ASNTS_D_02_2007_11.06.07

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/02/2007

 

Gender:                   Male

 

Age:                        13

 

Type of Reference: CSP not required

 

 

 

 

 

 

1. Reference:

 

 

The mother (“the appellant”) through her representatives, lodged a reference in January 2007 under Section 18(4) of the Education (Additional Support for Learning) (Scotland) Act 2004 in respect of a decision made by the education authority (“the respondents”), issued in November 2006 indicating that her son’s (“the child”) circumstances did not meet the criteria for a co-ordinated support plan to be opened.

 

 

2. Decision of the Tribunal:

 

The Reference received January 2007 is disallowed.

 

The decision of the Education Authority dated November 2006 is confirmed.

 

The terms of the Education (Additional Support for Learning ) (Scotland) Act 2004 section 2 (1) (d) cannot be satisfied in that the child’s needs do not require additional support to be provided – (i) either by the education authority in the exercise of any of their other functions as well as in their exercise of their functions relating to education, or (ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.    

 

 

3.       Preliminary Matters:

 

Further additional evidence was produced on behalf of the appellants and was admitted late without objection.

There was a brief discussion on the order in which witnesses would be heard.

The Tribunal indicated that it would be helpful to hear evidence of the authority’s procedures for implementing the Act from the Education Officer and they agreed to give evidence on this aspect.

 

 

4.       Summary of Evidence:

 

The Tribunal and parties had available the bundle issued in connection with the hearing and the additional evidence noted above.

 

The respondents led the following witnesses:

Education Officer

Senior Educational Psychologist

Support for Learning Teacher

 

The Mother gave evidence for the appellant.

 

 

5.       Findings in Fact:

 

