ASNTS_D_13_2008_08.10.08

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/13/2008

 

Gender:                   Male

 

Age:                        6

 

Type of Reference: Preliminary Hearing - Content of CSP

 

 

 

 

 

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­­­­­­­­­1. Reference:

 

The father (“the Appellant”) made the reference in respect of the contents of his son’s Co-ordinated support plan (under section 18(3)(d) of the 2004 Act).

 

 

2. Decision of the Tribunal:

 

The reference is dismissed as it is not competent in terms of section 18(6) of the 2004 Act.

 

 

3. Preliminary Matters:

 

The Convener held a teleconference with parties on 23^rd September during which it was agreed that this hearing would be treated as a preliminary hearing to determine whether the Tribunal had jurisdiction to hear the reference and, if it did, how the matter should proceed and what the Tribunal’s decision-making role should be. Directions to that effect were issued on the same date.

 

Parties were agreed that the question of jurisdiction was focused on the terms of section 18(6) of the 2004 Act, which states:

“Where, in respect of any child or young person for whom a co-ordinated support plan has been prepared (and not discontinued), any of the information referred to in subsection (3) (d) (i) has been referred under subsection (1) to a Tribunal, a further reference under that subsection in respect of the same information is not competent unless, since the last such reference was disposed of, a review of the plan has been carried out under section 10.”

 

The hearing proceeded by way of the parties making submissions on the basis of the papers lodged with the Tribunal. It was agreed at the start of the hearing that the Appellant would lead off, subject to having a right of reply.

 

 

4. Summary of Evidence:

 

The Tribunal received a very substantial bundle of documents lodged primarily by the Appellant. The following documents were referred to in the course of the hearing:

• both parties’ case statements
• the Co-ordinated support plan (CSP) for the child issued on 25^th October 2007
• the decision of the Additional Support Needs Tribunal on 24^th March 2008 on the appellants previous reference in respect of the contents of that CSP
• a note of a meeting dated 28^th May 2008 between the Appellant and the Solicitor for the Authority and a representative from the Authority’s  Education Department.
• the amended CSP for the child issued on 29^th May 2008
• a comparison between the contents of the two versions of the CSP, prepared by the appellant
• the Convener’s directions dated 23^rd September 2008.

 

 

5. Factual background:

 

It is not appropriate to make findings in fact as no evidence was given as such. The essential factual background to this reference was, however, clear from the papers and was not disputed, as follows:

 

• The child has additional support needs arising from a diagnosis of autistic spectrum disorder, low muscle tone and developmental decay
• a CSP for the child was issued on 25^th October 2007
• The Appellant made a reference to the Tribunal in respect of the contents of the CSP
• the Tribunal heard the reference on 24^th March 2008
• the Tribunal directed the Education Authority to amend the CSP, in certain specified respects, by 31^st May 2008
• The Appellant met with representatives of the Education Authority early in May and again on 28^th May to seek to reach agreement on how the CSP would be amended in light of the Tribunal decision
• the Education Authority issued the amended CSP on 29^th May 2008
• whereas the original CSP had been prepared as a Word document, the amended version was prepared using a different electronic format.

 

 

6. Submissions:

 

Appellant

The Appellant said, firstly, that section 18(6) only prevented a further reference in respect of “the same information” contained in a CSP. Any change in the terms of a CSP would be enough to remove this barrier, whether the changes resulted from the decision of a previous Tribunal or not. The CSP dated 29^th May 2008 differed in its contents from that dated 25^th October 2007 and the “same information” barrier thus did not apply.

 

Secondly, whether the Education Authority had or had not intended to review the CSP, the net result of the changes they had made was that a review had in fact taken place. Once issued, a CSP could be amended only following a tribunal decision or on review initiated by the Authority (section 10(3)(b)), by the parent (section 10(4)), or as required after 12 months (section 10(2)). Here, he had not initiated a review; the 12 month period had not been reached; and the changes made went beyond those required to implement the Tribunal decision of March 2008. Thus, the education authority must have considered that there was a change in the child’s circumstances.

 

The Appellant referred to each of the 19 changes in the May CSP as identified in his comparison document. These included:

• a section that did not exist in the October CSP, although the Appellant acknowledged that the text had been transferred from a different location in the October CSP
• text which reflected the Education Authority’s interpretation of the previous Tribunal’s decision. The Appellant accepted that the duty to implement that decision lay on the Authority and that consent to such changes was not required
• the removal of any reference to the specialist music teacher, whose input was directly related to the child’s additional support needs and his educational objectives. It appeared the CSP had been tailored according to what was available, not according to what the child needed
• the use of the term “Health Board” in place of reference to specific professions did not comply with the requirements of section 9(2)(a)(iv) of the 2004 Act
• a statement which had been removed and appeared not to be reflected anywhere in the May CSP
• as before, the May CSP referred to the parental comments as being attached and the photos of the child as being to follow. But the detailed parental comments were not in fact attached to the May CSP, even though the circulation list had changed.
• the October CSP had identified the persons responsible for providing support by use of job titles, which was appropriate. The May 2008 CSP named individual professionals, most of whom were based at the nursery the child attended up to the summer rather than at his new setting. In terms of section 9(2)(a)(iv) of the Act, the CSP should state “the persons by whom the support should be provided” although, as the Code of Practice made clear, in practice what should be stated is the job title or profession rather than the name of an individual post-holder.

