ASNTS_D_01-2009_15.05.09

 

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/01/2009

 

Gender:                   Male

 

Age:                        15

 

Type of Reference: Review of Co-ordinated Support Plan

 

 

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1. Reference:

 

The reference received on 4 March 2009 is made in respect of refusal to review a co-ordinated support plan in terms of Section 10(4) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”). The request was made on 3 November 2008 and refused by decision dated 17 February 2009.

 

2. Decision of the Tribunal:

 

The reference is allowed.

The decision dated 17 February 2009 is overturned.

 

The respondents are directed to complete the review which they commenced on 20 April 2009 under section 10(3) (b) of said Act no later than 26 June 2009.

The issue of expenses is reserved. The appellant is directed to lodge with the Secretary a short written submission on this motion within 14 days of this decision being issued. In the event of no submission being received then this motion will lapse. In the event of a submission being received, the respondents are directed to lodge answers within a further 14 days of the issue of the submission by the Secretary.  Parties should indicate if they wish to be heard on the matter of expenses.

 

If there is no request to be heard the motion will be considered on the basis of written submissions only.

 

 

3. Preliminary Matters:

 

The reference was admitted as competent on 4 March 2009.

 

The Convener held two conference calls on 24/04/2009 and 13/05/2009. The respondents anticipated the matter may settle in view of the review which they commenced on their own initiative on 20 April 2009 but the appellant adhered to the terms of the reference lodged and it was agreed to proceed to a hearing. The respondents were directed to lodge witness statements in respect of the Educational Psychologist and the Senior Social Worker and did so on 11/05/2009 to facilitate the hearing being concluded in the one day allocated. A further conference call was held on 13/05/2009 which confirmed that the child would not be present; that it was not necessary to hear his views in order to deal fairly with the matter raised by the reference; agree the order for the witnesses and determine that parties were ready to proceed on the hearing date.

 

 

4. Summary of Evidence:

 

The convener had regard to the papers contained in the bundle to which the witness statements had been added. Further documentary evidence lodged by the respondents at hearing:

• • Copy of co-ordinated support plan dated 21/05/2007
  • Support for Learning :Policy into Practice Respondents’ ASL Handbook

 

The Tribunal heard evidence as follows:

 

For the respondents

Education Officer

Senior Social Worker

Educational Psychologist

 

For the appellant

Parent

 

5. Findings in Fact

 

1. The reference concerns a 15 year old, boy, who has additional support needs owing to moderate learning disability, social, emotional and behavioural problems manifesting in offending behaviour.

 

2) The appellant is his mother. There was a history of parental dissatisfaction with the educational provision for the child at School, a local authority school for children with special educational needs. His mother withdrew him and educated him at home for a year with support from School. A co-ordinated support plan was opened on 21/05/2007 with a review date to commence on 21/05/2008. In May 2007, he was attending School on a part-time basis and a phased return to full time school was included in the CSP. The parental comment noted that the appellant was then seeking an alternative placement as the child was refusing to attend school and the supports in place were not meeting his needs. He was subsequently excluded from School for his behaviour.

 

3)  From October 2007 he was placed at an alternative school. This is an independent special school for pupils aged 10 – 16 with social, emotional and behavioural difficulties. The school has a 52 week curriculum. It is a matter of agreement that this facility meets the child’s complex needs. He initially attended as a day pupil with transport by taxi provided, but from April 2009 he has boarded at the school. His attendance has been 100% apart from September 2008 when it dropped to 90%. From April 2009 he has had a 52 week residential placement at school.

 

4)  A further co-ordinated support plan dated 12/06/2008 was recorded as having been issued to the Parent on 03/07/2008. It is indicated in the plan that the child attended his review on 12/06/2008, the same date as the date of the co-ordinated support plan. The Parents views were sought by telephone. She does not recall being invited to a review meeting and does not recall receiving either a draft of the plan to comment on or a copy of the final amended plan until this was sent to her solicitor by letter dated 11 November 2008.

 

5)  This co-ordinated support plan discloses the child was then attending School as a day placement. Apart from the educational provision the only other agency involvement disclosed is Social Work with the educational objective as “continue to improve social skills with both adults and peers” and the additional support required is indicated as “Partners in Play programme and Befriending Service”. There is no quantification of these inputs or any named person apart from “Social Work Staff”.

