ASNTS_D_05_2015

DECISION OF THE TRIBUNAL

Reference:      R 038 2014 Gender:  Male

Aged:               14

Type of Reference:     CSP Not Required Disputed

1. Reference

The Appellant lodged a reference dated 29 May 2014 under section 18(3)(b)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended (”the Act”) on the basis that the Appellant disagreed with the decision of the Respondent that her child, did not require a Co-ordinated Support Plan (“CSP”).

2. Decision

The Tribunal refuses the Reference and accordingly in terms of the power contained within Section 19(2) of the Act confirms the Education Authority’s decision that the child does not require a Co-ordinated Support Plan.

3. Preliminary Matters

A conference call was held on 2 October 2014.   At the Appellant’s request the hearing previously assigned was adjourned to allow a meeting between the Appellants and SLT to take place. A further Hearing was assigned but due to the unavailability of the original Convener and a Member, a new Convener and Member were identified.

At the commencement of the Hearing on 8 December the Appellant’s representative sought to lodge late productions.   The Respondent’s representative did not object and the Tribunal, considering it fair and just to do so, agreed to allow the production to be incorporated into the bundle as production A15 – A28 in terms of rule 34 of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006, as amended (“the Rules”). The documents comprised of a letter from The

respondent Social Work together with an Integrated Assessment and Care Plan and a letter from The child’s Speech and Language Therapist (“SLT”).

The Respondent’s representative advised that as one of their witnesses had just returned from a lengthy period of absence they wished to lead an additional witness who would give information in respect of the period of absence. There being no objection on behalf of the Appellant, this was allowed.

At the request of the Convener, the Appellant’s representative confirmed that while there were still a number of different agencies involved in The child’s ongoing care, for the purposes of the Tribunal the Appellant wished us to principally consider the input of the Social Work Dept. and Physiotherapy and, in particular, the significance of their cumulative input.

4. Evidence

The evidence consisted of documents lodged by the parties with additional information being provided by The appellant, Witness A, Witness B and Witness C.

The documents consisted of:

For the Appellant:

1. 1. Case Statement for the Appellant. (A1 -2)
   2. Letter dated 2 April 2014 from The respondent refusing the request for CSP. (A3-4)
   3. Summary of Diagnosis, involvement of agencies and issues for  The child prepared by The appellant. (A5 -8 )
   4. Additional Support Plan Appendix January 2014. (A9)
   5. Updated Health Care Plan for School. (A10 - 13)
   6. Letter dated 19 June 2014 from NHS arranging appointment for The child to attend with Physiotherapist. (A14)
   7. Letter dated 13 November 2014 from Social Work enclosing Integrated Assessment and Care Plan for The child. (A15)
   8. Letter dated 30 October 2014 from Specialist SLT. (A16)
   9. Integrated Assessment and Care Plan. (A17 – 28)

For the Respondents:

1. 1. 1. Case Statement. (R3-7)
      2. Inventory of Documents for Respondents. (R8)
      3. NHS – Speech and Language therapy Report dated 13 March 2014. (R9)
      4. NHS – Occupational Discharge Report dated 19 July 2014. (R10)
      5. NHS – Letter from Paediatric Occupational Therapist dated 10 February 2014. (R11 - 12)
      6. School A–Pastoral Information Sheets for w/b 12 June 2014. (R13)
      7. School A – Pastoral Information Sheets for w/b 5 May 2014. (R14)
      8. School A – Pastoral Information Sheets for w/b 24 March 2014. (R15)
      9. School A – Pastoral Information Sheets for w/b 13 January 2014. (R16)

1. 1. 10. Copy emails 28 May 2014. (R17 - 20)
      11. Copy Prints from pastoral notes 12 August 2013 to 12 August 2014. (R21

- 38)

1. 1. 12. Copy ASP dated September 2011, reviewed March 2014, including notes of review meetings. (R39 -45)
      13. Copy letter from Appellants with comments on ASP as reviewed dated 29 April 2014. (R46 – 50)
      14. Copy Coordinated Support Plan: Assessment Tool in respect of The child. (R51)
      15. Copy letter to Appellants dated 2 April 2014. (R52 – 53)
      16. Copy emails dated 6 October 2014. (T17 – 19)

We were satisfied that we had sufficient information on which to base our decision.

