DE
Reference: D-03-2015
Gender: Male
Aged: 17
Type of Reference: Contents of CSP
Decision of the Convener
(1) I find and declare that the Respondent has failed to provide, or make arrangements for the provision of, the additional support specified in the CSP of March 2014 in the final paragraph of the final page under the ‘Additional Support Required’ column (T29).
(2) In order to remedy this failure, I require the Respondent, under s.19(3) of the 2004 Act, to construct the ‘SafeSpace’ facility it has acquired and to leave it constructed in a suitable location on the school premises on a continuous basis, for use by the young person whenever deemed necessary. That facility must be constructed and ready for use by the young person no later than 12th January 2015.
Reasons for Decision
Procedure
1. This is a Reference, lodged on 18th July 2014, originally seeking certain remedies under s.18(3)(d)(ia) of the 2004 Act. The Appellant’s case for the remedies sought can be found at A1-2 of the bundle. the young person is currently being educated at the School, a school managed by the Respondent. The Appellant is his father. The parties agreed in writing that this Reference should be dealt with by a Convener alone under rule 26(2)(d) of the Tribunal rules, in the absence of a hearing.
2. There is no dispute over the core additional support needs of the young person, and reference is made here to the current CSP, dating from March 2014, at T22-31 of the bundle. The Respondent resists the reference, its reasons being set out at R1-4. Two conference calls took place, on 2nd October and 4th November 2014, between the solicitor for the Appellant, the solicitor for the Respondent and the Convener. Those calls led to two Directions being issued, on 7th October and 18th November 2014 respectively (T43 and T44). As a result of those Directions, the Appellant lodged a Supplementary Case Statement (A5) essentially adding a further (alternative) basis for the reference, namely a request for an amendment to the wording of the CSP under s.18(3)(d)(i) of the 2004 Act. The Respondent challenges this request also, its reasons being set out at the Respondent’s Supplementary Response, R31. In line with the Directions of 18th November 2014 (T44), the parties lodged written submissions (Appellant- A6-9; Respondent R32-33). The Appellant also lodged, with that written submission, a Witness Statement (A10-13). There is no separate witness statement from the Respondent, but its written submission is prepared by the Respondent’s Head of Children’s Services and Resources, and contains a mixture of fact and argument (R32-33). In total, the bundle consists of pages T1-44; A1-13 and R1-33. I have taken into account all of these documents in reaching my decision.
Reasons
Reference ground 1: failure to provide additional support
3. The Reference, as originally framed, sought certain remedies under s.18(3)(d)(ia) of the 2004 Act, namely a declarator of a failure by the Respondent under that provision; an order to put that failure right and a requirement to amend the young person’s Behaviour Plan (see A9). The Appellant maintains his position on this part of the Reference, and seeks these remedies.
4. This dispute revolves around the content of the young person’s CSP. The current CSP content was agreed between the parties in order to resolve a previous Reference (ASNTS/R/13/0045). The Tribunal agreed to issue a Decision incorporating that agreement (T16-21). The current CSP in its full form can be found at T22-31. The current dispute revolves around the following wording in the CSP, relating to the ‘SafeSpace’:
“A SafeSpace will be made available within the complex additional support needs provision, and [the young person’s] use of it will be incorporated within his behaviour plan.”
5. This passage appears on the final page of the young person’s CSP (T29) in the ‘Additional Support Required’ column of the CSP. The relevant Educational Objectives in the CSP is to be found under the ‘Life Skills’ section of that document (T28-29).
6. The name ‘SafeSpace’ appears to be a trade name for a construction designed to act as a space within which children with certain additional support needs can experience some quiet time. Some publicity material for this product, explaining in detail its purpose, and carrying a photograph of the product is at A3-4. That material explains the general purpose of the ‘SafeSpace’ product:
“[It] provides a low stimulation area for pupils to calm down, or have quiet time in a hectic classroom.” (A3, under ‘‘Chill out’ space’).
I will come back to this publicity material later.
7. The Appellant has pointed out that although the Respondent has purchased a ‘SafeSpace’, it is still in a box and has not been constructed. This is not disputed. He argues, therefore, that the ‘SafeSpace’ has not been ‘made available’ to the young person. The Respondent argues that the ‘SafeSpace’ facility is available, but that the terms of the young person’s Behaviour Plan (T32-33) make it clear when the ‘SafeSpace’ is to be used. The relevant part of the Behaviour Plan is found under the heading ‘Plan for Implementation of the ‘SafeSpace’’ and reads:
“If the young person presents with two or more of the following behaviours and difficulties over a two week period in school, despite the above behavioural plan and strategies, a ‘Safe Space’ will be made available within the Learning Support Base.” (T33)
8. There follows a list of ‘Challenging behaviour’ types, which, it would appear, is designed to be used as an indicative list of the types of behaviour which might lead to the use of the ‘SafeSpace’, on the terms indicated in the above quoted passage.