 

6)  The support from Social Work was not sufficient. It was not reliable and when those supports failed (such as the befriender cancelling or failing to show up at the arranged time) the child was liable to respond violently. His Mother reported this to his social worker. It was acknowledged that the support was not adequate and the Partners in Play arrangement was replaced by Includem (which also offered a help line facility) from at least October 2008. There was a Social Work Care Plan in place for the child. At least three meetings were called by Social Work between September and February to consider his accommodation including one on 20/01/2009 and another on 10/02/2009. The focus of the child’s social worker was on his offending behaviour and accommodation.

 

7)  From at least 3 September 2008 the child’s behaviour began to deteriorate to such an extent that his mother was apprehensive for her personal safety and for the safety of those with whom he came into contact. This correlates with his school attendance at this time. His offending behaviour was becoming more marked and she was concerned that this might jeopardise his placement at School. He had come to the attention of the police and the Children’s Hearing system and she was apprehensive that secure accommodation would be sought for him. He had 16 separate grounds of referral to the Children’s Hearing.

 

8)  She was obliged to ask Social Work Service to accommodate the child from 3 September. He was placed in a Children’s Home as an emergency measure. He was then transferred to a different children’s home. He absconded from there on 8 September but was returned on 9 September. He again absconded on 7 October and returned to his home address. On 10 October his mother formally requested that the child return home.  From at least 28 November he was accommodated at a further Children’s Home but from 3 December he returned to live at home. On 14 January his mother again asked Social Work Services to accommodate him but the request was refused. On 4 February 2009 she made a repeat request and he was then accommodated at the first children’s home. On 24 February his mother was concerned about the suitability of the placement and requested that he be transferred to the Residential Unit at School. This had been the recommendation of the educational psychologist, from at least January. The child was transferred to School on a residential basis, initially for respite for three weeks and on 7 May the respondents’ Joint Consultative Group approved the funding on a long term basis.

 

9)  From June 2008 the educational psychologist was the co-ordinator of the co-ordinated support plan since it was the policy of the respondents that an educational psychologist be the co-ordinator where the child was educated outside the home authority. The educational psychologist has had little direct contact with the child. He has met him four times. He is familiar with the School as he was previously assigned there as the link psychologist for three years. He is the named co-ordinator for four children placed outwith the authority with co-ordinated support plans.

 

10) The respondents currently have 621 children with co-ordinated support plans out of a school population of 55,000. There are 368 children of school age who are looked after and 209 who are looked after and accommodated. They rarely review a co-ordinated support plan outside the annual review cycle and respondents’ documentation does not provide for any standard letters to facilitate this type of review.

 

11) The relevant communications in the T section of the bundle are:

 

• • The appellant made a written request through her solicitor for a review of the co-ordinated support plan by letter dated 01/11/2008.

• • He wrote again urging an early review on 14/11/2008.
  • The respondents replied enclosing a copy of the current co-ordinated support plan by letter dated 11/11/08.
  • The solicitor wrote again requesting a review and quoting the relevant statutory provision in letter dated 19/11/2008.
  • This was responded to by a phone call from the respondents to advise that a request had been made to the co-ordinator of the co-ordinated support plan to request an early review.
  • The solicitor referred to this call in his letter dated 09/12/2008 urging that the matter be treated as priority.
  • He wrote again on 08/01/2009 in the absence of any reply asking for an update.
  • He telephoned on 26/01/2009.
  • He referred to this in a further letter dated 04/02/2009 to the respondents seeking a written response to the requests to review.
  • On 18/02/2009 he wrote again indicating that failure to respond within 7 days may result in a referral to Scottish Ministers.
  • This crossed with a letter from the respondents dated 17/02/2009 indicating that there was to be a multi disciplinary planning meeting in relation to the child’s future placement and that the co-ordinated support plan would be reviewed when his placement had been finalised. This letter implicitly refused the request made 15 weeks earlier to review the CSP.

 

6. Statutory Provisions

 

This is the first occasion upon which the Tribunal has had to consider, in this context, the provisions of section 10 of the Education (Additional Support for Learning) (Scotland) Act 2004 which provides for the reviews of co-ordinated support plans. However a decision appearing on the Tribunal’s website on competence, d/13/2008, does address the circumstances in which it may be appropriate to review the contents of a co-ordinated support plan following a decision of a Tribunal. There are no opinions of the Court of Session which could materially assist the Tribunal.

