ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/10/2009

 

Gender:                   Male

 

Age:                        7

 

Type of Reference: CSP not required

 

 

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1. Reference:

 

 

The Appellant 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 prepare a co-ordinated support plan for the child within a period of 16 weeks from the date on which this decision is intimated to them.

 

 

3. Preliminary Matters:

 

On 28 August 2009 the Tribunal permitted an observer attend the hearing.  On 7 September 2009 the Tribunal permitted an additional observer to attend the hearing that day.

 

At the start of the hearing on 28 August 2009 the Tribunal allowed the authority to lodge documents not previously lodged as productions. The appellant did not object to the lodging of these documents, which are now numbered RL 65 to RL 129 in the bundle of evidence.  On 7 September 2009, the Tribunal allowed the authority to lodge further documents not already lodged as productions. The appellant did not object to the lodging of these documents, which are now numbered RL 130 to RL 148 in the bundle of evidence.

 

The Tribunal agreed to hear from the child himself.  The method chosen, to which both parties consented, was that he should be asked questions by one member of the Tribunal and given the opportunity to add anything he wished.

 

 

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 in the course of the hearing.

 

The Tribunal heard oral evidence from social worker, and the appellant and from Head Teacher local authority primary school and physiotherapist.  The Tribunal heard submissions from the appellant’s representative, and the authority’s representative. The Tribunal also heard and saw the child himself.

 

 

5. Introductory Findings in Fact

 

1. By letter dated 23 December 2008 the appellant’s solicitor formally requested the authority to assess the child’s additional support needs and suitability for a co-ordinated support plan (R 4).

 

2. By letter dated 6 January 2009 the authority agreed to the appellant’s request and indicated that it should not take more than 16 weeks to decide whether or not the child required a co-ordinated support plan (R 6).

 

3. By letter dated 10 March 2009 the Head Teacher wrote to the child’s parents and told them that a meeting held to consider his needs had decided that an Additional Support Plan should be opened for him, “since his problems are due to mobility issues rather than difficulties with school work” (T 58). 

 

4. Some time after that, the school prepared a draft Additional Support Plan for the child (R 56). Its associated documents included a “Plan for the child” for work with a learning assistant (R 57), a document headed “Protocol for Toileting August 2008” (R58) and a document headed “Inclusive Ideas for Physical Education” (T 78).  The plan was described by the Head Teacher as “a work in progress”.  His parents were invited to a meeting which was held on or about 25 June 2009 to discuss it.  They expressed dissatisfaction with the plan. 

 

5. The appellant’s reference is dated 8 May 2009. 

 

6. By letter dated 1 July 2009 the authority informed the appellant that the child did not require a co-ordinated support plan (R 43).

 

7. The authority’s decision proceeded upon information from the Head Teacher (R 45), the Physiotherapist (R 47), and the Occupational Therapist (R 50).  They were required to complete a form CSP 1A.  The authority also had before them document headed “Appendix A: A Table of Additional Support for Allied Health Professionals (AHP’s)” (R 63).  This document contained guidance which the authority intended them to follow when completing the form CSP 1A.

 

8. The guidance in R 63 has been changed.  R 64 is a later version.  The most recent version is contained in RL 107.

 

9. In August 2009 the authority’s representative sent further CSP 1A forms to various persons.  When the forms were sent out, they were accompanied by letters of which RL 66-67 is an example.  The letter lists “targets from educational additional support plan” and asks the persons to whom it is addressed to indicate what support that person thinks the child requires to meet those targets.  The recipient is also asked to say whether they regard such support as significant in achieving any of the targets.

 

10. The authority received a completed form (R68-70) from the child’s Paediatrician, with enclosures consisting of a medical report by her dated 10 February 2009 (RL 71-74) and a letter from Consultant Paediatric Surgeon, dated 10 March 2009 (RL 75).

 

11. The authority also received completed forms from, Community Children’s Nurse (RL 78-79), (RL 82-84) Social Worker and Physiotherapist (RL 109).  The occupational therapist replied by email on 24 August 2009 (RL 105).