 

He acknowledged that several of the changes were largely secretarial and could have been flagged up through circulation of a revised draft for comment; but that had not happened. Once a CSP was issued, it could not be changed at all except through a review or by decision of a Tribunal (thus, he had not contacted the Authority to suggest further changes). To decide otherwise would be to give Education Authorities carte blanche to amend CSPs.

 

Education Authority

The solicitor, representing the Authority said that changes in the CSP made to give effect to a Tribunal decision could not constitute new information. The only means of looking at a CSP anew was through a review of the CSP, and no review as defined in section 10 of the 2004 Act had taken place here.  A review had been scheduled for late October 2008 and the Authority would not carry out an additional review before then.

 

The May 2008 CSP used a revised format which the Education Authority had devised to incorporate universal descriptors required by the Scottish Government. The specific reference to the specialist music teacher had been removed as that provision was no longer being made by the end of May. In any event, this teacher was a member of the education staff who were covered by the generic descriptor in the May 2008 CSP. This was part of a tidying-up of the CSP.

He accepted that, partly influenced by timescales, the revisions had not been fully explained in advance and conceded that omission of the parental comments was inappropriate. However, a CSP should be viewed as a living document and, even now, most if not all of the Appellant’s identified points of concern about the May 2008 CSP could be dealt with by agreed amendment.

 

In response, the Appellant said there was no authorisation for a tidying up of the CSP, or for making any changes except through a review or a reference to the Tribunal. A dispute over the fact that the specialist music provision was no longer being made might be considered more appropriate for independent adjudication rather than for reference to the Tribunal, but the reference provided a valid way in to consider change on which he would be able to expand if the reference proceeded.

 

 

7. Reasons for decision:

 

It is common ground that the child’s CSP was previously referred to a Tribunal, which reached a decision in March 2008. Under section 18(6) of the 2004 Act, a further reference in respect of the same information is not competent unless the CSP has been reviewed in the meantime. We thus have to consider whether there has been a review of the CSP in terms of section 10 of the Act and, if not, whether this reference relates to the same information as the appellant’s previous reference.

 

Review

We are satisfied that the CSP has not been reviewed since March 2008, whether explicitly or by inference. None of the components of a review has occurred. The most obvious indicator of a review taking place would be if either party had initiated a review process as such, which did not happen.

 

We agree with the Appellant’s contention that a review of a CSP could be deemed to have occurred even though neither the Authority nor the parent had formally initiated it or referred to it explicitly as a review. If it was clear that there had been a substantive re-think of the child’s educational objectives, additional support needs and support required, then in fact a review would have taken place as these are the substantive elements of a review identified in the Code of Practice on the 2004 Act at chapter 4, para 68.

 

But in our view, that did not happen here. The process that took place in May 2008 was clearly focused on implementing the decision of the Tribunal, and the substance of what emerged was overwhelmingly related to that purpose.

 

There is only one element of the revisions to the CSP that might possibly be said to infer a change of any significance in the support the child receives. That is the removal of any explicit mention of the specialist music teacher who, in the October 2007 CSP, was listed along with “Education staff, [and] Speech and Language Therapist” as one of the persons providing support in relation to three of the child’s educational objectives. In the May 2008 CSP the support for these objectives is stated to be from the Speech and Language Therapist and education staff.

 

The reference in section 9(2) (a) of the Act to “the persons” by whom support should be provided is elucidated in the Code of Practice. The Code states at chapter 4, para 56 that persons should be taken to mean “the agencies or professions providing the support, not the actual names of individuals”. There is thus some scope for judgement as to how precisely a CSP refers to staff involved with a child. The use in the child’s amended CSP of the generic descriptor “education staff” is certainly far from ideal, but nevertheless in principle could encompass specialist staff. We also note that the three educational objectives to which the music specialist was said in the October 2007 CSP to be contributing are described in identical terms in the May 2008 version, as is the additional support required in respect of each objective.

 

We see, then, no basis whatsoever for reading into the terms of the amended CSP a review of the child’s additional support needs, educational objectives and support required. The Education Authority’s use of a generic descriptor to cover all education staff seems a somewhat retrograde step. But in the absence of any other evidence pointing to a review having taken place, we certainly cannot infer one from that change alone.

 

The Appellant appeared to acknowledge himself that any dispute about whether the child is in fact receiving the support set out in his CSP should be referred to independent adjudication rather than to the Tribunal. We agree. As the Act stands, the Tribunal has no jurisdiction to deal with questions of the implementation of a CSP.