5. Findings in Fact

The child (“The child”) was born in 2000. He has additional support needs, in particular, autistic spectrum disorder and multiple and learning difficulties, low muscle tone and associated difficulties with his posture and is presently being investigated re muscular dystrophy. He is attending at a dental specialist and has been prescribed mouth braces. He has upper respiratory difficulties and rhinitis.   He is overweight and suffers from acne and certain food allergies. He requires the use of specialist boots to assist with his gait. He has been prescribed specialist cutlery and has been prescribed medication which he needs to take in school.

The child attends at School A and is presently in year 3. School A is a special school managed by The respondent. The child has an Additional Support Plan (“ASP”) and a Health Care Plan.

The various specialists who have been involved with The child’s care include a Speech and Language Therapist; Occupational Therapist; School Nurse; Social Work; Physiotherapist; Orthodontist; Orthotics; Dermatologist; and Paediatric Consultant in addition to Education.

The appellant has arranged with The child’s G.P that all medical agencies involved in The child’s care liaise with the G.P. and provide copy reports to the G.P. The appellant advised this arrangement works well for The child. The G.P is able to maintain an overview of all of the medical agencies and act as the main point of contact for The appellant.

On 27 January 2014 the Appellants asked the Respondents to assess The child to determine whether he should have a CSP. At a review meeting of The child’s ASP held in March 2014 the Respondents invited the various agencies involved in The child’s care to attend and provide input into the review and also the assessment of the requirement for a CSP. Representatives from Social Work and Occupational Therapy declined to attend.

At the meeting the Respondents completed a checklist to consider whether a CSP should be created. As part of this process the Respondents asked each of the attendees to comment as to whether they considered that their input was significant and would meet the test for requiring a CSP.   The Respondents considered that at the meeting either all or the majority of those asked considered that their input was not significant for the purpose for a CSP. The Appellant disputed this in her evidence. The appellant recalled that the School Nurse stated that her input was significant because she was in the school. The appellant recalled that SLT initially stated that their input was significant but then changed her answer. She also stated that “physio did not say that [a CSP] was not appropriate. The appellant’s evidence was then that all services said that their input was “significant to The child”.

By letter dated 2 April 2014 the Education Authority notified the Appellant that they did not consider that The child required a Co-ordinated Support Plan.

We heard evidence regarding the input of agencies other than strictly health related agencies.

Input of Occupational Therapy (“O.T.”): O.T. had been working with The child for 4 years, specifically in relation to his posture. A posture pack had been provided to him but it had been noted that there had been deterioration and after a re- assessment a Strato Chair was recommended. There seems to have been a delay in the provision of the chair. However, we were advised that The child now has the chair, one at school and one at home, and that this has had a noticeable beneficial effect for The child, particularly with his writing. The child has been discharged from

O.T. but can be re-engaged if this is felt necessary in future.

Input of Speech and Language (“SLT”): SLT provided The child with a block of 7 sessions between March and September 2014 targeting social communication skills. The child completed this achieving all goals and no further input is presently in place. SLT are available for consultation or re-assessment if this was felt to be required.

Input of Physiotherapy: The child had physiotherapy in school in two 6 weeks blocks between January and summer 2014. We did not have evidence that The child was currently undergoing any physiotherapy at school. More recently a programme has been devised for The child to do exercises at home. The appellant advised that The child was reluctant to do exercises under guidance of his mother and was still adapting to the change in routine, doing exercises at home rather than at school. There is ongoing contact with the physiotherapist, taking the form of emails and occasional supervision to ensure that the exercises are being done correctly. We did not have evidence of how often or how long this supervision would last.

The Respondents led evidence from the school nurses.   They were employed by NHS with their main base at General Hospital. They also had a base at the school. As a school nurse to a special school their role was to prepare health care plans for pupils, including The child. There did not appear to be any direct involvement with The child or ongoing involvement required over that already taking place as part of their normal remit.

