ASNTS_D_05_2008_24.04.08

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/05/2008

 

Gender:                   Male

 

Age:                        13

 

Type of Reference: Placing Request

 

 

 

 

 

1. Reference:

 

The Appellant made a Reference, received  October 2007, under Section 18(3)(e) of The Education (Additional Support for Learning) (Scotland) Act 2004 (‘the Act’) against the Deemed Refusal by Education Authority (‘the Authority’) to grant a placing request made June 2007  in respect of her son, date of birth  June 1994.

 

 

2. Decision of the Tribunal:

 

The Tribunal is not satisfied, in terms of Section 19(5) (a) (i) of the Act, that one or more of the grounds specified in paragraphs 3(1) or (3) of Schedule 2 to the Act exist.

Accordingly,

(a ) the Tribunal overturns the Deemed Decision of the Authority;

(b) requires the Authority to place the child in the school specified in the placing request,  in terms of Section 19(5)(b)(i) of the Act; and

(c) requires the Authority to amend the CSP prepared for the child with the name of the school, together with its address, telephone number and the Head Teacher’s details being amended accordingly, further stating that the nature of the placement shall be ‘day placement’ in terms of Section 19(5) (b) (ii) of the Act, all said amendments to be implemented within 21 days of the Tribunal’s decision.

 

The decision of the Tribunal is Unanimous.

 

3. Preliminary Matters:

 

1. There was a case conference call between the Parties and the Convener prior to the first day of the hearing to deal with practical issues including witnesses, the lodging of further productions, time management and who should lead.

 

2. The Tribunal issued a decision dated December 2007 refusing the request by the parent’s representative that the Tribunal request an extended assessment of the child’s suitability to attend the specified school.

 

3. The Convener issued two Directions, dated January 2008 postponing hearing dates previously set, arising from the unfortunate illness of the parent’s representative.

 

Additional Witness

 

After hearing all the evidence led by the Parties, and before any legal submissions were made, the Tribunal requested the attendance of an additional witness, namely an Associate Specialist from Community Paediatrics to give evidence to the Tribunal.

 

Note:

 

Evidence was led during the first number of days. At the request of the parties’ legal representatives, time was granted to prepare their legal submissions which were presented on the final day.

The Tribunal reconvened on a further day on their own to fully assess the extensive evidence, both oral and written, together with the detailed legal submissions, and commenced their deliberations.

 

 

4. Summary of Evidence:

 

The Tribunal considered a substantial bundle of evidence containing, amongst other documents:

 

1. Appellant’s case  statement;
2. Authority’s case statement;
3. All additional evidence lodged by both parties before and during the hearing of the Reference;
4. medical reports/assessments/documents/correspondence;
5. therapists reports/assessments/documents/correspondence;
6. letters to and from the Appellant;
7. pupil profiles, targets, class and school reports;
8. attendance records;
1. minutes, correspondence and emails lodged by both parties;
10. The CSP;
11. IEPs;
50. reports of meetings/reviews;
1000. All documents lodged about the current school including the Handbook;
14. All documents lodged regarding short and long term targets at the current school;
15. timetables/planners, daily/ weekly/pictorial etc at both schools
16. All papers lodged about specified school including its Prospectus;
17. The Full Assessment Report on the child from the specified school (dated  October 2007);
18. All risks assessment papers lodged;
19. therapists/specialist reports and all relating correspondence;
20. Some Home/School diary extracts;
21. documents  from other schools (e.g. Primary);
5. papers  regarding  transporting  arrangements, costs and contracts etc;
23. all other letters, reports, documentation;
10. Written Supporting Statement  from the appellant and written response from current Head Teacher;
25. The appellant’s initial placing request letter dated  June 2007;
26. photographs.

 

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

 

In addition the Tribunal heard oral evidence a number of named witnesses. It will also be noted that the Tribunal, in addition to hearing the witnesses of the parties, requested to hear evidence from a further witness, the Associate Specialist from Community Paediatrics. The Tribunal also heard evidence from the Appellant and Education Officer directly and considered the written and oral legal submissions made on behalf of the Appellant and the Authority.  The hearing of the Reference was completed after nine days. The Tribunal then met, without parties, to deliberate on the Reference.

 

5. Findings in Fact:

 

1. The child is a 13 year old boy. He was born in June 1994. He resides with his mother, (‘the Appellant’) and his father. He is an only child.

 

2.       In a letter dated November 2007, a Consultant Paediatrician wrote the following clinical description of the child’s medical condition following upon a meeting with him and his mother at school in October 2007:

 

‘Chromosomal abnormality 47XY with transfers from chromosomes 4& 8

Agenesis of corpus collosum

Global developmental delay

Myoclonic epilepsy

Spastic diplegia

Aortic incompetence

Scoliosis

Left-sided brachial nerve palsy

Gastro-oesophageal reflux

Swallowing difficulties’ 

 

3.       The child is currently a pupil at a special needs school, and has attended there since September 2004. The local education authority is responsible for the School. He previously attended a different special needs school, which is also under the management of the local authority but was transferred to his current school as a result of a previous parental placing request.  He attended the original school from the age of two until the age of ten.

 

4.       In June 2007, the Appellant wrote to the Education Officer, requesting that the Authority place the child at the Specified School.   No decision on said placing request was issued by the Authority. This reference therefore relates to a ‘deemed refusal’ by the Authority. The Education Officer confirmed in her evidence that this deemed reference would have been formally confirmed had the Reference not been lodged with the Tribunal.

 

5.       The Child has significant additional support needs. He has a co-ordinated support plan (CSP) which was opened in April 2007. He has an Individualised Educational Programme (IEP). There are normally three occasions annually when this programme may be reviewed, namely two parents’ evenings and one formal multi-professional review meeting, where the CSP is also reviewed.

 

6.       The Child attends neurology, cardiology and orthopaedic departments at a Children’s Hospital, and is also seen on a regular basis by the Consultant Paediatrician at the child’s local hospital.

 

7.       The child is currently dependent on a wheelchair for his mobility although he was previously able to take steps supported in a walking frame and/or by helpers.  He also requires regular in school and occasional domiciliary support from the following health professionals, who are employees of NHS,

1. 1. physiotherapist,
   2. occupational therapist,
   3. speech and language therapist, and
   4. school nurse.

 

8.       The Child’s CSP states that he ‘has complex learning and medical needs that means that he requires a high level of staffing to ensure his access to education. He requires a high level of personal care and health support. He is very fragile.’ 

 

9.       The said CSP makes specific reference to additional support being required by physiotherapy. It states that the physiotherapist will provide ‘Regular direct support determined by clinical need with support from two school staff members where possible. At present this is a 40 minute session once per month.’

 

10.      The Head Teacher of the child’s current school is the named ‘Additional Support Provision Co-ordinator’ in the current CSP.

 

11.      There is a physiotherapist assigned to the child within his current school.   He has been clinically assessed by her as requiring direct one-to-one physiotherapy, once a week, on a Wednesday morning.  He does not always receive this. On the day the physiotherapist attended to give evidence to the Tribunal, which was a Wednesday, no alternative provision was arranged for his clinically assessed direct weekly physiotherapy. He did not therefore receive his physiotherapy that day and there was no evidence, or even a suggestion, that he would receive alternative direct physiotherapy for that week.  The Head Teacher and physiotherapist in their evidence stated that more physiotherapy time and/ or a replacement physiotherapist for any absence could always be requested for a child who needed it, but this had never been done for the child, or indeed for any other child in the current school.

 

12.      The Appellant gave evidence to the effect that, in the school year 2006-2007, the child was present in school on twenty eight Wednesday mornings. He received direct physiotherapy on ten occasions according to the home-school diaries in use at the time. This evidence was not challenged by the Authority.

 

13.      The CSP co-ordinator did not know whether the child received physiotherapy in any given week, and nor did she know what the physiotherapist was working towards at any given time.

 

14.      The physiotherapist has no effective monitoring or recording system in place in respect of the exercises or indirect physiotherapy planned by her to be delivered by the classroom staff. Neither she, nor the Head Teacher have, therefore, any certain way of knowing whether, when and how often these activities are carried out.

 

15.      The current school-based record keeping of joint/shared record keeping of therapy treatment and of meetings at the school, other than the most formal, is sparse.

 

16.      The CSP has never been seen by either the school nurses or indeed by the Associate Specialist of Community Paediatrics, who has special responsibility for the School’s approximately eighty pupils, among her other clinical and administrative duties. The Doctor , having never seen the CSP, or being made aware of its contents by anyone, was not aware that she was described therein as the person allocated to support the child and to ‘monitor his developmental progress, co-ordinate services and liaise between the family, hospital, community healthcare professionals, all social work and care providers long term.’