 

Same Information

Turning to the question of whether this reference relates to the same information as the previous reference, we consider that there are circumstances in which the contents of a CSP could be referred to a Tribunal on a second occasion without a review of the CSP intervening between the two references. We discussed with parties a scenario in which, while making amendments instructed by a Tribunal, an Education Authority also made some further amendment of significance to the substance of the CSP. In those circumstances, we consider that it would be open to the parent to make a further reference in relation to that new amendment – if it fell within the aspects of the contents of a CSP which can be scrutinised by a Tribunal.

 

In considering this issue it is important, in our view, to distinguish amendments made to the child’s CSP as a result of the Tribunal decision in March 2008 from other changes. These constitute items 6, 7, 9 and 16 from the Appellants list of 19 changes to the CSP. We conclude that these amendments cannot count as fresh information.

 

There are two principal reasons for this view. Firstly, it seems to us that strictly speaking such changes are amendments (that is, corrections) to the original document and thus count as if included from the outset. Furthermore, these matters have already been adjudicated on by the Tribunal, and there is nothing in the scheme of the Act to suggest an intention that parties should be able to return repeatedly to the Tribunal. Such a scenario would be highly unusual indeed. Instead, the appropriate way of dealing with disputes about information in a CSP which flows from a Tribunal decision would be either to appeal against the Tribunal’s decision, or to initiate a further review of the CSP.

 

We consider most of the other changes identified by the Appellant – numbers 1-5, 11-12, 15, 17 and 18 from his list - to be minimal in significance and of no relation whatsoever to those elements of a CSP on which the Tribunal has power to adjudicate. We note that section 18(3)(d)(i) of the Act creates a right to make a reference to the Tribunal in respect of information contained in a CSP “by virtue of subsection (2)(a) of section 9”. Section 9 sets out various elements that must be contained in a CSP. Those specifically required by subsection (2)(a) are:

 

“(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 or young person arise,

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

(iii) the additional support required by the child or young person to achieve those objectives, and

(iv) the persons by whom the support should be provided”.

 

We cannot conceive that an independent and objective reader would identify any of these 10 matters identified by the Appellant as having any bearing on the substantive contents of the child’s CSP as listed in section 9(2)(a). Accordingly, we have no jurisdiction to give them any consideration.

 

That leaves five of the issues identified by the Appellant which require specific comment as they do not relate to implementation of the previous Tribunal decision and, on the face of it, could be of significance to the substantive contents of the CSP as listed in section 9(2)(a).

 

The first of these was the free-standing statement on page 5 of the October 2007 CSP to the effect that the child’s educational objectives would be reviewed through the CSP and IEP processes and that staff based at the child’s nursery would devise and provide a specific programme for him.

 

In our view, the first part of this statement is no more than a statement of the obvious. The second part has been replaced in substance by the new educational objective inserted into the CSP as a result of the Tribunal decision in March, namely: “To provide an individualised education programme appropriate to his needs”. The additional support stated as being required to meet this objective is “The IEP prepared and reviewed for the child each term will show objectives which are SMART”. We consider this to be identical in substance, if not in wording, to the intent behind the second part of the statement in the October 2007 CSP. Indeed, if there is any change it is clearer and more specific, and more beneficial to the child.

 

Items 13 and 14 on the Appellant’s list related to the failure to attach the parental assessment of the child’s development or the photos of the child. The solicitor for the Authority conceded that the Education Authority were at fault in not re-attaching the parental comments. We agree: such an omission hardly sends a positive message about how the Authority views parental comments. But the text in the May 2008 CSP which refers to the attached document is in identical terms to the equivalent text in the October 2007 CSP. Likewise, both versions of the CSP state in the space for child’s comments “photos to follow”: although we were advised that photos did not in fact follow and may now have been destroyed.

 

The failure to attach the parental statement is self-evident. But anyone reading the amended CSP would be in no doubt that there was such a statement and would be able to request a copy. While this failure is certainly inappropriate, it is of no consequence in relation to those aspects of a CSP which the Tribunal is empowered to consider.

 

Finally, item 8 on the Appellant’s list was the removal of any direct reference to input by a specialist music teacher. Related to that is item 19 on his list: the change in form of the list of responsible professionals.  We again take no account here of any question of whether a form of support described in the CSP is current or historic provision.

 

In summary, we thus consider that the only substantive changes to the information contained in the child’s CSP are the amendments which were required to implement the decision of the Tribunal in March 2008, and which thus cannot constitute new information. As the amended CSP contains no other new information and was not informed by a review of the child’s needs and educational objectives, the reference is not competent in terms of section 18(6) of the Act and must be dismissed.

 

In giving our decision orally at the end of the hearing, we noted that this reference may never have been made if the Education Authority had communicated more clearly the changes involved in moving the CSP onto the new format, or if a draft had been produced. Equally, we expressed our surprise that the Appellant had not approached the Education Authority to query the changes, many of which could have been readily explained and resolved. We urged both parties to learn from the mistakes of the past, to make positive use of the forthcoming scheduled review of the child’s CSP and to communicate effectively with each other in the child’s best interests.

2^nd October 2008