ASNTS_D_11_2015

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

 

1. Reference

 

The Appellant (“the mother”) lodged a reference dated June 2014 under section 18(1) and (3)(d)(i) of the Education (Additional Support for Learning)(Scotland) Act 2004 (“the Act”) in respect of the content of the Coordinated Support Plan prepared by The respondent (“the authority”) dated  April 2014

 

 

 

2. Summary of the Decision

The Tribunal confirms the information provided in the Coordinated Support Plan dated  April 2014.

 

 

3. Findings of Fact

 

1. 1. The Child is aged 9. She is a P4 pupil at School A.   She lives with her parents and older sister who is in P6 at the same school.

 

1. 2. She has Dyskinetic Cerebral Palsy and Hypoxic Ischemic Encephalopathy.  This impacts on her mobility and communication skills.  She has difficulty walking, talking and eating. She has additional support needs.

 

1. 3. The authority has responsibility for The Child’s additional support needs.

 

1. 4. She requires a co-ordinated support plan (CSP). 

 

1. 5. The educational objectives in the CSP include an objective to “continue to develop communication skills to enable her to portray her true capacity and develop social skills”. 

 

1. 6. The Child is academically able.   She has no cognitive difficulty accessing the mainstream curriculum. She is a determined and motivated girl.  She participates in school and is integrated with her peers.   She has a pupil support assistant in class.  The PSA is usually in the classroom but does not work one to one with The Child all the time.  She receives support in school from Occupational Therapy, physiotherapy and ASL technology, with the provision of ICT resources.    She is currently meeting her educational objectives.

 

1. 7. The Child’s has dysarthric speech as a result of her condition.  The main difficulties in speaking are nasal speech quality, ineffective breath and voice control for speech, and inaccurate speech sound production especially in connected speech.   The speech production difficulties involve a combination of functions including control of her breathing for speech, control of voice quality and control of articulators.  Her speech intelligibility is compromised due to difficulty coordinating and synchronising breathing, voicing and articulation in the presence of fluctuating postural tone and subsequent trunk, shoulder, head and neck instability.

 

1. 8. In August - September 2013 The Child received an intensive block of therapy at Bobath Scotland.  She had regular sessions between November 2013 and June 2014, and another intensive block in June – July 2014, with further sessions between September and December 2014. The intensive blocks provided therapy three times a week over a six week period.

 

1. 9. Testing at Bobath Scotland on 28 August 2013, 14 March 2014 and 18 July 2014 on the Child Speech Intelligibility Measure (CSIM) which measures the intelligibility of single words showed that The Child had improved from the first baseline test of 60% to 78% on intelligibility of an unfamiliar listener.    With a familiar listener (her mother) her intelligibility had improved from 72% to 90%.

 

1. 10. The block of intensive therapy included Speech and Language Therapy and physiotherapy.

 

1. 11. The NHS physiotherapist working with The Child throughout the year attended a session at Bobath during the summer block of intensive therapy.

 

1. 12. There is little reliable research about the possible effectiveness of Speech and Language Therapy intervention with children with cerebral palsy.  This is to do with the very wide variety of difficulties experienced by children with cerebral palsy, some of whom have learning difficulties.   Such research as has been carried out has been based on very small numbers of children, and the results have been inconclusive.

 

1. 13. Bobath Scotland is a charity operating a therapy centre for children with cerebral palsy.   It is not an authorised agency in terms of the Education (Additional Support for Learning)(Scotland) Act 2004.

 

 

 

 

4.   Reasons for the Decision
   1. We heard oral evidence from Witness A, Reader in Speech and Language Therapy, Witness B, Speech and Language Therapist, The Appellant, the mother; Witness C, Deputy Head Teacher, School A; and Witness D, Speech and Language Therapist.   The documents comprised the bundles T1 to T26, A1 to A105 and R1 to R89.   Both representatives lodged written submissions.   We had regard to all the evidence, documents and submissions even where these are not specifically referred to.  We have taken account of the Code of Practice as required by section 19(7) of the Act.