 

17.      A number of external agencies were invited to provide reports in order to assist the drafting of the CSP. A draft of the CSP was sent to the Appellant but no further comment was sought from any of the submitting agencies as to the proposed content of the CSP, its wording or its accuracy. 

 

18.      Neither Speech and Language Therapy nor Occupational Therapy is written into the child’s CSP, despite his need for both and evidence that he does receive both at school.

 

19.      He spends a significant part of his day, within the school timetable, ‘in chairs’ (wheelchair or other).

 

20.      The relatively small size of his classroom at school and the presence within it of other ambulant classmates makes the practical use of the classroom floor inappropriate for out-of-chair position changes and for stretching, both of which would be therapeutically beneficial to him.

 

21.      The room made available to the physiotherapist to deliver physiotherapy in school is small and impractical for the delivery of therapy treatment to anyone requiring a wheel chair or a hoist. Other suitable accommodation within the school is not always available at the time set for the child to receive treatment.

 

22.      The physiotherapist does not monitor the delivery of the class physiotherapy programme.

 

23.      The school is currently without a plinth on which to carry out treatment.  The Education Authority and the NHS cannot agree who should pay for the plinth.  This may have implications for delivery of therapy and the health and safety of the physiotherapists.

 

24.      The school does not have a hydrotherapy pool. The child would have regular use of the hydrotherapy pool in the specified school. Hydrotherapy would have therapeutic benefits to the child.  Both physiotherapists and the Associate Specialist of Community Paediatrics agreed with the positive effects of hydrotherapy.

 

25.      Rebound Therapy has not been available in current school for a significant period of time (2007-2008) due to the unavailability of trained staff. There was a new PE appointment in school in August 2007 who was not trained in ‘rebound therapy’ until attending a course at the local Hospital in March 2008. Such a therapy was not available to pupils at the current School since the departure of the last PE teacher.

 

26.      The specified school is within the Education Authority and can provide day and residential education with respite care for children with severe and complex disabilities and additional support needs between the ages of 5 and 18 years.

 

27.      The specified school has its own team of therapists who work both with individual pupils within the school’s special therapy accommodation and also within classrooms as part of the classroom staff.  The in-class physiotherapy programme within school is regularly monitored and reviewed by the class physiotherapists.  The physiotherapists’ at the current school are not part of the classroom staff.

 

28.      In a typical week at the specified school, the child could expect to receive one hydrotherapy session, a one-to-one physiotherapy session, two rebound therapy sessions, movement groups and ongoing therapeutic movement and positioning within the classroom. 

 

29.      There are regular formal multi-disciplinary meetings in respect of pupils at the specified school. Said meetings are minuted in writing with action points being fed into an IEP on a computer system accessible by all staff. Said action points are reviewed weekly. The current school appear to have a system of mainly ad hoc meetings with little written recording, thus making ongoing meaningful review difficult.  It is also difficult to monitor who has been told what in respect of the child.

 

30.      The Paediatric Consultant at the local hospital, who saw the child in relation to his feeding and swallowing problems at the Associate Specialist in Community Paediatrics request, is also Visiting Consultant at the specified school. She would, therefore, continue to see the child at school, as need be, if he moved there.

 

31.      The specified school is more expensive than the current school.  Both parties are in broad agreement with the costs provided by the Authority. The parties agree the basis of calculation of the respective costs of the schools and agree that the difference in the respective costs to the Authority if the child were to attend the specified school would be £30,168.06 (or £40,308.06) depending on the final transport arrangements.

 

32.      The Education Authority currently has four pupils attending the specified school, one of whom was placed there after the Authority became independent of the previous Regional Council. The pupil was placed there because an alternative school, at that time, was full.

 

33.      The specified school is not a public school.  It is run by a charity organisation, which is grant-aided by the Scottish Government and pupils are funded by their home authorities.

 

34.      The Authority has offered to place the child at his current school. The Authority has not formally offered a place at any other school within the Education Authority area or anywhere else.

 

35.      In May 2007 the child sustained a bruise as a result of an accident whereby he toppled from his wheelchair whilst in the care of current school staff. The school investigated this incident and they accept that a brake may not have been properly engaged. Details were logged in an Incident Book. It should have been reasonably foreseeable to the school that in the event of failing to check a handbrake is not properly engaged, an accident involving the wheelchair could happen.  New guidelines were issued to school staff after said accident. Failure to observe these new guidelines would be considered a disciplinary issue by the Head Teacher.

 

36.      The current school has a Health and Safety committee. There is a risk assessment document for the child which is regarded as a working document. The document is updated by hand.  It is unclear and confusing at various sections. 

 

37.      The specified school has a hydrotherapy pool.  The child’s current school does not. The child does not currently have any direct access to any such alternative hydrotherapy pool within the Authority. 

 

38.      Hydrotherapy would be therapeutically beneficial to the child.

 

39.      The journey time to the current school for the child is approximately a 10 minute taxi ride. The specified school is approximately a 40 minute taxi ride away.

 

40.      The specified school has a smaller number of total pupils than  the current school.

 

41.      The child has increasing bone and skin fragility as a result of his deteriorating health. Bone fractures and pressure sores are, therefore, an ever-present risk necessitating great care in handling, seating and moving him in any way, and close monitoring to safeguard him.

 

42.      The Education Authority will retain responsibility for the child’s CSP regardless of which school is attended. Input from education and therapy staff to the CSP will be different because of different contributing staff and differences in availability in the two schools.

 

43.      The Authority seek to rely upon Paragraph 3(1)(f) of Schedule 2 of the Act . Subsections (i) and (iv) therein are not disputed between the parties.

 

44.      Neither the Education Authority nor the current school has been able to satisfy the Tribunal that they can make adequate and efficient provision to meet the additional support needs of the child.

 

45.      Whilst the Appellant continues to work with the current school, she has lost confidence in the school’s ability to educate and care adequately for her son, to ensure that the direct physiotherapy he has been deemed to clinically require on a weekly basis is delivered and appropriately monitored.

 

46.      The Authority utilise a ‘needs assessment tool’ to assess the needs of each child. The child has been assessed at level one which is the lowest level. It envisaged advice and support to parents and staff, continued monitoring and assessment, and the possible provision of some resources.

 

47.      .The child has been assessed by the specified school and he has been offered a place within the day school. They state that they can provide ‘an appropriate education and therapeutic timetable.’

 

48.      The child’s very complex medical condition does impact upon his ability to learn.     His condition is expected to deteriorate with time and accessing education will become more difficult.  The levels of care, facilitation and support, and the co-ordination of these, must be of the highest order to ensure his safety, well-being and holistic development.

 

49.      The specified school is able to make adequate and efficient provision for the additional support needs of the child.

 

50.      It is reasonable, having regard both to the respective suitability and to the     respective cost (including incidental expenses) of both schools, to place the child in the specified school.

 

6. Reasons for decision:

 

The Tribunal considered all the evidence within the productions initially lodged, together with all the late productions lodged, and the oral evidence of the witnesses who attended over the eight days. The Tribunal also considered the submissions made on behalf of both parties on the ninth day.

 

The evidence over the eight days was very substantial and it is not practical or appropriate to narrate every aspect of the evidence in this written decision.

 

The Statutory Provisions

 

The Authority moved the Tribunal to confirm the Authority’s decision in terms of Section 19(5) of the Act which provides:

 

‘(5) Where the reference relates to a decision referred to in subsection (3)(e) of that section, the Tribunal may-

(a) confirm the decision if satisfied that-

(i) one or more of the grounds of refusal in paragraph 3(1) or (3) of schedule 2 exists or exist, and

(ii) in all the circumstances it is appropriate to do so.’

 

For the appellant it was argued that the Tribunal could not be satisfied in terms of Section 19(5)(a)(i) or (ii) of the Act, and that in those circumstances the Tribunal ought to overturn the Authority’s decision and place the child in the specified school in terms of Section 19(5)(b) of the Act which provides:

 

‘(5) Where the reference relates to a decision referred to in subsection (3)(e) of that section, the Tribunal may:

(b) overturn the decision and require the authority to -

(i) place the child or young person in the school specified in the placing request to which the decision related, and

(ii) make such amendments to the co-ordinated support plan prepared for the child or young person as the Tribunal considers appropriate by such time as the Tribunal may require.’

 

Section 22 of the Act is the relevant section in so far as it states that Schedule 2 makes provision about placing requests in relation to children and young people having additional support needs.

