DE
Reference: D_15_2010
Gender: Male
Aged: 15
Type of Reference: Contents of CSP
1. Reference
This reference, made by application dated 23rd July 2010, is made under s.18(3)(d)(i) of the Education (Additional Support for Learning)(
2. Decision of the Tribunal
The Appellant’s request in this reference is refused – we confirm the information in the CSP in terms of s.19(4)(a) of the 2004 Act.
3. Preliminary Issues
(a) The CSP as amended
1. During a conference call preceding the hearing (16th November 2010) Solicitor for Respondent agreed to provide a copy of the CSP with changes following the previous decision of the Tribunal between the parties dated 23rd June 2008 (‘the 2008 Tribunal decision’) and changes following the review of the CSP in May 2010 marked on it. She kindly produced a colour-coded copy of the CSP which is at R450-R461 of the bundle. In that document, the following colour coding applies:
Blue text – this is the text which was present in the CSP in February 2009 following the changes made in order to comply with the 2008 Tribunal decision. This text was then removed as a result of the review of the CSP which took place in May 2010.
Red text – this is the text which was added to the CSP following the review in May 2010. This text remains part of the current CSP.
Black text – this text has remained in the CSP from at least February 2009 to date.
2. This means that the current CSP is represented by a combination of the black and red text. The blue text was present in the CSP in February 2009 but was removed in May 2010. It is the removal of some of the blue text which gave rise to the Appellant’s dissatisfaction with the current CSP.
3. At the outset of the hearing on 28th January, Counsel for Appellant for the Appellant indicated that he could narrow the scope of the reference. The remedies the Appellant originally sought are the changes to the CSP listed against the bullet points on page A6 of the bundle. Counsel for Appellant indicated that the Appellant in this reference was now insisting only on the amendments set out in the first, fourth and fifth bullet pointed paragraphs on page A6 of the bundle, namely:
(1) Throughout the current CSP, where reference is made to “All named agencies to be requested to contribute to identification and assessment, monitoring and evaluation of targets and additional support annually” , “annually” should be amended to: “twice yearly”.
(2) The addition of the following text to the fourth educational objective in the current CSP (to be found on the colour coded version of the CSP at R457 of the bundle): “An Occupational Therapy led programme for the development of postural control and motor planning skills and the further development of The Child’s sensory modulation including concentration and distractibility. This will involve a mixture of both direct and indirect intervention with at least twice yearly direct Occupational Therapist assessment, target setting and evaluation. Guidance and support will be issued to secondary school staff, if required.”
(3) In the fourth educational objective of the current CSP, the words “can be requested” in the final sentence should be deleted.
(4) In the fifth educational objective of the current CSP (to be found on the colour coded version of the CSP at R457-R458 of the bundle), the words “and a programme of direct intervention and support by Occupational Therapist” should be inserted after the words “Movement Group”.
4. Although the first proposed alteration does not refer to Occupational Therapy (‘OT’) input, Counsel for Appellant made it clear that in this reference the Appellant is challenging the CSP content from the OT perspective only, so we have taken that proposed amendment to relate to those parts of the CSP which involve OT input. The other proposed alterations clearly relate to OT input. The alterations sought by the Appellant, if made, would essentially involve the reinstatement of those parts of the CSP which relate to direct OT input for The Child and which were removed by the Respondent following the annual review in May 2010.
(b) Further documents
5. At the beginning of the hearing, Solicitor for Respondent sought to lodge two documents entitled “Individual Education Plan” (IEPs) relating to The Child. Their late production was not objected to and we allowed them to be submitted late and added them to the bundle (R462-R467).
6. During submissions, Solicitor for Respondent sought to lodge a written submission. Counsel for Appellant did not object (subject to being given time to read it and offer comments, which he was given) and we allowed this document to be added to the bundle (R468-R477). Copies of two case reports were attached to this written submission (Walker v Strathclyde Regional Council (No.1) 1986 SC 1; 1986 SLT 523 and Edinburgh City Council v ASNTS [2009] CSIH 46) and these are added at R478-R483 and R484-R501 of the bundle.
(c) Admissibility objection
7. Counsel for Appellant objected to certain evidence being led by the Respondent and asked that we exclude it. It was agreed that we would hear the evidence objected to under reservation and rule on it later. During submissions, Counsel for Appellant stated that he was insisting on his objection. The evidence objected to was treated as a “running objection” to questions along a particular line, and affected certain parts of the evidence of all three of the Respondent’s witnesses. The thrust of the objection was as follows. Any evidence led by the Respondent which sought to explain the efforts taken to comply with the 2008 Tribunal decision should be disallowed since the fact that these efforts were made (and their content) did not form part of the basis on which this reference was resisted. The basis of resistance was set out at R3, at the foot of the page. Counsel for Appellant argued that the basis of resistance was not an argument under s.4(2)(a) or (b) of the 2004 Act, nor was the resistance to the reference based on s.23(3) of the 2004 Act. Counsel for Appellant sought to persuade us that any evidence which related to the difficulty, on the Respondent’s part, of complying with the OT requirements of the CSP, as amended following the 2008 Tribunal decision, was irrelevant and should be excluded. He referred to rule 10(2)(d) of the Additional Support Needs Tribunals for
8. We have decided to repel Counsel for Appellant’s objection and to admit all of the evidence led by the Respondent. We accept entirely the proposition that the basis of resistance to the reference should be limited to the grounds set out at the foot of R3. Indeed, it seems to us that Solicitor for Respondent presented the Respondent’s resistance to the reference on the basis set out there. She did not, in her submissions, argue that s.4(2) or s.23(3) apply in this case. In our view, there is a distinction between evidence which is led in order to support a legal argument which is directly relevant to the grounds being set out by a party on one hand and on the other, evidence which is led in order to provide factual, contextual background information. Evidence of the latter type is relevant, but for that limited purpose only. Evidence of the efforts made by Witness A between March 2009 and May 2010, on behalf of the Respondent, to procure direct OT support for The Child in compliance with the amended CSP represents relevant background information which is useful to the Tribunal in a contextual sense. This applies also to the evidence of Witness B on her reasons for amending the CSP in May 2010 (which related partly to the Respondent’s inability to secure direct OT support for The Child by that time). Similarly, Witness C’s evidence about her reasons for refusing to comply with the provision set out in the amended CSP, are of background relevance. None of this evidence is directly relevant to the Respondent’s resistance of the reference and we have not treated it as such. As Solicitor for Respondent pointed out, it would be odd if the Respondent did not lead evidence of the efforts made to comply with the 2008 Tribunal decision – such evidence explains how the case has reached this stage.