 

1. 2. Before the start of the hearing we had the opportunity of watching a short DVD of The Child, which had been prepared by Witness B.   This showed The Child telling a story and was described to us by Witness B as a typical example of her speech.

 

1. 3. The issue was the provision of Speech and Language Therapy for The Child, and whether or not this should be included in the CSP.   The mother was clear that The Child would benefit from direct speech therapy. Specifically she would benefit from working with a Speech and Language Therapist along with a physiotherapist as offered at Bobath Scotland.  The respondent’s position was that technological supports to aid her communication were being provided to reduce her difficulties in accessing the curriculum and to enable her to meet her educational objectives.

 

1. 4. The mother sought to amend the contents of the CSP to include:
      1. “fine motor skills” in the section for factors giving rise to additional support needs;
      2. “Intensive block of speech and language/physiotherapy concentrating on improving the intelligibility of The Child’s connected speech.   18 sessions over a period of six weeks including pre- and post-block assessments” in the section for additional support required;
      3. “Bobath Scotland” as the persons providing the additional support.

 

1. 5. Section 9(2) of the Education (Additional Support for Learning)(Scotland) Act 2004 provides:

A coordinated support plan … must contain –

 

                          (a)   a statement of the education authority’s conclusions as to –

(i)         the factor or factors from which the additional support needs of the child arise;

(ii)        the educational objectives sought to be achieved taking account of that factor or factors;

(iii)       the additional support required by the child to achieve those objectives;

(iv)       the person by whom the support should be provided.

 

1. 6. Section 9(3) of the Act provides:

The references in subsection 2(a) to educational objectives are to objectives set to secure that the child or young person benefits from school education (within the meaning of section 1(1)) provided or to be provided for the child or young person.

 

1. 7.  “School education” in section 1(1) of the Act 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.

 

1. 8. The Child’s mother told us that The Child likes to chat, and to tell stories.   She is very imaginative.    She is sociable.  She finds it frustrating that other children do not have the patience to listen to her, to focus on what she is saying, give her extra time.   She gets on well with adults who will take the time to listen to her.    She likes communicating with others.  She was beginning to use strategies that she had been taught to aid speech, such as how she was sitting.   She was becoming more confident.  She was very motivated, she knows herself how important communication is. She pays attention and is co-operative with the therapists.

 

1. 9. The Appellant is not resistant to the use of technology to assist The Child’s communication, but that it should augment her verbal communication rather than replace it.  She feels that it important for The Child that her speech is as good as possible, and that the therapy offered by Bobath Scotland is the only provision available which will help her attain this.

 

1. 10. From the evidence of the mother, and the objective tests carried out by Witness B, the intelligibility of The Child’s speech had improved since she had been receiving therapy at Bobath.   Although she was not familiar with the CSIM test, Witness A described the test, using fifty single words and testing with a familiar and unfamiliar listener, as a good standard measure.  Any increase over 5% would be an improvement, and The Child’s assessment had shown an increase of 8% and then a subsequent 10% from the baseline when tested in March 2014 and July 2014 after receiving therapy.   She described the improvement of intelligibility for the unfamiliar listener as a very big improvement. 

 

1. 11. In the opinion of Witness A, verbal communication, even at single word level, was preferable to communication by alternative communication aids.   Voice could convey emotion.  Speech was faster than typing.   She was of the view that the earlier that correct speech processes and strategies can be learned the better.    The Child was noted as being very motivated.

 

 

1. 12. Witness B had known The Child since 2012, and had been the Speech and Language therapist working with her at Bobath since March 2014.   She had fortnightly sessions between March and June, and then she had worked with The Child for two thirds of the eighteen sessions in the six week period over the summer, and seen her a couple of times between then and December.   She was not looking at the impact of the intelligibility of her speech on her ability to participate in school.   She said that in the short term there would be social benefits of The Child being understood by peers and staff, and in the longer term, for success in future academic career, speech intelligibility would be important.