9. There are two component parts to this ground of referral; in other words two suggested failures which might qualify as failures under s.18(3)(d)(ia) of the 2004 Act. The first is the alleged failure to have the ‘SafeSpace’ constructed, ready for use by the young person. The second is the argument that the Respondent has failed to incorporate the use of the ‘SafeSpace’ in the young person’s Behaviour Plan.
10. Before we turn to deal with each of these suggested failures, we should be aware of the wording of the relevant provision at s.18(3)(d)(ia) of the 2004 Act:
“…[A reference can be made in respect of a failure] by the education authority to provide, or make arrangements for the provision of, the additional support…identified [under the educational objectives in the CSP]”.
11. It is clear that this Reference relates to the additional support identified as required to meet the educational objectives of the CSP. Those objectives are the ones listed under the ‘Life Skills’ section of the CSP (T28-29). I will now deal with each of the two suggested failures.
Failure to have ‘SafeSpace’ permanently constructed
12. At first blush, equipment which has not been constructed has not been ‘made available’ for use. However, I must consider the whole paragraph, not just those two words. The relevant paragraph is repeated here for convenience:
“A SafeSpace will be made available within the complex additional support needs provision, and [the young person’s] use of it will be incorporated within his behaviour plan.”
13. In construing the wording used, I am acutely aware of the need to adopt a sensible interpretative approach. I am not tasked with deciding whether a reference to the need for a ‘SafeSpace’ should appear in the young person’s CSP; that reference is there. I need to interpret the impact of the wording. In my view, such an approach involves considering the ordinary and natural meaning of the words used in their context. That is the key approach used to interpret statutory provisions, and since the CSP is a document required by statute, it appears to me that a similar approach should be used there too. However, in considering the context, I bear in mind the nature of the CSP. It is a document framed by an education authority (in this case in negotiation with the Appellant) designed to reflect the education authority’s conclusions on certain matters (the factors from which the additional support needs of the child arise, the resulting educational objectives, the resulting required additional support and the persons who should provide it: s.9(2)(a) of the 2004 Act). So, while I am primarily considering the ordinary and natural meaning of the words used, I should do so while avoiding an unduly technical, semantic approach; we are dealing with a document designed to convey conclusions to professionals about the educational needs of a child. A contextual approach also requires consideration of other relevant documents, including the Behaviour Plan. Returning to the wording of the CSP, it seems to me that the ordinary and natural meaning of a ‘SafeSpace’ being ‘made available within the complex additional support needs provision’ means having that facility reasonably available to use for the purpose for which it might be necessary for the young person.
14. On one view, what is stated in that part of the CSP is not that the ‘SafeSpace’ should be made physically available, or that it should be available for a certain period (or that it should be constantly available); the obligation undertaken by the Respondent, it might seem, is to make the ‘SafeSpace’ available ‘within the complex additional support needs provision’. In other words, that the ‘SafeSpace’ must feature in the general provision for the young person. However, after careful consideration, I am not persuaded that this approach is viable. It seems to me that the ‘SafeSpace’ as a product is designed for two main purposes: as a ‘chill out’ space and for ‘crisis management’ (to use the wording of the manufacturers – A3; there is also reference to therapy and sensory purposes – A4- but it seems to me that this is not the main intended purpose). Indeed, when one considers the examples of behaviours which might trigger the use of the ‘SafeSpace’ (see the list at T33) these consist of instances of ‘challenging behaviour’ all of which could lead to a need for the young person to ‘chill out’ or for the facility to be used to manage a ‘crisis’. It is clear to me, then, that the Respondent is of the view that the ‘SafeSpace’ may have to be used to assist in managing the young person when he displays such behaviours. That being the case, I have difficulty in understanding the thinking behind the relevant part of the Behaviour Plan. The circumstances in which the ‘SafeSpace’ would be used under that plan involve the exhibition of two or more instances of ‘challenging behaviour’ by the young person within any two week period. It is not clear to me why more than one instance is required, or why the two week period has been chosen. If the ‘SafeSpace’ is to be used to assist in managing challenging behaviour, then it seems obvious that it must be available to be used for this purpose there and then, at the time when such ‘challenging behaviour’ is underway, or just after it is over.