 

12. RL 128 is a copy of an email dated 28 August 2009 from Team Leader (Children and Families) to the authority’s representative.

 

13. RL 133-148 is a “section 23” assessment of a child with or affected by disabilities.  RL 131-132 is a memo relating thereto.

 

 

6. Findings in Fact:

 

1. The child was born on 4 March 2002.  He lives with his mother, the appellant.   His father lives elsewhere in but plays a significant part in his life.

 

2. He attends a local authority primary school, where most of his teaching is in Gaelic.  He previously attended the Gaelic nursery school there.  He has recently gone into P3, where he will begin to learn to read and write in English.  He speaks both English and Gaelic.  The authority is responsible for the child’s school education.

 

3. the child has spina bifida.  He has bilateral talipes (clubbed feet), tethering of his spinal cord, bladder and bowel incontinence, reflux of urine and dislocation of his hips.

 

4. As a consequence of his disability, he needs additional support, without which he would be unable or at least likely to be unable to benefit from school education provided for him. His additional support needs arise from complex factors; those needs are likely to continue for more than one year; and those needs required significant additional support to be provided.

 

5. As at February 2009, the following professionals were to some extent involved on an ongoing basis in the child’s care and treatment:  Consultant Paediatric Neurologist; Orthopaedic surgeon; Consultant Paediatric Surgeon;  Paediatrician, Community Health Services; General Practitioner; Urologist;  Specialist Staff Nurse;  Continence Nurses; Physiotherapist;  Occupational Therapist; and Community Nurse.  he also requires wheelchair appointments and Orthotics appointments.

 

6. the child has significant medical problems and a lifelong condition with changing needs as he develops.  He requires continuing support from health services. He attends a spina bifida clinic. There is further contact at clinics and on the telephone.  A Community Paediatrician reviews his case and helps to co-ordinate care and share information between the professionals involved.  He has had several operations (“osteostomies”) when he was younger and requires regular review.  He will need further neurological investigation and may require further orthopaedic surgery.  He has been seen by the Physiotherapist in school on some 7 occasions since late October 2008.  He has ongoing contact with members of the Urology Department of the Hospital. His contact with a Continence Nurse varies, but is at least monthly on average. His splints need to be adapted or replaced as he grows.  Pressure sores, when they have developed, have lasted for months and continue to require ongoing attention by the appellant and a Community Nurse.  He is on constant medication.   There are areas where the nature of support under discussion are concerns of more than one health professional, e.g. Physiotherapist and Occupational Therapist in relation to equipment used by him in school.  Generally, he has an appointment of one sort or another with one or more health professionals every week. 

 

7. In addition, the child and his parents had support from their Social Worker for a number of years, until she left her employment with the Council in early August 2009.  Partly through the social worker, the child was put in touch with a number of outside organisations who have provided support.  Over a period of years, his social worker spent considerable time with the appellant or the child on matters concerning support for the child in particular.  She was in contact with the school, where she attended meetings along with health professionals, and with others within the authority, e.g. in relation to travel to school and means of access to upper floors.  Latterly, until she left the employment of the authority in August 2009, her contact the family was roughly fortnightly, sometimes two or three times in a week.

 

8. the child is more or less paralysed in the lower part of his body.  He moves around by supporting himself on crutches, or in a wheelchair, or by crawling, or by being carried.  He needs splints for his legs and ankles.  He can easily and quickly develop pressure sores which can take quite some time to heal.  At such times he requires his wheelchair all the time to get around when he is out and about.  His splints require to be adjusted or replaced regularly. 

 

9. Because of his incontinence, the child needs considerable assistance with toileting.  At school, the system at school has been for him to be changed at three times each day, and at others if necessary, by a learning assistant.  Each change takes a minimum of some 15 minutes.  At each change, the learning assistant’s task includes doing his prescribed stretches and checking for pressure sores.  He has found it difficult when he has been left with a wet or dirty nappy for any length time, or if, as sometimes happens his usual learning assistant is unavailable to help him with toilet. To make things easier at school, the appellant had been carrying out colonic irrigation on him at home. She is now to be given training in a different system of bowel care.