9. Counsel for Appellant also sought the exclusion of the evidence referred to in his objection on the basis that the Respondent’s evidence about the steps taken to attempt to comply with the 2008 Tribunal decision amounted to an argument about lack of resources, and that argument had been made and determined by the Tribunal in 2008. However, we take the view that the Respondent did not make a resources argument at all in this case. The argument around resources which formed part of the rationale of the 2008 Tribunal decision related to OT resources available (see the final paragraph of the decision, at A149). In this case, the Respondent’s position is that they could not comply with the CSP as amended following the 2008 Tribunal decision due to (1) the Health Board’s refusal to provide direct OT support for The Child combined with (2) the inability of the Respondent to source such OT input from elsewhere. It is clear from the evidence of Witness C (which we accept) that her reasons for not providing OT support to The Child do not relate to the availability of resources – the reasons are ethical and legal. In the case of the Respondent, the evidence suggests that it is willing to consider resourcing OT support privately – various efforts were made by Witness A to secure such provision (see Finding in Fact 9 above). This suggests that lack of resources (funding) was not an issue for the Respondent. Since we do not accept that a lack of resources argument was made in this case in the sense referred to by Counsel for Appellant, we cannot uphold his objection on this basis.
10. We should add a further point. Counsel for Appellant’s objection was partly based on a lack of fair notice of what he argued were new grounds of resistance. However, as Solicitor for Respondent pointed out, much of the factual material around non-compliance by the Respondent (and by the Health Board) with the direct OT parts of the CSP as they existed between February 2009 and May 2010 were set out by the Appellant in his written case. In our view, this is a reasonable point. A very full (and we should say useful) account of events is set out in the Appellant’s Case Statement at A1-A6 of the bundle. Details of the historical non-compliance and some of the efforts by the Respondent to comply are referred to: see, for instance, paragraphs [10] (on the Record of Needs order), [11], [12], [17], [19] and [21]. The heading under which these paragraphs appears in the Case Statement is “Background”. If the Appellant can offer an account of events (including references to some of the material objected to) for background purposes, it seems to us that the Respondent should be permitted to lead evidence to put its account on these events. In these circumstances, the Appellant cannot claim lack of fair notice of the evidence to which he objects.
11. In all of these circumstances, and in accordance with the overriding objective to deal with the reference fairly and justly (rule 3(1) of the Rules), we repel the objection.
(d) Burden of proof
12. During submissions, a debate took place about the burden of proof in this case. Counsel for Appellant argued that the Respondent bore a burden of proof in connection with justifying the May 2010 amendments to the CSP (the burden of establishing that the need for in-school OT support had ‘flown off’ by then). Counsel for Appellant argued that the way the relevant parts of the legislation are worded, combined with the nature of this reference, leads to the conclusion that the Appellant does not bear the burden of proof in this reference. He suggested that this case should be burden of proof-neutral. Solicitor for Respondent lent this argument some support: her view was that in proceedings of this type, references to the burden of proof were unhelpful and out of place, given the questions the Tribunal is considering.
13. We cannot agree with the parties on this point. In our view, the overall burden of proof in this reference falls on the Appellant. We accept that these proceedings should be conducted informally and flexibly (rule 3(2)(b) of the Rules). However, this does not, in our view, extend to adapting the normal rules of evidence (except where they are adapted specifically in the Rules). The provisions in Part IV of the Rules (dealing with Evidence) do not suggest that the usual burden of proof conventions should not apply. In the absence of such provision, in our view, the usual position should hold: that the party seeking a remedy before a court or tribunal bears the burden of proof.
14. We do not accept that the Respondent bears a burden to justify the decision to amend the CSP as they did in May 2010. That decision is not, as such, under scrutiny here (technically it is not, although it was the prompt for the current reference). The Tribunal is being asked to add information to the plan (which involves consideration of the situation today – the plan being a future facing document), not to reverse a decision to remove content from the plan. Even if we were being asked to reverse the decision of May 2010 to remove direct OT need provision from the CSP, our decision would be the same – the effect of a reversal would be to add material back into the CSP for which there is no current evidence.
15. The wording of the 2004 Act does not, in our view, alter this position. Counsel for Appellant referred to s.10(6) together with 18(1) and 18(3)(d)(i) of the 2004 Act. He argued that in this case, the Appellant was not seeking to overturn an earlier decision; so this was not an appeal in the traditional sense. This case is a reference about the “information” in the CSP, and should be distinguished from a case about a “decision” or “failure” in s.18(1) of the 2004 Act. Since this was not an appeal against a decision or a failure to act, he argued, the Appellant should not bear the burden of proof. We do not accept this analysis. In our view, the burden of proof does not alter depending on whether the appeal relates to a “decision”, “failure” or “information”. It is the case that the reference to “information” relates only to s.18(3)(d)(i) (the ground of referral in this case) but there is no indication in the 2004 Act or in the Rules to suggest that the burden of proof should vary depending on the nature of the reference. We cannot think of any objective reason for such a variance. In any event, in this case, although the reference does not involve a challenge to a decision, it is related to one, namely the decision in May 2010 to remove direct OT provision from the CSP – this decision clearly led to the current reference (see, for example, the penultimate paragraph of the penultimate page of the Appellant’s Case Statement at A5 of the bundle).
16. For the sake of completeness, we should say that even if we had accepted Counsel for Appellant’s analysis in its entirety (namely that the Appellant does not hold the overall burden of proof in the reference, but the Respondent is under an obligation (burden) to justify its decision to amend the CSP as it did in May 2010) we would have reached the same decision in this case.
17. We are satisfied, on the evidence, that the Respondent was justified in removing the references to direct OT needs for The Child when reviewing the CSP in May 2010. By that time, the evidence suggests that the Respondent had gone to considerable efforts in securing direct OT input for The Child. They had made a request to the Health Board, which had been refused (R18 and R19-21). Witness A had made efforts to enquire into securing direct OT provision from privately funded sources (see Finding in Fact 9, above), to no avail. Witness B in her evidence indicated that she was aware that fruitless efforts had been made to secure such input. She also explained that her decision that the direct OT support content of the CSP should be removed was made since at that point (May 2010) there was no evidence available to her to suggest that such support was necessary. She took the view that such support was not necessary and that the plan should be amended to excise references to it. She made that decision in consultation with (Head of Panning and Policy for Education for the Respondent) and, solicitor with the Respondent. In our view, Witness B’s approach to the review of the CSP in May 2010 was sound: she considered whether there was any evidence of need for direct OT support for The Child. She took the view that there was no such evidence. Given the period of time since the last formal review of those needs (the B assessment in September 2007), the absence of the provision of direct OT support since at least June 2004 and the progress she assessed The Child as making in school since the 2008 Tribunal decision, her approach to the review of the CSP was, in our view, entirely reasonable. In these circumstances, had the Respondent been under an obligation in this case to justify the amendments to the CSP following the May 2010 review, it would, in our view, on the evidence before us, have complied with that obligation.
