ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/019/2008
Gender: Male
Age: 10
Type of Reference: Content of CSP
1. Reference:
The father (“the Appellant”) lodged a reference in terms of section 18 (3) (d) (i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) on 16th July 2008 on the basis that he disagreed with the information in the CSP prepared by the Education Authority (“the Authority”) for his son (“the child”).
2. Decision of the Tribunal:
In terms of section 19 (4) (b) of the Act, the Tribunal requires the Authority to make amendment of the information in the CSP for the child within four weeks of the date of this decision and that to the following extent –
- to expand upon the section in the CSP headed “Factors giving rise to Additional Support Needs” by adding that the finding of autistic spectrum disorder gives rise to language and communication difficulties, social and emotional difficulties, sensory difficulties and fine and gross motor skill difficulties;
- to expand upon the section in the CSP headed “Learning Plan” so that the additional factors also have stated educational objectives, additional support required and persons providing the additional support, and specifically, to include reference to the additional support provided by Occupational Therapy staff, Speech and Language Therapy staff, Educational Psychology staff and teaching staff; and
- to add within the section in the CSP headed “Learning Plan” reference to the Personal Support Plan issued by the Authority’s Social Work division of its Children and Families department.
3. Preliminary Matters:
Three directions were issued by the convener prior to the hearing. One direction allowed the Authority to lead evidence from a third witness. Two other directions allowed the Authority to lodge evidence late.
The Authority lodged an application seeking a direction requiring specification from the Appellant of various matters, including the main facts on which the Appellant intended to rely. The Appellant lodged an application seeking a direction requiring specification from the Authority as to various matters, including the basis on which the reference was resisted and which facts as set out in the reference were admitted and which were disputed. Each party withdrew its application prior to the hearing. No direction was issued in respect of either application.
The parties agreed that the Respondent was to lead evidence at the hearing.
At the hearing the Tribunal allowed the Authority to lodge a production late, there being no objection by the Appellant.
An observer was present at the hearing (as permitted in terms of the Additional Support Needs Tribunals for
4. Summary of Evidence:
The Tribunal considered a substantial bundle of productions, including-
- Appellant’s statement,
- Authority’s case statement,
- Report from Educational Psychologist dated May 2007,
- Report from Educational Psychologist dated September 2007,
- Report from Educational Psychologist dated September 2008,
- Report from Speech and Language Therapist dated June 2007,
- Report from Speech and Language Therapist dated January 2008,
- Report from Occupational Therapist dated July 2007,
- Report from Occupational Therapist dated September 2008,
- Letter from Clinical Psychologist dated August 2007,
- Letter from Paediatric Doctor dated June 2008,
- Letter from Paediatric Doctor dated July 2008,
- School report on the child dated June 2008,
- Individualised Educational Programme for the child dated September 2008,
- Personal Support Plan dated June 2008,
- Report from Her Majesty’s Inspectorate of Education on the school attended by the child.
In addition, the Tribunal heard evidence from four witnesses, being a teacher involved with the child, an Educational Psychologist, a Speech and Language Therapist and the child’s father. The Tribunal heard submissions from the Appellant’s representative and the Authority’s representative.
5. Findings in Fact:
1. The child is 10 years old, being born in 1998. He resides with his parents and sister.
2. The child has been diagnosed as having an autistic spectrum disorder and has additional support needs.
3. The child attends a primary school under the management of the Authority.
4. The school has a specialist unit comprising two language and communication classes. The child is a pupil of one of these classes. These classes are situated in a building separate from the rest of the school. There are 6 pupils, all of whom have additional support needs related to language and communication disorder, in each of these classes.
5. In April 2007 the Appellant had requested that the Authority obtain various reports on the child, all in terms of the Act under section 8 (1) (b), including a report on information technology and another from Child and Mental Health Services in relation to the child. The Authority agreed, except for one report requested, that it would seek to obtain such reports. As at the date of this hearing the Authority had not produced reports on information technology or on Child and Mental Health Services in relation to the child.
6. The Appellant previously made a reference to the Additional Support Needs Tribunals for
7. The Authority stated during this hearing that due to a legal technicality it was required to open a CSP for the child, but that otherwise the child did not meet the requirements for a CSP to be opened.
8. A CSP for the child was produced by the Authority in June 2008.
9. The Appellant sought to have the CSP amended to include what he considered to be additional factors giving rise to additional support needs. Consequently, he also sought to have the Learning Plan within the CSP amended to take account of these additional factors.