 

10. Very recently, in about July 2009, preparations were begun for the child to be introduced to Clean Intermittent Catheterisation, or “self catheterisation”.  Help is being given by the specialist nurse and a Continence Nurse.  The plan is for him to progress towards self catheterisation at school probably three times daily.  He will require the assistance of a learning assistant.  The procedures should take about 20 minutes each time. The nurses have come into the school to introduce the learning assistants to the procedure, although his principal learning assistant is about to leave the school and it is not certain whether a suitable successor will be found.  Once self catheterisation is established, his Paediatric Surgeon wishes to undertake further urodynamics.

 

11. As a consequence of his incontinence, he is out of the classroom for significant periods, up to something approaching an hour, each day.  One of the things that bother him is not being able to complete work in time.

 

12. Because he cannot control his bladder, the child is liable to reflux of urine, which gives rise to a constant risk of infection. For this reason, he has to drink large quantities of water.  He has daily medication to minimise the risk.  There have been times when it appeared to the appellant that the school was not seeing that he took in as much liquid as he should. 

 

13. The child is generally a cheerful, engaging boy, but his disability has caused him psychological difficulties, e.g. noticeably low mood, anxiety and frustration.  He is sad and sometimes angry that he cannot join other children in many of their activities at school.  He feels that he is in the way and that school staff do not always understand his wishes.  His behaviour at home is sometimes challenging.  The local Community Child Health Services have agreed to make a referral for support to the local Child and Adolescent Mental Health Services.

 

14. The child now gets to school on a school bus. Throughout the time he was in P1 and P2 he had to be taken to school by taxi.  It took the authority the best part of two school years to make arrangements for him to join his contemporaries in the school bus.

 

15. While in school he has one-to-one support from learning assistants, principally from one particularly well qualified assistant.  One of main jobs with the child has been to help with his toileting.  She also gives him physiotherapy exercises and generally supervises him and helps him to get around the school premises.  He has found it difficult on occasions when she has not been available.  He finds it difficult to have his intimate needs attended to by people with whom he is unfamiliar.

 

16. the child’s school is an older school building on different levels.  When he started in P1, there was no lift to help him get up and down the stairs to and from his classroom.  A lift was eventually installed, but there was no lift to the floor above, where the class does ICT work. At times, he has been able to get up and down stairs on his crutches, under close supervision, although he has found that very tiring.  At others, he has had to remain in the classroom downstairs. In or about October 2008, during a period when he was wheelchair-bound, there were two or three occasions when the Head Teacher, carried the child upstairs at school.  The Head teacher, who at the time was unaware of the seriousness of the risk, subsequently acknowledged that he should not have done that, because of the risk that carrying him the wrong way could result in further spinal damage and paralysis. A “stair climber” device has been installed this year, which helps him to get to the level above.

 

17. the child is not allowed into the playground unaccompanied by his learning assistant.  There have been times when his learning assistant has not been around to accompany him, with the result that he has been briefly unable to join his contemporaries outside.

 

18. Within the classroom, he has various aids, including a trolley and a waist pouch, which enable him to do things that the other children can do but he would otherwise find difficult or impossible, e.g. fetching and carrying things and passing them to others.  There are plans for him to be provided with a rollator, a device that would enable him to take things with him when moving about the school beyond the classroom.

 

19. the child is keen on activities and wants to share activities with other children. He attends a private sports club for children with additional support needs.  He has music lessons and goes swimming.  At school, he can now take part in physical education in his wheelchair, although he does not like having to change clothes in the presence of other children.  The authority’s Active Schools Co-ordinator, who advises the school in relation to physical education for children in wheelchairs, is often in the school and is aware of his keenness to be involved.