18. There was a suggestion in some of Counsel for Appellant’s cross-examination (which he referred to during submissions) to the effect that Witness B was not qualified to make the decision to remove the direct OT content of the plan. Counsel for Appellant argued that there was no suggestion that Witness B had any OT expertise which meant that she could competently make that decision. However, in our view she was amply qualified to make that decision. She holds a qualification in Additional Support Needs; she is a very experienced teacher; she is very experienced in teaching children with additional support needs and she is well acquainted with The Child and his needs (she has known him as a pupil since he joined secondary education). She is also working in collaboration with the OT Service of the Health Board in planning, developing and assessing the Movin’ on Up movement programme provided in school for which she has received staff training from the OT Service. It seems to us that this experience is sufficient to allow Witness B to make a judgement about whether to call in further OT professional input. In her evidence she made it clear that if she thought that The Child might require some direct OT input, she would ask the Health Board to provide it. Her position in May 2010 was not that she had assessed The Child herself and decided that no OT support was necessary – her position was that there was no evidence of the necessity for OT support. She supported (and supports) the need for an assessment to determine that question. Counsel for Appellant’s attempts to suggest to Witness B that she was not in a position to make that decision were rebuffed by her. She indicated that she felt able to make a decision on whether 1:1 OT support is necessary for The Child and she reached the view that it was not. We accept her evidence.
19. Since there is no evidence of the current (or likely future) OT needs of The Child available to us, whether or not we adopt the approach to the burden of proof suggested to us by Counsel for Appellant, we have no material upon which to base a decision to alter the CSP in the way sought by the Appellant.
4. Summary of Evidence and Proceedings
1. The evidence in this case was heard during the course of 28th January 2011. We heard submissions in the morning of 18th March 2011. On 28th January, after the oral evidence was led, we decided that we would proceed to order an expert report under rule 24 of the Rules. The reasons for this decision can be found in our Direction of 17th February 2011. We adjourned the hearing in order to obtain a report from a suitable expert on The Child’s current OT needs and to hear his/her evidence. We invited the parties to agree the terms of reference for the instruction of the expert, and indicated that the Convener would hold a case conference to finalise those terms of reference. That case conference took place on 8th February 2011. Following that case conference, we decided to abandon the attempt to secure an expert report due to the Appellant’s withdrawal of cooperation for an assessment by the expert, intimated at that case conference. We decided to accede to the Appellant’s request to decide the case on the basis of the evidence available to the Tribunal at that point. Our reasons for adopting that course of action can be found, again, in the Direction of 17th February 2011.
2. A substantial amount of documentary evidence exists in this case, extending to a bundle split as follows: T1-77; A1-A206 and R1-R501. We issued directions after the papers were sent to the parties (and which are, therefore, not included in the bundle). These are directions dated 16th November 2010 (dealing with the admission certain papers to the bundle for both parties), 26th November 2010 (discharging the hearing fixed for 3rd December 2010 for weather reasons) and 17th February 2011 (dealing with the issue of terms of reference for an expert report to be ordered by the Tribunal and fixing a date for submissions).
3. We heard oral evidence from four witnesses at the 28th January hearing Witness A, Witness B and Witness C for the Respondent and from the Appellant himself. We accepted the evidence of all of the witnesses as being credible. We accepted the evidence of the Respondent’s witnesses, where their professional opinion was expressed.
4. Much of the evidence concerned the history of the case. It is fair to say that the case has a long and complex history. That history is uncontested, and is set out in some detail in paragraphs [8]-[16] inclusive of the Appellant’s Case Statement (A1-A6 of the bundle). We simply refer to the detail there for convenience. The main thrust of the Appellant’s position is around the failure by the Respondent to implement two decisions (insofar as they relate to the need for direct OT input for The Child) namely: (1) a decision of the Scottish Ministers dated 6th May 2003 amending The Child’s then Record of Needs (the decision with covering letter is at A60-A63 of the bundle) and, more particularly, (2) a previous decision of the Additional Support Needs Tribunal for Scotland (‘the 2008 Tribunal decision’) dated 23rd June 2008 (decision and reasons to be found at A141-A149 of the bundle). The Respondent’s position is that The Child’s needs are adequately met in the current CSP, although they are of the view that an OT assessment is required to inform The Child’s future OT support needs. They point out that the failure to provide 1:1 OT support for The Child has been caused by the local Health Board’s refusal to provide this support and by the Respondent’s inability to source support from a source other than the Health Board (see their Statement of Case at R2-R5 of the bundle). The progress of the case since the 2008 Tribunal decision is played out in correspondence involving the parties and the Health Board. The main correspondence during this period can be found at R18-R34, and is referred to for its terms. In addition, there are three reports setting out the results of full assessments of The Child’s OT needs at particular points in the past: (1) a report by NHS Area dated 14th December 2006 (R35-R43); (2) a report by School A dated 25th September 2007 (R44-R69) (‘the School A report’) and (3) a report by School B dated 18-21 November 2002 (A12-A42).
5. We should make some comments about the Appellant’s evidence. In his evidence he, for the most part, re-stated his position as set out in the relevant correspondence between him and the Respondent. He has refused to consent to the Health Board’s offer of an independent assessment of The Child’s OT needs on the basis that The Child has been assessed on enough occasions and therefore further assessment is unnecessary. He wishes the 2008 Tribunal decision to be complied with in the absence of a further assessment. He referred more than once to a feeling of “Groundhog Day” (which he made clear was a reference to his perception that the arguments being discussed in the evidence in this case were similar to those discussed during the 2008 tribunal hearing). He stated that The Child is not a ‘prime exhibit’ to be assessed again and again. He suggested that the Health Board had sought to delay progress in the case by asking for a further assessment. He also suggested that the Health Board was ignoring The Child’s motor difficulties because he has learning difficulties.