10. The Authority confirmed during this hearing that it would amend the CSP to include reference to Occupational Therapy received by the child.
11. The child has a number of planning mechanisms in place which identify objectives and resources required to support his needs. These plans include a CSP, an Individualised Education Plan (IEP) and a Personal Support Plan.
6. Reasons for Decision:
The Tribunal considered all the evidence, which was sufficient to enable the Tribunal to reach a fair decision on the reference.
The Authority stated that, but for a legal technicality, it would not have opened a CSP for the child. The Authority confirmed to the hearing that the present CSP is to remain in place. It did not seek to argue that the present reference is incompetent or that the Tribunal does not have jurisdiction to decide upon the reference.
Both parties acknowledged that the child has an autistic spectrum disorder. Evidence asserting this was lodged by both parties, including a report by the Educational Psychologist who also gave evidence at the hearing.
The Speech and Language Therapy reports and the evidence of the Speech and Language Therapist at the hearing gave the Tribunal a clear understanding of the child’s expressive and receptive language difficulties.
The Occupational Therapy report, the evidence from the Educational Psychologist, the teacher’s evidence and the evidence of the child’s father all enabled the Tribunal to reach the conclusion that the child has both fine and gross motor difficulties. The fine motor problems cause him to have particular difficulty with writing and recording his work and with dressing and undressing.
The documentary evidence of the Occupational Therapist submitted by the Authority also indicated that the child has sensory difficulties. The report confirms that the Occupational Therapy staff will provide advice and assistance in relation to the child’s motor skills and functional skills.
There was differing evidence presented to the Tribunal as to the extent to which the child has social and emotional difficulties. Evidence was led from a teacher involved with the child that he appeared to be integrating well in school. Evidence was also led from the child’s father that his son has difficulties in making friendships and that he is sometimes aggressive towards his sibling. The father was questioned by the representative for the Authority on these apparent contradictions. The Tribunal was impressed by the father’s assertion that his evidence was correct, while accepting that his child may behave differently in different circumstances. The Tribunal also noted that the evidence of the father and the teacher both confirm that the child does lack confidence and that he has difficulties in expressing his emotions. The school is presently working on developing the child’s understanding of emotions and the facial expressions attached to them.
Prior to the hearing the Appellant had requested the Authority to produce a report from the local Child and Adolescent Mental Health Services in relation to the child. In response to this request, the Authority requested a report be made available to this hearing. Such a report may have assisted the Tribunal’s understanding of the child’s social and emotional difficulties. The Authority is already engaged in addressing the child’s social and emotional difficulties through a range of classroom strategies identified in his IEP. It is the view of the Tribunal that the terms of a report from the Child and Adolescent Mental Health Services once produced should be considered and discussed by the parties and if required the CSP and related documentation, such as the child’s IEP, should be amended.
The Appellant’s representative submitted that the CSP should be amended to the extent that everyone who provides the additional to the child and the additional support that is provided should be stated in the CSP.
The Authority’s representative submitted that the CSP should only be amended if the additional support provided to the child is directed to the “teaching environment” of the child. The Authority referred the Tribunal to the opinion of Lord Wheatley in the case of SC v. City of Edinburgh Council and to the Act, section 9 (3). The Authority’s representative asserted that only where additional support is provided for the child in school can that then be added to the CSP.
The Appellant’s representative submitted that the case referred to by the Authority’s representative can be distinguished from the circumstances relating to the child. The Appellant’s representative submitted that the Appellant is acting in what he perceives to be the best interest of the child. By contrast, in the opinion of Lord Wheatley, his Lordship noted that the Tribunal, in that case, found there that the appellant wanted a solution for her personal needs as opposed to the needs of the child. In any event, in terms of the Code of Practice, “Supporting Children’s Learning” (“the Code of Practice”), Chapter 4, page 63, paragraph 50, all complex and multiple factors affecting the child must be stated in the CSP.
The Tribunal is of the opinion that it is relevant to include in the CSP all additional support given to the child which supports his identified additional support needs arising from his complex or multiple factors. This support must be directed to his “school education”, as that term is defined in the Act, section 1 (2) and section 29 (2), which makes reference to the Education (Scotland) Act 1980, section 135 (1) and which term is also defined by the Standards in Scotland’s Schools etc Act 2000, section 2.