 

Turning to Schedule 2 of the Act this deals with firstly, the Education Authority’s duty to comply with a placing request. Paragraphs 2 and 3 provide the basis on which the Tribunal must determine the reference.

 

Schedule 2, paragraph 2 of the Act (headed “Duty to Comply with Placing Requests”)

provides:

‘(1) Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.

(2) Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being-

(a) a special school the managers of which are willing to admit the child,

(b) a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young person) having additional support needs, or

(c) a school at which education is provided in pursuance of arrangements entered into under section 35 of the 2000 Act,

it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child’s attendance at the specified school.

(3) A request made under subparagraph (1) or (2) is referred to in this Act as a “placing request” and the school specified in it is referred to in this Schedule as the “specified school”.

(4) Where a placing request relates to 2 or more schools being-

(a) schools under the management of the education authority to whom it is made, or

(b) schools mentioned in subparagraph 2(a),(b), or (c) the managers of which are willing to admit the child in respect of whom the request is made,

The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) applies in relation to the first mentioned such school, which is to be treated for the purposes of this schedule as the specified school.’

 

Paragraph 3 of Schedule 2 of the Act (headed “Circumstances in which duty does not apply”) provides:

 

‘(1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply-

1. if placing the child in the specified school would-

1. make it necessary for the authority to take an additional teacher into employment,
2. give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,
3. be seriously detrimental to the continuity of the child’s education,
4. be likely to be seriously detrimental to order and discipline in the school,
5. be likely to be seriously detrimental to the educational well-being of pupils attending the school,
6. assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher4 into employment at the school, or
7. though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers,

2. if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,
3. if the education authority have already required the child to discontinue attendance at the specified school,
4. if, where the specified school is a school mentioned in paragraph 2(2)(a) or  (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,
5. if the specified school is a single sex school (within the meaning of section 26 of the Sex Discrimination Act 1975 (c.65) and the child is not of the sex admitted or taken (under that section) to be admitted to the school,
6. if all of the following conditions apply, namely-

1. the specified school is not a public school,
2. the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other that the specified school,
3. it is not reasonable, having regard both the  respective suitability and to the respective cost (including incidental expenses) of the school and in the school referred to in paragraph (ii), to place the child in the specified school, and
4. the authority have offered to place the child in the school referred to in paragraph (ii), or

7. if, where the specified school is a special school, placing the child in the school would breach the requirement in Section 15(1) of the 2000 Act.

2. An education authority may place a child in the specified school notwithstanding sub-paragraph (1)(a) to (e).
3. The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply where the acceptance of a placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school.
4. Nothing in sub-paragraph (3) prevents an education authority from placing a child in the specified school.
5. In sub-paragraph (3), “reserved places” means such number of places (not exceeding such number, or. As the case may be, such percentage of places at the school or relating to the particular stage of education as the Scottish Ministers may by regulations prescribe) as are in the opinion of the education authority required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1^st August to which the placing request relates.
6. In sub-paragraphs (3) and (5) “catchment area”, in relation to a school, means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of the 1980 Act.’

 

Accordingly, in terms of Paragraph 2(2) of the Act above, the Authority is required to meet the fees and other necessary costs of the child’s attendance at the specified school unless one of the circumstances in paragraph 3 is established.

 

The Authority have indicated in this case that they seek to rely upon Schedule 2, paragraph 3(1) (f) of the Act.

 

It should be noted that the reference has been made in respect of a ‘deemed refusal’ by the Education Authority in respect of the placing request all in accordance with The Additional Support for Learning (Placing Requests and Deemed Decisions)(Scotland)Regulation 2005 [SSI 2005/515].  Regulation 3 provides for such deemed decisions of an education authority.

 

Section 19(5) of the Act (outlined above) provides that a two stage test should be applied.

 

At the first stage, the Tribunal is required to determine whether the Authority has established one or more of the circumstances provided in Schedule 2, paragraph 3(1) of the Act.  If the Tribunal determined that the Authority has succeeded in establishing one or more of those circumstances then, and only then, the Tribunal is required to move to the second stage of the test. 

 

At the second stage, the Tribunal is required to exercise its discretion and determine whether, in all the circumstances, it is appropriate to confirm the Authority’s decision.

 

The onus is on the Education Authority to establish that one or more of the grounds exists and to satisfy the Tribunal that in all the circumstances it is appropriate to confirm the decision of the Authority.

 

The First Stage

 

In this reference the Tribunal is only concerned with Schedule 2, Paragraph 3(1)(f) of the Act in determining whether the duty outlined in paragraph 2(2) of the Act applies or whether the first stage of the test is satisfied and the Tribunal requires to then move to the second stage.

 

In this case there was agreement between the parties that the conditions in Schedule 2, Paragraphs 3(1) (f) (i) and (iv) apply.  Accordingly, the Tribunal was only required to determine, in terms of Schedule 2, Paragraphs 3(1) (f) (ii) and (iii), whether:

 

“(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school, and

       (iii)  it is not reasonable, having regard both to the respective suitability and the                   

        respective cost (including necessary incidental expenses) of the provision for the      

        additional support needs of the child in the specified school and in the school

        referred to in paragraph (ii), to place the child in the specified school.”

 

The Tribunal considered all the evidence before it of the ability of the Authority to make provision for the additional support needs of the child.  

 

Current school, Co-ordination and the CSP

 

The Head Teacher of the current school advised that there are approximately eighty children attending the school. She gave evidence to the Tribunal over four days after which time she expressed her gratitude to the Tribunal for the opportunity to give evidence which she described as a ‘steep learning curve.’ The Tribunal heard evidence in respect of the staff ratio with 19 teaching staff, 3 senior management team members, 12 class teachers, 4 specialist teaching staff (relating to Art, Music, Computing and PE) all of whom are permanent to the Authority, together with 4 instructor posts, 34 Special Educational Needs assistants, 3 secretaries , 2 nurses and nursing assistants. 

 

Evidence was led that around one-third of pupils have needs at a similar level to those of the child. He has access to the summer holiday play scheme which he has taken up each year during his attendance at the current school.

 

The Tribunal considered the evidence in respect of the Individualised Educational Programme (IEP).  The Head Teacher at the child’s current school explained that there is normally a short statement of factual information which acts as a cover for the other parts of the IEP.  In addition there are the weekly forward plans prepared by all teachers. The Tribunal was presented with fairly extensive evidence in respect of the targets within the IEP and the planning in place within the school. The Head Teacher stated that physiotherapy delivery did not sit on its own as isolated 1-1 treatments by the physiotherapist but was integrated into experiences throughout the school day in collaboration between the class teacher and the physiotherapist. We were advised that targets are set and are discussed with parents at the parents’ night. 

 

Whilst the Tribunal noted the concerns of the appellant in respect of whether the targets were challenging enough for the child, the Tribunal, in our final deliberations, did not feel sufficiently able to independently assess/analyse this area of the evidence, on the basis of the evidence placed before us.  However the lack of detail in the CSP and the reference made within the CSP to the IEP should have meant that the IEP showed more evidence of a collaboratively written document.  The physiotherapist stated in her evidence that she was not involved in writing IEP’s, unless specifically requested, and that the IEP was an education document.

 

In evidence the Tribunal noted that the CSP had no details regarding educational input, speech and language therapy input, occupational therapy input or social work support.  It is noted that in transferring information from the physiotherapist’s report to the CSP there was an omission of the word “minimum” in relation to quantifying the input from the physiotherapist within the context of the Learning Plan.  This is a most regrettable omission although the Tribunal is not persuaded that this omission was done with any malicious intent. The Tribunal now turn to the co-ordination of support required for the child.  The child requires a CSP in terms of the statutory criteria for such plans as laid out in section 2 of the Act.

 

Lord Glennie in JT & KT –v- Stirling Council [2007] CSOH 67 said:

 

‘If a co-ordinated support plan is required, the education authority becomes under an obligation to co-ordinate the provision of the additional support needed by the particular child. The child receives no further additional support. The value to the child and his or her parents lies in the fact that the support is co-ordinated by the education authority, which is in the best position to carry out that task. The burden on the education authority is administrative. The scale of that administrative burden presumably depends upon the extent of the additional support from different agencies.’

 

In the appellant’s written submissions the child is described as ‘a child for whom it is an important part of the provision for his additional support needs, that that provision be co-ordinated by the Authority.’   The Authority as part of their statutory responsibilities appointed a co-ordinator for the child’s CSP. They appointed the Head Teacher who was also the principal author of the CSP.

 

For guidance as to the role of the co-ordinator we can of course look to the Code of Practice (Chapter Four). It states that ‘The co-ordinator is the person responsible for monitoring that the services required to deliver the additional support identified in the co-ordinated support plan are in place for the child or young person and for taking action to secure services where necessary.’

