ASNTS_D_09_2006_27.12.06

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/09/2006

 

Gender:                   Male

 

Age:                        13

 

Type of Reference: CSP not required

 

 

 

 

 

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­­­­­­­­­1. Reference:

 

The Appellant (“the mother”) made a Reference mid 2006 under Section 18(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) against the refusal by the Respondent (“the Authority”) to provide a co-ordinated support plan in respect of the child, applying Section 18(3)(b)(i) of the Act.

 

 

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:

 

Late evidence was received from both parties. The Tribunal sought the views of both parties who confirmed that there were no objections to either party lodging Late Evidence.

 

In view of the representations from both parties and noting their mutual consent and agreement to late lodging the Tribunal were satisfied that, in all the circumstances, it would be fair and just to do so pursuant to Regulation 34 of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (“the Rules”).

 

The Appellant made an application to the Tribunal to allow their witness to give evidence by telephone. The Tribunal were satisfied that this would not prejudice the achievement of the overriding objective and in pursuant of Rule 23 granted this request for evidence by telephone.

 

4. Summary of Evidence:

 

The Tribunal considered a bundle of evidence (including all Late Evidence) containing:

 

1. Appellant’s Statement
2. Respondent’s Statement
3. All physiotherapy assessments and reports
4. All speech and language therapy  assessments and reports
5. All letters to and from the Appellant
6. All letters to and from the Authority to the Appellant and others
7. Record of Needs (and updates)
8. All papers re Circle of Friends

      Orthopaedic assessment and report

1. All papers re the Primary School (and subsequent transition to the Secondary School)

10. Independent Speech and Language Therapy Report
11. Risk assessment reports

50. All papers lodged during the hearing from either the Appellant or witnesses

1000. All minutes of meetings
14. All papers re social work provision

 

[The above is not an exhaustive list of all the documentary productions lodged by both Parties].

 

In addition to the above, the Tribunal heard oral evidence from the child’s mother and party witnesses.

 

 

5. Findings in Fact:

 

1. The child is a thirteen year old boy who resides with his mother and his sister.  The child presently attends a Secondary School, which is a mainstream secondary school within the Local Authority area. The child previously attended a Primary School. The child is currently a second year pupil. The Appellant is the child’s mother.
2. The child had a Record of Needs and thus is to be taken to have additional support needs. The child was diagnosed with atypical congenital muscular dystrophy with associated learning difficulties in 1998.
3. The Education Authority, are responsible for the school education of the child.
4. The child has additional support needs arising from at least one or more complex factors. The Education Authority accepts this.
5. Said needs are likely to continue for more than one year. The Education Authority accepts this.
6. The child has been discharged from receiving Speech and Language Therapy and from Physiotherapy Therapy.
7. Social Work services currently provide funding for 3 hours per week from the Health Care Supplier to provide the child with leisure time activities and respite for his mother.  Social Work also funds a place for the child at a Play scheme.
8. The child follows an Individualised Educational Programme at the Secondary School.
9. The child has a range of support for learning assistants and weekly access to the learning support teacher within school.
10. A speech and language therapist reviewed the child’s status and concluded, after consultation with the child’s physiotherapist and neuromuscular support worker in 2006 that the child “did not require ongoing involvement with Speech and Language Therapy.” The child was discharged from the Speech and Language Therapy Service in 2006.
11. A Doctor assessed the child and produced an independent Speech and Language Therapy report.  The Doctor recommended direct input from a speech and language therapist for the child. 
12. The child was discharged from the Community Physiotherapy Service in 2005.
13. The child has a physiotherapy management programme for hamstring exercises for use at home and in the school.
14. Specialist Registrar in Orthopaedics reviewed the child in October 2006 and thereafter referred him to a Senior Physiotherapist. This reassessment concluded [by a letter to Appellant in November 2006] that formal physiotherapy was not necessary to meet the child’s needs at present.
15. The Secondary School considered the intervention of an approach to enhance inclusion in mainstream education for children with additional support needs in November 2005 and concluded that this was not appropriate for the child within the school.