 

The provisions of the Education (Additional Support for Learning) (Scotland) are as follows, with those most relevant to this reference in bold.

10 Reviews of co-ordinated support plans

(1) Every education authority must keep under consideration the adequacy of any co-ordinated support plans prepared (and not discontinued) for any children or young persons belonging to their area.

(2) The education authority must carry out a review of each such co-ordinated support plan—

(a) on the expiry of the period of 12 months beginning with the date on which the plan was prepared, and

(b) thereafter, on the expiry of each successive period of 12 months beginning with the date on which the previous review (whether carried out under this subsection or subsection (3) or (4)) of the plan was completed.

(3) An education authority may carry out a review of such a co-ordinated support plan before the expiry of a period referred to in subsection (2) only—

(a) pursuant to a request referred to in subsection (4), or

(b) if the authority consider it necessary or expedient to do so because of a significant change in the circumstances of the child or young person for whom the plan was prepared since the plan was prepared or, as the case may be, last reviewed.

(4) Where the education authority receive from a person specified in subsection (5) a request to carry out a review of any such co-ordinated support plan as is mentioned in subsection (1) before the expiry of a period referred to in subsection (2), the authority must carry out a review of the plan unless the request is unreasonable.

(5) The persons referred to in subsection (4) are—

(a) in the case of a co-ordinated support plan prepared for a child, the child’s parent,

(b) in the case of a co-ordinated support plan prepared for a young person—

(i) the young person, or

(ii) where the education authority are satisfied that the young person lacks capacity to make the request, the young person’s parent.

(6) In reviewing any co-ordinated support plan under this section, the education authority must, in accordance with the arrangements made by them under section 6(1), establish whether the child or young person for whom the plan was prepared still requires such a plan and—

(a) if so, continue the plan for the child or young person and make such amendments of it as the authority consider necessary or appropriate, or

(b) if not, discontinue the plan.

 

7. Parties’ Submissions  

 

Under the terms of Section 10 (4) of the Act, the onus is on the authority to discharge the burden of proof that the request was “unreasonable”. If they fail to do that then they must proceed to carry out a review.

 

The respondents submitted in their response and in oral argument that they were opposing the reference on the following grounds:

 

1. The reason(s) for seeking the review outside the normal annual cycle was not clear; or
2. If it was sufficiently clear, it did not constitute a “significant change in the  circumstances” of the child; or
3. If it did amount to a change of circumstances, the process of reviewing the co-ordinated support plan was disproportionate to the change to be effected; and/or
4. There is no requirement to review the plan to reflect every change in a child’s circumstances;
5. The failure to respond to the request to review was not unreasonable having regard to the uncertainty of the child’s residence during the relevant period;
6. From April 2009 there was more certainty as to the child’s residence and they had commenced a review of the plan as at 20/04/09 under section 10(3)(b) of the Act.

 

The witness, the Educational Psychologist, as the co-ordinator of the plan, also argued in his evidence on at least two occasions that that reviewing the co-ordinated support plan would not make any material difference to the provision in place for the child and/or would have no impact on his educational provision. These arguments were not developed by Solicitor for the Education Authority in his submissions.

 

Addressing these arguments in turn, the Solicitor for the appellant submitted firstly that there was little dispute as to the salient facts with the exception of the child’s exact circumstances as at 03/11/08 when the request to review was made. He had met with the Parent on 28/10/08 at which time the child was at a children’s home. He had sent his letter of 03/11/08 and the day after the Parent had telephoned his office to advise that the child was now back living with her. The Tribunal doubt whether the child’s exact place of residence at this time is crucial as it was the uncertainty surrounding his behaviour and thus his changes in accommodation that prompted his mother to seek a review in order to try and obtain more support for her son at home.