6. The remainder of his evidence was devoted to his views about the proper way to provide OT input. He talked about what he called the Canadian Occupational Performance Model. He criticised the use of adaptations in OT treatment and how if these were made, and in doing so an opportunity to develop skills was closed off, then this was not a favourable practice. He gave the example of using an adaptation to shoes to provide an alternative mechanism to shoe laces for someone who could not tie them – the adaptation closed off the opportunity to develop the fine motor skills needed to master tying shoe laces and this could have an impact on other fine motor skills. He explained that in his view The Child’s needs have not changed at a fundamental level since he was a small child, although he conceded that the support needed for The Child probably has changed.
7. While we took account of all of the evidence given by the Appellant, we could not place any weight his evidence as summarised in paragraph 6 above. The reason for this is that evidence of the kind set out in that paragraph is evidence which may only be given any weight when delivered by a skilled witness. While the Appellant did say that he had read material on OT, and he clearly has picked up a degree of understanding from being involved in The Child’s care, he was not presented as a skilled OT witness. He has no qualifications, formal training or practical experience of delivery of OT. He is free, of course, to express his view and press his case in correspondence with the Respondent, but in evidential terms, this material is opinion evidence and may only be given by a skilled witness. Although no objection was taken to this evidence, so that we require to consider it, we place no weight on it for the reasons explained here. Even if we did place weight on this evidence, it would not have made a difference in this case, since, as explained elsewhere, we are not tasked with examining the appropriateness of the OT delivery in the past (or even at present); we are only considering whether or not to make certain alterations to the CSP. As we say later, amendments to a CSP may only be made on the basis of evidence of The Child’s current (and likely future) needs.
The submissions of the parties
8. Counsel for Appellant, in his submissions, directed us to consider the Appellant’s Supplementary Statement (A172-A177) as the basis for the Appellants argument, and added some additional points. Turning to the Supplementary Statement, in paragraph 2 (A172), there is a discussion of the remedial versus developmental debate. Counsel for Appellant stressed the fact that Witness C’s evidence on the correct approach as provided to the 2008 Tribunal must have been rejected by them, given the decision. She accepted this. We do not accept that this is a debate which is before us. This debate does seem to have taken place in the 2008 Tribunal decision. However, the Appellant led no skilled evidence in this reference. There was an attempt to cross examine Witness C as to the correct approach for the delivery of OT support to The Child. In his oral submissions, Counsel for Appellant asked us to accept that a problem with the evidence of Witness C was that it was explicitly not given from an educational or developmental point of view. He argued that her therapeutic and remedial perspective is irrelevant in this appeal when considered against the legal obligation, and made reference again to paragraphs 3-5 of the Appellant’s Supplementary Statement (A172-A174). However, on examination of the evidence of Witness C, it is clear that she takes the view that her approach is applicable in the educational environment. There was some discussion during cross-examination of Witness C about whether her approach of using “clinically effective practice” (R435, paragraph 4) was appropriate in an educational setting and she was asked why she did not refer to educational criteria instead. She explained that 99% of the work done by her service is community based and is done in an educational setting. She explained that the approach to OT support provided by the Health Board in schools is targeted at the educational needs of The Child. She also explained that she and her team when working with schools would be looking at education and educational issues and that they would work with teaching staff in asking what they thought was relevant and how The Child was getting on in class. We do not accept, therefore, that the evidence of Witness C was specifically not given from an educational or developmental point of view. Even if there had been a valid criticism of the model used by Witness C, we doubt whether exploration of this debate would have been of assistance – as we have stated, the key issue in this case is the lack of evidence of The Child’s current and likely future OT needs.
9. The Appellant’s Supplementary Statement then goes on to cite some of the relevant legal authorities in the area (paragraphs 3-5, A172-A174 of the bundle). We accept that all of these authorities (including the UNCRC) apply in this case, and we have taken them into account. During submissions, Counsel for Appellant also briefly mentioned a very recent Supreme Court case of ZH Tanzania. We assume he is referring to the case of ZH (
10. In paragraph 6 of the Statement, second sentence, the Appellant suggests that the Respondent’s position is that OT support for The Child at school is unnecessary. This is not the Respondent’s position, in our view. Their position is that, in the absence of current evidence to the contrary, there is insufficient material to suggest that direct OT intervention of the kind sought by the Appellant is necessary. The current plan provides for OT support for The Child. The Statement goes onto assert that the assessments in the two independent reports (from School A and School B) should prevail in this case, especially as the view expressed in them was accepted by the Scottish Ministers and the Tribunal in 2003 and 2008 respectively. However, as we have said, we need to consider the evidence available today. While that includes those reports and the 2003 and 2008 decisions, we prefer the evidence of Witness C and Witness B. Both were clear in their views that a further assessment is necessary to gauge The Child’s OT needs. The reports referred to are, in our view, of limited evidential value due to their age. The evidence of Witness C and Witness B is current and in Witness B’s case is based on current knowledge of The Child and his aptitude and recent progress. For these reasons, we accept their evidence that a further assessment is necessary. In addition, we should say that the authors of the two independent reports did not give evidence today. It is not clear, therefore, what their views are on whether their own conclusions would hold good today in the absence of a recent assessment of The Child. We are unable to test the applicability of their conclusions today since they did not give evidence. This adds to our concerns over the limited value of those reports in this case.
11. The Statement goes onto refer to certain materials in the bundle (fourth and sixth lines from the foot of A174). While we have carefully considered that material, it is not instrumental to our decision, which is based on the absence of an assessment of The Child’s current or likely future OT needs.
12. The Statement then refers to the issue of the applicability of the findings of the 2008 Tribunal decision – we deal with these points elsewhere.
13. The Statement then refers to the non-compliance issue and in particular refers to the fact that Witness C (referred to at one point by Counsel for Appellant during the case as ‘the agent of non-compliance’) is giving evidence in support of the appeal. In our view, this is not surprising at all. Witness C is the professional with the most recent involvement in the provision of OT for The Child. As already indicated, the Appellant has, in his Case Statement, made much of the issue of non-compliance. Witness C is the ‘agent’ of that non –compliance. It is natural that the Respondent should wish to counter the points about non-compliance made in the Case Statement (for background purposes, as we have indicated) and the best (only) person to address this is Witness C.