 

6. Reasons for decision:

 

The Tribunal considered all the evidence, both oral and written form. We were satisfied that there was sufficient evidence available to the Tribunal to reach a fair decision on the Reference.

 

At the beginning of the hearing, the Respondent confirmed that they would not seek to argue that statutory requirements referred to in section 2 (1) (a), (b) and (c) were not met in respect of the child.  They would only seek to argue that the requirement referred to in Section 2(1)(d) did not apply. Parties therefore agreed to proceed only in respect of whether or not the child required “significant additional support” from another agency as well as education.

 

 

The Tribunal having heard all the evidence and the representations of the parties the Tribunal were therefore satisfied that the child fulfilled the statutory requirements in section 2 (1) (a) (b) and (c).

 

The Tribunal considered the requirement of “significant additional support” in Section 2(1)(d) of the Act, together with the guidance provided within the Code of Practice at Chapter Four, paragraphs15,16, 17 and 18 together with the Flow Chart on page 53.

 

“Significant additional support” is not defined in the Act. The Tribunal appreciate that it is not possible to generalise as to what should qualify as significant and that consideration must be given to the circumstances in individual cases.

 

The Tribunal note that in paragraph 15 of the Code of Practice, it states that “these additional support needs must also require the provision of significant additional support from an education authority, and either the local authority exercising their functions other than education (e.g. social work services) and /or one or more appropriate agency/agencies, within the meaning of the Act and associated Regulations.”

 

The Flow Chart on page 53 asks the question:

 

“Do these needs require significant additional support to be provided, by the education authority exercising their education functions as well as by one or more appropriate agencies and/or the authority in discharging their functions other than education?”

 

Paragraph 16 of the Code of Practice further states that “Judgements about significance have to be made taking account of the frequency, nature and intensity of the support, and the extent to which that support is necessary for the achievement of the educational objectives which will be included in the plan.”

 

The Tribunal are not satisfied that significant additional support is currently required for the child’s additional support needs from, 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 Respondent themselves.

 

The child has been discharged from Speech and Language Therapy and also from Physiotherapy services.

 

Social Work

Social Work services provide funding for 3 hours per week from the Health Care Supplier to provide the child with leisure time activities to give the Appellant some respite from the child’s care and to allow the appellant to spend time with her daughter. The Tribunal further note that Social Work also fund a place for the child at a Play scheme.  Social Work services state that “as these are leisure activities, there is no planned programme with education that has shared objectives and needs monitoring and evaluation. “ 

 

Speech and language

 

In July 2006 a Team Leader with the Speech and Language Therapy Service wrote to the Appellant and confirmed that ‘the child is now discharged from the speech and language therapy service.’ The Tribunal noted that the child can be re-referred on the basis of changes occurring for the child with regard to:

 

1. Changes in condition, e.g. changes to the child’s  muscular dystrophy that result in deterioration in his current speech abilities;
2. Change in environment/context, i.e. where aspects of the child’s current communication environment change to the extent that he is not able to function to his current ability.  This might be the case if, for example, there were significant changes to several personnel currently supporting the child on a daily basis.’

 

The Tribunal considered a report produced by a speech and language therapist which had been amended after consultation with the Appellant in May 2006.  The speech and language therapist stated that in writing up said Report [to review the child’s status and report her findings] the following took place:

 

‘The child was seen at school individually and observed in class. Key teaching and support staff were accessed to allow the opportunity for liaison. The child’s physiotherapist and neuromuscular support worker were consulted to confirm his current physical status, given his diagnosis of muscular dystrophy.’ We do not propose to rehearse said Report but note that the following areas were reviewed:

 

1. Oral motor features
2. Communication
3. Speech
4. Language.     

 

The Report concluded ‘In the absence of impact criteria, the child was progressing towards discharge. This situation has not changed and the child’s speech, language and communication skills remain stable. The child’s functional language continues to progress within the areas defined through testing. There is not evidence of unmet need relating to speech and language in terms of physical, environmental or social factors.’ The Report finally stated that ‘the child does not require ongoing involvement with Speech and Language Therapy.’  The Tribunal also considered the Advice and Strategies document issued by the Speech and Language Therapy Service.