 

1. The request for the review made on 03/11/08 was sufficiently explicit not to require any further elaboration.
2. The change in the child’s circumstances was sufficiently significant to justify a review even though it was submitted that the “significant” test is not applicable to a review request by the parent.
3. It was unreasonable for the authority to fail to intimate any decision on the request to review and to fail to review in view of the current changes in the child’s circumstances, i.e. change in social work provider, escalating offending behaviour not referred to at all in the plan and increasing uncertainty about place of residence.
4. The process of reviewing the co-ordinated support plan was not unduly onerous on the authority since the relevant professionals were already engaged in multiple meetings relating to the child’s care plan and other matters at which the co-ordinated support plan could have been reviewed without any duplication of meetings or disproportionate cost so that the focus on the need to support his education would not be lost.
5. The changes in the child’s circumstances were sufficient to justify a review as the support specified in the co-ordinated support plan had changed and required to be amended since the main social work provider, Partners in Play, had been replaced by Includem offering a different type of support which was not specified.
6. The main driver for the review was to obtain better support at home so that the child could remain resident at home. The issue of alternative accommodation arose precisely because the Social Work support was inadequate and the child’s needs could then only be met by a residential placement.
7. The view of the co-ordinator, which was supported by the education officer, to await clarity about the child’s accommodation, was to await the outcome of a Children’s Hearing referral. This took place on 05/05/2009 but since the grounds of referral have not been accepted, this is now proceeding to a proof before the Sheriff. It was not until 07/05/2009 that the authority’s Joint Consultative Group met to consider the issue of funding the child’s residence long term and they agreed he could remain at residential School on a long term basis. However the review at the initiative of the authority had commenced on 20/04/09 before the issue of residence had been “settled”.

 

8. Reasons for Decision.

 

Having considered these arguments, the Tribunal is satisfied that the reference should be allowed for the following reasons:

 

The Education Officer and the Educational Psychologist gave evidence that the request made on 03/11/08 was not sufficiently clear to be treated as a request for a review. The witness, the co-ordinator, took the view that the letters on behalf of the parent were “confused”. This argument was wisely not developed in submissions.

 

The Tribunal has no hesitation in holding that the letter of 3 November was a valid request for a review under section 10(3)(a) and certainly this is supported by all the subsequent letters referred to in the above findings. There could be no possible dubiety about the nature of the request where those acting for the parent quoted the relevant statutory provisions in letter at T23 dated 19 November. If there had been any doubt then it was open to the respondents to seek clarification of the request. This they patently did not do and their reluctance to make any written response to the request over a fifteen week period is a matter which was never satisfactorily explained in evidence.

 

Oral evidence from The Education Officer and the Educational Psychologist established that there were telephone calls, faxes and e-mails exchanges between personnel in the authority relating to the correspondence from the Solicitor for the Parent. It is of concern that the authority failed to respond to the Solicitor’s request until the decision letter of 17/02/3009. On the face of the letter it is deficient in several material respects:

 

• It does not refer to the date or nature of the request made by the Solicitor but just refers to “recent correspondence”.
• It does not bear to be a decision made in exercise of the authority’s statutory duties under the Act.
• However it purports to be a decision since it states “[The} Co-ordinated Support Plan will be reviewed when his placement has been finalised” but does not give any reasons for this course of action or state why the request to review was unreasonable.
• It does not indicate any appeal rights or offer mediation or any meeting to discuss the issue with the parent.
• It does not give any explanation of the delay in responding to the initial request made on 03/11/09.

 

The current statutory provisions do not require that the authority respond to such requests within any given timescale and there are no deeming provisions where failure to respond to a request for review can be treated as a refusal. It was for this reason that the letter dated 19/02/2009 was finally sent intimating an intention to refer the matter to Scottish Ministers.

 

It was a matter of agreement that there was no guidance in the Code of Practice which could assist the interpretation of section 10. The respondents referred to chapter 3 of the Code, paragraph 38, which relates to the circumstances in which it is appropriate to assess, and suggested that these considerations could, by analogy, be applicable. It states as follows:

38. The education authority must comply with the request from parents or young people for assessment unless the request is unreasonable. An unreasonable request is not defined in the Act. However, unreasonableness in this context is an objective test - what a third party might consider unreasonable. It will be for the education authority to consider each individual case on its own facts and circumstances. In some circumstances an authority will need to consider carefully whether to comply. For example, the authority may decide not to comply with the request where assessment:

• may not be in the best interests of the child or young person
• may not be seen as being relevant given the child's or young person's circumstances
• may be unnecessary as there has not been a significant change in the child's or young person's circumstances since an earlier assessment was completed
• may be within an inappropriate timescale, e.g. falling within a short time of a previous request
• may repeat assessments already carried out.

