ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/10/2006
Gender: Female
Age: 11
Type of Reference: a) CSP not required b) Placing Request refused
1. Reference:
The mother (“the appellant”) made a reference in respect of the decision of the education authority (“the respondent”) that the child does not needs a co-ordinated support plan in terms of section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004
Refusal of placing request in terms of Section 18(4) (c) of the Education (Additional Support for Learning) (
2. Decision of the Tribunal:
The Tribunal upholds the decision of the education authority.
3. Preliminary Matters:
A Convener direction set aside 7th December 2006 for dealing with the issue of jurisdiction of the reference in respect of the placing request and with any other preliminary matters in advance of the hearing.
Jurisdiction
On behalf of the respondent it was submitted that the reference was dated September 2006. It was further submitted that the reference stated that the placing request had been turned down when the reference had been made. The date on which the placing request had been turned down was June 2006.
It was submitted that in relation to the assertion that the respondent did not reply to the letter in April 2006 (a letter requesting an assessment of the child), that a response was sent in May 2006. It was also submitted that the reference form was inaccurate in that it was asserted that “the box ticked [page 4] regarding the placing request was inaccurate:
“The education authority has refused my placing request AND one of the following applies….
…..
The education authority has stated that my child does not need a co-ordinated support plan and I had already made a reference about that decision when it refused my placing request.”
On behalf of the appellant, their representative referred to the reference at section 6 [page 8] in that the reference was under section 18(5) of the Education (Support for Learning) (
Reference was made to a Convener Direction dated September 2006. [It should be noted that this was only issued following a provisional registration of the reference.] It was submitted that there was a refusal by the respondent to issue a co-ordinated support plan and until that is in place it will be a matter for the tribunal. In the original reference the appellant was relying on section 18(4) (1). It was submitted that the letter in December 2006 brought the reference within 18(1) and 18(3) (b) (i).
It was accepted that the reference had not been submitted until September 2006.
In the course of her submission it was conceded by the appellants representative that her client had received the letter of in May 2006 [Denied at section 6 of the reference.] It was further submitted that appellant’s belief that the matter relating to the placing request was not valid as the placing request had been refused in June 2006. An appeal to the appeal committee had been made in June 2006. [There appears to be ongoing correspondence between the parties in relation to competence of that matter given the previous appeal in respect of the refusal of the placing request for the
In response it was submitted by the education authority that in carrying out the assessment of the child several meetings took place during May and June 2006. At a meeting in May 2006, it was decided that the child did not meet the criteria for a co-ordinated support plan. A form was completed in relation to that decision and submitted to the multi-disciplinary group. A meeting with the appellant occurred in May to discuss both the Co-ordinated support plan and the placing request. An Occupational Therapy assessment referred to in the child’s Record of Needs of 2005 was outstanding. It was submitted that the appellant’s position at that meeting was that she wished the matter of the placing request to be resolved. In June 2006 a staged intervention meeting took place. The appellant was present with her representative. It was decided at that meeting that the child did not meet the criteria for a co-ordinated support plan and a “staged intervention scrutiny form was completed, confirming the decision of the meeting. This was signed by the appellant [in that she did not agree with the decision]. The form was submitted to the Staged Intervention Scrutiny Group when the decision not to prepare a co-ordinated support plan was ratified in June 2006.
It was submitted that further correspondence between the parties [page 47/48] confirmed the decision that the child’s needs did not require a significant level of co-ordinated input from other agencies.
In relation to the Convener Direction in September 2006, it was submitted that there was ambiguity as to whether the respondent was to prepare a co-ordinated support plan by default. It was submitted that in assessing the child, the respondent had met the timescales required. It was also submitted that the Direction did not make it clear the basis on which the appellant’s reference had been made. A further staged intervention group occurred in September 2006. It was the decision of that meeting that the proposed OT input was not significant.
The letter in December 2006 had been sent in response to the appellant’s case statement, in which it is stated no formal response to the request has been received. The respondent’s representative apologised for this omission but it was her position that the timescales had been met in relation to the assessment and that the decision that the child did not meet the criteria for a co-ordinated support plan had been reached in June 2006, at which time it was intimated to the appellant in person.
In conclusion it was submitted that in terms of when the reference was made there had not been a failure to assess and therefore it was not valid for the Tribunal to consider the placing request decision which was made in June 2006.