 

The Associate Specialist Community Paediatrician in her evidence had not seen the CSP and was not aware of its contents. In particular she was not aware that she was described in this important legal document as the person who will ‘monitor his developmental progress, co-ordinate services and liaise between the family, hospital, community healthcare professionals,  and all social work and care providers long term.’

 

In the appellant’s written submissions the Tribunal were invited to note that in respect of the CSP co-ordinator she ‘did not know whether the child received physio in any given week, nor what the physio was working towards at any given time, nor when the last ad hoc meeting took place regarding the child’s needs. As such meetings took place off the cuff and with no record being kept, it was not possible for her to keep herself informed as to what was happening.’ 

 

We were further invited by the appellant to note that the co-ordinated support plan regulations make provision for necessary information sharing between appropriate agencies and other parties to enable each to do their part in delivering the necessary support to meet the needs of the child or young person.  The appellant’s representative, in his written and oral submissions, invited the Tribunal to note that the Head Teacher did not have access to the child’s medical files, nor had she made use of the regulations to do so, nor asked the child’s parents for permission to get such access. He invited the Tribunal to consider the evidence of the Head Teacher and to note that she was of the view that the co-ordination of information was left by her to the Community Paediatrician who was present in the school once or twice a month.  As previously stated above, the Tribunal noted that in the Community Paediatrician’s evidence she did not know the wording of the CSP and the description allocated to her apparent role. We noted that she had never seen the CSP until the Tribunal hearing. The Community Paediatrician in her evidence stated that it “may be better” if she had access to the CSP and that “the important thing” was that the school nurses had that access.  The Tribunal invited the Community Paediatrician to contact the nurses by telephone within the Tribunal hearing. It transpired that the school nurses did not have a copy of the CSP in the child’s file.

 

The appellant’s representative also invited the Tribunal to consider that Regulation 10 of the Additional Support for Learning (Co-ordinated Support Plan)(Scotland) Amendment Regulations 2005 allows the Authority to disclose all or part of the CSP without the parent’s consent “to persons to whom in the opinion of the education authority it is necessary to disclose the plan or extracts from it in the interests of the child or the young person to whom the plan relates.”

The Tribunal were concerned about this apparent break down in communication.

 

Returning again to the Code of Practice –

 

“The co-ordinator should be aware of the objectives set out in the plan and be closely involved in working with the team who support the child or young person. The co-ordinator should know the procedures to follow if there is a break in delivery of necessary services to fulfil educational objectives.”

 

In the child’s case the Tribunal formed the view that the co-ordinator was not sufficiently involved with the team who support him. The Head Teacher was under the impression that physiotherapy not delivered at school was “made up” by direct provision at home, which appeared not to be the case in accordance with the evidence before the Tribunal.  The appellant’s representative submitted to the Tribunal that the Head Teacher was also not aware of the level of physiotherapy required by the child. After carefully weighing up all the evidence, the Tribunal is not satisfied that the Head Teacher was appropriately aware of the procedures to follow if there was a break in delivery.

 

The appellant’s representative invited the Tribunal to note that the Code of Practice stated that educational objectives in the CSP ought to be specific enough so that one can tell, a year later, whether the objectives have been met. The only targets mentioned in the child’s CSP are by reference to the IEP.  At the time the CSP was prepared (April 2007), the child’s IEP was almost concluded and no new targets were to be prepared until September/ October 2007.   The appellant’s representative made a number of criticisms of the content of the final CSP which the Tribunal noted and considered carefully but do not address further herein.

 

The Tribunal heard considerable evidence about the ethos and operation of the child’s current school, the documents held, the formal and informal meetings held, the use of home/school diaries, the various publications distributed to the parents from the school and their opportunities to communicate with the school.

 

Professional collaboration within the current school was explored in evidence.

The Head Teacher explained that opportunities are available before school starts and after 3pm when class staff have the opportunity to discuss learning outcomes, plans and evaluations.  There appears to be little written records kept of any such meetings or discussions in respect of the child.

 

The Tribunal was advised that there is at least one nurse on the premises at all times within the current school.  The Community Paediatrician is available for consultation and is also available on the telephone.  In her evidence to the Tribunal  she stated that she attends the child’s current school and observes classes and individual children at least once or twice a month, providing reassurance to class staff and enabling them to raise any matters they may be concerned about.  The Community Paediatrician emphasised the level of co-ordination between the health care professionals, the therapists and the school staff members, although there was no evidence of how often anyone actually met together.

 

The Tribunal also considered important evidence in respect of the speech and language therapy provided for the child.  We noted that there is in-service training in speech and language therapy and consultation with the physiotherapist. The recording of various instructions to staff were highlighted to the Tribunal including the feeding profiles for the child and the use of “mouth check” records.   The Tribunal noted that a seizure recording chart allowed staff to monitor and feed information to the school nurse, the doctor and to the appellant.

 

The Tribunal were concerned that the apparent level of co-ordination and overview necessary for a child with such complex and profound difficulties was not adequate and effective, nor did it match the standards described within the Code of Practice Chapter 4, paragraphs 60, 61 and 62.

 

The child’s current school and the provision of physiotherapy

 

Section 1 of the Education (Scotland) Act 1980 imposes a duty upon an Education Authority ‘….to secure that there is made for their area adequate and efficient provision of school education…’

 

The provision of the various therapies (including speech and language therapy, occupational therapy and physiotherapy) are provided by the Health Board in agreement with and planned with the education authority.

 

Chapter Four of the Code of Practice, referring to Section 12(2) of the Act, states that education authorities must ‘seek and take account of relevant advice and information from such appropriate agencies and other persons as the education authority think appropriate.’ This may of course include health services. The appellant’s main area of concern in this area relates to the provision of physiotherapy.

 

The physiotherapist is employed by the Local Authority Primary Care Division, and attends the child’s current school. She is directly involved in the provision of physiotherapy to the child with an overseeing role, assessing his needs, delivering treatment and liaising with other members of health professionals, school teachers and the ASN auxiliaries within the school. She stated that she liaises with the management team within the school and provides them with support and instruction as to how best support the child.  The physiotherapist made reference on several occasions to the ‘clinical needs of the child’.   Her records for the child are kept at the local health centre which is the therapists’ base. The physiotherapist stated that assessing the child’s needs is a continual process being reviewed on an ongoing basis.

 

She has been treating the child since August 2006. After discussion with the appellant around that time, the child’s treatment was changed from blocks of treatment to weekly treatment.  The physiotherapist provided the Tribunal with evidence of the child’s particular treatment and the challenges that provides.

 

The Tribunal noted that the child has been assessed by the physiotherapist as requiring physiotherapy one hour a week.  Delivery is allocated to the child by her on a Wednesday morning.

 

The physiotherapist again submitted to the Tribunal that the physiotherapy delivered is based on the child’s individual needs at a particular point in time and that such delivery is flexible.  We also noted the equipment she uses and the various weight bearing exercises she undertook with the child together with stretching, sitting and balance work.  The physiotherapist referred us to the daily aims of reaching, stretching and head positioning. The physiotherapist stated that the relationship between the child and the therapist to be very important. She was of the view that the child was on the whole comfortable with both her and the technical instructor.

 

The physiotherapist stated that whilst it would “be lovely” to have lots of changes of position, the child was sometimes unable to access some of the equipment due to his condition and care was required to be taken with regard to the child’s bone and skin fragility.

The physiotherapist was invited to consider how she would deal with the situation whereby she would respond to the therapy needs of children where their needs were fluctuating without “robbing Peter to pay Paul”.  The physiotherapist again stated in evidence that she had to be flexible and that the clinical needs would be weighed up.  She stated that if she felt that additional therapy was required for a child she would ask for this from her team leader who we were advised was also flexible.

 

The Tribunal noted that the physiotherapist stated in her evidence that if the child missed one week of her 1-1 therapy, it would not be detrimental to him since she knew that both the appellant and the classroom staff would carry out physiotherapy as discussed with her.  She further stated that if, she required to be absent for a period of time, this would be looked at and an allocation of physiotherapy would be made depending on the child’s clinical needs. There was however no evidence before us of such alternative provision either having being provided in the past or even requested.

 

Turning specifically to physiotherapy, the long term objective for the child’s physiotherapy is to ‘maximise his full potential within the educational curriculum,’ according to the physiotherapist. She clearly advised the Tribunal that the child had been assessed as requiring physiotherapy once a week, but also gave clear evidence that he did not always receive this.