The appellant contended that the examples of circumstances in which it would not be reasonable to assess could not be applied to the provisions of section 10 by analogy. The Tribunal does not require to reach a view on the matter since although the paragraph gives some examples which may justify refusal to assess, it was not submitted that any of these examples could be applied to the circumstances of the present reference. 

 

Under section 10(3)(b) the authority is only obliged to commence a review at its own hand before the expiry of the one year period where “it is necessary or expedient to do so because of a significant change in the circumstances of the child”.  The interpretation of this provision was not argued before the Tribunal although the interpretation of “significant” has given rise to guidance from the Court of Session in respect of section 1 of the Act.

 

It is clear that the authority now regard the child as having undergone a “significant change” in his circumstances at least from 20/02/09.  Although the test of “significant change” applies where the review is to be initiated by the authority, there is a different test where the review is sought by the parent of a child or a young person. It might be argued that it would be unreasonable to carry out a review unless there was a “significant change” in the child’s circumstances and therefore import the same test to the parent which is applicable to the authority, but this argument was not explicitly advanced by the respondents.  It was suggested, although not with much conviction, that the changes which did take place up until the residential placement at School did not have bearing on the child’s ability to “benefit from school education” as provided for in section 1(1) of the Act.

 

It was contended for the respondents that the School was the one stable factor in the child’s life during this period and far from the respondents considering removing him from School, he had actually been placed there on a residential basis subsequent to the reference being made.

 

It is evident that the respondents did not have much, if any, experience in addressing the issues which should be considered in deciding either to review at their own hand under section 10(3)(b) or at the request of the parent. The legislation is relatively new and it is understandable that not all aspects are fully developed. Nevertheless some matters such as a request to review can reasonably be anticipated and guidelines could be provided. This is a matter which might be addressed in any review of the Code of Practice in order to try and achieve consistency across authorities. The absence of any pro - forma letters in the respondents’ Handbook to cover the non-cyclical review process was an unsatisfactory explanation offered by the respondents for not addressing the authority’s obligations in this regard with more diligence.

 

The letters which do appear in the bundle at R5, R7 and R9 to indicate the commencement of a review under section 10(3)(b) are in the same form as for any annual review of the co-ordinated support plan under section 10 (2)(a). The letter addressed to the Social Work department at R5 purports to be issued under section 23 (3) of the Act and yet Social Work is not an agency which comes within the definition of an “appropriate agency” in terms of Section 23 (2).

 

 It is, of course, proper for the respondents to seek, and take account of, views, advice and information in terms of section 12 (1)(b) and 12 (2)(d) which state that duty is a duty to “take account of any relevant advice and information in the authority’s possession or control, by virtue of any of their functions other than their function relating to education.”

 

With regard to the appellant’s submission that any review should be concluded no later than 26 June 2009, the Tribunal considers this timescale to be reasonable, although considerably longer than should have been taken had the request been properly processed. This date has been incorporated into the decision. It is appropriate to accede to the appellants request for the following reasons.

 

Having already embarked on a review, there was nothing to prevent the respondents from trying to accelerate the process rather than indicating the extremes of the timescales provided under paragraph 5(1)  of the Additional Support for Learning (Co-ordinated Support Plan)(Scotland) Amendment Regulations 2005 which provides for a review to be completed within a period of 12 weeks. Regulation 7 provides for time limit exceptions in terms of extending the time limit but the Regulations and the Code of Practice are silent on working to a shorter timescale. Where the only additional support provided and specified in the co-ordinated support plan is provided by Social Work from within the same authority, and where, as in this case, there is a history of recent and frequent meetings, a much shorter timescale could usefully be applied by the respondents.

 

There is no explicit link made between the review of a co-ordinated support plan and assessment in the Act, Code of Practice or regulations. In most cases a review could take place in the absence of fresh assessments so long as any assessments and information available to the co-ordinator are sufficiently contemporaneous. Regulation 7 (c) of the Co-ordinated Support Plan Regulations does make a request for assessment an exception to the time limit suggesting that most reviews will not require fresh assessment to be undertaken, even on a change of circumstances. 

