ASNTS_D_06_2006_24.08.06

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/06/2006

 

Gender:                   Female

 

Age:                        13

 

Type of Reference: a) CSP not required            b)Placing Request

 

 

 

 

 

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1. Reference:

 

(A)

The Appellant, (“the father”), made a Reference dated June 2006, under Section 18(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) against the refusal by The Education Authority (“the Authority”) to provide a co-ordinated support plan in respect of his daughter, in terms of their decision dated June 2006, applying Section 18 (3) (b) (i) of the Act.

 

(B)

A Placing Request was refused in June 2006 and was appealed to the Education Appeal Committee in April 2006. Said committee considered the Appeal in June 2006. Where the refusal of a co-ordinated support plan is the subject of a Reference to the Additional Support Needs Tribunals for Scotland, and an appeal has already been made to the Education Appeal Committee in regard to a placing request refusal , said Appeal Committee must transfer the reference to the Tribunal, and on being so transferred, the Reference is to be treated as if made to the Tribunal under Section 18(1) of the Act, applying Schedule 2, paragraphs 6(4) and 6(5) 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, and refers the decision of the Education Authority refusing a placing request in respect of the child,  to an Appeal Committee set up under Section 28D of the 1980 Act, all in terms of Section 19(5) and (6) of the Act; furthermore, in exercising our powers we considered the Code of Practice applying Section 19(7) of the Act

 

3. Preliminary Matters:

 

1. Late evidence was received from the Authority in August 2006 namely a fax cover message and separate letter, both from the Education Officer to the Tribunal, and both dated August, 2006.

 

2. Late evidence was received from the Appellant’s Representative in August 2006 namely a fax cover message to the Tribunal, and six pages from the Code of Practice.

 

3. Late evidence was submitted at the hearing by the Appellant’s Representative comprising of the following:

 

1. 1. copy of e mail attachment from a, Trainee Clinical  Psychologist, dated  August 2006,  to the Appellant;

 

All of the above Late Evidence was admitted (with the consent of both parties) Pursuant to Regulations 34 of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (“the Rules”)

 

Further noted that by Convener Direction dated  August 2006 , the Authority were permitted to substitute a witness, namely the child’s Guidance Teacher in place of their previously intimated witness, arrangements could not be made to allow that witness to give evidence.

 

 

4. Summary of Evidence:

 

       The Tribunal considered a substantial bundle of evidence containing:

 

1. Appellant’s Statement
2. Two Case Statements from the Authority
3. Ophthalmology Report from Professor–November 2004
4. Visual Assessment Report from Professor  –August 2006
5. Psychologist’s Report –June 2006
6. Speech and Language Initial Assessment
7. Laptop Assessment – December 2005
8. Occupational Therapy Report –July 2005
1. Independent Special School Information
10. Assessment by Rehabilitation Worker for Visually Impaired People –February 2006
11. Various School Reports from Primary years to S1 at the secondary school
50. Letter from a, Senior Lecturer in Child Health
1000. Biomechanical Assessment –March 2006

 

In addition to the above the Tribunal heard oral evidence from the child’s father and mother together with all the above noted witnesses.

 

 

5. Findings in Fact:

 

1. The child  is a thirteen year old girl  who resides with her parents  She presently attends a secondary school  which is a local authority school   The child started S2 recently. She formerly attended a Primary school from P1 to P3 and then attended another Primary from P4 to P7. The child moved to the other school in August 2005 and has completed her first year there. The child has been in mainstream education since aged 5 years.

 

2. At her first Primary school the child received learning support, speech and language therapy and occupational therapy

 

3. In November 2000, when the child was in P3, the educational psychologist reviewed her and concluded that the child functioned in the borderline moderate difficulties range.

 

4. The child had a Record of Needs opened on November 2001 and her difficulties at that time were identified as being learning difficulties, behaviour difficulties and dyspraxia.

 

5. The child continued to have additional support from P4 to P7.

 

6. In October 2004 (when the child was in P7 at Primary) an initial report from Professor, Consultant Ophthalmologist, identified a probable cognitive visual dysfunction.

 

7. There was a planned focus by the Authority on the child’s move to secondary school.

 

8. The secondary school consider the child’s has made a successful transition to S1, and furthermore believe that she managed most aspects of school. Whilst the child‘s parents agree partially with this they have raised concerns during her first year. These include inappropriate worksheets, social relationships and bullying, safety on school stairs, and training in the use of software.