 

20. On about 14 November 2008 children from primary school attended a concert at the local High School.  In the event, the child’s learning assistant could not attend.  He was taken by another person who did not normally attend to his toileting needs.  He was taken in a taxi, separately from his contemporaries.  He was left to watch the show from a position apart from his classmates, as the area in which they were was congested. 

 

21. the child’s difficulties have had an impact on the appellant and her domestic life.  She has to spend considerable time giving him exercises and medication and attending to his toileting needs.  She has a back problem.  She is anxious and unhappy.

 

22. There have been several occasions over a period when members of school staff have discouraged the child from tipping his wheelchair, although back wheel balancing (tipping) is regarded by experts as a particularly useful skill for young wheelchair users.

 

23. In an endeavour to help the child with difficulties at school, the social worker worked with the child’ the appellant and advocacy worker to produce a “communication passport”, a document intended as an aid to any one having contact with the child to understand his needs (A 54 et seq). 

 

24. the social worker submitted a request for a “direct payment” to pay for some one to be with the child one-to-one for two hours a week, to enable the appellant to have time to do other things.  The request was turned down on the grounds that it did not meet the criteria of a priority-rating tool used by the local authority’s Children and Families Department.

 

25. Educational objectives in any co-ordinated support plan for the child should include: “To enable the child to grow and develop and achieve his personality, talents, and mental and physical abilities to their fullest potential”;  “To enable the child to get to school each day and participate fully in all school activities”; “To enable the child  to experience the same level of inclusion as his peers”;  “To support the child’s understanding of his spina bifida and how his inclusion will promote his emotional wellbeing”.

 

26. the child’s additional support 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 or more appropriate agencies (within the meaning of section 23(2) of the Act) as well as by the education authority themselves.

 

7. Reasons for decision:

 

1. This reference was initially based on what the appellant claimed was a “deemed refusal” by the authority to decide that the child required a co-ordinated support plan.  Some time after the reference was lodged, the authority sent the appellant the letter dated 1 July 2009 in which authority informed the appellant that the child did not require a co-ordinated support plan (R43).  The appellant’s case statement makes clear that the appellant disagrees with the authority’s decision.  The reference is therefore under section 18 (3) (b) (i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

 

2. The appellant’s contention is that in the child’s case the criteria set out in section 2 of the Act[1] are met.  The Tribunal proceeded on the basis that if that contention is correct the authority’s decision should to be overturned and if not that it should be confirmed.

 

3. the authority’s representative helpfully conceded that the child has additional support needs arising from complex factors; and that those needs are likely to continue for more than one year.  He accepted that those needs required significant additional support to be provided by the education authority, in the exercise of their functions relating to education.  He maintained, however, that it was not shown that the child’s additional support needs required significant additional support to be provided as specified in section 2(1)(d) (i) and (ii).

 

4. The question, therefore, is whether the child has additional support needs which require significant additional support to be provided by the education authority in the exercise of any 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.  “Appropriate agencies” include “any Health Board.”

 

5. The Tribunal’s approach has been to seek to identify additional support needs that the child has (arising from one or more complex factors and likely to continue for over a year).  Those needs are described in the Tribunal’s findings in fact.  They may be summarised as follows: the child has a serious disability that can and indeed does prevent him from participating fully in the educational provision made generally for his contemporaries.  He is necessarily excluded from some of the activities and experiences provided to his contemporaries. For about an hour of each school day he has to have help to cope with his incontinence; at such times he is necessarily segregated from his peers.  If it wasn’t for the help given by his learning assistant he could not attend school.  His condition requires ongoing monitoring and treatment, to avoid or deal with infection, to avoid or deal with pressure sores, to make necessary changes to medical aids and to assess the need for further medical or surgical intervention.  If it wasn’t for the support afforded by the various health professionals involved, he could not attend school.  As a result of his disability, he has psychological difficulties that have given rise to a decision to refer him to mental health services and may or may not get worse as time goes on.  If his psychological difficulties continue or get worse his ability to benefit from school education will necessarily be diminished.  His disability and its consequences have put his main carer, the appellant, under a considerable degree of pressure, which may also lead, if indirectly, to his ability to benefit from school education being diminished.