 

The evidence of the co-ordinator was crucial in understanding the nature of the communications about the child. At paragraph 15 of his witness statement he indicates that he would anticipate that the current review process “will be completed before the end of June” but the letters sent in pursuance of this review request, asked that the information is produced by 29 June (docs R6 and R8).  Although this reflects the prescribed timescale, in a case of this type it is to be wondered if the authority might exercise some discretion to accelerate the process particularly where there is no evidence that any additional assessments have been sought (although there was evidence to the effect that a psychiatric assessment may take place). It is inherently improbable that a review seeking information by 29 June would enable a plan to be produced by the end of June and the letter to the appellant at R9 indicates this is highlighting a 12 week period and the timing not including school holidays. That letter only indicates that there will be “an opportunity/meeting for you to express your views” which would seem to confirm that a meeting will not always be offered.

 

It was established in evidence that it was normally someone from the school who acted as the co-ordinator but it was the practice to assign a co-ordinator from child psychology for a child being educated out of the authority. The criteria to be met by a co-ordinator are set out in Chapter 4 paragraphs 59 to 62. The Tribunal do not doubt his commitment to this task but it is questionable to what extent he was able to fulfil that role effectively given his limited contact.  For instance, in this case, the role of Social Work was of primary relevance but the evidence of the senior social worker, as the social work lead, was that he was not sure he had ever seen the co-ordinated support plan. The Educational Psychologist’s experience of co-ordinated support plans was limited, For instance, he had never been involved in the review of a co-ordinated support plan and was guided on these matters by education.

 

The Educational Psychologist’s gave evidence that the child’s case was reviewed monthly at School but the minutes of the Child’s Plan development meeting at R19 to R25 are from a meeting held on 20/03/2009 where neither social work nor Educational Psychologist’s were present and the next meeting was to take place on 13/05/09 indicating there were normally two monthly intervals between meetings. He also denied he would ever attend such a meeting and that the indication that he had given his apologies was misleading. He explained that he was only copied into the minutes of the meetings. His recollection was that he had never attended a meeting at the school relating to the child but he may have attended one “just to make sure”.  He recalled meeting the child three, perhaps four times. Once was when he had lunch at the school and the child happened to be there. Of the persons disclosed in the minutes of the school meeting at R19, he recalled he had met only one of them. He stated he saw his role as a consultation role only. He had attended some social work meetings to discuss the child but did not see the minutes of all Social Work meetings relating to him.

 

The Educational Psychologist stated he was apprehensive that a decision of a Children’s Hearing could “overturn” the co-ordinated support plan. He felt that delay was to the child’s advantage rather than disadvantage and that he had more information available to him about the child than the Solicitor for the Parent, who had sought the review. He said he was concerned that it would “clog up the works to review the CSP.” However, the Educational Psychologist admitted he was not sure about dates when The child was in or out of care but said that was part of staged intervention where he would not necessarily expect to be informed of changes of accommodation as planning was on the basis of “minimum intrusion”. The Educational Psychologist also said that he did not see that it was necessary to review the CSP once the child had returned to live at home as there was no change of address or living arrangements, despite the apparent fragility of this arrangement.

 

He did not indicate that he was aware that the CSP could have an anticipatory, assessment or preventative function. He appeared to regard it as a statement of the child’s educational provision. He said he felt that multiplicity of changes of residence were not sufficient to trigger a review of the CSP as this had to wait until he was satisfied that any new residential arrangement would last “for a considerable length of time”. He said he felt to review a plan on the basis of one change would be going against the long term currency of the plan. At the same time, he had not been aware of any change in social work provision from Partners in Play to Includem. It was not made clear what the communication strategy was in respect of those concerned with the child’s social and educational provision and how effectively The Educational Psychologist could co-ordinate this. He said he had expected the Solicitor for the Parent’s letters to be replied to and that his comments on them to the Education Officer, who was seeking his views on the request to review, were “concise and succinct”.

 

In exploring this issue in response to questions posing hypothetical situations, the Educational Psychologist accepted that any absence from school, for instance as a result of absconding, would impact on the ability to benefit from education but stated that the reasons for truanting behaviour need not be linked to education.  He confirmed that he had had no direct meeting with education to discuss the request for the review and would normally only attend the annual review meeting. He was aware of the multi-disciplinary meetings called by Social Work but did not see that these had anything to do with the co-ordinated support plan. He described his role of the co-ordinator as “administrative”. He accepted he should check the plan was accurate and up to date but felt that if he had other duties relating to the child then these were to do with specific clinical roles as an educational psychologist and not to do with his role as the CSP co-ordinator. The last meeting he had attended relating to the child was on 20/01/09. He said he had suggested residential accommodation at residential School at that time. He had also supported a psychiatric referral in response to the appellant’s wish to seek a diagnosis of the child’s behaviour. The Educational Psychologist undoubtedly had a high level overview of the provision for the child but did not have the direct contact envisaged in the Code of Practice for co-ordinators.