 

1. 13. Witness C knows The Child fairly well, she sees her daily, and often speaks to her at the start of the school day.   She described The Child’s speech as fairly variable, sometimes it was more intelligible than at others.   Tiredness may affect intelligibility.    The Child was a very determined child.   She expected her to do well in secondary education and to proceed to further or higher education.   She makes very good use of the technology available to her, using a tablet.

 

1. 14. Witness C was aware of the input from Bobath Scotland, and at the time she was preparing the CSP The Child was attending therapy at Bobath.    She had included Bobath in the draft CSP.   This was removed after the draft CSP had been reviewed by senior management on advice by management.    Witness C had consulted Witness D about NHS speech and language therapy input and was advised that the input from the service was not significant.

       

1. 15. Witness D is the lead Speech and Language Therapist for the south CHP for children with physical impairment.   She specializes in Alternative and Augmentative communication.   She had had some direct contact with The Child when she was younger.   She had referred The Child to Scottish Centre for Communication and Technology for assessment of possible ways to help support her communication through technology.   She was dismissive of any idea that direct speech therapy was of benefit to The Child.  She did not believe that the speech and language therapy at Bobath contributed to any improvement.  Any improvement of intelligibility in her speech was as a result of increase in her core strength.   When she was older she may be more able to learn strategies to assist her verbal communication.  She would be able to think what she was doing and to slow down, remember to take a breath.

 

1. 16.  The Tribunal accepted the evidence of all the witnesses who knew The Child that her speech intelligibility had improved since she had been undertaking therapy at Bobath Scotland, using the methods of closely interlinked work with physiotherapy and speech and language therapy.  We accepted the evidence of Witness A that research showed that some children improved from direct speech therapy, although others did not: in about 20% of cases, there was improvement.  We accepted her view that the objective test results showed improvement in single word speech, and that the Bobath approach, working in particular with supporting her breath, seemed to be effective for The Child.  

 

1. 17. We were concerned at the somewhat narrow and blinkered approach taken by Witness D, who refused to consider that the intensive therapy undertaken by The Child at Bobath could have made any contribution whatsoever to the improvement in her intelligibility.   Despite showing the increase in intelligibility by listeners unfamiliar with The Child’s speech from 60% to 78%, she said that she did not think the improvement shown on the objective test was statistically significant.   She seemed to speak in general terms rather than consider The Child as an individual.   For example she told us “speech and language therapy cannot do much for these children”.    Despite the other evidence of The Child’s determination, motivation and intellectual ability, Witness D did not consider that she was able at her age to remember to use different strategies to aid her speech.  Furthermore, she did not consider that The Child would require direct speech therapy when she is older believing she would instinctively become more aware of her listener and realise when she was not being understood.    She would then be able to slow down or say it another way. Her core strength would naturally improve with maturity and she would, without any further therapeutic intervention, remember strategies she had learnt in speech therapy sessions when she was younger. It seemed implausible to the Tribunal that The Child would, several years hence, remember and adopt strategies to which she was introduced at an earlier age, yet which she was not able to comprehend and consolidate at that time. 

 

1. 18.  The Tribunal accepted, on a balance of probabilities, and taking account in particular of the evidence of Witness B and Witness A, that the therapy undertaken by The Child at Bobath Scotland was to a large extent the reason for the improvement in her speech intelligibility, and that it would be to her benefit to experience some further transdisciplinary therapy there.   We had regard to the principles of GIRFEC, and, whilst accepting that she is currently meeting her educational objectives, some further work to improve her verbal communication may assist her to achieve her full potential.

 

1. 19. However the question is whether or not the CSP should be amended as sought by the mother. 