 

6. the Authority’s representative made reference to the case of S C v City of Edinburgh Council [2009] CSOH 60.  He cited a sentence in paragraph 29 where the learned judge said, “The whole burden of the test of what constitutes additional support needs clearly refers to educational support, and further to educational support within a teaching environment.”   His submission appeared to relate the Head Teacher’s view that since the child’s difficulties were due to mobility issues rather than difficulties with schoolwork (T 58) an Additional Support Plan (not a co-ordinated support plan) was “the most appropriate” for the child.

 

7. It is well known that the decision of S C v City of Edinburgh Council gave rise to some confusion.  The Parliament sought to clarify matters in section 6 of the Education (Additional Support for Learning) (Scotland) Act 2009, making it explicit that “additional support”, in section 1(3) of the 2004 Act, is not confined to educational support but includes, for example, multi-agency support such as health, social work, etc.   It is true that section 6, like most of the 2009 Act has yet to come into force, pending the making of subordinate legislation, but the clarification of the law is in line with what most people understood to be the intentions of the 2004 Act as originally enacted.  It is noticeable that the word “provision”, where it first appears in section 1(3), is not qualified by the word “educational”, although it is so qualified when it next appears in that subsection.  In any event, reference to “school education” in section 1 includes “education directed to the development of the personality, talents and mental and physical abilities of the child to their fullest potential.”  The Code of Practice published by the Scottish Ministers, under section 27 of the Act, contains several references to provision of additional support that cannot readily be categorised as “educational support within a teaching environment”. See, for example, paragraphs 9 of chapter 2, paragraphs 33, 41 and 42 of chapter 3, and paragraph 11 of chapter 4.  The Act requires authorities to take a holistic view of children and young people and their circumstances, and what they need to grow and develop and achieve their potential (paragraph 2 of chapter 3). 

 

8. It appeared to the Tribunal the draft Additional Support Plan (R 56), despite its associated documents, was restricted to just part of what happens in school, and took no account of how the child’s disability, and the arrangements made to cope with his needs in school, were affecting his wider learning and his social and emotional development. It did not take a ‘holistic view’ of the child and his circumstances.

 

9. It was with the foregoing considerations in mind that the Tribunal, on the evidence before it, endeavoured to identify the child’s additional support needs as they are described in its findings in fact and summarised above. 

 

10. Having identified what it considered to be the child’s additional support needs the Tribunal had then to consider whether those needs require significant additional support to be provided by appropriate agencies (Health Boards), or the authority in the exercise of non-education functions (e.g. through their Children and Families Department).

 

11. In its approach to this question of “significant” additional support, the Tribunal proceeded on the basis that word “significant”, in this context, means more than “not insignificant”.  The words it qualifies are “additional support to be provided”, with the emphasis on the provision rather than on the needs which require it.  The word has also to be judged by reference to the need for co-ordination.  However, the main (though not necessarily the only) emphasis is on the extent of the provision of the additional support.  The Tribunal therefore endeavoured to give consideration to the frequency and intensity of the support that is required, as well as its duration and its nature. 

 

12. The Tribunal also sought to give consideration to the extent to which that support is necessary for the achievement of the educational objectives which will be included in the plan. ...".   In that connection, the Tribunal’s view was that any co-ordinated support plan for the child should contain the educational objectives set out in finding (25). The third and fourth of these were specifically suggested by the witness social worker, although in making finding (25) the Tribunal relied not only on her evidence but on the evidence as a whole, relying also on use of its special expertise. 

 

13. The Tribunal noted, under reference to the terms of section 2, that the question it had to consider was not whether such additional support as was in fact being provided to the child was significant, but rather whether the additional support that the child’s needs required to be provided was significant.  The Tribunal appreciated, of course, that the nature, frequency, intensity and duration of support that is in fact being provided may bear some relation to the nature and extent of the support that is required.