 

The Tribunal carefully considered the Independent Speech and Language Therapy report dated December 2006. The speech and language therapist had assessed the child ⁱⁿ November 2006. The report was based on the following:

 

1. Interview with the child’s mother
2. Speech and Language Therapy reports and information
3. Report from Community Paediatrician
4. Records of Needs
5. Information from the schools Support for learning file.
6. The speech and language therapists own assessment

 

The speech and language therapist stated therein that the child attended a main stream secondary school with support from “a range of Support for Learning Assistants (SLA) and weekly access to the learning support teacher.” This was a very detailed report which concluded that:

 

“The child requires to be educated in an environment in which there is both an adequate level of SLT ( speech and language therapist)  support (including for appropriate direct intervention) and which the SLT integrates on a regular basis, and at a classroom level, with the range of other professionals involved in the child’s education to offer ongoing support and training.

 

This ongoing involvement of the SLT would allow regular re-evaluation and reassessment ensuring that aims can be reviewed and altered as appropriate. Further, the option of direct intervention to be provided by the SLT, as and when required, will ensure that the child’s speech and language is developed in the most efficient way.”

 

The Tribunal considered the further oral evidence from a Doctor by telephone link.

 

The Tribunal also considered the evidence of a Clinical Locality Manager for the Speech and Language Therapist who works with the child.  The Tribunal noted that a particular person had worked with the child in Primary School in this respect and oversaw his transition to secondary school. The Clinical Locality Manager stated that the Speech and Language Therapy Service was an outcome based service which required being specific to the person receiving therapy.  The Clinical Locality Manager stated that a therapist would look at what is happening in all the component areas of the person in receipt of therapy to consider what works. We were advised that good practice discourages dependency on therapy where appropriate and possible, with a view to ‘self-management’. The Clinical Locality Manager stated that possibly the best outcome of the child’s previous speech and therapy language therapy programme was to encourage his self management which could be aided by effective strategies and prompts. The Clinical Locality Manager accepted however that this might still require a measure of support from those involved but not necessarily a speech and language therapist. .

 

The Clinical Locality Manager confirmed that whilst the intervention of an approach to enhance inclusion in mainstream education for children with additional support needs had been considered, the school concluded that for the child this methodology might be counterproductive as he was engaging in peer group related activities and making friends.

 

The Speech and Language Therapy Service provided advice that differed significantly from the Doctor’s advice.  The Service considers that its views are based on those therapists who have worked with the child for several years in collaboration with the school staff.  In conclusion, the Clinical Locality Manager believed that there was significant speech and language therapeutic input for the child with the ‘advice and strategies’ that had been put in place in the school. The child is well supported by several support for learning assistants. In the Clinical Locality Manager’s opinion the Doctor’s report was of a more general nature rather than specific to the child and expressed the view that “therapy doesn’t always foster well being”.

 

The Tribunal considered the Independent Report in detail. In her report the Doctor stated that she saw no evidence of any detailed speech and language assessment having been carried out. We were advised by the Doctor that she had assessed the child over a two to three hour period.  We noted that the Doctor also had had access to one of the child’s school work books, but she was unaware of what was being provided by the school and had not seen the child’s Individualised Educational Programme.  The Doctor stated that in her view multi agency working could not take place effectively if the child was not in receipt of direct support from a speech and language therapist.   She refuted the suggestion that her report was not specific to the child, rather she claimed it was a very specific analysis of his speech and language needs.

The Doctor concluded that where there is a complex system of support being delivered by a several people (as in the child’s case) it would be important for direct intervention from a speech and language therapist to continue.