14. Counsel for Appellant, in his oral submissions, also referred to the evidence around the condition known as Developmental Co-ordination Disorder (DCD). He referred us to the NHS Quality Improvement Scotland Report entitled “I still can’t tie my shoelaces” found at R147 and in particular referred us to R164-R204. He referred to the evidence that this condition is a lifelong condition and to the evidence that OT support in school setting can make a real difference. Part of paragraph 9 of the Appellant’ s Supplementary Statement (at A176) was put to Witness C during her examination in chief, and she accepted that DCD creates long term OT support needs of a kind to which OT support in a school setting is a conventional and appropriate response. However, she explained that DCD can be self-managed and OT support would only apply for a specific period of time to address specific goals and short term needs. Although Counsel for Appellant relied on this part of the evidence Witness C did not concede that the presence of DCD in The Child meant that direct OT support in school is a current necessity. Again, the relevance of this evidence in the face of a clear assertion from Witness C that a further assessment of The Child’s OT needs is necessary, is limited.
15. Solicitor for Respondent’s submissions are in writing and we refer to them for their terms – we accept much of what is said there. Counsel for Appellant came back on three points arising out of those written submissions. The first relates to the interpretation of part of s.11(5)(b) of the 2004 Act and the commentary of Instructing Solicitor in the explanatory notes to that section (see third full paragraph of R474). Nothing turns on this point since we are not directly concerned with the Respondent’s reasons for not complying with the 2008 Tribunal decision, as explained elsewhere. The second point was about the burden of proof and this is dealt with as a preliminary point (above). The final point concerned the decision of
5. Findings in Fact
1. The Appellant is the father of The Child.
2. The Child was born in 1995. At the time of the hearing, he was 15 years old.
3. The Child attends School C, which is a mainstream secondary school within the Respondent’s control. This is the only secondary school he has attended. He has attended there since August 2007. He is now in Year 4 at that school. The current plan is to attend until at least the end of Year 5.
4. The Child has additional support needs that impact on his schooling. These needs arise from a number of factors including: learning difficulties, language and comprehension difficulties, difficulties with social understanding and difficulties with subtle aspects of learning.
5. These needs give rise to difficulties in the school education of The Child. These difficulties include: issues with transfer of learning, anxiety, obsessionality, variable attention/listening and variable concentration. The Child also has difficulties with motor skills, in particular balance, co-ordination, low muscle tone, bimanual hand functions, independent living skills and sensory processing difficulties.
6. The Child requires a coordinated support plan (CSP) as his circumstances meet the criteria in s.2 of the 2004 Act. He has been the subject of a CSP since 3rd October 2007. His current plan provides for input from the following: educational psychology, occupational therapy, speech and language therapy, Additional Support Needs Base (ASNB) staff, the Disability Team and the Careers Service.
7. The Child benefits from OT input from the ASNB at School C. He is in a class of 12 pupils with additional support provided for certain subjects, especially those of a practical nature. His CSP is applied in conjunction with his Individual Educational Plans (R462-R467). The ASNB has capacity for 21 pupils and is supported by 3 full time equivalent teaching staff members plus 2 Pupil Support Assistants. The aim of the Base is to support children with Additional Support Needs in mainstream education.
8. Witness A is the service manager for primary education and additional support needs with the Respondent and has held that post since August 2010. His responsibilities include policy, strategy and the operational delivery of services. He qualified as teacher in 1980. His involvement in The Child’s case began in March 2009 where he was asked to assist in trying to resolve some aspects of The Child’s support needs situation.
9. The Respondent made efforts to secure OT support to comply with the CSP in place following the 2008 Tribunal decision, in particular for the provision of direct OT support. These efforts were made between March 2009 and May 2010 by Witness A. These efforts were concentrated on trying to secure such OT provision privately following the decision by the Health Board to refuse to comply with a request to assist the Respondent in January 2009 (R18-R21). These efforts included: contacting the College of Occupational Therapy (through searches for suitable therapists on their website and a direct approach to their staff); contacting three therapists from the College membership and approaching them direct to ask for assistance; authorising Witness C to e-mail her professional network asking if anyone on that network would assist; contacting the School of Life Sciences on two occasions, to attempt to source private OT input from the teaching staff there; contacting two local, private, independent Occupational Therapy schools; contacting the National Association of Paediatric Occupational Therapists; contacting School A and contacting the SENAD Group. Some of these courses of action were suggested by the Appellant (in the letter at A166 of the bundle) and some were suggested by Witness C. In each case, there had either been no response or the response had been negative. None of these efforts bore fruit.
10. The teacher responsible for the overall implementation of The Child’s CSP is Witness B. She is the Principal Teacher of Support for Learning at School C
11. The Child benefits from activities he takes part in as a member of a motor skills group formed at the ASNB of School C known as Movin’ on Up. The aims and objectives of that group are to be found in the document at R70-R75 of the bundle. This group became operational in August 2009. The Child has been a member of the group since then. The group was set up following consultations with Witness C and other qualified OT staff. Qualified OT staff from the Health Board assisted in the setting up of the group by providing equipment and guidance on the use of OT in the group. The impetus for the setting up of this group came from a suggestion by Witness C, based on experience of the Health Board of a similar successful group. Witness B made further enquiries and research over the period from Easter 2009 until the setting up of the group in August 2009. There was no direct connection between the decision to set up this group and the 2008 Tribunal decision.
12. The Child is currently meeting his educational objectives (as set out in the IEPs) at School C. The Child has benefitted from attending the Movin’ on Up group. He is one of the top scorers in that group. Some of the group members have been referred to the OT services due to less competent scoring. The staff working in the group have been trained in how to assess the pupils in the group. The Health Board has checked with Witness B, in Easter 2010 and in October or November 2010, on whether the assessment being used in the group is satisfactory. These checks were positive.
13. The Child’s motor skills have improved due to his work in a programme being run at School C called ASDAN. This is a skills course dealing with areas such as information handling, number handling, health and survival. This is a life skills course. The Child works very well in this group and is aiming for a silver award in Year 5.
14. The person responsible for the delivery of the OT parts of The Child’s CSP is Witness C. She is employed by Combined Child Health, NHS Grampian (‘the Health Board’) and is the Head Paediatric Occupational Therapist there. In that post, she manages a team of paediatric occupational therapists. She has held this post since August 2001. She holds a Diploma in Occupational Therapy. This is the minimum level of qualification necessary to practice as an Occupational Therapist. In addition, she also holds a First Class BSc(Hons) in Occupational Therapy, obtained in 2007.