15. This brings me to another difficulty for the Respondent. There is no express evidence about how long it would take to assemble the ‘SafeSpace’ from being in a box to being fully constructed. However, it seems to me that some time and effort would have to be expended. There are two indicators of this. Firstly, there is reference by the Respondent to the need for training for its ‘setting up and use’ (R3, paragraph 15). The fact that training is required in order to be able set up this facility suggests that it is not able to be assembled instantly. Further, it is clear from the photograph of a ‘SafeSpace’ at the publicity material (at A3) that some level of work (and therefore time) on constructing the facility would be required. Some of the instances of challenging behaviour mentioned at T33 would clearly require an instant response (for example, self-harm, significant damage to the environment, harm to others). It is difficult to imagine that a teacher (or other member of staff) could effectively react to such a situation by first starting to construct a facility from scratch before the young person could benefit from its use. Further, the use of the facility in these circumstances pre-supposes the availability of a member of staff who has the time to construct it. If the facility is needed in such circumstances, it is clear to me that it is needed there and then, not some time later. This connects with the difficulty over the two incidents over two weeks requirement in the Behaviour Plan. In my view, if the ‘SafeSpace’ is to be used for ‘challenging behaviour’ then it should be used to deal with an individual instance of it. If two instances are required, then it seems to me that it was not required for the first instance. That being the case, it is not required at all. In other words, the conditions for its use are illogical bearing in mind its purpose. It does not seem to me to be a facility designed to deal with a cumulative problem, rather it seems to be designed to deal with individual instances, on a needs basis. Now, it might be said that the ‘SafeSpace’ will, in all probability, not be needed; that is a different question. The current question is whether, on a proper interpretation of that part of the CSP, the facility should be constructed in order to be available for use whenever needed.
16. Turning to the second part of the disputed paragraph: “and [the young person’s] use of it will be incorporated within his behaviour plan” it seems to me that this is a reference to the conditions under which the ‘SafeSpace’ will be used (the word ‘use’ is employed) not the circumstances under which it will be available for use. In other words, availability for use and the conditions for use are different matters. In order to be ‘available’, in my view, it has to be constructed and ready for use at all times, for the reasons outlined above. Although I have commented above on the relevant part of the Behaviour Plan, I have no jurisdiction over that document. It is for the Respondent to frame that document.
17. Returning to s.18(3)(d)(ia), another interpretation question arises (although not one on which I have been addressed). The wording refers to ‘..provide or make arrangements for the provision of..’. It is arguable that the Respondent has ‘made arrangements for the provision of’ the ‘SafeSpace’ and that there is no obligation to actually provide it. Those arrangements could consist of buying it and arranging for the circumstances in which it is to be used. However, although superficially attractive, this interpretation is, in my view, flawed. Given that we are dealing with a specific piece of equipment, and given my reasoning above on the potential use of the ‘SafeSpace’ for the young person, even when considering the notion of ‘arrangements for the provision’, these include, in my view, the erection of the ‘SafeSpace’ so that it can be used when needed. Any other interpretation undercuts the purpose of the CSP as specifying support that is necessary to meet certain educational objectives.
18. In my view, in these circumstances, on a proper interpretation of the current wording of the CSP, in order to make the ‘SafeSpace’ facility available to the young person, it requires to be constructed and placed in a suitable place in the school on a continuous basis, for the young person’s use. The Respondent does not dispute the assertion that the ‘SafeSpace’ has not been assembled and is in a box. In these circumstances, the provision in s.18(3)(d)(ia) has been activated. The declarator and remedy specified in paragraphs (1) and (2) above flow from this conclusion. I have declined to make any amendment to the wording of the Behaviour Plan, as sought by the Appellant, since I take the view that I have no jurisdiction over the wording of that document. Even if I did have such jurisdiction, I would decline to amend it since it is a working document which should be prepared (and amended) in consultation with a range of professionals as well as the Appellant. While the same could be said for the CSP, Parliament has provided specific authority for its amendment by the Tribunal. In any event, it is clear that the CSP is designed to be a framework document, the Behaviour Plan is a more detailed, practical day to day document.