1. The child, subject of this reference, is a 12-year old boy born October 1994 who attends High School.
2. His mother had noted difficulties in his development and social skills when he was aged 2 or 3 but his condition was not clinically recognised until March 2005 when he was diagnosed as suffering from Asperger’s Syndrome and, in August 2005, from Attention Deficit Hyperactivity Disorder (ADHD).
3. The child resides with his mother and sibling (aged 5) and also with his father who resides away from home during the week but returns at weekends. The father in 2002 was diagnosed as suffering form Asperger’s Syndrome.
4. The appellant works in a local nursery and is a qualified nurse. She has also worked for a local advice and information service.
5. A record of needs was opened for the child in 2005 after assessment.
6. The child is capable of learning at a comparable level to his peers.
7. As a younger child he was noted to have some co-ordination difficulties but these have resolved with maturity and have not been identified are requiring any therapy.
8. A review meeting was held in November 2006 and the recommendation of the meeting was that targets should be set to address the child’s identified needs and these should be recorded in an  Individualised Education Programme
9. In addition it was agreed that the child be reassessed by the Principal Educational Psychologist, and that his views be obtained by the IEP/CSP Co-ordinator in view of the appellant’s continuing concerns. 
10. The child’s views were obtained and inserted into the ASL/Transitional Tool document which had been developed by the respondents to assist in reviewing children with an existing record of needs. This document is dated November 2006 and a decision not to open a co-ordinated support plan was then issued by letter November 2006.
11. The child has attended High School since August 2006. The respondents are the responsible education authority. In recognition of the child’s diagnosis considerable efforts were made to ensure that his transition from Primary School to the High School was as smooth as possible. There are 66 pupils in the High School. There are nine pupils in the child’s class; eight boys and one girl. Four of the boys have additional support needs including one boy, who is deaf and depends on signing to communicate. There is one teacher and two teaching assistants present at almost all times. One is assigned to the other child. Further classroom support can be provided when required and the support for learning teacher also has a significant input.
12. Although the child was fully assessed in 2005/2006 when detailed reports were produced there has been no continuing contact through the school or education department with outside agencies. His support for learning needs have been met purely through educational provision.
13. He was fully assessed by a speech and language therapist in August 2003 and needs identified were put in place to assist. Although in all the receptive sub-tests the child’s language progress was age appropriate, concentration difficulties meant that he underperformed in some tests. There was a further review in April 2004 when he mostly scored above average for his age and it was decided that there was no further need for SLT intervention.
14. When the child was being assessed for a possible diagnosis of Asperger’s Syndrome, this resulted in another SLT referral and a consultation took place at primary school in March 2006 with the care aim of being supportive to “changing client/family perception of difficulties”. No difficulties requiring specialist intervention were identified. There has been no subsequent SLT involvement and none requested.
15. The child had undergone an educational psychologist assessment in March 2005 but there was no further referral until after the meeting in November 2006. The Education Officer then undertook a detailed assessment over two days and produced a report which appears at A93 – A100 dated February 2007. The report did not identify any needs for regular or intensive support but indicated a monitoring role for the psychologist through attendance at review meetings and involvement ‘through negotiation.’ The report assessed the child as having anxiety levels only slightly above average and comparable to a significant number of persons of his age. The self-image assessment indicated that most of the time his self image was healthy. He scored poorly on interpersonal skills as would be expected in view of his diagnosis of Asperger’s Syndrome. He was aware than when he found things hard at school he took this out on his family at home. He has a mobile phone and is able to use this to alleviate symptoms of anxiety if he goes anywhere new. His weaknesses in terms of interpersonal skills were assessed as moderate and not extreme. His diagnosis was recognised as impairing his ability to achieve educationally across the curriculum in relation to his intellectual ability. The report also acknowledged the variability of his responses.
16. The child does not require to take any medication at school. Ritalin was discontinued in the summer of 2006 and dietary adjustments, fully researched by the appellant, were reported to have been successful in relieving some of his symptoms. Ritalin had been having an adverse effect on him as it acted as an appetite suppressant leading to weight loss. When he chooses to stay for school dinners the school can provide him with personalised meals consistent with his diet regime. He presently goes home for his lunch. The appellant initially received help and advice from the dietician, but this contact was not substantial and is not ongoing. He is prescribed Melatonin at night to help him sleep. He takes an Eye Q food supplement.
17. His attendance at school is almost perfect. He was recently excluded from school (April 2007) for one day in view of persistent unacceptable behaviour. His return to school was delayed for a week as it was difficult to arrange a return to school meeting with his mother. This was the first time he had been excluded from school. It was immediately after his assessment at a specialised school and this may have been an unsettling factor. He enjoys good general health.
18. The appellant approached the social work department in 2005 to seek financial assistance in making arrangements for the child’s activities during out of school hours. A care plan was drafted for a support worker on or about October 2005. This does not address any school activities but there are some overlaps as it advocates strategies to improve social interaction also used in school. It was prepared by a Social Worker, as the result of one meeting with the child. This document was prepared in connection with an assessment for Direct Payments dated October 2005. At that time the child was already receiving 10 support work hours per week funded by Social Work. He had already taken part in a three-day adventure holiday in the summer and was going on a 5-day respite break in the October holiday.
19. There has never been any ongoing liaison between the education authority and the social work department. There is no indication that this has ever been requested; that it is required or even desirable. The carers engaged by the appellant to look after her son outside school hours are not trained in any educational objectives and their input is not subject to any external monitoring or reporting although the direct payments package will be subject to periodic review.
20. The original direct payment assessment was appealed by the mother to obtain an increase in the hours allocated. The financial package provides for her to receive payments to pay for 10 hours weekly support with an additional 3 hours in the holidays, 7 hours each month to enable her to go shopping without having to take her son with her, 6 hours for weekend respite and 2 residential trips per year. The Direct Social Work payment amounts to £161.49 per week.
21. The mother receives little support in respect of childcare from her husband in view of his working pattern and his own condition and regards herself essentially as a ‘single parent’. Her parents are elderly and are only able to offer limited support.
22. The assessment in relation to direct payments indicates the mother’s need to have time to herself and time with her younger child without having to deal with her son’s needs on a continual basis. The package is designed to address the needs of the family as a domestic unit.
23. At school the child has his own computer and his own space referred to as his “office” which is a converted area. If he feels stressed he can leave the classroom and do his own work in the office or in the Art room where he has taken time out to construct various models. He is very proficient at this type of project.
24. He has difficulty establishing friendships but he is able to interact with other children and with adults in a meaningful way. His preferences for mixing with other pupils vary considerably. He argues with his peers and then becomes friends with them again over short periods of time. He does not respond well to being set limits to his behaviour and lacks insight.
25. The appellant arranged for her son to undergo an assessment at a specialised school. The respondents were not advised of this assessment and the child himself was told of it only the evening before the assessment. A report was complied by the Assistant Head Teacher which identified the child’s needs as social communication skills, a peer group appropriate in age and ability; a small class group with differentiated curriculum and appropriate learning styles; SLT (Speech and Language Therapy) appropriate to his needs and OT (Occupational Therapy) strategies to identify individual needs.
26. Teaching staff at the child’s High School have received training in meeting the needs of children with ADHD and Asperger’s Syndrome. Several other pupils in the school have been diagnosed with these conditions. There is centrally available support through the local Council and a good exchange of information in the school between teachers and through the Head Teacher.