In response the appellant’s representative referred to the correspondence within the reference and highlighted that the respondent had failed to notify the appellant of the refusal of the request for a co-ordinated support plan and the appellant’s right to appeal as stated in the Code of Practice.
Decision of the Tribunal
The preliminary matter before the Tribunal is whether the Tribunal has jurisdiction to decide the reference insofar as it relates to the placing request. Section 18 of the Education (Additional Support for Learning) (
…. - “at the time the placing request is refused –
(a) a co-ordinated support plan has been prepared (but discontinued) for the child…
(b) no such plan has been prepared, but it has been established that by the education authority that the child or young person requires such a plan, or
(c) the education authority has decided that the child or young person does not require a co-ordinated support plan and that decision has been referred to a Tribunal under subsection 1.”
Having listened carefully to the submissions, the Tribunal find the following facts established:
1. The request for assessment was made in April 2006.
2. A process of assessment was undertaken thereafter.
3. Having carried out the assessment process, a decision was taken by the respondent in June 2006 that the child did not meet the criteria for a co-ordinated support plan and would remain at stage 4 of the staged intervention process. That decision was communicated to the appellant, and her representative at the meeting in June 2006. Reference is made to the Staged Intervention Scrutiny Group Referral Form B [within the Reference] which was signed by the appellant in June 2006.
4. The decision not to produce a co-ordinated support plan for the child was ratified on behalf of the Scrutiny Group in June 2006.
5. The placing request was refused in June 2006.
6. The reference to the Tribunal, dated September 2006 was received in September 2006.
Accordingly the Tribunal decided that at the time the placing request was refused the decision not to produce a co-ordinated support plan had been made, but that decision had not been referred to the Tribunal. Section 18(4) of the Act did not apply and accordingly the Tribunal did not have jurisdiction to review the decision to refuse the placing request.
Having intimated the decision of the Tribunal to parties the remaining preliminary matters were dealt with.
Late evidence was submitted by both parties and these were received and marked L5 and L6. The hearing adjourned briefly to allow the respondent an opportunity to read L6.
The appellant’s representative raised the question of whether the reference to the Tribunal was now deemed to be late in light of the decision of the Tribunal on the preliminary matter of jurisdiction. The reference had been lodged in September 2006, in excess of 2 months after the date of the decision not to produce a co-ordinated support plan. The appellant’s representative sought clarification in relation to the competence of the remaining part of the reference.
The respondent confirmed that the decision not to produce a co-ordinated support plan had been reached in June 2006 and that was a decision which the appellant had been entitled to review.
The hearing was adjourned to enable parties to consider the matter. On reconvening, the Tribunal indicated to parties that the reference dated September 2006 proceeded on the basis that that there had been a failure to respond to a request for assessment of the child. In the course of her earlier submission, the appellant’s representative conceded that this was incorrect and that a letter dated May 2006 had been received by the appellant. It appears that the appellant was now seeking the reference proceed on the basis of the respondent having intimated that the child does not require a co-ordinated support plan, either in terms of the letter of December 2006 [L1] or in terms of the finding of the Tribunal in relation to the preliminary matter of jurisdiction.
In terms of Rule 19(1) of the Additional Support Needs Tribunals for
At this stage the appellant’s representative indicated that the appellant wished an adjournment to take legal advice. Having heard parties, the Tribunal ascertained that the only matter remaining at issue was whether the child meets the criteria for a co-ordinated support plan as contained in section 2. The appellant’s representative indicated that she would not be calling any witnesses. The respondent intended to call two witnesses who would be attending in a hearing date scheduled for mid-December 2006. The Tribunal allowed the appellant an adjournment of the hearing until mid-December 2006.
Mid - December 2006
At the outset it was confirmed by parties that the only matter in dispute was whether the child meets the criteria for a co-ordinated support plan as contained in section 2 of the Act. It was accepted that subsections 2(1) (a), (b) and (c) had been met and it was agreed that the only matter at issue was whether the child’s needs required “significant additional support to be provided” all in terms of subsection 2(1)(d).
4. Summary of Evidence:
The Tribunal considered a substantial bundle of evidence including case statements and supporting productions lodged by both parties, including reports, correspondence, minutes. The tribunal heard oral evidence on behalf of the respondent, from an Occupational Therapist, and a Senior Speech and Language Therapist.