 

The Tribunal accepted that there were clear differences of professional opinion in respect of speech and language provision in the child’s case. Whilst respecting the experience and knowledge of the Doctor, the Tribunal considered that her assessment was based on insufficient current information in respect of the child and the provision presently being made for him at the Secondary School.  We were persuaded that the Speech and Language Therapy Service had gathered in depth knowledge and critically important experience of the child’s day-to-day educational needs over a number of years.  We accepted the clinical assessment presented to us, but also recognise that this is an organic environment and that the child’s situation requires be constantly monitoring, reviewing and if relevant, new strategies put into place.

 

Physiotherapy

 

In March 2006 a Clinical Specialist in Neuromuscular Disorders, wrote to the Appellant in respect of the physiotherapy management programme in particular the child’s hamstring exercises. She stated that ‘This is a long-term programme as the child’s muscle weakness is not something we would expect to improve and these stretches are best incorporated into his daily living activities.’  On the subject of future monitoring she stated “I would like to take this opportunity to reassure you that the child and yourself will not be ‘abandoned’ by the medical and allied health professionals.”  She also stated that “I would be happy to review the child at a Neurosciences Unit even if he is not due a clinic visit.”

 

The Clinical Specialist in Neuromuscular Disorders concluded that ‘the child is a very active young man who does not let his disability get in the way of his life. … It is imperative that we continue to promote his independence rather than foster a dependency on medical or therapy agencies….’

 

Advice was thereafter forwarded to a Support for Learning Assistant at the Secondary School from the Clinical Specialist in Neuromuscular Disorders by letter in March 2006. This advice followed upon a meeting with the Support for Learning Assistant and her fellow support for learning assistants. The advice mainly focussed upon a stretching programme to maintain the child’s muscle length.

 

A Specialist Registrar in Orthopaedics reviewed the child in October 2006 in respect of his tight hamstrings which had deteriorated since the last review. The Specialist Registrar ordered a night time splint for the child. A copy of this review was sent to a specialist Doctor who in turn issued a written request for a reassessment by a Senior Physiotherapist in November 2006.

 

The Appellant sent a letter to the Clinical Specialist in Neuromuscular Disorders,   in October 2006 following upon the aforementioned review advising of the deterioration and her concerns about the daily stretching exercises. The Clinical Specialist in Neuromuscular Disorders replied in October 2006. The Clinical Specialist in Neuromuscular Disorders stated that ‘it can be difficult to engage adolescents with any sort of programme at school out with the ordinary…..the child is very able to undertake these stretches on his own and only requires prompting and supervision to assist with his position’. A suggestion was made of perhaps involving a ‘befriender or carer’ to help the child as this might ‘help him feel as though he was not being singled out to do his stretches and it may be useful to discuss this with the child in the interim to ensure that he is in agreement.’ The Clinical Specialist in Neuromuscular Disorders confirmed that in any event she would refer the child back to the Senior Physiotherapist.

 

The Tribunal considered the letter from the Senior Physiotherapist, dated November 2006 to the Appellant. She stated therein that the child had been discharged from the Community Physiotherapy Service in December 2005 but had previously been receiving regular input on an ongoing basis since April 1994 – over a 12 year period.  She further stated that at the point of the child’s discharge, she had ‘carefully considered the situation.’ She stated that she was ‘more than happy that any issues relating to his mobility would be addressed by the Clinical Specialist in Neuromuscular Disorders, working with the neuromuscular clinic at a Hospital.’  The Senior Physiotherapist further stated that ‘daily stretches are particularly important during the adolescent period when a growth spurt can occur.’

 

 

The letter concluded in effect that ‘Formal physiotherapy is not necessary to meet the child’s needs at present’.  She stated that her recommendations were ‘within the child’s capabilities, and is respectful of his age and his needs to be involved in decisions relating to his physical needs which at the end of the day he has to be responsible for’.  In her recommendations for the child she concludes that “Both wearing of night splints and stretching of his hamstrings daily, if possible will promote his independence and self reliance”. 

 

The Senior Physiotherapist continued in her letter to state that the above recommendations were “within the child’s capabilities , and is respectful of his age and his need to be involved in decisions relating to his physical needs which at the end of the day he has to be responsible for. This is an important factor to also be considered as relevant to his education and personal development. ….the PE department are happy to carry out stretches twice a week as part of the child’s PE sessions. This plan will also support inclusion with his peers in a sensitive manner.”