 

1. 20. Section 2 of the Act provides:

 

1. 1. 1. 1. For the purpose of this Act, a child or young person requires a plan for the provision of additional support if:
            
            1. an education authority are responsible for the school education of the child or young person;
            2. the child or young person had additional support needs …
            3. those needs are likely to continue for more than a year, and
            4. those needs require significant additional support to be provided –
               
               1. by the education authority in the exercise of any of their functions as well as the exercise of their functions relating to education, or
               2. by one or more appropriate agencies (within the meaning of section 23(2) as well as by the education authority themselves.

 

 

1. 21. Section 23(2) provides that “appropriate agencies” are any other local authority, any health board, and any person specified for the purposes of the section in an order made by the Scottish Ministers.

 

1. 22. It is not in dispute that Bobath Scotland is not an appropriate agency in terms of the Act.   It requires to be determined if there can be included in the CSP a reference to support to be provided by Bobath Scotland/the therapists providing the support.

 

1. 23. The mother’s representative submitted that “The question whether it is competent for a CSP to name an agency that is not an appropriate agency is an interesting one”.    He referred to three tribunal cases and quotes from selective paragraphs where the Tribunal have looked at the question of parents being included in CSPs as persons providing support, these decisions being inconsistent, and four tribunal cases where the issue of other agencies has been considered in somewhat general terms. He referred to the case of City of Edinburgh Council v ASNTS [2012] CSIH 48.

 

1. 24.  He submits that by including in the CSP a requirement that support be provided by Bobath Scotland, a duty would be imposed on the authority to fund the provision of the service which would put it on all fours with the case of City of Edinburgh Council v ASNTS.   It is not clear what he means by this.   In City of Edinburgh Council v ASNTS, the court allowed the appeal against the decision of the Tribunal.   The court noted that the Tribunal had identified the social work department of the council as a department through which the council exercised functions other than those relating to education:  the child concerned in that case attended an independent project funded by the social work department, and that project had been included in the CSP as providing additional support.  The court stated that there was no adequate explanation by the Tribunal why they had identified the social work department as providing additional support.

 

1. 25. He referred to paragraph 60 in the case of WD V Glasgow City Council [2007] CSIH 72 where the court narrates the duties of an authority with regard to preparation of CSPs, in particular the provisions of section 12 of the Act.   Section 12(2) provides that the authority have a duty to “seek and take account of relevant advice and information from such appropriate agencies and other persons as the education authority think appropriate”, as well as the views of the child and her parents.   From that he submits that Parliament cannot have intended to restrict the CSP by excluding agencies other than appropriate agencies.  

 

1. 26. Counsel for the authority submitted that it was not open to the Tribunal to include Bobath Scotland as a person providing additional support in the CSP.  She submitted that the purpose of the CSP is to ensure proper cooperation between the education authority and appropriate agencies of significant additional support.   Section 23 of the Act provides that an authority may request the help of an appropriate agency, and that the appropriate agency must comply with such request unless certain exceptions apply.   In the event that the person identified to provide support was not from an appropriate agency there would be no ability within the Act for the authority to effectively coordinate their support or insist upon it being provided.  Section 27 of the Act provides for a code of practice to be published, and requires that education authorities and appropriate agencies must have regard to the code of practice.   She referred to certain paragraphs of the Code of Practice, including Chapter 3 paragraph 29 which states:

“There will be circumstances where agencies are working with children or young people but are not defined as “appropriate agencies” within the terms of the Act.   For example the police may be working with young offenders or a particular voluntary agency may be involved in providing a care package to a child within a family.   Education authorities and such agencies will wish to continue working in partnership with each other using a single plan to coordinate action.”

 

1. 27. She noted there was no suggestion in those circumstances of the authority being able to compel cooperation or that they should be included within the CSP, rather that the code suggests that there should be a continuation of partnership working.   She referred to Chapter 5 paragraph 62 of the Code where there are examples of persons who would be providing support and noted that there was no suggestion that these persons would come from anywhere but the authority or appropriate agencies.