5. Findings in Fact:
1. The child is 11 years old and resides with her parents. Her father is in the Army and he is currently stationed abroad. The child attends a local Primary School. She commenced Primary 7 at the school in August 2006.
2. The child has been diagnosed with profound lower visual field impairment. She has (suffers from) Moderate learning difficulties. She presents with a complex range of sensory-motor difficulties and has a moderate to severe expressive language delay. She suffers from co-ordination difficulties.
3. The local primary school is a mainstream school with an Educational Learning Support (ELS) provision. The ELS provision is a designated provision. There are two classrooms and additional teaching and support staff. The child is supported by a specialist teacher for children with a visual impairment. The child’s visual needs are met by the education authority. The child spends part of the school week in the ELS classrooms and part of the week in a primary 7 mainstream class where she is supported by a Support for Learning Assistant (SLA). The child has the use of a number of low vision aids.
4. The education authority follows a process of staged intervention in relation to children with additional support needs. It is a four stage process. Children who require significant additional support for the education are on stage 4. The child is at stage 4. Stage 4 requires a need for collaborative planning and involves regular assessment and review. A staged Intervention Scrutiny Group considers each child who is placed at stage 4. The group is responsible for scrutiny of decisions in relation to co-ordinated support plans. A multi-disciplinary staged Intervention meeting took place in June 2006 to consider the child’s eligibility for a co-ordinated support plan in terms of the request made by the appellant.
5. The child has been assessed by an Occupational Therapist. The child has been offered three blocks of Occupational Therapy (OT). This is the maximum amount of OT which research has shown is likely to be effective. Each block will run for ten weeks, and will involve a one hour session along with two other girls who have similar problems. The focus of OT will be the enhancement of vestibular and proprioceptive integration. The child’s OT needs are in the low to middle bracket within a range of low to high. The OT input is not significant. The sessions have not yet started because the appellant was unable to attend after school. Arrangements have now been made to accommodate the appellant. The sessions will commence in January 2007.
6. The child has moderate to severe expressive and receptive language delay. She was referred to the Speech and Language Department in December 2004. She was assessed in January 2005 and it was recommended that she required regular blocks of therapy as part of a collaborative team approach. The child has had the recommended Speech and Language Therapy. In June 2006 the additional support required to meet the child’s objective was indicated to be close collaboration between Speech and Language Therapy and education to ensure the curriculum is adapted to the child’s speech and language needs. This will be done be providing support to school staff in understanding the child’s profile and how she learns words. No individual or group work Speech and Language work is recommended. The child’s speech and language therapy needs are not substantial.
7. The transition to secondary school will start in 2007. A decision has not yet been taken as to which school the child will attend.
6. Reasons for decision:
The Tribunal considered all the evidence, both written and in oral form and were satisfied that there was sufficient available evidence to reach a fair decision on the reference.
The education authority opposes the reference on one matter:
(1) that the child does not have additional support needs which require significant additional support to be provided by the education authority in exercise of any of their other functions, or by one or more agencies as well as by the education authority themselves.
The Tribunal were satisfied that the authority is responsible for the school education of the child. The Tribunal were satisfied that the child fulfilled the requirements of section 2(1)(a) of the Act. The Tribunal were satisfied that the child has additional support needs arising from multiple factors and that those needs are likely to continue for more than one year. The Tribunal were satisfied that the child fulfilled the requirements of section 2(1)(b) and (c).
The Tribunal were not satisfied that the child’s needs require significant additional support to be provided by the educational authority in the exercise of any of their other functions as well as exercise of their functions relating to education. Nor were the Tribunal satisfied that the child’s needs require significant additional support to be provided by one or more appropriate agencies as well as by the educational authority themselves.
In consideration of the requirement for “significant additional support” the Tribunal took account of the guidance contained in the Code of Practice at Chapter 4, paragraphs 15 -18. The terms “significant additional support“ is not defined by the Act. The Tribunal considered that one must take account of the particular circumstances of the case.
Paragraph 16 of Chapter 4 the Code of Practice 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 were not satisfied on the basis of the available evidence, 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 education authority themselves.
The Tribunal was not satisfied that a co-ordinated support plan was required for the child.