Failure to incorporate the young person’s use of ‘SafeSpace’ in the Behaviour Plan
19. The Appellant argues that this is a separate failure under s.18(3)(d)(ia). He argues that the ‘SafeSpace’ does not feature in the main body of the Behaviour Plan, and so has not been ‘incorporated’ (A1, paragraph 7, A6-7, paragraph 4). In my view, this is incorrect. A separate section of the Behaviour Plan is dedicated to the use of ‘SafeSpace’ for the young person (T33, under ‘Plan for Implementation of the ‘Safe Space’’). The Appellant goes on to describe the relevant section of the Behaviour Plan as a ‘series of pre-conditions…which….must be fulfilled before the use of the SafeSpace will be considered’ (A1, paragraph 7). Even if this is a fair characterisation of the provision for ‘SafeSpace’ in the Behaviour Plan, in my view, this cannot be properly regarded as a failure to comply with the CSP. The obligation in the CSP is to incorporate the young person’s use of ‘SafeSpace’ into the Behaviour Plan. By definition, such material will involve setting out the circumstances in which that facility should be used. Whether one describes them in that way or as ‘pre-conditions’ does not matter; the use of the ‘SafeSpace’ is incorporated in the Behaviour Plan. This Tribunal has no jurisdiction to oversee the content of the Behaviour Plan. In any event, there is no quantification or description in the CSP of how the provision for the use of ‘SafeSpace’ should be expressed in the Behaviour Plan. In these circumstances, as long as that matter is dealt with in the Behaviour Plan, that part of the disputed CSP paragraph has been complied with. The fact that the relevant section does not appear under certain headings in the Behaviour Plan is not relevant; incorporation requires that the document contains the relevant material somewhere within its four corners.
20. The Appellant goes onto criticise the Respondent for the process followed in drawing up the Behaviour Plan. This is not something on which I have any locus. I can only deal with the CSP content in this Reference. For this reason, I offer no comment on this criticism.
Reference ground 2: request to amend CSP wording
21. As an alternative ground in this Reference, the Appellant seeks to persuade the Tribunal to amend the disputed paragraph of the CSP, under s.18(3)(d)(i) of the 2004 Act. This is argued as an esto case, only made if I am not satisfied that the principal allegation of failure to comply with the CSP should be successful. Even although I am so satisfied, I feel that I should deal with the Appellant’s argument on this point. In my view, properly considered, the content argument is not dependent on the outcome of the failure to implement argument. In particular, the second sentence of the proposed wording, if added, would supplement the detail in the relevant paragraph of the CSP irrespective of the outcome on the failure to implement argument. I can see, however, why the solicitor for the Appellant formed that view of the structure of his case.
22. The Respondent’s Head of Children’s Services and Resources suggests that in framing alternative bases of this Reference, the Appellant has not followed my Directions (at least the spirit of them): see R32, paragraph 4. While I can see why the Respondent’s Head of Children’s Services and Resources adopts this view, I do not think this is an issue in this case. I accept that the wording of my Direction of 7th October 2014 suggests agreement on a single ground of Reference under s.18(3)(d)(i); that agreement was given, however, on the basis of a need to take instructions. Having taken those instructions, it appears that the solicitor for the Appellant chose to adopt the route of relying on two alternative bases to the Reference. He is perfectly entitled (indeed wise) to have done so. The Tribunal cannot dictate to a party how he presents his case. In any event, the solicitor for the Respondent had an opportunity to respond and (also wisely) does not argue that the grounds of the Reference should be restricted (R31). Although the Respondent’s Head of Children’s Services and Resources indicates that he does not address the ‘technical argument’ as to what the relevant part of the CSP should mean, that matter is addressed for the Respondent by the solicitor for the Respondent in his original Response (R1-4). I assume he did not return to that matter in his Supplementary Response (R31) since he had already covered this adequately.
23. The Appellant asks me to re-write the disputed paragraph so that it reads as follows:
“A SafeSpace will be permanently erected within the complex additional needs provision. Daniel’s use of it will be consistent with his use of his SafeSpace at home and this will be acknowledged, recognised and agreed in his behaviour support plan.”
On the first sentence of this proposed paragraph, there is no need to include this, given the remedy I have agreed to grant in response to the Appellant’s s.18(3)(d)(ia) challenge.
