunal also heard oral evidence from:
Witness 1, Educational Psychologist, Council
Witness 2, Head Teacher, School A Primary School
The Appellant, The Child’s father
5. Findings in Fact:
1. The Child is the adopted daughter of Appellant and partner. The Child was born in 2004 and is 7 years of age.
2. The Child has been diagnosed with Floating-Harbor Syndrome, a rare genetic condition. The Child has additional support needs arising from this condition. As a result of this condition The Child has low intelligence compared with those of her age and developmental delay.
3. The Child has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).
4. The Child is coming to the end of her primary 2 year at her local mainstream school, School A Primary School. This is a small rural school. She is in a composite class for primary 1 to 3 children. She commenced her primary education there in August 2010. The Child is making appropriate progress in her learning there.
5. The Child had an Individualised Education Plan which was discontinued in April 2011.
6. Since commencing at School A Primary School, The Child has received direct speech and language therapy on a one-to-one basis in blocks. Each block has been around 8 weeks in length. The provision of this therapy has been weekly for 30 minutes. The speech and language therapist has also provided consultative advice to The Child’s teacher. Whilst it is likely that similar provision of speech and language therapy will re-commence from August 2012, the specific provision and its likely duration is currently unknown.
7. There is no direct provision of occupational therapy to The Child. The occupational therapist has recently provided The Child’s parents with written material with particular reference to toileting and positive reinforcement of a good toileting routine.
8. The Child was previously being reviewed by the Department of Paediatric Neurosciences at the Royal Hospital for Sick Children in Edinburgh and in particular by Dr A, Consultant Paediatric Neurologist. She was discharged from regular neurology follow-up in February 2011.
9. Throughout the academic session 2011-2012, The Child has been receiving, in a group with a number of other children, 4 hours of curricular support a week for literacy and numeracy from the school’s Additional Needs Assistant. This work is particularly focused upon The Child’s numeracy. It remains unclear as to the specific frequency, nature and duration of any such input which might continue from August 2012.
10. The Child receives 1:1 supervision when outwith the classroom environment, including time spent by her in the school playground. This takes the form of observing The Child but there is no active encouragement or support.
11. An Additional Needs Assistant accompanies The Child when she uses the school toilet. The Additional Needs Assistant does not participate in the personal care element involved. The Additional Needs Assistant remains outwith the cubicle at the toilet door to assist if necessary and ensures she washes her hands.
12. The Child’s father is anxious about her school provision. In particular he is concerned about her safety and general well-being. He does not trust members of School A School staff nor members of the Education Authority.
6. Reasons for Decision:
The relevant dispute between the parties was in sharp focus. The area of dispute between the parties and accordingly the matter upon which the Tribunal required to determine was whether or not subparagraph (d) of section 2(1) of the Act was established or not. Section 2(1) of the Act sets out the criteria which needs to be fulfilled to require a child to have a Co-ordinated Support Plan. It was accepted by the Education Authority that subsections (a)-(c) of section 2(1) of the Act were fulfilled.
Section 2(1)(d) is in the following terms:-
“(d) those needs require significant additional support to be provided‑
- 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
- by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.”
The Appellant’s reference to the Tribunal was in terms of section 18(3)(b)(i) of the Act. By letter dated 31 August 2011, the Education Authority notified the Appellant that they proposed to determine whether The Child required a Co-ordinated Support Plan. In terms of Regulation 4 of the Additional Support for Learning (Co-ordinated Support Plan ) (Scotland) Amendment Regulations 2005, the time limit for issuing a Co-ordinated Support Plan or deciding that the child did not require a Co-ordinated Support Plan is 16 weeks. The Education Authority did not issue a Co-ordinated Support Plan nor did they intimate to the Appellant that they had concluded that The Child did not require a Co-ordinated Support Plan. In terms of Section 18(5B) of the Act the Education Authority’s failure to establish whether The Child required a Co-ordinated Support Plan within that timeframe is treated as a decision of the Education Authority that she does not require a Co-ordinated Support Plan.
The Tribunal had regard to the relevant legislation as set out. The Tribunal reached its decision with reference to the Findings in Fact established. The Tribunal had regard to the guidance contained within the revised Code of Practice. The Tribunal had regard to the opinions of the Court in the case of JT –v- Stirling Council [2007] CSIH 52 and the City of Edinburgh Council –v- A decision of the Additional Support Needs Tribunal for Scotland 10 March 2011 [2012] CSIH 48.
The Tribunal based its determination upon what additional support is required for The Child not purely with reference to that currently being provided. In fact however it was neither suggested nor was there any relevant evidence led on behalf of the Appellant that additional or different support to that currently being provided ought to be. The Appellant’s case as presented was that the support currently being provided is significant with reference to the test contained within section 2(1)(d) of the Act.
The Tribunal carefully considered the scale of support required. The Tribunal specifically had regard to the frequency, nature, intensity and duration of the support required. The Tribunal also had regard to the need for co-ordination of the support required.
The only agency providing direct support to The Child other than the Education Authority is the Speech & Language Therapy Service of the National Health Service. The Child has received one-to-one direct therapy since she commenced her primary education at School A Primary School in August 2010. Over the recent academic session 2011-2012 this has been in blocks of sessions which have lasted for around 8 weeks. The sessions provided were weekly for 30 minutes. They were conducted outwith the classroom setting in a separate location within the school. The therapist also provided general consultancy advice to the class teacher for reinforcement of strategies and advice. A more formal written report and consultation takes place at the end of each block of therapy sessions.