 

 

6. Reasons for decision:

 

The Tribunal was greatly assisted by both the representatives and the evidence of witnesses in reaching the above decision. It is appreciated how difficult it is for parties in an ongoing relationship to appear to give evidence in a structured setting in respect of issues concerning a child whose needs are significant.

 

The issue before the Tribunal was whether the child’s needs were (up to the present date) such that he meets the statutory conditions for the opening of a co-ordinated support plan in terms of Section 2 of the Education (Additional Support for Learning)  (Scotland) Act 2004 (the Act”).

 

The Tribunal is conscious that matters move on in relation to the life of any 12-year old child between the decision of the Education Authority, the lodging of the reference, the end of the case statement period and the date of the hearing. So it is in this reference since subsequent to the original date of hearing the child has undergone assessment by a specialised school, he has for the first time been excluded from school for a day (which extended to over a week) and has had an appointment with the clinical psychologist in May (but this was cancelled due to the ill health of the psychologist the morning of the appointment).  We fully appreciate that matters are evolving, particularly as it is his first year at High School with consequent adjustments to a more demanding timetable and peer group.

 

It was regrettable that the assessment report from a specialised school had only been produced the morning of the hearing. It gave the respondents and the Tribunal no opportunity to prepare for this aspect. The parents were not present during this assessment and indicated that they had stayed in a nearby hotel as the child stayed as a boarder at the school. The appellant’s representative indicated, entirely properly, that the purpose of arranging for her son to attend the school was initially for assessment to identify other support which could be provided to enable him to achieve his full potential in an educational setting. However the respondents indicated that a letter had already been received from the appellant (although not produced as evidence) enquiring as to the possibility of the child attending the school on a residential basis. No prospectus was available to the Tribunal at the hearing and it was noted that the copy report produced did not have the usual heading but subsequent internet search has revealed that the school which is open 52 weeks of the year and has about 122 students ranging in age from 5 to 18. The curriculum and teaching methods are appropriate to pupils with conditions similar to the child’s diagnosis.

 

The report produced as a result of the assessment was relatively superficial but positive about the child’s abilities and consistent with the more detailed evidence from the Education Officer and the Support for Learning Teacher. The report indicated that the child’s adaptation skills are good and from past behaviours it is clear that he normally settles well initially as he did at High School and it is only after a week or so that the “honeymoon period” ends and he encounters adjustment difficulties or problems in sustaining consistently well socialised behaviour. The recommendation that he attend a residential facility was not justified by the evidence contained in the rest of the report. In particular the Tribunal noted that the report describes the child as significantly more socially functional and adept than the account given by his mother in her oral evidence.

 

The respondents had sent a reply to the mother to ascertain if she intended to make a formal placing request. Her representative stated that the appellant wished the hearing to proceed in terms of the reference submitted since the Tribunal would only acquire jurisdiction to determine any subsequent placing request if the criteria for a co-ordinated support plan were met. It was then conceded that the long term objective may well be to seek a placing request but this aspect cannot influence the decision making of the Tribunal in relation to whether the criteria for a co-ordinated support plan are met at this time. We have considered the report from the specialised school only in relation to the child’s need for support from other agencies.

 

The respondent’s representative indicated that of the criteria for a co-ordinated support plan set out in Section 2 of the Act, there was no dispute that grounds (a), (b) and (c) were met. The sole matter at issue was whether ground (d) could be satisfied in that it was submitted that the evidence did not support the view the child’s needs require additional support to be provided-

1. 1. 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
   2. by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.

 

The appellant contended that the criteria could be met since there was need for additional support to education which required being co-ordinated in view of

 

(a) The existing input from the social work department through the Direct Payments Scheme

(b) The need for more input from speech and language therapy and possibly clinical psychology/occupational therapy

 

The Tribunal carefully considered the evidence in relation to this submission.

 

The appellant had not sought to lead any evidence from the social work department on the precise aims of the care package provided; whether these were being met or what impact it had, if any, on the child’s ability to develop his full potential at school. The SW report available was out of date and (on the mother’s admission) only represented information provided by her one meeting with the social worker in her son’s presence. In relation to any continuing input of the social work department the evidence of the mother was that she had only met the social worker once in connection with the Direct Payment application. The fact that a substantial payment is made is not conclusive of the statutory requirements in relation to the Act.  Social work is clearly responsible for this financial package but their duties extend to considering the issues for the family unit as a whole and not necessarily only those of the child. It is therefore necessary to consider in detail how “additional supports needs” are defined by Section 1 of the Act as follows –

 

(1) A child or young person had additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person

(2) In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.