15. The Appellant, on behalf of The Child, made a reference to the Additional Support Needs Tribunal, culminating in a decision on 23rd May 2008 (A141-A149) (‘the 2008 Tribunal decision’). As far as relevant, that decision involved the making of certain additions to The Child’s CSP to provide for direct OT support for The Child. The tribunal considered written OT reports. No oral evidence from any skilled OT witness was heard by the Tribunal. The Tribunal based their decision to amend the CSP principally on the conclusions of the School AReport (R44-R69), rejecting the (written) evidence of the Health Board, including that offered by Witness C in her witness statement (A135-A146), on the question of whether The Child required direct 1:1 OT input at school. The tribunal took the view that the stance of the Health Board was influenced, in part, by resources issues.
16. Following that decision, the amendments to the CSP were delayed and were made formally in February 2009.
17. Following those amendments, the Respondent sought to implement the OT part of the CSP by seeking an assessment of The Child’s OT needs (R18). That request was refused (R 19-R21). The basis of the refusal was the provision in s.23(3)(a) of the 2004 Act. Witness C took legal advice on the application of s.23(3) and that advice was that the Health Board stance on complying with the Respondent request was lawful. Witness C took the view that since she did not believe that direct OT support for The Child was necessary, the provision of that support would be unethical. This meant that an assessment with a view to meeting that support requirement was not appropriate.
18. In November 2009, the Health Board intimated a change in their position – they were now willing to commission an independent assessment of The Child’s OT needs with a view to considering how to meet those needs (R25). The Appellant refused this offer, and has maintained that refusal to date.
19. In May 2010, Witness B reviewed the CSP. As a result of that review, she made certain alterations, including removing some of the provision relating to direct OT input for The Child. That review led to the current reference. The basis for the removal of wording relating to direct OT input was the lack of evidence of any need for such input. She made the decision to take out this wording of the CSP in consultation with (Head of Panning and Policy for Education for the Respondent) and (solicitor with the Respondent). Witness B’s normal practice in reviewing a CSP is to do so on the basis of a fresh assessment of the needs of the child. In The Child’s case such an assessment (in relation to his OT needs) was not available to her.
20. The Child’s circumstances have materially changed since the last formal assessment of his OT needs in September 2007 and the 2008 Tribunal decision. These changes include: the passage of time, physical changes which have taken place in The Child during that period, The Child’s progress in development of his motor skills as a result of his work with Movin’ on Up and ASDAN, his passage from childhood to young adulthood, the need to consider his support needs (including those relating to OT) from the perspective of transition to Further Education and work placements and his improved confidence.
6. Reasons for Decision
(a) Scope of reference and basis of decision
1. At the outset, we should define the scope of this reference. As noted above, this reference is about the content of the CSP, and more specifically whether the wording of the CSP should be altered. In order to satisfy the Tribunal that the alterations sought should be made, the Appellant (who bears the burden of proof in the reference – see earlier on this) must satisfy the Tribunal that the alterations are “appropriate” (s.19(4)(b) of the 2004 Act). It is critical at this point to consider the nature of a coordinated support plan. Such a plan is a document required in certain circumstances (narrated in s.2 of the 2004 Act) setting out a plan for the provision of additional support based on the needs of The Child or young person to whom the plan relates. As with any plan, it is geared towards the future. It is designed to set out the future plans for the provision of additional support in relation to a child or young person, on a needs basis. In this case, the alterations to the CSP sought by the Appellant essentially involve the reinstatement of text which was removed from the CSP following a review which took place in May 2010. The effect of the alterations sought, if made, would essentially be to re-introduce into the plan the provision of direct, in-school OT support for The Child. In order to be satisfied that such alterations are appropriate, we have to be satisfied that The Child will, during the currency of the plan, need direct, in-school OT support. If we are not satisfied that he will need such support, we should decline to make the alterations to the plan sought by the Appellant.
2. It is important now for us to turn to briefly mention issues raised during this reference which fall outwith the proper scope of the case. This reference is not concerned with the enforcement of the 2008 Tribunal decision. Secondly, we are not directly concerned with the question of whether Health Board breached its statutory duty to comply with a request by the Respondent for help in implementing the needs specified in the amended CSP (see ss. 23(1) and (3) of the 2004 Act). Likewise, we are not directly concerned with whether there existed either or both of the exceptions to the duty to comply, provided in (a) and (b) of s.23(3). Thirdly, we are not directly concerned with the question of whether the Respondent has acted reasonably in its efforts to comply with the previous tribunal’s decision. The second and third issues featured prominently in the evidence and submissions, and we will deal further with these below.
3. Returning to the issue which was of critical relevance in this case, in order to be satisfied that The Child needs such support, we require to receive and accept evidence on The Child’s current OT needs as well as his likely OT needs for the near future. No such evidence was presented in this case. We did receive evidence about The Child’s needs as assessed in the past, in particular in September 2007 (the School A Report). However, this was the last time The Child was formally assessed to discover his OT needs. In our view, this assessment and the previous assessments which were carried out, do not provide evidence of current or likely future OT needs. We heard evidence from Witness B and Witness C which was to the effect that a child’s OT needs change over time. Both witnesses were of the clear view that a re-assessment of The Child’s OT needs is now required in order to consider how to take forward The Child’s OT support. Witness B in particular set out the changes to The Child’s situation since the 2008 Tribunal decision in June 2008 (see Finding in Fact 20). Witness C referred to the period of over four years since the last formal assessment of The Child’s OT needs. She explained that this period of time taking The Child from 12 to 15/16 years of age is a significant time period, during which a child’s needs change a lot, including the things he/she is being asked to do, the demands of the school curriculum, the expectations of adults and preparing to leave school. Witness A also expressed the view that a fresh assessment of The Child’s OT needs was necessary. The Appellant in his evidence stated that his son’s needs have not fundamentally changed since he was a young child, although he accepted that his precise support needs may have changed. In our view, the opinions of Witness B and Witness C on this issue are preferable. The reason for this is their qualifications and experience in the provision of additional support needs (in the case of Witness B) and OT support (in the case of Witness C) to children of school age. We also take into account their experience of dealing with The Child (in particular in Witness B’s case). We fully understand and take account of the fact that the Appellant, as The Child’s father, knows The Child better than anyone else who gave evidence. We scrutinised his evidence with great care. However, as stated above, the Appellant is not a skilled witness, and we prefer the evidence given by those who are skilled in the relevant areas.