The Tribunal did not have the opportunity nor benefit of hearing evidence directly from the speech and language therapist. It appeared to the Tribunal however that in all likelihood speech and language therapy of a similar nature to that described would re-commence at the beginning of the academic session 2012-2013. The specific nature of the work to be undertaken is unknown. The Proforma Report completed by the speech and language therapist, XX, dated 26 April 2012 (A44) stipulates “It is unclear how long The Child will require input and I could not be sure that it will be longer than one year”.
The Tribunal does not consider that in the absence of direct evidence regarding the work to be undertaken by the speech and language therapist, together with knowledge of how long such work will continue, that it could reasonably conclude that the input would be significant.
There is currently no ongoing direct support or therapy being provided by the occupational therapist. There are however issues about the previous occupational therapy support which are worthy of comment.
A document appears at A29 which is a letter written by YY, Occupational Therapist, dated 13 September 2011 sent to the Appellant and his wife. This does not appear to have been copied to anyone else. It was unclear on the basis of the evidence whether or not its content had been shared with school staff and the Education Authority. It contains a small number of suggestions as to how to possibly assist The Child further. One of those, engagement in soft play sessions, came to fruition in the early part of 2012 when The Child attended weekly sessions at Hospital. Two other specific suggestions were made, namely that the Additional Needs Assistant could do more gross motor and fine motor activities with The Child. It was also suggested that a Movinsit cushion be used in the classroom. These never appear to have been followed through. It was unclear to the Tribunal as to the reasons why these suggestions had not been followed through. This is unfortunate and enquiries perhaps ought to be made to ensure that such breakdown in communication is not repeated. Regardless of that however the Tribunal was satisfied, based upon the evidence, that the occupational therapist has recently come to the view that no ongoing support is in fact identified nor required now.
School A Primary School itself provides additional support to The Child. There are three elements to this.
- One-to-one support in the playground and outwith the classroom environment
This is provided by the Additional Needs Assistant. There is no clinically assessed need for the provision of this support. The support offered is in the least possible and restrictive form. There is no support other than in the loose sense of the word. There is no structured assistance, guidance, encouragement or intervention being provided. The basis of the support is monitoring by observations. The Tribunal heard no evidence that anything additional to observations are being provided.
- One-to-one support when attending the toilet
Again the Tribunal did not hear evidence that there was any clinically identified need for the provision of this support. Again the nature of support provided is purely passive.
The evidence before the Tribunal was that the provision of the support identified at (i) and (ii) above has been put in place as a result of demands by the Appellant and as a means by which the school can protect themselves against complaints from the Appellant. Witness 1 was clear that there is, in fact, no necessity for the provision of these supports. Indeed he was clear that the ongoing provision of this level of support had the real possibility of stifling or restricting The Child’s development. Mrs Livingston confirmed however (as is reflected at A42) that there has been an element of supporting The Child’s social interactions with her peers to “read” and interpret the social language and interactions of the other children in the playground by providing the one-to-one support there. The Appellant’s concerns have been around keeping The Child safe in the playground together with protecting her from bullying and name-calling. The Tribunal heard no direct relevant evidence to conclude that there are genuine reasons for the Appellant’s concerns in this regard. The Appellant remains concerned that The Child is not receiving sufficient assistance with her personal care regarding her toileting and is returning home on occasions significantly soiled with faeces. The school have not recorded any soiling or associated problems. Again the Tribunal concluded that the Appellant’s concerns in this respect are not well founded. The Tribunal concluded that it will be appropriate in the short-term to seek to relax, in a phased way, the provision of support as identified at (i) and (ii) above. The support required is not significant.
- 4 hours of curricular support a week for literacy and numeracy
The Tribunal were not provided with any direct evidence in respect of what the future provision of curricular support from the Additional Needs Assistant will be. The provision of support recently has been 4 hours of shared group work focusing principally upon The Child’s numeracy. The best evidence before the Tribunal was that such provision may reduce. It is not currently quantified for the next academic session. The Tribunal accepts that such provision in a group work setting in itself could be considered to be significant but having regard to the extent, nature and intensity of the provision taken together with the lack of clarity over the future nature of the support and ongoing duration, the Tribunal was unable to conclude that such support is significant.
On the basis of the Tribunal’s findings and reasons neither component parts of section 2(1)(d) of the Act are established. The Child has additional support needs but those needs do not require additional support of such significance as to qualify her to require a Co-ordinated Support Plan.
It was abundantly apparent from the Appellant’s evidence that he has deep mistrust of school staff. This is most unfortunate and does not appear to the Tribunal to be justified. The Tribunal hopes that the Appellant can take comfort from the conclusions of the Tribunal following their objective independent scrutiny. The Tribunal acknowledges and wishes to record however that it formed a positive impression of the Appellant as a very caring and able parent who loves The Child dearly and wishes the very best for her.
The Tribunal would encourage the Education Authority to consider further re-opening an Individualised Education Plan for The Child. Notwithstanding the Tribunal’s determination and conclusion in respect of whether the additional support is significant with reference to section 2(1)(d) of the Act, the Tribunal was left with no doubt that there are individualised aspects to The Child’s learning and individualised targets to be worked towards and it would appear appropriate that an Individualised Education Plan is utilised. The Tribunal, of course, has no power to impose such a requirement upon the Education Authority.
The Tribunal regrets to record that the Education Authority failed, within the stipulated statutory timescales, to establish whether or not The Child required a Co-ordinated Support Plan or not. Whilst there were suggestions made by them as to why they had been unable to conclude their enquires this is, of course, irrelevant. They ought to have reached a decision based upon the information which they had available at the relevant time. The Tribunal hopes that the Education Authority will learn from this experience.