(3) In this Act, “additional support” means –

 

(a) in relation to a prescribed pre-school child, a child of school age or a young person receiving school education, provision which is additional to, or otherwise different from, the educational provision made generally, for children or, as the case may be, young persons of the same age in schools (other then special schools) under the management of the education authority for the area to which the child or young persons belongs,    

 

(b) [Not relevant]

 

Although the appellant’s representative contended that it was necessary for the child to have the benefit of a comprehensive financial package in order to provide out of school care to improve his low self esteem and therefore enable him to benefit from education during term time, the Tribunal was not persuaded that there was any link, even of the most tenuous type, which could provide the association between the involvement of the social work department and the provision of education or the need that this be co-ordinated in any way. In her oral evidence, the mother did not give convincing evidence that any such link existed or that such a link was necessary. She stated that it was not possible to consider one aspect of her son’s  life (education) without the other (family and social) and that ”he would not go the school otherwise” but this seemed like an opinion which had never been tested or based on observed behaviour. She said that the care provided “made him feel good in himself” but the school seemed unaware of the details of the nature of any care provided outside school. The activities involved which were described by his mother did not seem closely linked to the objectives of the care plan which dates back to October 2005 and has not been subject to any revision. Nowhere does this package make any reference to school. The mother had attended the meeting in November and the statement that the support was given independent of child’s educational needs was not challenged.

 

No attempt had been made to link the support at home and the support at school and this had not been requested by the appellant. The child himself does not refer to it when his views are recorded in the papers.  The mother was rather vague and somewhat reticent in describing what the care provided at home amounted to. She said that she had arranged “for a young chap to come and play darts with him and watch a video with him for two hours in the evening once a week” but that this had only been put in place in the last month.  She said that he enjoyed his residential holidays at the activity camp but this would be no different from many pupils of her son’s age regardless of any diagnosis. She indicated that he did not attend any after school clubs. The mother indicated she did not regard the school policy of trying to impose discipline on her son as positive or appropriate. She felt that by asking him to write and apologise was making matters worse and also showed a lack of understanding of his condition.  She had previously had weekly meetings at the school until in or about April when these had broken down despite the fact she conceded that the school had gone out of their way to find ways to help her son

 

The appellant described how when the child got home from school he usually went straight to his bedroom after having a snack to play on the computer or watch TV. She stated that several times a week a carer would be there and would take him to social groups but the nature of the social groups attended was unspecified as she had previously stated he had no out of school activities. The carers were two women known personally to the appellant. One has a child with a similar condition.

 

We did not have the opportunity to meet the child. Review of the papers in advance of the hearing had not indicated that there was any dispute about the child’s perception of his relationship with his current school as described by his mother. Had we been aware of even the possibility that the recorded views of the chid as contained in the papers were not accurate; the Tribunal would have taken steps to have appointed an independent expert to obtain those views afresh. We considered whether it was vital to a fair outcome to the hearing to obtain those views but, on balance, considered that we should not pursue this as the weight of the evidence indicated that the child’s views were likely to change significantly from day to day and that it may place him under unfair and unwarranted pressure to ask him to submit to further interview, even with an agreed person to mediate his views. There was no request from the appellant that the child’s views be sought independently although the evidence from the appellant was that the views recorded in the papers did not accurately reflect her son’s views on his school as expressed to her in the home environment. She stated that he described school as a “hell hole” particularly to her. We do not doubt that the child, after a bad day at school, might well refer to the school in such a way. We are equally persuaded that his opinions on such matters vary significantly from day to day and that in view of the expert representation involved we are confident that this matter had been canvassed with the appellant prior to the hearing. Some of the appellant’s evidence was contradictory. For instance she spoke of the need to carefully prepare her son for any change but then stated how well he always coped with his holidays away and that he had never had to come home early. She also indicated how she had not told her son in advance of the assessment at a specialised school. Although such inconsistencies were probed they were not fully explained.

 

There were two separate arguments put forward for the appellant. The first was that the review of the Record of Needs had not amounted to a proper assessment of the child’s current needs since the evidence available to the meeting, and the respondents, was not up to date and did not reflect his current situation. The second ground was that the existing Direct Payments through the social work department represented significant additional support to be provided from an agency other than education and, furthermore, that there was a need for significant additional input from Speech and Language Therapy (SALT) which was not currently in place. Both the input from social work and health would represent a further need for co-ordination to fulfil the criteria for a co-ordinated support plan.