4. Having heard all of the evidence on the first day of the case, we formed the view that evidence of The Child’s current and likely future OT needs would be desirable in this case. At the end of the oral evidence, it was clear to us that there was an absence of such material both in that oral evidence and in the documentary evidence. In an attempt to secure such evidence, we sought, as explained above and in our direction of 17th February 2011, to obtain the assistance of an expert appointed by the tribunal in terms of rule 24 of the Rules. However, the Appellant, having indicated during his evidence that, under certain conditions, he would reluctantly agree to an expert assessment of The Child’s OT needs being carried out (and having proposed terms of reference for the expert which were acceptable to him), refused, by the case conference date, to agree to cooperate with this attempt and indicated that he wished the Tribunal to make a decision on the basis of the evidence led/available at the end of the first day. We comment further on this below. For the reasons set out in our direction of 17th February 2011. we felt that we could not pursue this line of enquiry and we assented to the Appellant’s request to decide the reference on the basis of the evidence available at the end of the first day. We heard submissions on that evidence (summarised above) on 18th March 2011.
5. We are mindful here of the guidance from the Inner House in the case of Edinburgh City Council v ASNTS [2009] CSIH 46, drawn to our attention by Solicitor for Respondent and reproduced at R484- R501 of the bundle. Counsel for Appellant argued that this decision was very fact specific and so was of limited value here. We disagree. Every case is fact specific. The comments made by the Inner House in the decision (delivered by Lord Hardie) to which Solicitor for Respondent is referring in her written submission (at R472) is to be found at paragraph 23 of the judgement. There, the Inner House makes a general point (which applies beyond the four corners of that case) about the role of the Additional Needs Support Tribunal when reassessing the merits of a particular issue and reaching its own conclusion on a child’s needs. When doing so, the court suggests that:
“the Tribunal should have current information about the provision required for the child, particularly where there has been a material change in circumstances since his assessment..”
6. In our view, there have been material changes in The Child’s circumstances since the last assessment of The Child in 2007. These changes include those set out in Finding in Fact 20. Given those changes, we should only reassess the merits of the provision of OT support for The Child where we have current information about the provision required. As we have said already, that information is not available to us. It is notable from the passage above that such information is recommended even where there has not been a material change in circumstances. We do not rely solely on this passage; it seems to us to be a matter of logic that any changes to a plan for future provision should be altered only in the light of evidence of current and likely future needs. The comments of the Inner House only reinforce our view on this matter. We also take account of the guidance contained in the Code of Practice, at Chapter 3 paragraphs 36 and 37 (page 40-41), on the nature and purpose of assessment and at of Chapter 5, paragraph 15 (page 78) on the importance of assessment.
7. Having heard those submissions and having considered and deliberated on all of the evidence and argument, we reached the view that in the absence of evidence of The Child’s current and likely future OT needs, the alterations to the information sought to the CSP would not be appropriate and so we decline to make them.
8. We need not go further in order to make a decision on this reference. However, as indicated above, a number of matters which were not directly relevant to our decision were raised. For the sake of completeness, we will deal with each of these.
(b) The relevance of the 2008 Tribunal decision
9. The Appellant’s case was built closely around the rationale in the 2008 Tribunal decision. The Appellant himself in his evidence (and in correspondence with the Respondent – see in particular his letters at R26, R29-31 and R34) stressed the point that he wished the Respondent to ensure that the support deemed necessary by the 2008 Tribunal decision was put in place for his son. The failure to do so was a key driver in the Appellant’s refusal to agree to the Respondent’s proposals for an independent assessment during the period from the time of the offer of such an assessment made by the Health Board (November 2009 – R25) to date. He also referred to the failure to comply with the decision of the Scottish Ministers from 2003, leading ultimately to the decision of the Tribunal in June 2008. In his submissions (and during objections made to certain evidence) Counsel for Appellant relied on the relevance of the Respondent’s failures, as he saw it, to comply with both the decision of the Scottish Ministers and the 2008 Tribunal decision. Counsel for Appellant, in his submissions, pointed out that the new ground for making a reference set out in s.18(3)(d)(ia) – dealing with a failure by the education authority to provide or make arrangements for the provision of additional support – came into force on 15th November 2010 (SSI 2010/277), too late to be of assistance in this reference. He then posed the question: how does the tribunal deal with a situation regarding non-compliance with its decisions? His answer in this case was to suggest that the information sought to be added in this reference should be added.
10. We agree that the Appellant is in an unfortunate situation. He does not have the option of relying on s.18(3)(d)(ia) since it did not exist when this reference was made. There is also the problem that the relevant part of the CSP (as it stood before May 2010) was removed following the review during that month. The new ground of referral (s.18(3)(d)(ia)) could not, it seems to us, be invoked unless and until the remedy sought in this reference is granted. There would then be the question of whether the Respondent would have to be given the opportunity to implement the amended plan before s.18(3)(d)(ia) could be argued. In addition, the Appellant is without a remedy before this Tribunal for what he could argue is a breach of s.23(3) of the 2004 Act (see below). Even if the Appellant could have sought a remedy before the Tribunal under s.18(3)(d)(ia) or following an allegation of a breach of duty under s.23(3), there remains the question of whether that remedy would, in the circumstances of this case, be granted.
11. A further argument was made about the import of the 2008 Tribunal decision. Counsel for Appellant sought to persuade us to apply certain guidelines which exist in immigration tribunal case law and which relate to the situation where a second immigration appeal tribunal is considering an appeal which has already been adjudicated upon by an earlier immigration appeal tribunal. He directed us to the case of AS and AA (Effect of previous linked determination)
12. In order to explain these, we need to consider what the Devaseelan guidelines comprise. These are set out in the Devaseelan decision at paragraphs 37-42. Those Guidelines were approved by the Court of Appeal in the AA (
13. We turn now to examine the question of the application of these guidelines in this case. In our view, this line of case law does not apply in a Tribunal of this nature. First of all, these are immigration appeal decisions. This does not mean that they are automatically inapplicable; it does, however, mean that great caution should be exercised when deciding whether to apply them here. The immigration tribunal, for the most part, considers questions of status arising out of the immigration laws of the
“The previous judgement is not binding, but it is not to be ignored. If there is no good reason for departing from it, it must, as between the parties to that litigation, be treated as settling the issues with which it was concerned and the facts on which the determination was based.” (emphasis added): AS and AA (Effect of previous linked determination)
14. We are concerned with different issues and different evidence in this case, when compared with those before the 2008 Tribunal. In these circumstances, the Devaseelan guidelines do not apply in this case.