 

In her letter dated October 2007 to the Social Worker, the physiotherapist stated that the child’s physiotherapy is dependent upon a whole range of factors including ‘the child’s attendance/health, my other obligations and time off, access to a safe area with tracking hoist and the availability of our technical instructor to assist me in moving and handling the child.’

 

In the appellant’s representative’s written submissions,  the Tribunal is invited to note that during the school year 2006-2007,  the child was present in school on 28 Wednesday mornings but received physiotherapy on only ten occasions. This evidence came from the appellant herself and her examination of the home-school diaries. This evidence was not challenged by the Authority.

 

The Community Paediatrician for the current school confirmed that an ‘adequate’ provision for the child would have to provide physiotherapy at the level he had been assessed as needing.  The Tribunal is aware of two recent consecutive weeks where the child had not received his assessed physiotherapy. On one occasion because the physiotherapist had been called by the Authority to give evidence to this Tribunal, and on the other due to the child’s attendance at the saliva clinic on a Wednesday morning. There was no evidence before us, or even a suggestion, that alternative arrangements were made for the child’s direct therapy by the physiotherapist during this period.

 

In the aforementioned letter to the social worker, the physiotherapist also stated that, ‘In school the class have a physiotherapy programme of positioning and activities they undertake when it is appropriate.’  In her evidence before the Tribunal, the physiotherapist accepted that she does not monitor what is happening in the class room programme other than asking about it. Reflecting upon this she stated to the Tribunal that such monitoring is “maybe something we need to look at”.

 

The appellant’s representative stated in his written submissions,  ‘this means that the physiotherapist has no way of knowing whether or how often it is carried out, let alone whether it is being done correctly.’  The Tribunal considered the admitted lack of monitoring to be an important factor in our deliberations and in the final decision.

 

The Head Teacher in her evidence to the Tribunal stated that in her opinion the child would not benefit from the additional physiotherapy available at the specified school because he had been assessed as needing a set amount and was receiving that level.  The appellant’s representative invited the Tribunal to consider that this evidence must be balanced alongside her evidence that she had a mistaken assumption that physiotherapy missed at school was made up at home, her concession that she did not know whether any individual child had received physiotherapy on any given day, and her understanding that what the child required was the minimum 40 minutes per month, whereas both the current physiotherapist and the physiotherapist at the specified school stated in their evidence to the Tribunal that the child required weekly  direct physiotherapy.

 

The physiotherapist at the specified school stated to the Tribunal that it would be “a problem” for her  if there was no physiotherapist to monitor changing positions in the classroom and that it could be detrimental to a child if staff were doing something wrong with no-one on hand to correct the error.  Whilst the Tribunal accepted that there are different ways to deliver physiotherapy to the child, we noted that she was clearly of the opinion that of all the modes of delivery of physiotherapy, the 1-1 session with the physiotherapist is the “most important”. 

 

The physiotherapist in her letter dated December 2007 stated that each session of therapy with the child ‘lasts for one hour.’ She also stated that ‘to complement his physiotherapy treatment the class staff  have been given recommendations to help with the child’s care.’ She later commented that ‘good positioning helps with the maintenance of joint range and to hopefully slow the progress of contractures.’

She listed the treatment and long term aims and concluded ‘my professional opinion is that the level of physiotherapy input the child receives is adequate for his clinical need and clinical risk.’

 

The therapists at the specified school are employed full-time by the school.

The physiotherapist stated in evidence that she did not think it would be more beneficial to the child  if he were to receive physiotherapy for example three or four times per week, but could not deny that it might be helpful, although she could not further comment as this had not been tried.

 

The current physiotherapist works four mornings per week.  She does not work on a Friday.

There is no dedicated physiotherapy room in the current school.

She stated that she uses a “tiny wee room”.  Commenting upon her facilities, she also stated that her room was “inadequate” and that she cannot get a hoist into the room. She stated that it would be lovely to have a dedicated physio room with a hoist as this would make it easier to provide therapy and would be better for the child too.

She also stated that it would be ‘lovely if he could access different positions as he cannot access a lot of equipment.’ 

 

The physiotherapist advised the Tribunal that her notes are peer audited by her team leader.

She stated that about one or two years ago her team leader visited the child’s current school. 

 

The current physiotherapist is not trained to deliver rebound therapy and there has been a significant period of time whereby the current school has not been able to offer this therapy in 2007 into 2008 due to the absence of a trained member of staff.

 

She gave evidence about hydrotherapy. She indicated that this would allow the child to relax in the water and would allow him to stretch. She accepted that you can use buoyancy to aid treatment. The physiotherapist stated that this was not her favourite mode of treatment. She further commented that she did not really like the water and “can’t be bothered getting changed.”   The Tribunal noted however that she would of course utilise such a facility if it became available. She stated that the treatment aims for the child were to maximise and maintain range of movement in his joints.  

 

The physiotherapist referred to the difficulties of getting the child out of his chair for the floor exercises, and to the child spending “a lot of time in chairs”. This passage of evidence is confirmed by Head Teacher in her supplementary written statement under the heading ‘Daily Positioning’ where she confirmed that the child spends the morning in his wheelchair, lunchtime in an armchair and the afternoon in his wheelchair again.

 

The physiotherapist stated that there are problems in the class allowing the child on the floor due to some of the other classroom children being ambulant. She accepted that the child spends a lot of time in the chair and wheelchair. She also accepted that it was not helpful for the child to remain in his chair when looking to improve flexibility of the joints.

The Tribunal were concerned that this restriction of change in placement and movement was effectively denied to the child.

 

In the Review Report at the current school dated September 2007, the minutes stated:

 

‘the physiotherapist reported that the child receives physiotherapy on a regular basis and the aim of the therapy is to minimise contractures, improve circulation and balance. The child will be encouraged to stand with the support of the tracking hoist in the gym with the aim for the child to step forward.’

 

At this initial meeting the appellant is noted as expressing ‘concern over the targets within the IEP not being challenging enough.’

 

There was a second Review Report meeting. The local Councillor attended both the meetings.  The minutes stated that the ‘purpose of the meeting was to discuss further issues.’ The physiotherapist did not attend the second meeting. The appellant ‘expressed concerns regarding two incidents in the school.’ The minutes of the meeting are signed by the Head Teacher.

 

During this second meeting the minutes reflected that the appellant ‘expressed concerns that the child is not receiving enough physiotherapy and the Head Teacher informed her that she will have the opportunity to raise this at his next CSP meeting in the New Year.’

 

It is also noted in part of the Risk Assessment Form under the heading ‘The Environment’ there is a handwritten note stating ‘Unpredictable behaviour of other children in the area and lack of privacy in the classroom for transfers and treatments.’

 

In the physiotherapist’s letter to the social worker (dated October 2007), she addressed the content of the CSP. She stated:

‘As this is a legal document I have to state what is realistically achievable taking into account the child’s attendance/health, my other obligations and time off, access to a safe area with tracking hoist and the availability of our technical instructor to assist me in moving and handling the child.’

 

The Community Paediatrician stated that she did not monitor the children and does not formally review the children, but dealt with problems. She also stated that she knew the child less well than the other children. She was aware that there was no plinth and the room was very small. She was clearly in favour of hydrotherapy. She described it as ‘a good thing’. She accepted that she was unable to comment in the specific delivery of therapies to the child.

 

The Community Paediatrician was of the view however that the physiotherapist has ‘too much work for too many people’. She stated that the  physiotherapist needed to juggle and prioritise clinical situations and that she faced a ‘work load challenge’.

 

In a letter dated March 2008, from a Consultant Orthopaedic Surgeon,  it is stated that she had seen the child regularly, several times a year, since 2002. She stated that she supported this placing request.

She confirmed that ‘the child has significant physical needs which would be best served by him having regular physiotherapy to promote range of motion.’ She is also of the view that ‘it would also be beneficial if hydrotherapy was available when his knee wound has healed to promote an upright posture.’

She appeared to also support the daily physiotherapy provision which is available at the specified school.

 

The Community Paediatrician was invited by the Tribunal to consider the terms of Orthopaedic surgeon’s said letter. She stated to the Tribunal that she agreed with its terms. She however accepted that the physiotherapist is at the ‘coal face’ as the EA solicitor described it and she stated that she had no concerns about the physiotherapist’s clinical judgement.

 

The Tribunal formally wish to acknowledge that there was no evidence, or even a suggestion before us, that current physiotherapist is anything other than a competent physiotherapist. The Tribunal formed the view however that her workload, taken alongside the restrictions of her time, facilities, equipment and availability, have resulted in the child not receiving the direct physiotherapy he has been assessed as clinically requiring on a weekly basis.