Input of Social Work: Although it was felt that there were lots of things going on for The child at school, The appellant advised that this was not being transferred to skills at home. The appellant sought the input of Social Work to assist with The child’s social interaction outwith school and to practice his skills.   She considered that having additional social interactions outwith school would build upon and benefit The child’s social skills within school. Following an assessment by Social Work and their discussions with his parents, a referral to access a befriender has been made and they are waiting for a befriender to be identified. Additionally, Social Work considered that The child would benefit from support to access sports opportunities and social resources. These resources should be accessed through Self Directed Support (“SDS”) but SDS budgets are not yet in place. Until budgets are in place the Social Work Dept. will provide funding for 6 hours support from a care provider in order to provide direct one to one support to access social opportunities in his local area.

The appellant complained of a lack of communication with the school. However, we were satisfied that there was a high degree of communication by way of a home diary as well as that instigated by The appellant by telephone calls and emails and attending personally at the school as well as regular review meetings.

6. Reasons for the Decision

Section 2(1) of the Act sets out the criteria which needs to be fulfilled to require a child to have a Co-ordinated Support Plan. It was accepted by the Respondents that subsections (a)-(c) of section 2(1) of the Act were fulfilled. The dispute between the parties and accordingly the matter upon which the Tribunal required to determine was whether or not subparagraph (d) of section 2(1) of the Act was established.

Section 2(1)(d) is in the following terms:-

“(d)     those needs require significant additional support to be provided-

1. by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or
2. by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.”

The Tribunal had regard to the relevant legislation as set out along with the facts which were largely not in dispute. In addition the Tribunal had regard to the guidance contained within the revised Code of Practice and we were referred to the opinions of the Court in the cases of JT –v- Stirling Council [2007] CSIH 52 and the City of Edinburgh Council –v- A decision of the Additional Support Needs Tribunal for Scotland 10 March 2011 [2012] CSIH 48.

We were addressed on the additional support being provided to The child and there was no dispute regarding which agencies were involved. The Appellant wished us to primarily consider the input of Physiotherapy and Social Work and the cumulative effect of their input. We did not restrict ourselves strictly to these and looked at all relevant supports.

It was not suggested that there was a requirement for additional or different support to that currently being provided.

The Social Work Dept is clearly an appropriate agency for the purposes of the Act. With regard to the speech and language therapists (SLT), occupational therapists (O.T.) and physiotherapists (“Physio”), they have a base in the School but are employed by the NHS Health Service.   By virtue of s.23(2) of the Act, NHS, the Health Service, constitutes an appropriate agency. The question in relation to these agencies is whether The child requires direct support over and above that provided for all children in the school through advice and consultancy for education staff, to a level that could be described as significant in terms of its frequency, nature, intensity and duration (City of Edinburgh Council Appeal vs ASNTS Decision, CSIH 09.06.2009, at para. 17). We additionally considered whether any such significant additional support required to be co-ordinated with the Respondents in their role as provider of education.

The child has been discharged, for the time being, from SLT and O.T. and accordingly there cannot be said to be any significant additional support being provided by these agencies.

The child has been provided with a programme from physiotherapy to carry out at home on a twice weekly basis.

A recent assessment from Social Work determined that support would be put in place to provide The child with funding for 6 hours per week for a care provider to support The child to attend sport and social opportunities outwith school.

We accept that as per the Code of Practice the Tribunal should not be restricted to considering support only within the school but that support provided outwith school is relevant where it is for the purpose of allowing the child to benefit from school education and achieve his or her educational objectives.

The Appellant submitted that the support currently being provided, in particular by Physio and by Social Work, is significant when considered cumulatively and, as such cumulatively met the test contained within section 2(1)(d) of the Act.

We were advised that Physiotherapy were employed by NHS but, like SLT and O.T. they had a base within School A and attended there on a regular basis. As may be expected for a special school, they had regular contact with the staff regarding all of the pupils and could be contacted at any time for advice or to carry out a fresh assessment if this was felt necessary. Physio were in regular contact with school staff and advised, in particular in relation to P.E, if any adaptations required to be made for The child when starting a new 6 week block of exercise.

There was no plan in place for regular direct contact with The child either on a 1:1 or group basis.

The exercise plan devised by Physio was specifically to be carried out at home. The appellant stated that there would be ongoing supervision by Physio. However, we gained the impression that this would take the role more of support to The appellant in assisting The child with the exercises rather than being directly involved. The appellant stated that doing these exercises benefitted The child in that they enabled him to remain flexible and more comfortable when attending at school.