The Tribunal is not persuaded that Lord Wheatley’s opinion is to the effect that only additional support provided in a school should be included in a CSP. This conclusion is consistent with the Code of Practice. Section 19 (7) of the Act requires a tribunal to take into account, so far as relevant, the Code of Practice. The Tribunal considers chapter 4, page 54, at paragraph17 relevant to this hearing. This paragraph, in dealing with significant additional support, states:
“….it is not possible to generalise as to what should count as significant and consideration has to be given to circumstances in individual cases.”
The Tribunal also considered that the reference in the Code of Practice to educational objectives was relevant. This is set out in the Code, chapter 4, page 63 at paragraphs 51-54. Paragraph 51 states:
“Educational objectives should be set to secure that the child or young person benefits from the school education provided or to be provided. They should be viewed in the widest sense as encompassing a holistic view of the child or young person. They should be specific to the child or young person and their additional support needs.”
The Tribunal also noted that paragraph 52 states:
“Educational objectives, for example, may include those required for personal and social development. For some children and young people, legitimate educational objectives could be, for example, learning to travel independently or learning particular social skills concerned with, say, feeding or dressing.”
The Tribunal is therefore of the opinion that most of the additional support presently provided to the child is directed to his school education. The tribunal therefore requires the CSP to be amended to include the additional support provided by Occupational Therapy staff, Speech and Language Therapy staff, Educational Psychology staff and teaching staff.
The Appellant’s representative sought to have the CSP amended to include reference to additional support provided by the Authority’s Social Work Division of its Children and Families Department. There was no evidence provided to the Tribunal that the present input from the Social Work Division is to support the child to achieve his educational objectives, although the Tribunal notes that there was evidence that the input given previously was for such assistance. The Tribunal therefore has decided that this additional support does not require to be included in the CSP as a form of significant additional support. However, the Tribunal is of the opinion that reference to the Personal Learning Plan prepared by the Authority’s Social Work Division should be included in the CSP, having regard to the Code of Practice, chapter 4, page 61 at paragraph 45. This states:
“In cases where there is an individualised educational programme or other planning mechanism in place, the co-ordinated support plan should refer to these but not duplicate the content of the plans unless required to meet the statutory requirements for the plan.”
The child is due to transfer to secondary school in 2010. The Authority is not obliged to make transition arrangements for the child at this stage (the Additional Support for Learning (Changes in School Education) (Scotland) Regulations 2005) but the Tribunal considers it appropriate, given the nature of the child’s additional support needs, that the Authority should give consideration to including steps to be taken with regard to the transition of the child from primary schooling to secondary schooling in the current CSP.
The Appellant’s representative made reference to an eye examination carried out on the child. A report on this examination was not available to the Tribunal and no witness was able to speak to the examination in detail. Given the lack of evidence, the Tribunal could not be satisfied that any outcome of the eye examination would be related to the child’s school education and accordingly it cannot require the CSP to be amended to that extent.
The Appellant’s representative also made reference to the work of a nurse in the school. The Tribunal heard evidence that the nurse weighs the child and measures his height each year. The Tribunal also understands that the nurse is employed by the local Health Board. The Tribunal does not consider that the involvement of the nurse amounts to “significant additional support”, in terms of the Act, section 2 (2) (d). As such, the Tribunal has not required the CSP to be amended to include the involvement of the nurse.
The Appellant’s representative requested that the CSP be amended to include the involvement of the child’s parents. The Tribunal does not consider that it can competently require this to be done. The Tribunal is of the opinion that the CSP need only state the support to be provided by those bodies specified in the Act, section 2 (2) (d). As the child’s parents are not so specified, the Tribunal cannot require the Authority to amend the CSP to include them. Parties may, however, wish to consider if this particular matter can be resolved by agreement.
The Appellant’s representative sought to include within the CSP various resources used by the child. The Tribunal considers that parties should amend the CSP or the IEP, as appropriate, once all outstanding reports have been received. It does not require the Authority to do so presently because from the nature of the evidence submitted to the Tribunal the resources specified may be intended to be used on a short term basis only.
In this regard the Tribunal notes that the Appellant requested in April 2007 that the Authority carry out an assessment as to how Information technology could assist the child to access the curriculum. The Tribunal notes that as at the date of the hearing, on 10th October 2008, this assessment had yet to be effected by the Authority. The Tribunal considers that parties may wish to discuss to what extent the content of the child’s CSP and/or IEP should be amended to take account of the terms of such report, once made available to the.