 

Current school and ‘Health and Safety’

 

Health and safety was an important issue in this hearing.

The Head Teacher gave substantial evidence to the Tribunal stating that health and safety is taken seriously at the current school. The Tribunal noted the existence of a Health and Safety Committee, the staff who are fully qualified ‘Centaur’ trainers in the area of risk assessment and manual handling, the abilities of the staff and the various processes which underpin practice within the school.

The appellant, when referring to the wheel chair incident stated ‘we felt this episode damaged the trust we had.’

 

The Authority stated in their written submissions that the accident was not reasonably foreseeable. The Tribunal considered that it is reasonably foreseeable that if one of the brakes did not engage an accident of this type was reasonably foreseeable.

The Tribunal noted that at the current school review meeting in November 2006, the Depute Head Teacher minuted ‘the child’s mum reported that she is very happy with the child’s progress in school.’

 

It was noted by the Tribunal that the child’s injury falling from his wheelchair was considered to have been the catalyst which finally led the appellant to make this placing request.

 

The outcome of the investigation by the Head Teacher was an instruction issued to staff to apply the wheelchair brake AND check the brake was on in such circumstances in the future. It is the second stage which was absent in the incident which led to the child’s injury.  The current school concluded that this was an accident and the Head Teacher stated in her evidence that it was unforeseeable. The Tribunal are not fully satisfied by this.  Is it not reasonable to argue that if a wheelchair brake is not ‘engaged’ and thereafter ‘checked’, it is foreseeable that the child’s safety in the wheelchair could be at risk and he could be injured?

 

The Tribunal were concerned by the lack of clarity in the written risk assessments lodged in evidence. We concurred with the comments made by the appellant’s representative in his written submissions where he described them as both “confused and confusing”.

 

The Head Teacher stated that she was “horrified” about the wheelchair incident.  She stated that it is a disciplinary issue if the new procedures are not followed through by her staff.  The Head Teacher in her evidence to the Tribunal stated that she understood why a mother would make a placing request in this circumstance. She stated that “it is the right of every mother to do that.”

 

In the Head Teacher’s hand written report of an internal incident dated May 2007 she stated ‘it is highly likely that only one brake was engaged.’ The type of incident is noted as ‘wheelchair ran into undergrowth and overturned.’ The final recommendations after the enquiry stated that ‘when out walking staff must stay together or stop to wait. All brakes should be applied to wheelchairs at all times when stationary.’

 

In the Risk Assessment Form it is stated that ‘whilst the child is outwith the school grounds both brakes will be applied and checked by a second member of staff.’

 

The Tribunal noted that the handwritten witness statements clearly refer to stopping to fix/turn up trousers. The Head Teacher’s report refers to stopping to ‘tie her shoelaces’ which is not referred to by any of the aforesaid witness statements.

 

In the Review Report meeting on 17^th September 2007 the minutes referred to the wheelchair incident as an ‘accident, the member of staff pushing the child’s chair when they were outside believed she had put on both brakes when she stopped to tie her shoelace.’  The Head Teacher again referred to the tying of a shoelace.

 

The appellant’s representative criticised the lack of formal documentation within the current school.

 

He suggested that inadequate documentation can lead to inadequate provision.

 

The Education Officer

 

The Education Officer gave detailed evidence about her role and responsibilities.  She also stated that children’s needs are assessed on an individual basis and that so far as the provisions of therapies are concerned they are allocated in response to the needs of children. She stated that the initial catalyst for the reference was the accident in 2007 with the toppling wheelchair. The Tribunal noted the enquiries and procedures followed by Education Officer in dealing with the placing request.  Reference was made by her to the meeting organised within the school on September 2007 and the discussions that took place in this meeting.

 

The Education Officer did confirm in her evidence that the environment at the specified school was a positive one, that the children were happy there and that the staff were committed to the children. She also confirmed that said school did have a hydrotherapy pool.

 

She also gave in depth evidence of her Authority’s Quality Assurance procedures for the current school and the Standards and Quality Report which forms the basis of the following session’s target setting. The Tribunal was advised that all the foregoing are monitored by the Quality Improvement Officer who is linked with the school.  The Tribunal noted carefully that Education Officer had formed the view that the current school was a more suitable provision for the child.  She had taken into account the child’s physical fragility, his health, the fact that he was happy in the school and that the current school was meeting his needs.

 

The Tribunal considered all the evidence from the Education Officer who was most helpful in providing information to the Tribunal.

 

Specified School

 

The specified school can provide the child with access to a hydrotherapy pool which would, in the Tribunal’s opinion, be of great assistance to the child, especially where other forms of delivery of physiotherapy may not be available or perhaps suitable because of the child’s fragile condition. Physiotherapists at the specified school are part of the classroom team. This is considered to be of significant importance for the child by the Tribunal.  The Tribunal formed the view that the specified school is better placed to deliver the physiotherapy the child requires clinically, both now and in the future, and that the current school cannot realistically deliver this due to the work demands currently expected of the physiotherapist and to the constraints of the resources available at the current school as stated above. 

 

Evidence was led from the Head Teacher at the specified school and from the superintendent physiotherapist at the said school.  They described in detail the partnership/collaborative working therein.  The Authority in their written submissions, stated that ‘there was a similarity to that in the current school’.  The Tribunal accepted that whilst there were similarities there were also differences.

 

The Tribunal noted that at the specified school,

‘Physiotherapists work with classes and residential staff to assist and supervise 24 hour positioning, seating, moving and handling, standing frames and other physiotherapy equipment. Individual physiotherapy sessions, chest physio (to clear secretions and prevent chest infections), hydrotherapy (water therapy), rebound therapy sessions (use of trampolines to improve coordination and self- confidence) and horse riding (hippotherapy) are also offered where appropriate.’

 

The Head Teacher of the specified school stated that the school curriculum is constantly under review and  ‘its strength continues to be the highly effective working relationships between our therapists, teachers and support staff since we believe that the needs of our pupils can only be met when all staff work closely together and share their skills and expertise.’

Commenting upon documentation provided to the Tribunal, the superintendent physiotherapist stated to the Tribunal that in respect of the fifth bullet point (‘Encourage head in a mid line posture’) she would have also incorporated written suggested activities.

 

In the specified school handbook for 2007-2008, it is stated that:-

‘The school building is bright and welcoming with spacious well equipped classrooms. Facilities include a hydrotherapy pool, multi sensory room, and fully equipped rooms which are utilised for occupational therapy, physiotherapy, speech and language therapy and communication development……There are other rooms for individual therapy work, sensory activities, soft play and leisure/relaxation.’

 

The Tribunal note that in the specified school handbook it is stated that ‘Physiotherapists are assigned to specific classes which gives continuity of care to each individual child. The physiotherapist will be in the designated class each day to assist and supervise positioning, moving and handling, standing frames and other physiotherapy equipment.’  They go on to say that ‘working within the classes also ensures immediate follow up of physiotherapy recommendations throughout the day and any issues are addressed immediately.’

 

At the specified school all staff can access the IEP. It would specify in more detail the targets met. Each class has its own folder about a child. There is a meeting every week for a child where they monitor and review aspects of the IEP which is then updated on computer.

 

Minutes are kept of the weekly key meetings. Specific reference was made by the Head Teacher to monitoring the work of the pupils with each of the therapists and nursing input.

 

The Tribunal noted that every phone call is also logged. A separate communication file is kept in the classroom. Every issue is also logged.  The Tribunal noted the opportunities for parent input and further aspects of the way the school operate.

 

The Physiotherapist was strongly in favour of hydrotherapy stating that this was very successful, bringing about relaxation, helping to reduce pain and promoting muscle relaxation.  She recognised that intensive daily therapy may be required e.g. a chest condition or post surgery. She described the hydrotherapy as one of the best used facilities in the specified school. 

 

She described the techniques used by her and her access to a wide range of equipment.  She described designated weekly meeting where all staff meet to review the children or anything that happened that week. Minutes are taken and kept in a Minute file. Anyone can add to the agenda. Action points are noted at each meeting and are reviewed at the next meeting.

The Tribunal noted that in the physiotherapists evidence she stated that action points are checked ‘every week’.

There are five physiotherapists each assigned to one or two classes.  Each class is known to several physiotherapists which assists in the continuity of care of the pupils therein.  This would also help when a member of staff becomes ill, goes on holiday or is covering rebound therapy.

 

The Tribunal noted that there are large spacious classes. The physiotherapist stated that there is a lot of input from physiotherapists within the class setting.  She stated that she needs to “continuously go in and see”.  She was of the view that such input was necessary to progress through treatment.