 

14. The Tribunal also considered the submissions made on behalf of the authority, along with those for the appellant.

 

15. The authority’s representative defended the authority’s decision by referring to the responses in the forms sent to the health and social work professionals and to the non-statutory “guidance” referred to in introductory finding in fact (8).  In simple terms, the persons concerned were asked to make their own assessment of the significance of the support the child required from their service in order to meet the somewhat limited “learning outcomes” identified by the school (and incorporated in the draft Additional Support Plan).  He pointed out that none of those who responded suggested that the level of support the child required from their service was more than “intermediate”, under the earlier guidance, or “level 2”, under a later version.

 

16. The authority’s representative submitted that the weekly contact between the social worker and the child and his mother was “nothing to do with education”.  In any event, his was now “a Closed Case” with the social work authority; the child did not receive direct payments though he had received one-off payments in the past.  The nurses’ contribution to the training of learning assistants, to enable them to help his with self-catheterisation, would be of limited duration.  The support given to the child by doctors and nurses was “tangential” to educational provision.  The authority had considered the information from the health professionals and took the view that their support was to assessed, “collectively”, as being no more than “Level 2” in the non-statutory guidance.

 

17. It seemed to the Tribunal that there were difficulties with the authority’s approach.  Firstly, despite the use of the word “collectively” in The authority’s representative closing submission, it appeared that the authority’s approach failed to assess the level of support required as a whole.   The Tribunal took the view that section 2 required to consider whether the totality of the (external) additional support that the child’s needs required to be provided was significant.  There seemed to be nothing in the legislation that encouraged an approach which consisted of examining the support that needed to be provided by a number of health or other professionals, one by one, and seeking to assess the potential contribution of each in isolation from the potential contribution of others.

 

18. Secondly, the authority’s approach involved selecting material from the Code of Practice and using it to create a set of criteria going beyond anything in the Act or even the Code of Practice.  There is nothing in either about levels 1, 2 and 3, for example.  The diagram at page 53 of the Code of Practice clearly differentiates between, on the one hand, the statutory “Criteria”, and, on the other, the “Evidence” that can or may lead to a certain result. The entries under “Evidence” are clearly intended to be illustrative rather than prescriptive. The authority’s approach, judging by the non-statutory “guidance” (R 107), appeared to trying to turn what are examples of situations where a co-ordinated support plan would be appropriate into criteria that have to be met.  (“There is a continuing requirement for a high level of adaptation or elaboration of the curriculum and learning environment,” and “The child/young person requires substantial, direct and continuing intervention from another agency/agencies in order to benefit from school education.” )

 

19. A third difficulty with the authority’s approach is that it fails to take proper account of the fact that each case is different and every case, subject to the statutory criteria, must be decided on its own facts and circumstances.

 

20. The Tribunal came to the view that the child’s additional support 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 or more appropriate agencies (within the meaning of section 23(2) of the Act) as well as by the education authority themselves.

 

21. the child’s additional support needs are set forth in the Tribunal’s finding in fact; they are summarised in paragraph (5) of these reasons. The Tribunal was satisfied that he has additional support needs that require to be provided by a considerable number and variety of health professionals and through social work services.  Without that totality of support, in the past, he could not have gone to school at all.  His disability will not go away, and he will continue to require a similar level of support from health professionals as he grows up, throughout his school education. 

 

22. Where it has been possible to do so, the Tribunal has made findings in fact in relation to the amount of contact he has had with health and social work professionals, bearing in mind that what is material is the amount of contact that he needs now and is likely to need in future.  When asked about the frequency of the contact the appellant observed, “I should keep a diary.”  It is, of course, difficult for witnesses to give cut and dried information about events that don’t necessarily happen at regular intervals.