24. On the second sentence, I am not persuaded that I should add this to the CSP. I accept the evidence of the Appellant (A10-13) to the effect that the young person benefits from the use of ‘SafeSpace’ at home. However, it seems to me that what works at home does not necessarily also work at school. As the Respondent’s Head of Children’s Services and Resources points out (R32, paragraph 7) those who interact with the young person at school are in the best position to take a view on what works there and what does not. This does not mean, of course, that the Appellant’s views are to be ignored; only that the views of those with direct and regular experience of the young person’s school education should be given more weight. Turning to that evidence, the Respondent’s Head of Children’s Services and Resources, in his statement, summarises the views of some other professionals. Now, while this is hearsay evidence, such evidence is admissible, although is given appropriate weight. I have no reason to believe that the Respondent’s Head of Children’s Services and Resources would distort the views of others. In these circumstances, I am content to accept that his summary of the views of others is fair and accurate. He refers to the views of the Principal Teacher, Support for Learning, and of the Respondent’s Principal Educational Psychologist, on the fact that the young person is doing well at school (R32-33, paragraphs 7-8). In addition, there is detailed evidence available from the Respondent’s Principal Educational Psychologist herself in her report of 9th January 2014 (R8-10) where she comments on the young person’s ‘excellent’ progress at school. Although this report is almost a year old, the Respondent’s Head of Children’s Services and Resources’ evidence summarising her views is much more current (his statement is dated 26th November 2014 – R32-33). In addition, it is clear that the current provision for the young person has not led to any significant aggressive or high-distress incidents (R8, final paragraph). There is evidence of the young person’s successful use of the Quiet Room (R9, penultimate paragraph above ‘Conclusion’). Further, it would be difficult to monitor whether the use of a ‘SafeSpace’ at school was reflecting the use at home. The Appellant seeks to rely, in part, on a letter from the Consultant in Child Psychiatry dated 14th July 2014 (T35-36). There is an e-mail exchange between the Consultant in Child Psychiatry and the Respondent’s Principal Educational Psychologist about the content of that letter (R13-14). Having carefully considered these documents and the arguments made about them, I am not convinced that they hold any relevance to my decision. the Consultant in Child Psychiatry ’s comment about consistency between home and school is general in nature (even although the ‘SafeSpace’ provision is cited as an example); I do not read that letter as supporting the specific contention that the ‘SafeSpace’ provision at school should match that at home. the Consultant in Child Psychiatry ’s e-mail of 2nd September 2014 makes this point in plain terms and places some context around his earlier letter. Overall, then, I am not convinced that there is any evidence available to me to support the argument that the use of the ‘SafeSpace’ at home requires to be reflected at school. Any evidence that does exist suggests that the young person is doing well at school in the absence of the use of the ‘SafeSpace’ facility.
25. For these reasons, I am content to leave the CSP wording as it stands, given the interpretation and remedy I have adopted above.
Further comments
26. Although not necessary for my decision on this Reference, I make some observations in case they are helpful.
27. The CSP should, in my view, be able to be read and be effective on its own. It is, of course, a document over which there is independent scrutiny by this Tribunal (which is not the case with regard to the Behaviour Plan). Parliament has provided for that independent scrutiny, but that aim could be undermined where the crucial detail of the additional support required is set out in another document over which the Tribunal has no direct control. Of course, the CSP cannot set out all of the detail of the educational provision for the additional support needs of a child; but the document should, in my view, contain meaningful, practically applicable narrative.
28. A further observation revolves around the training question in connection with the ‘SafeSpace’ facility. The Respondent indicates at R3, paragraph 15:
“The SafeSpace is on the school premises and resources are in place for the training of staff for its setting up and use.”
This suggests to me that the training of staff for its set up and use was, at the time that document was composed, in place, but had not yet been implemented. There is nothing in the bundle to suggest that this situation has since changed. It appears from this that before the ‘SafeSpace’ can be used (or even assembled) training would be necessary. If this is the case, I have serious reservations about the Respondent’s commitment to the use of that facility. I have not factored in any time for training on the use of the facility; I have no information on how intense that training would be. However, I make these observations in order to emphasise the point that the CSP is a serious statutory document, which should be prepared and implemented in an open, flexible way, rather than in a narrow, technical sense.
29. Finally, I have strong reservations about the content of the ‘SafeSpace’ part of the Behaviour Plan. In my view, as presently framed, it seems extremely unlikely that the ‘SafeSpace’ facility will ever be used for the young person. This seriously undermines the content of the CSP, which lists it as part of the young person’s required additional support. If it is a required support, the conditions for its use should be reasonable; if it is not required, then it should not feature in the CSP at all. In my view, the content of the Behaviour Plan should be urgently reviewed in light of this Decision. As stated above, I have no control over that document, so I cannot (and in any event should not) make any changes to it.