 

The Tribunal also noted from the physiotherapist the process followed to draw up the IEP and the way in which it is reviewed. She stated that everyone should know the targets and that each department is responsible for their own targets. She stated that there is cross over.  The Tribunal noted the training and CPD of the school staff within the specified school. There are three clinics in the specified school: - orthopaedics, bioengineering and orthotic.  The physiotherapist stated in her evidence that physiotherapists often change their days to go to the clinics with the children, evidencing flexibility.

 

The physiotherapist whilst accepting that she would require to do a full assessment of the child indicated that she would ‘really work on him…..increasing his range of movement.’ She would work to ensure that the child would enjoy his programme. The physiotherapist was of the opinion that rebound and hydrotherapies are great mediums.  She advised the Tribunal that heat can promote relaxation, reduce pain and reduce muscle tone. The Tribunal formed the view that she would seek to be flexible in her delivery, looking at alternatives of delivery, utilising various specialist equipment and alternative positions to be discussed at weekly meetings.   She regularly referred to the need to closely monitor class staff.

 

The physiotherapist was clearly of the view that the most important of all sessions is the 1-1 therapy with the physiotherapist as they have the most hand-on treatment approach and they are continually evaluating changes in muscle tone and range of movements.

The Tribunal noted that the child would have his own therapy timetable. She stated that the child would never miss all his sessions and that his anticipated timetable would be ‘quite strictly adhered to.’ She again referred to the importance of monitoring and input on a ‘daily basis’.  She again described herself as ‘popping in and out of the class’ all day.

 

The views of the appellant

 

In the appellant’s undated written Parental Response to Parents’ Evening (for November 2007) she clearly stated ‘we are concerned about the child being in a sitting position most of the time he is in school.’ She also clearly questioned the targets.

 

The appellant stated in her letter dated August 2007 to the Education Officer that the child ‘requires a high level of staffing to ensure his access to education and has a high level of personal care and health support needs.’

She stated that he ‘consistently needs access to and guidance on a daily basis’ from speech and language therapists, physiotherapists, occupational therapists and qualified medical staff.

 

She further stated that ‘we consider the specified school to best meet the child’s needs as they operate a permanent interdisciplinary care programme to provide a consistent and accessible provision to education.’  She did not feel that the current school is making adequate and efficient provision for her son’s needs.  She accepted that the current physiotherapist was a very good physiotherapist but had formed the view that the provision of this therapy for the child was not as good as it could be.

 

In her letter of June 2007 she stated that both she and her husband ‘had been forced to request a transfer’. She cites two main reasons – the child’s ‘safety’ and the ‘lack of support services offered especially physiotherapy’.

 

She stated that ‘we appreciate the heavy caseload of the therapists and they do a fantastic job, but the input is not consistent enough for the child’s needs.’   She further stated that ‘the child’s needs would be best met at the specified school as they have a significant amount of support services in-house. There is a consistent input from nursing staff, physiotherapists, occupational therapists and speech and language therapists. All of which the child requires the service of. There is access to after-school care and holiday play schemes, which are very scarce for children like her son in local authority area. There is also the possibility of respite care, which we are considering using as the child gets older and is more difficult to care for.’

 

The appellant gave evidence about the increased travel for the child if he were placed in the specified school.  She stated that both she and her husband would ‘monitor this closely’ and if required ‘would seriously consider relocating.’  The Tribunal recognised that there would be increased travel time for the child if he were to move school. There was no specific and direct evidence before us to allow us to conclude that the child is unable to make such journeys to school. We note that his mother did not think this would be a problem for the child and that she and her husband had fully considered this issue but were still seeking the placing request.

 

The appellant has visited the specified school and stated that it has a designated therapy room for 1-1 service. She positively described her visit to the school and witnessing a physio taking a child from a wheel chair and positioning him on a bench supporting him during a 40 minute music lesson. She stated that in the current school the physiotherapist would not carry this out in the classroom. She also witnessed during her visit children on benches, on mats, and in different positions.

 

Whilst she recognised the child’s deteriorating condition, the appellant wished to encourage the child to be as mobile as possible.  She commented that “if you don’t use it, you lose it”.  She stated that even if the child is unable to weight bear, other ways existed to encourage him such as using standing posts more and increased time stretched out.

 

She stated that the specified school have smaller volumes of pupils in attendance with similar class groups. It appeared to the Tribunal that she considered the main advantage of the specified school to be the resources via the therapists being part of the class room staff.  She envisaged more encouragement and more interaction in the specified school simply because of the inherent structure of the class and how it operates.

 

In the review meeting of September 2007 she raised concerns about the level of the child’s physiotherapy. She was told that this could be discussed at the next CSP review meeting – apparently due for April 2008. The Tribunal had some sympathy therefore for the appellant’s disappointment with the manner in which her concerns about this critically important therapy was deferred for consideration some six months into the future.  

 

The Respective Costs

 

It is necessary for the Tribunal to consider the costs of placing the child in the current school and the specified school.

 

The Tribunal heard evidence about the cost of the placement at the specified school. The Tribunal were advised that the weekly cost for a child to attend the specified school is £683.54 and assuming a 39 week year the annual cost is currently £26,658.06. The Tribunal also considered quotations from several taxi companies in respect of the cost of transporting the child to the specified school. The lowest of these was £350 per week which over a 39 week year equates to £13,650.

 

A quotation was also obtained from a local taxi company which transports four other young people from Education Authority.  If the child could be added onto this vehicle, the additional cost would be £18 per day. Again, assuming a 39 week school year, the additional cost would be £3510.  The Tribunal noted that all transport costs are due for renewal at the end of June 2008 and that these costs may be subject to change.

 

The Tribunal therefore noted that the cost of sending the child to the specified school would be £40,308.06 or £30,168.06 if the current taxi run can be extended to include the child. The appellant did not seek to dispute the costs produced by the authority.

 

The Tribunal were invited by the Authority to consider the decision of SM Appellant 2007 Fam LR 2. Lord Glennie in said case concluded that the ‘cost to the Authority is limited to any additional costs of the pupil taking up the place there.’

 

The cost in this case to the Authority of sending the child to the current school is therefore restricted to the cost of the taxi journey there. This is currently shared with another pupil at a cost of £50 per day, or £9750 for a 39 week year.  The Tribunal further noted that the original cost of the taxi journey for the child alone was £36 per day, £7020 for a 39 week year. If the child did not make use of this service, there would no saving to the Authority as the taxi will still be required to transport the other pupil.

 

Accordingly, the difference in the respective costs to the authority if the child were to attend the specified school would be £30,168.06 (or £40,308.06 depending on the final transport arrangements).

 

It is not disputed that the specified school is more expensive than the current school. The statutory test requires the Tribunal to take into account the respective cost to assist us in our decision on reasonableness.

 

The Tribunal having concluded that the specified school is more suitable for the child’s needs, must now consider whether the additional cost of the child’s place there is reasonable.  In the appellants written submissions the Tribunal, it is noted that ‘as a grant aided school, 50-60% of the cost of the child’s place at the specified school would be met by the Scottish Government.’ In cross-examination, it was suggested to the Education Officer that this represented a “bargain” to the Authority, a suggestion from which she did not demur.

 

The Authority currently has four pupils at the specified school. It was noted that whilst most of those were pupils placed there prior to reorganisation, one was placed there by the Authority as a response to the current school being full. The Tribunal further noted the appellant’s representative’s suggestion that ‘this was presumably in preference to other measures, such as providing transport to another education authority; making an additional classroom available; or engaging additional teaching staff.’

 

Accordingly, when determining the respective suitability and the aforesaid respective costs of the provision at both schools, there are significant differences which, when considered in total, lead the Tribunal to unanimously conclude that the specified school is the more suitable school for the child.

 

The Tribunal heard that the Authority had a place available for the child at the current school. There was no evidence of another formal offer of a place by the Authority for the child at any other school.  Thus, placing the child in the current school would result in no additional cost being incurred by the Authority.

 

Further Commentary on the Evidence

 

The Authority sought to argue that the actual differences between the provisions of the two schools were “negligible”.  They accepted the lack of a hydrotherapy pool but stated that progress is being made to secure one at the current school. No definite timetable was indicated for its installation in evidence.  The physiotherapist stated that the lack of such facilities does not adversely impact upon the child’s progress. She stated that there is the option to use an alternative, for example a land based therapy rather than a water based therapy.

 

The appellant stated that the specified school had smaller volumes of pupils, the class groups were the same size and the therapists are part of the class staff allowing more encouragement and interaction.  She referred to the hydrotherapy pool and to horse-riding at the specified school and stated that equipment at the current school was not always accessible for the child.