 

The Tribunal noted that the respondent’s handbook, Support for Learning: Policy into Practice, at section 8, page 2 does not disclose that a refusal to review a co-ordinated support plan carries with it a right to make a reference to the Tribunal but only indicates “failure to review a CSP after 12 months”  as a ground of appeal. There appeared to be no guidance relating to reviewing a co-ordinated support plan before the expiry of 12 months or even guidance on what the annual review should comprise. It is assumed that the handbook should be read together with the Code of Practice but this guidance is also deficient on this aspect. The section on review of the co-ordinated support plan appears at chapter 4 paragraph 67. It restates only the bare statutory requirement at section 10 of the Act simply adding “Education authorities should give clear guidance to schools and their staff in this respect.”

 

In making this decision, the Tribunal is uncertain what role social work will continue to have in the delivery of support now the child is on a 52 week residential placement at School but that is not a matter which we are required to address in reaching this decision. The process of review, particularly if accompanied by assessment, may well uncover solutions which will enable the child return to his home in due course.

 

The Tribunal was assisted in reaching its decision by the submissions from the parties’ representatives. We are conscious that this aspect of the legislation may have the potential to be unduly onerous on authorities in some circumstances and that there are aspects of this legislation which are still bedding in after three years since its introduction. However in the circumstances of this present reference, it is accepted that the request for the review was to try and ensure that the consultation and information gathering duties, which are intrinsic to any review of the co-ordinated support plan, were activated to ensure that any decision affecting the child’s educational support and future accommodation arrangements could benefit from this prescribed process.

 

As the appellant’s written submissions state at A1 “The logic underlying the response of the education authority is difficult to understand. They state that they will agree and finalise the child’s placement (which obviously impacts on where he can be educated) and then conduct a review of the CSP.”

 

It is acknowledged that it would be unduly onerous on authorities to embark on a review of the co-ordinated support plan to reflect every change in a child’s circumstances. More explicit guidance for authorities on the circumstances in which a co-ordinated support plan may be amended by agreement, or for the purposes of accuracy, without embarking on a formal review process would assist. In addition explicit guidance on when it might be unreasonable to embark on a review, and encouragement to authorities to undertake reviews in as short a time scale as possible so that they can be proportionate to the request, would greatly assist in ensuring that co-ordinated support plans are tools which can assist a child access appropriate services rather than becoming simply a bureaucratic process.

 

In this case we cannot accept that it was reasonable for the respondents to take the view that the child’s accommodation arrangements needed to be settled by a children’s hearing or through any other process before reviewing the co-ordinated support plan.  A period of considerable instability in the child’s life was acknowledged by all. The Parent impressed as a dignified and caring parent who was simply trying to ensure that the support for the child was sufficient, either whilst residing with her or in any other agreed residence to prevent him from being placed in secure accommodation. Although it was denied that this was ever formally proposed, it was conceded by the Senior Social Worker that such thoughts would not be unrealistic given The child’s then escalating offending behaviour.  A process to formally explore the options for the child, involving him personally, his mother and the relevant agencies could not therefore be regarded as an unreasonable request. Accordingly the sole criteria for the respondent’s failure to embark on the review process, as set out in section 10(4) of the Act, is not satisfied.

 

Finally,  Solicitor for the Parent for the appellant has sought an order for expenses in this reference under the terms of Rule 39 (1)(d) of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006. Under Rule 39 (1) (d), the Tribunal may make an order for expenses against an authority “where the Tribunal considers the disputed decision, failure or information was wholly unreasonable.” The test is a high one.

 

The Tribunal has reserved this matter to allow the appellant to consider whether the terms of the decision above might support a submission consistent with this test for expenses; to lodge a written submission to give the respondents due notice of the grounds of the application and enable the respondents to produce answers to this motion. In the event of parties indicating that they wish to be heard on the matter, a date for a hearing purely on the issue of expenses will be arranged as soon as possible.