 

As in all such appeals, the parent is endeavouring to take steps which they perceive will result in better educational provision for their child. We were impressed by the efforts which the appellant had made over the years to have her son’s condition diagnosed, addressed appropriately and to ensure that she was best able to cope with the demands of that condition not just for the benefit of her son but also for the good of the family as a unit.

 

Her approach is commendable and we have little doubt that she is pursuing what she believes to be her son’s best interests.  The terms of the Act do not require that the Tribunal has to have regard to structures and support which result in the more desirable outcome for the family as a whole. It is arguable that whatever is good for the family must be good for the child but in this instance the Tribunal is satisfied that there are distinctions to be made.  It appears that the family dynamics underwent significant change from 2002 when the father was diagnosed with Asperger’s syndrome; a sibling was born and the child’s behaviour began to give rise to more concerns such that he began to have his behaviours more fully assessed from 2003 and this process eventually culminated in his diagnosis of Asperger’s Syndrome and ADHD in 2005 when he was aged 10.

 

The evidence of the mother and the documentation in the appellant’s case has to be weighed against the evidence of the Educational Psychologist, who had spent two days assessing the child in February of this year for the purposes of the hearing and the evidence of the Support for Learning Teacher, who has known the child over a three years period and who continues to provide substantial support. The Tribunal was impressed with the evidence of both these witnesses. They clearly know the child as a person and both spoke of him with enthusiasm and understanding. However challenging his behaviour might be on occasion, the consistent picture was that most of the time he was able to engage with the school curriculum in a positive manner. He had been allowed, after pressure from his mother, to drop French from the curriculum and has more time freed up to undertake his homework in school hours and to engage in his modelling and research activities. 

 

The support for learning teacher gave evidence in an open and honest manner. It was clear that the teacher wanted to engage with the appellant but also felt he needed to challenge some of her views about her son which he felt were having a negative impact on the child’s attitude to school. He referred in passing to issues at home which were unsettling for the child but indicated that most of the time home circumstances did not affect his ability to access education at school and his attendance was testament to this although he mentioned that after the preparation of the report from Senior Educational Psychologist home negativity had made the child anxious and that he had challenged the mother about that but this had resulted in the weekly meetings being stopped. The support for learning teacher indicated a wish to resume rebuilding positive relations with the child’s parents and we had no doubts as to the commitment which he showed towards this process.  The support for learning teacher had not observed any behaviour in the child at school which indicated that clinical psychology input was required and this view was also indicated by senior educational psychologist who felt that her role could continue to be supervisory but that no intensive therapies were indicated. Both witnesses for the respondents expressed the view that the existing teaching staff had received the appropriate training and their increased knowledge of the child, in a small school was sufficient to enable them to deliver, as they are doing, a differentiated curriculum where appropriate.

 

We have no reason to believe that either of these witnesses was expressing a view which was anything other than their considered professional opinion. We noted that the Head Teacher of the school was present during the hearing as a supporter but did not take any active part in the proceedings. The support for learning teacher was particularly trenchant in his views about the continuing need for sufficient resources for supporting pupils appropriately and there was no sense that either witness was trying to present a “united front” or impress the head teacher by their evidence. Both these witnesses have regular contact with pupils who present with a range of additional support needs and are able to distinguish between those who have significant and ongoing need for co-ordination with other agencies to enable them to access education. Neither could describe how co-ordination with other agencies would facilitate the child’s access to education in a way which was not currently being addressed by the support already offered through the school.

 

We noted the ASL/TRANSITIONAL TOOL/CSP (sic) used by the respondents. We accept that this template assists in the decision making process to establish whether the statutory requirements are satisfied but we would note, in passing, some concern that the statutory term “significant” is linked to “substantial” at Doc A7 and to “high level involvement” at A 6. This may place too high a test on the interpretation of “significant” in some circumstances but it is not of critical importance in this reference.

 

On the basis of the above findings in fact, in the circumstances of this reference the Tribunal confirms the decision of the education authority. Whilst we sympathise with the natural anxieties of a parent who is concerned to achieve the best possible educational outcome for her son, it would be perverse to reach any other conclusion on the basis of the evidence available and the absence of input (or convincing evidence on the need for such input) from any other agency on any more than a “supervisory” capacity at periodic reviews. 

 

It is to be hoped that the parties will be able to accept this decision as correctly applying the statutory test and to proceed to work together to create a positive environment at home and school where the child can develop his talents to their full potential.