 

The Tribunal further considered the evidence of a Clinical Services Manager. She stated that the child still has his yearly reviews through a Neurosciences Unit and could also be referred, if necessary, in between. The Tribunal further noted the physiotherapy assessment report dated February 2006 from said Unit.  She stated that currently the child did not require specific input from the Physiotherapy Service and that a management programme was in place for stretching exercises at home and at school which could be encouraged and supervised.

 

The intervention of an approach to enhance inclusion in mainstream education for children with additional support needs

 

The Tribunal considered the evidence of a Project Manager for a support Network and we were advised that one of the tools to facilitate inclusion was the intervention of an approach to enhance inclusion in mainstream education for children with additional support needs. The Tribunal understand that the Project Manager was in correspondence with the Secondary School in November 2005. We considered written documentation lodged during the witnesses evidence (no objection taken) together with a ‘pictorial representation’ of the child’s perception of inclusion (as at November 2005) in five categories. The categories were the wider family, home, community, the Secondary School and the Primary school. We note that the Secondary School declined the intervention and involvement of the intervention of an approach to enhance inclusion in mainstream education for children with additional support needs believing that ’ the staff in the school who work with the child on a daily basis are best placed to make judgements regarding his social interaction and development in school including looking at the existing guidance support and peer group, social and other elements which might be brought into play within the school at this stage.’ as stated in their letter to the Appellant dated November 2005.  The Project Manager in her letter to the Depute Head Teacher (Pupil  Support) at the Secondary School dated November 2005 stated that “I cannot see that leaving the child to make friends under his own steam is a successful strategy to address his inclusion.“

 

 

The Tribunal noted that the intervention of an approach to enhance inclusion in mainstream education for children with additional support needs would also help the non disabled child or young person to see beyond the impairment. She stated that the child needed support to engage with his peers and to help peers to see beyond the child’s disability.  The Project Manager accepted that her Service was not a statutory one rather one possible tool, approach, or strategy to help the child..

 

The Tribunal carefully considered the evidence of the Appellant. The Tribunal noted her concern for the child and that she considered that his condition was deteriorating. She advised us of the provision made in the Primary School and the current provision in S2 at the Secondary School.  The Tribunal noted that the child is also attending the heart specialist. He requires a ventilator and had sleep studies carried out at a Hospital.  She described the child as having a “very happy go lucky disposition” and wanted to be treated fairly. She stated that the child was happy at school but she wanted to ensure that he was fully included. She stated that she considered that speech and language therapy was important across the whole curriculum to work with both the school staff and herself to allow the child to be “a successful learner”.  On a number of occasions the following theme emerged in the Appellants evidence – namely that everyone should  work in partnership with one another, that her views once  obtained are  thereafter valued, and that she be included in all  decision making processes. She described this as “joined up working”.  The Appellant stated that she felt her views were not valued, or respected or listened to.   The Tribunal noted that she considered that the child had not been fully assessed by the Physiotherapist Service and that she felt marginalised in this process through lack of communication. We further noted that the Appellant considered the Social Service Work Services programme made a significant contribution towards helping the child achieve his educational objectives.

 

The above does not represent the complete evidence before the Tribunal.   All of the oral evidence from the witnesses and the Appellant, together with all of the documentary productions lodged by the parties, were fully considered by the Tribunal. The submissions from the respondent’s representative and the appellant’s representative were also considered.

 

In conclusion, the Tribunal were not satisfied, from the evidence before us, that a co-ordinated support plan is required for the child.

 

The Tribunal considered the Appellant to be a very supportive, caring and concerned parent. We expect that the Education Authority and the school to continue to fully support the child, and that his progress will be kept under review. Consideration needs to be given to improving the channels of communication between school and home given the Appellant’s concerns in this area.   Although we note that Mediation did not prove to be successful in the past it might work in the future, or alternatively, reference be made to Independent Adjudication as part of the Education Authority’s positive commitment to dispute resolution.