 

In the Authority’s written submissions they state that “whether or not there are therapists who are employed by the school and therefore available on a full day basis is not a relevant consideration here.” The Tribunal do not accept this argument.  We considered that in the child’s case this is a very important issue and is a very relevant consideration.  For a variety of reasons, including the attendance of the current physiotherapist at the Tribunal on a Wednesday, the child does not receive his assessed clinical need of weekly direct physiotherapy.  No alternative arrangements were made for the child resulting in him not receiving the important 1-1 treatment by the physiotherapist.   Furthermore, the Tribunal noted that there is no monitoring / reviewing of the classroom therapy programme by the physiotherapist.

 

The Tribunal accepted the proposition that resources at both the specified school and the current school are finite and that prioritisation takes place in both provisions. The Tribunal formed the view that where you have a child like the child in question, having the therapist available within the school could be of great assistance to the child and to those other professionals working alongside him. 

 

The Tribunal noted that both Physiotherapists agreed that children with chest problems (like the child) would have priority when it came to service delivery.

Due to the considerable demands placed upon the current physiotherapist, the Tribunal considered that the child requires a more effective and efficient provision of physiotherapy and that appellant’s concerns are reasonable in all the circumstances.  The Tribunal formed the view that the on site provision at the specified school is a more suitable provision for the child bearing in mind his fluctuating physical health and his bone and skin fragility.

 

Following upon the appellant’s expressed concerns at the Review meeting of September 2007 about the child not receiving enough physiotherapy, the social worker wrote to the physiotherapist in October 2007. In said letter the social worker clearly expressed the parent’s concerns highlighting the reduced access to equipment and the level of physiotherapy.  There was a request for what is referred to as a ‘community based assessment.’ The physiotherapist responded in October 2007 to the above letter concluding that ‘the child does not require additional service from our community team.’

 

The appellant stated that ‘apart from the child’s physio session with the physiotherapist the only other time he is out of his chair is a one-hour session per week with classroom staff in the soft play area.’  Commenting on physiotherapists being members of the classroom staff at the specified school, she stated ‘this would be especially beneficial to the child as he would have the opportunity to be supported in different positions throughout the day rather than being seated for the majority of his time at school. This could only have a positive effect on the child’s physical abilities and well-being and would hopefully lead him to developing more functional independence. If the child were more mobile it would open up a whole new world of learning opportunities to him.’

 

The Tribunal consider the child’s health and physical fragility to be of such significant importance that he requires to be very closely monitored and / or supervised on a regular basis by a physiotherapist, and indeed others involved in his care.

 

The Tribunal considered evidence that the child’s condition is deteriorating. The appellant stated to the Tribunal that if the child were to go to the specified school she recognised that this would not solve all his difficulties but that she and her husband were anxious that the child would receive as much input from the specified school to develop as much as he is able to.

 

In-house provision of therapies at the specified school means that the child would be seen more often by a physiotherapist, who would be part of the classroom staff, and could be more closely associated with the classroom programme and monitor its delivery and effectiveness.  The Tribunal formed the view that this would also not allow a situation to develop whereby the child would not go without a physiotherapist’s direct input over consecutive weeks. 

 

The Tribunal noted that there is an on going dispute between the Authority and the NHS over the provision of resources. They currently disagree who should pay for a plinth. In her evidence the Head Teacher of the current school stated that physiotherapists would be fully entitled to refuse to carry out physiotherapy in the school because of the lack of provision of a plinth.  The specified school did not have such disputes about the provision of resources.

 

The Tribunal agreed with the appellant’s representative that for the child ‘the increase in the range of modalities of therapies’ would be beneficial.  The child does not currently access hydrotherapy which would be provided to him regularly at the specified school. The Community Paediatrician endorsed its use and stated that it would provide specific benefits – relaxation, movement of joints etc.  The Tribunal formed the view that the physiotherapy classroom programme at the specified school is provided in more detail and is closely supervised by the physiotherapist. This would give additional re- assurance to the appellant that the therapy is taking place, is being implemented correctly, and being monitored.

 

The Community Paediatrician cites the principal challenge facing the physiotherapist at the current school as “too much work for the number of people”. The specified school physiotherapist in her evidence clearly stated that in the event of staff absence another physiotherapist or technical physio instructor would be available to conduct a physio session instead.

 

The evidence before us indicated that in any given week, at the specified school, the child could expect to receive one hydrotherapy session, a one to one physiotherapy session, two rebound therapy sessions, additional movement groups and ongoing movement and positioning in class.  The appellant’s representative suggested to the Tribunal that in a typical week at the current school, the child might receive one session of 1-1 physiotherapy and from Head Teacher’s evidence the child appears to spend a significant amount of time in one of two chairs.

 

In the evidence of the physiotherapist from the specified school, the Tribunal were advised that in the child would never go three weeks without seeing a physiotherapist.  She further stated that she would be “worried” and “concerned” about if such a situation were to occur.

 

The Tribunal noted that co-ordination of services at the specified school is built in due to the on-site nature of the therapy services.  The Tribunal also noted the regular, formal nature of multi-disciplinary meetings with minutes recorded in writing and action points being fed into an IEP on a computer system accessible by all staff in involved with a child.  This is a marked difference from the apparent ad hoc meetings with no written records of such meetings at the current school.  The Tribunal of course noted that Head Teacher spoke of there being a working party to review their current procedures.

 

The Tribunal noted the full interdisciplinary assessment carried out by the specified school and their conclusion that they can meet the child’s needs well.  The Tribunal noted that the child’s medical needs would continue to be met by a consultant from the same local hospital if he were placed at the specified school.

 

The Tribunal had regard to the respective suitability and respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in both schools.  Ultimately the question before us is having considered the aforementioned factors “Is it reasonable to place the child in the specified school?”

 

The Tribunal is satisfied that this placing request is reasonable.

 

The Tribunal noted that the Authority did not seek to argue that the specified school was not suitable for the child. Indeed there was praise for said establishment by the Authority.  They did however argue that the current school was in fact more suitable.

 

The Tribunal considered the specified school to be more suitable to the additional support needs of the child. The Tribunal considered all  written and verbal evidence on the two schools and we concluded that the current school’s two witnesses,  the Head Teacher and the physiotherapist, are dedicated hard working professionals who are struggling to meet the demands of their work, their time constraints, and their many other responsibilities. The Tribunal did not doubt the dedication of the staff within the current school, including the Head Teacher and the physiotherapist.

 

We considered however that there is an important weakness in the practical effective delivery of 1-1- physiotherapy within the current school, principally flowing from the work load and obligations burdened upon the physiotherapist. The Tribunal considered that this weakness is of critical importance to the child. 

 

The Tribunal carefully assessed evidence from the current school in respect of staffing levels, the staff themselves, the staff qualifications, the peer group of pupils, the targets, the support from other agencies ( having special consideration of physiotherapy provision), the building, the equipment within the building and transport to and from the school.

 

The Tribunal is satisfied that the Authority, whilst able to make some provision for the additional support needs of the child in the current school, it  is not currently providing adequate and appropriate physiotherapy for the child, they do not offer hydrotherapy and the procedures in place to coordinate and monitor the child’s CSP are not adequate.

 

We considered the placing request by the appellant to be reasonable in all the circumstances, having considered all the oral and written evidence and its cumulative effect, having regard to all the aforementioned legal matters, as required by the Act.

 

The Second Stage

 

If the Tribunal is not satisfied with the First Stage there is no requirement to move onto the second stage of the test, namely the appropriateness of the decision.  At the second stage, the Tribunal is required to exercise its discretion and determine whether, in all the circumstances, if it is appropriate to confirm the decision of the Authority.

 

In this case the Tribunal is not satisfied that the First Stage has been established and therefore the Tribunal do not require to consider the appropriateness of the Authority’s decision.

 

In our deliberations the Tribunal also considered carefully the terms of Section 4(1) of the Act. It states therein:

 

“(1) Every education authority must-

1. 1. in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person, and,
   2. make appropriate arrangements for keeping under consideration-

(i)the additional support needs of, and

(ii)the adequacy of the additional support provided for,

each such child and young person.

 

We also considered that any 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’ all in terms of Section 1(2) of the Act.

 

Accordingly, the Tribunal is not satisfied in terms of section 19(5) of the Act and therefore does not confirm the decision of the authority.

 

Having come to that conclusion, the Tribunal overturned the deemed decision of the Authority and required the Authority to place the child in the specified school. The child’s CSP necessarily required amendment to reflect the nominated school which he shall attend and the ancillary contact information. The place offered to the child at the specified school is a day placement.