 

23. There have been crises in the past, e.g. in relation to infection, pressure sores and in dealing with his incontinence.   The difficulties with the provision of equipment in school and in relation to school transport were dealt with mainly by the people in Education, but there was a fairly intense ongoing contribution from the social worker. There are likely to be other, possibly greater, crises in future.  For example, he may soon require intervention by a child mental health professional.  His move towards self-catheterisation is in its early stages and may go well, or it may not.  His Paediatric Surgeon points out that in view of his immaturity he needs an assistant who can take over if required.  Whether the training of the learning assistants who are in post, or who may be appointed in future, will be successful remains to be seen.  Review of the child’s progress, by Health Board personnel, will continue to take place at frequent intervals, resulting in a fairly intense regime of review, intervention and treatment as required.  That will continue to be necessary to meet his needs, to get him to school and to enable him to participate as much as he can in education.

 

24. There was evidence that following the social worker’s departure from her post with the local authority no replacement social worker has yet been allocated to the child and the appellant.  That does not mean that he does not need additional support from a social worker.  It seemed clear to the Tribunal that the contribution of the social worker, over a period of years, had been of considerable help to the child.  The Authority’s representative was somewhat critical of the social worker, but the Tribunal regarded her as an impressive witness.  A team leader in her department told the Authority’s representative, “I would also say that her integrity had never been called in question.” (RL 128).  The Authority’s representative emphasised that the child was not in receipt of “direct payments” under section 22 of the Children (Scotland) Act 1995.   In the Tribunal’s view, this circumstance is of no relevance in determining whether and to what extent social work support is necessary to meet the child’s additional support needs. Among other things, the social worker initiated the preparation of the “communication passport”. The Tribunal thought this was an excellent document which, properly used, could go a long way to help the child to achieve “the same level of inclusion as his peers.”  It was evident that the appellant is under considerable strain.  In the Tribunal’s view, the child needs access to, and at times frequent and intense support from, a social worker, to enable him to participate in and benefit from school education.

 

25. There was evidence that more co-ordination is likely to contribute to meeting the child’s additional support needs.  One element in this is the sheer number of people involved in his care, on the health side, and on the social work side, and in meeting his special needs in school.  The appellant set some store by specific incidents, such as those which are recorded in findings in fact (12), (16), (17), (20) and (22).  The Head Teacher gave evidence. It was obvious that he knew the child well and has concern for his well being.  He made a good impression on the Tribunal but there were at least two matters on which on which he appeared not really to understand what the child’s needs were.  One was in relation to carrying the child upstairs, for which he proffered a candid apology.  The other was in relation to the child’s need to take in certain amounts of fluid while in school, to minimise the risk of infection.  The Head Teacher also complained, probably with justification, that when the child arrived in his school he, expected more help than he got from the various health professionals who had contributed to discussions at that stage.  These matters suggested a need for greater co-ordination.  The appellant thought that the school has not made as good use of the “communication passport” as they might have done.  If so, that is a pity, as it would be useful if everyone who had to deal with the child was fully aware of its contents.  It is specific to the child in a way that some the papers associated with the Additional Support Plan were not. The Head Teacher in his evidence mentioned an incident when he encountered the child by chance, while he was attending an Orthotics appointment.  He was then able to provide some advice.  He would like to be involved in future consultation with the orthotics department. 

 

26. A consideration by the Tribunal of the nature, frequency, intensity and duration of the support that the child’s needs appeared to require, and to be likely to continue to require, especially if things got worse for him rather than better, led the Tribunal to conclude that his additional support needs required significant additional support to be provided by appropriate agencies and the authority in the exercise of non-education functions.  The necessary additional support, appropriately co-ordinated, is required now.

 

27. For the removal of doubt, the Tribunal would make clear that its view of the significance of the support required is based on the totality of the support that the child’s needs require; but even if one element of that support, either the health element or the social work element, were considered not to be significant the Tribunal would still consider the other to be significant.

 

28. For the foregoing reasons, the Tribunal decided to overturn the decision of the authority and require it to prepare a co-ordinated support plan for the child within a period of 16 weeks from the date on which this decision is intimated to them.