 

9. In the annual review held in May 2006 the school view continued to be that the child was making entirely satisfactory progress, having participated in a full range of activities and going on a school skiing trip.

 

10. In May 2006 a psychometric reassessment was carried out which indicated that the child’s  functioning no longer fits a description of borderline moderate learning difficulties. Said assessment suggested that the child’s difficulties are specific to tasks with a high visuo-spatial component.

 

11. Throughout S1 the child  was provided with 13 periods of support from the support for learning staff, additional support needs assistant being allocated 3 periods a week to enlarge and edit materials, approximately 16 mobility personnel and special equipment [e.g. zoom text, laptop an magnifier].

 

12. Therapy Services such as Speech and Language therapy have been discharged. Occupational Therapy has also been discharged. A Section 23 assessment is still to be completed. There is also an ongoing clinical psychological assessment currently in place.

 

13. The Authority contacted the following agencies as part of their investigations in respect of the application for a co-ordinated support plan.

 

(i)Occupational Therapy

(ii)Ophthalmologist

(iii)child guidance clinic

(iv)VI Rehabilitation Worker

(v)Paediatrician

(vi)Associate Specialist Doctor

(vii)Podiatrist

(viii)Social Work

                                                  

The sole agency proposing to the Authority ongoing input for the child is Social Work which involves a time-limited programme accessed by a wide range of pupils.  As stated in Paragraph 12 above a section 23 assessment is still to be completed as well as a clinical psychological assessment.  

 

 

6. Reasons for decision:

 

The Tribunal considered all the evidence, both oral and in written form. We were satisfied that there was sufficient evidence available to the Tribunal to reach a fair decision on the Reference.  We did however note that whilst there were still on-going assessments outstanding in respect of the child, we were not in a position to consider any conclusions or recommendations at this time.

 

There was no significant dispute on the facts relating to this Reference. The dispute relates to the needs which arise for the child flowing from her visual impairment and how these might best be addressed. The Authority admit and accepts that the child has a visual impairment and that she does have additional support needs.

 

The Authority opposes the Appeal in two principle points namely:-

 

1. that the child’s additional support needs arise from a complex factor, nor do they arise from a number of factors which when taken cumulatively amount to a complex factor; and
2. that no agency propose to provide support which is significant, and that any support provided or proposed does not reach a level which is  substantial, direct or continuing as described in the Code of Practice associated with the Act.

 

The Tribunal are satisfied that the Authority is responsible for the school education of the child

 

The Tribunal are satisfied that there is the presence of one or more complex factors, namely the diagnosis of visual impairment. In September 2004 the child was diagnosed by Professor, Consultant Ophthalmologist, as having a cognitive/cerebral visual impairment. In May 2006 the child is described by a, Senior Lecturer in Child Health as “quite a complicated girl with an unusual type of visual processing impairment.” Furthermore he states that the child   “might have some as yet unclassified condition, with a combination of over-growth and learning disability.”  This condition has given rise to needs which are likely to continue for more than a year.

 

The Tribunal also considered the Code of Practice in considering the matter. Chapter Four paragraph 10 states that a factor is a complex factor if “it has, or is likely to have a significant adverse effect on the school education of the child or young person.”  When considering ‘significant adverse effect’ the Tribunal considered paragraph 11 under the heading “Disability or health.”  The Tribunal consider the visual impairment of the child is a barrier to the child’s Learning and development which require “measures to be put in place if the child and young person is to benefit from school education.”

 

The Tribunal were therefore satisfied that the child fulfilled the requirements of Section 2 (a), (b) and (c) of the Act.

 

The Tribunal considered the requirement of “significant additional support” in Section 2(d) of the Act,   together with the guidance provided within the Code of Practice at Chapter Four, paragraphs 15, 16, 17 and 18 and the Flow Chart on page 53.

 

“Significant additional support” is not defined in the Act.  The Tribunal understand that it is not possible to generalise as to what should be 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 education authority themselves.

 

We therefore are not satisfied, from the evidence before us today, that a co-ordinated support plan is currently required for the child

 

In respect of the refusal of the placing request we also considered Chapter 8 of the Code of Practice together with the Act. Paragraph 21 therein states that “if the Tribunal upholds the education authority’s decision that the child or young person does not require a co-ordinated support plan then the placing request appeal is returned to the appeal committee for determination.” Accordingly we return the decision to refuse the placing request to Appeal Committee for their determination.