ASNTS_D_04-2009_02.07.09

3. Agreed Findings in Fact

• • A Co-ordinated Support Plan had been prepared for the child on 27/08/2007. At that time the nominated school was Primary School/ Language Unit and the deputy head teacher was the named co-ordinator.
  • In May 2008 a review meeting was held but no completed plan was ever produced.
  • The appellant received a draft plan in May 2009 dated as amended at 27/04/2009 with the nominated school/Language and Communication Unit, again with the deputy head teacher as the named co-ordinator.
  • The authority has now produced a protocol to endeavour to ensure that timescales are complied with in future. There is also a Co-ordinated Support Plan Review Group to oversee the process.

4. Reasons for decision:

Reference is made to the conference call between the convener and the parties which took place on 29 June 2009 at which it was indicated on behalf of the appellant that the reference was maintained solely in respect of failure to meet the statutory timescales.

The respondents indicated that they would not be opposing the reference in that they concede that the timescales had not been met. It was agreed that it was not necessary to hold an oral hearing and the convener undertook to arrange to have the matter formally determined by a Tribunal as soon as possible.

The respondents produced to the Tribunal copies of the Co-ordinated Support Plan Protocol Flow Chart and Guidance Notes. This is a proportionate response to the problem identified in this reference in that co-ordinated support plans may not be subject to the reviews required by the statute or where such reviews take place they may not meet the statutory timescales.

It is noted that the relevant Act is referred to as the ASN Act at page 3 of the Guidance Notes and this should more accurately be referred to as the Education (Additional Support for Learning) (Scotland) Act 2004 or the ASL Act. It is further observed that the Co-ordinated Support Plan Protocol produced is also not accurate in all respects. The request for assessment under section 8(1)(b) must be complied with unless the request is “unreasonable”. This places a duty on the authority, where there is to be no assessment, to explain to the parent why the request is unreasonable. The Protocol was produced as a draft dated April ’09. The timescales shown in the right hand side column do not indicate timescales entirely conform to the guidance in the Code of Practice at Chapter 4 paragraphs 32 to 34 in that the 16 week timescale should start running from the date that the authority proposes to seek to establish whether a CSP is required thereby including the assessment period. 

The Code reads at paragraph 32 “Within this timescale [16 weeks] they will have to undertake a process to establish whether the child or young person meet the criteria for a co-ordinated support plan, reach a decision, notify the parents or young person of the outcome and prepare the plan, if it has been established that one is required.”

The Protocol in its present form appears to indicate that the 16 week period does not start to run until the decision has been made that the criteria for a CSP are met. This is particularly critical where the timescale for any review is only over a twelve week period. See Paragraph 65 of the Code of Practice.

However we commend the guidance produced that the timescales are to be considered as the maximum and that, where possible, reviews should be carried out well within the time limits; we also commend the support which is it proposed to give by issuing alerts to the school having responsibility for plans setting out the timescales to hold meeting and agree the content of plans. However the 16 week period for an initial plan and the 12 week timescale for the review of an existing plan might be better highlighted and the additional four week period for a new plan may best be regarded as the period for initial assessment.

The guidance also demonstrates an awareness of the importance of good communication with the parent by stressing the need to contact the parent to explain if and why any timescale may not be met where there is a good reason for this.  The guidance might also helpfully include reference to the time limit exceptions set out in Regulation 7 of the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005.

Where the time limit cannot be met it must be because it is “impractical to do so” and reference should be made to one of the specific grounds in explaining to the parent why the timescale has not been met. Regulation 7(2)(a) places an obligation on the authority to establish a date when the plan is expected to be completed. In any event there is an absolute time limit of 24 weeks for an initial plan and 20 weeks for a reviewed plan. Awareness of the circumstances which may apply to legitimately take longer to produce a plan may assist those with responsibility as co-ordinators to manage the process more effectively.

Although, since there was no oral hearing and the Tribunal were unable to explore the reason for the oversight in detail, it appears from the papers that where a child moves to another school, as in this case, and the identity of the co-ordinator of the plan changes, or one person ceases to have responsibility whilst another has not been identified, there is a particular risk of the plan not being appropriately reviewed or simply being overlooked. For this reason it remains important that the plan is kept in terms of Regulation 8 of the CSP regulations.

Regulation 8(1) envisages the plan to be kept in the offices of the authority for the purposes of inspection. This permits an overall monitoring function of the review and transfer of such plans to be made in a consistent manner. Regulation 8(3) goes on to state that “a copy of the plan must be kept at the school at which, for the time being, provision is being made for the additional support needs of the child.” It follows that if the child changes school, for whatever reason, that the copy of the plan should follow them and where the change of school is not anticipated it may prompt an earlier review to ensure that the plan is accurate.

Although this is a reference where the grounds are not disputed, in view of the learning issues in relation to failure to meet statutory timescales and issues of good practice, it has been decided it is appropriate that this decision be placed in the decisions database on the Tribunals’ website as guidance for users.