 

1. 28. She referred to City of Edinburgh v K [2009] SC 625 where at paragraph 18 it is stated:  “For the purpose of determining whether AW required a CSP it would be irrelevant to consider what other agencies were involved with him unless they were either the education authority exercising a function other than education or appropriate agencies as defined in section 23(2).”

 

1. 29. In her submission there was no basis for the inclusion of other “agencies” in the CSP, it was not provided for by the Act.   Therefore, she submitted,  the amendment for support by Bobath Scotland could not be included within the CSP.

 

1. 30. It was clear that direct speech and language therapy would not be offered by the health board, and we were not asked to amend the CSP to include such therapy from an approved agency.   The issue was simply whether or not the Tribunal could amend the CSP to include support from Bobath Scotland.

 

1. 31. A CSP is required where a child or young person requires significant additional support from the authority, in its education or other function, or other appropriate agency.  Regardless of how many, how much or how frequent the involvement of, voluntary agencies, which supported a child, in addition to the education department, she would not require a CSP if no other authority department or appropriate agency provided significant additional support. 

 

1. 32. The CSP is a statutory document, subject to regular monitoring and review, and the Act makes provision for an authority to compel an appropriate agency to comply with any request for help.   There is no provision to compel any other person or agency to comply, or any duty for such a person or agency to fulfill such a request.   In those circumstances we determined that we could not include the amendment sought by the mother to include support from Bobath Scotland in the CSP.

 

1. 33. If we are wrong in our conclusion, however, we considered whether the CSP should be amended as sought.

 

1. 34. Firstly we considered whether the addition of “fine motor skills” should be made to the factors giving rise to The Child’s additional support needs. Fine motor skills included speech, as well as an ability to use a keyboard or other technological equipment.    We concluded that factors already set out, namely communication skills and ability to access the curriculum, would include this, but there may be more clarity if this additional wording was included.

                                                                                                    

1. 35. We then considered whether the therapy potentially to be provided by Bobath Scotland was support required by The Child to achieve her educational objectives as set out in section 9(2)(iii).      Neither Witness A nor Witness B were in a position to state how a further period of therapy would affect her ability within school.  She was integrated in school and was active in accessing the curriculum to achieve her educational objectives, using technology and what speech she had.  We concluded that the support from Bobath Scotland was not required to achieve her educational objectives, although as noted above, we were of the view that the possibility of improvement in her verbal communication may assist her to achieve her full potential.

 

1. 36. Thirdly, we considered whether the support potentially to be provided by Bobath Scotland could be considered to be “significant” as required by section 2 of the Act.

 

1. 37. What is sought is one intensive block of speech and language therapy/physiotherapy for 18 sessions over a period of six weeks, with pre- and post-block assessments.    It would seem likely that the pre- and post block assessments would be one session each.   There was no evidence as to the length of the therapy session, but given The Child’s age and her condition, she will tire easily, and the sessions could not be of substantial length.   In the past two years intensive blocks have been undertaken during the summer, and it would seem likely that a further block would be arranged to take place at least partly during school holidays. 

 

 

1. 38. We had regard to JT v Stirling Council [2007] SC 783, and to Chapter 5 paragraph 18 of the Code of Practice which states: “The issue of significance refers to the extent of the provision. Judgements about significance have to be made taking account of the frequency, nature, intensity and duration of the support, and the extent to which the support needs to be coordinated and is necessary for the achievement of the educational objectives which will be included in the plan.  In particular the support must be of sufficient duration to make it worthwhile preparing a coordinated support plan in order to ensure that it is coordinated properly.”

 

1. 39. Although intensive, the therapy would take place during six weeks of the year, with two sessions of assessment on either side. In previous years the regular NHS physiotherapist has attended one session, and Bobath have provided reports to the school.   It is likely that no more coordination between Bobath, the school and other agencies would be required on any future provision.   

 

1. 40. In our view, the provision sought does not meet the test of “significant” additional support.

 

1. 41. Accordingly, we are not satisfied that the potential provision of support from Bobath Scotland meets the conditions for inclusion in the CSP.