15. Even if we were persuaded to apply these guidelines here, it is clear that they do not require us to be bound by the findings of the 2008 Tribunal decision. The Devaseelan case (and those which cite it with approval) starts with the statement that the previous decision is not binding on the later Adjudicator. The earlier decision must be taken as the starting point for the later Adjudicator and in order to depart from the earlier decision, there must exist good reason to do so. Applying that test here, there exists good reason to depart from the decision in the 2008 Tribunal. A number of factors, taken together, provide this good reason: (1) the passage of time since the last decision, which occurred almost three years ago (described as “obviously” a factor in AS and AA (Effect of previous linked determination) Somalia [2006] UKAIT 00052, paragraph 71); (2) The difference in the evidence presented at the two Tribunal hearings (see the same paragraph in AS and AA). Here, the evidence of Witness B suggests that certain material changes have taken place in The Child’s circumstances (see Finding in Fact 20). In addition, we heard evidence of non-compliance with the previous CSP (which is sought to be justified by the Health Board) followed by an offer of an independent assessment which was met with a sustained refusal of that offer. None of this evidence was before the 2008 Tribunal, since it had not yet occurred. In addition, we heard direct oral evidence from Witness C, which was tested under cross-examination and questioning from the Tribunal. The 2008 Tribunal decision was based on a comparison of expert evidence on paper; (3) the expert evidence which was available to the 2008 Tribunal, and which was accepted by them (the School A Report) was much more recent than it is now (nine months old at the date of the decision), and so is now of more limited value; (4) the tribunal in 2008 was influenced (in part) by considerations of limited OT resources, while in this case, as we have discussed elsewhere, there was no evidence before us to suggest that limited resources are an issue – indeed the contrary was suggested by Witness C. In fact, the Health Board in this case has offered to commission an independent report on The Child’s OT needs and to follow the recommendations in that report (R25- 3rd paragraph).
16. Put shortly, the evidence and issues before us are quite different from those before the 2008 Tribunal, meaning that even assuming the full application of the Devaseelan guidelines, we would have good reason to depart from the position adopted by the 2008 Tribunal, and we would have invoked that good reason in reaching this decision.
17. Although we recognise that the Appellant is in a difficult legal position, we may only deal with the reference which is before us. In doing so, we take full account of the history of this case, including the two previous decisions (the 2008 Tribunal decision and the 2003 Scottish Ministers decision) referred to by the Appellant. These decisions, while contextually important in this case, are of background relevance only.
(c) The relevance of the actions of the Health Board
18. The Appellant levelled some criticism at the decision by the Health Board to refuse to provide the direct OT support required under the plan as it stood following the last Tribunal decision. Witness C in her evidence explained that she would have regarded such provision as “unethical”. She explained that she had sought legal advice on whether she could legally defend her position on this (with reference to (a) and (b) of s.23(3) of the 2004 Act) and she was advised that she could. Some strong words of criticism were levelled at Witness C for taking the approach that she took. Counsel for Appellant referred to her as the Respondent’s “agent of non-compliance” and he referred to his interpretation of her evidence that she would not comply with this Tribunal’s decision whatever it may be as an indication of “arrogant conceit” on her part. We should say that on reviewing the evidence it is clear that Witness C did not indicate that she would refuse to comply with the decision of the tribunal whatever it was. She indicated that she would not necessarily follow the recommendations of an independent expert appointed by this Tribunal if that expert was not a member of the College of Occupational Therapists (and assuming he/she recommended direct OT support for The Child, and that his/her evidence led this Tribunal to re-institute within the CSP direct OT support on the basis of the expert’s conclusions). This is some distance away from an assertion that she would not comply with a decision of this tribunal, whatever it may be. Whatever the Appellant feels about the Health Board’s actions (or failures to act) – and he clearly feels strongly on this subject – we cannot, in this reference, make a finding on the legality of the Health Board’s position. A duty is created in s.23(3) but there is no remedy in the 2004 Act for a breach of that duty. It seems to us that this is for good reason – the “appropriate agency” referred to in s.23(1) cannot be a party to proceedings before this Tribunal. It would not be equitable, then, to allow this Tribunal to adjudicate on a question of a breach of a statutory duty by such an agency.
19. As with the decision of the previous Tribunal (and the decision of the Scottish Ministers) the actions of the Health Board are of background, factual relevance only. We take this evidence into account to that extent.
(d) The relevance Respondent’s reaction to the previous Tribunal’s decision
20. We are in a similar position here. Witness A’s evidence on the efforts made by the Respondent to secure direct OT support for The Child, in compliance with the plan as amended following the last Tribunal’s decision (see Finding in Fact 9) is of background relevance only (please see above on the burden of proof issue). It was offered by Solicitor for Respondent as “historical background to this case” (see her submission, R476 final paragraph). We have decided to admit it on this basis (see above). We have expressed our views above on whether the Respondent would have been able to discharge a particular burden of proof, if that burden applied.
(e) The relevance of the evidence on the appropriate model for delivery of The Child’s OT needs
21. Again, this evidence and the submissions made on it are not directly relevant to our decision. We are not tasked with reviewing the OT practices of the Health Board in this case. We have explained above why we have chosen not to follow the 2008 Tribunal decision on this matter. Again, we take account of the evidence as background material only.
7. Other matters
Expenses
1. Counsel for Appellant asked us to reserve the question of expenses until after the decision in this case is reached. Solicitor for Respondent agreed with this approach. We agree to reserve this question and, as suggested by Counsel for Appellant, we will hold a case conference to discuss how to proceed to determine this question.
Concluding remarks
2. We should say that for the reasons expressed earlier, we have some sympathy for the position the Appellant finds himself in. However, we should record our disappointment that the Appellant chose to refuse to cooperate with the Tribunal’s efforts to secure up to date expert evidence on The Child’s current OT needs. We appreciate that the Appellant consulted with The Child in reaching that decision (and he stated in his evidence that he would want to do so, despite his own initial reluctant agreement to cooperate) and it is clear that this consultation led to the Appellant’s change of position. Counsel for Appellant in submissions indicated that the Appellant had decided not to consent to a further assessment (by an expert appointed by the Tribunal) since he did not want to put The Child though any further formal assessment processes. Despite this disappointment, we have drawn no adverse inference from the Appellant’s change of position. We have decided this reference purely on a full examination of the evidence and argument presented in this case.
