ASNTS_D_11_2009_09.10.09

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

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Reference:                  d/11/2009

 

Gender:                       Male

 

Age:                             11

 

Type of Reference:     Contents of Co-ordinated Support Plan

 

 

 

1. Reference

 

The reference was brought in terms of section 18 (3) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) on the basis of

1. the content of the co-ordinated support plan (“CSP”)
2. the failure to complete the review of the plan originally issued in March 2007 by the due date of March 2008

 

 

2. Decision of the Tribunal

 

The decision of the authority is confirmed in respect of (a) but only insofar as the Tribunal has no power to overturn the decision relating to the content of the co-ordinated support plan since we are unable to hold that the statutory criteria for a co-ordinated support plan are met. We are therefore unable to require the education authority to take such action to make such amendment of the information as the Tribunal considers appropriate in terms of our powers under Section 19(4).

 

The respondents do not oppose the reference in so far as it relates to (b) the failure of the authority to carry out a review within the timescales in terms of their obligations under Section 18(3)(d)(iii) and a formal decision was delivered in respect of this aspect on 14/04/2009.

 

 

3. Preliminary Matters:

 

This reference was managed by two conference calls held on 06/03/2009 and 25/09/2009.

 

As a result of the initial hearing the Tribunal resolved to adjourn in order to exercise their powers under Rule 24 of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (“the Rules”) to obtain a report from an independent Speech and Language Therapist in view of the absence of any up to date health reports on the child and the apparent disengagement of the Health Authority to continue therapy of any sort or to carry out any fresh assessments.

 

 

4. Summary of Evidence:

 

The bundle extended to T98, R118 and A9. Apart from the papers produced by the parties and the Tribunal bundle two reports from the speech and language therapy expert instructed by the Tribunal were made available to parties.

 

The Tribunal also had the opportunity at the hearing to view a video of the child at home and playing in the garden.

 

The Tribunal heard oral evidence from a total of five persons, the Quality Improvement Officer, the Head Teacher for the authority, the Tribunal’s expert speech and language therapy assessor, the parent and the Consultant Paediatrician who had been cited on behalf of the parent.

 

The parent was represented by an experienced advocacy representative and the respondents were represented by a solicitor from the authority.

 

 

5. Findings in Fact:

 

1. The child is an 11 year old boy. He suffered a traumatic early childhood and was the victim of physical abuse which led to him sustaining severe brain injuries resulting in seizures, severe developmental delay, spastic quadriplegia, gastro-oesophageal reflux and visual impairment. He was taken into care and eventually placed with foster parents, who fostered him for five years before adopting him in 2008.
2. The child lives with his parents and two foster children aged 6 and 7 who are shortly to be placed with other foster parents owing to his father’s current health problems after almost three years in the household.
3. The child attends a special school under the management of the respondents, which is close to his home.
4. There are six children in his class who all have high level support needs. Two have some verbal facility.
5. The child’s developmental level is below three years. His understanding of language exceeds his verbal ability. He has an expressive ability to make his views known using non-verbal signs and gestures. He does not make more than rudimentary use of Makaton or symbols but responds well to photographs.
6. Particularly following a change of class teacher, the Appellant has expressed dissatisfaction with various aspects of the child’s treatment at school and a number of these issues remain unresolved.
7. At the date of the initial CSP dated March 2007 the child had additional support needs provided by speech and language therapy, an information, communication and technology service, occupational therapy, physiotherapy, an Auxiliary within the school, a nursery nurse and the class teacher. No parental or child comment was incorporated.
8. He had received speech and language therapy input from 2002 continuously until February 2009.
9. A combined therapy report dated 9 June 2008 (R76) indicated discharge from at least regular occupational therapy and physiotherapy but indicated continuing input from speech and language therapy to be delivered 1:1 at home rather than at school due to difficulties he experienced staying on task in the school environment.
10. He was last seen at home by speech and language therapy in February 2009. He was noted to have the ability to use more words in 2006 but his vocabulary reduced gradually and at the present time he uses few words.
11. The discharge letter from physiotherapy is dated 14 June 2009 (R74) stating that he had been seen on only a “few occasions” since September 2008 (erroneously stated as September 2009).
12. A second CSP was signed off by the respondents on 16/03/2009 with a date of January 2009 as the date of issue. This still indicated continuing input from speech and language therapy, occupational therapy and physiotherapy. Again there was no parental comment inserted.
13. From April 2009 the parties entered into discussions about the appropriate content of the CSP but no agreement was reached.
14. Letter dated 22/06/2009 (R73) from the Consultant Community paediatrician stated that the child had been discharged from physiotherapy, occupational therapy and speech and language therapy and suggested his needs could best be met by a “Personal Passport accessible to all involved in his management in all environments”.
15. The Medico-legal expert witness assessed the child at his school and at his home both on 14/09/2009 and produced two reports dated 14/09/2009 and 06/10/2009. The terms of these reports are adopted into these findings for the purposes of reaching the above decision.
16. Any further requirement for speech and language therapy support could be appropriately delivered for a period of three months, twice a week. The future support from any other therapies would be intermittent and of little intensity.

 

 

6. Reasons for decision:

 

The Tribunal found this reference particularly difficult in view of the high level of needs but at the same time a failure to identify support sufficient to meet the criteria for a CSP. It highlights the very exacting threshold to meet the statutory criteria.

 

It is not necessary for this decision to review all the oral evidence which was heard in any detail. The Education Officer’s evidence was helpful in understanding how this particular authority supports schools in delivering on the intentions of the legislation. Her responsibility is where a CSP is initially opened and then ownership transfers to the head teacher. The Head teacher was equally helpful in explaining her role as the co-ordinator of the CSP and explaining how the child’s needs were met through education but neither of these witnesses were able to give detailed evidence about the previous involvement of health in supporting the child’s learning.

 

The Head teacher did express concern that speech and language therapy was usually delivered on a 1:1 basis apart from the class rather than being integrated with activities within the classroom. She felt that when speech and language therapy was delivered in school, the practice of taking the child out of the classroom for twenty minutes therapy on his own was likely to increase his lack of apparent co-operation at school compared to his ability to engage when the service was delivered at home. She expressed the view that further consideration could be given to an additional block of speech and language therapy being delivered within a classroom environment as this was more likely, in her view, to produce better results and ensure more consistency of delivery of appropriate strategies as teachers could also gain skills though this method. She explained that she has no role in determining the allocation of speech and language therapy resources and this is purely a matter for the professionals involved. She tried to meet regularly with the therapists who visited the school. Most sessions were delivered by speech and language therapy assistants who had been instructed by qualified therapists. 

 

The Appellant explained that despite the lengthy involvement of speech and language therapy for the child, she was informed in 2008 that this therapy support was scheduled to be withdrawn as indicated at R99 when school delivered therapy ceased but she had not realised that she could challenge this when the service was finally withdrawn in February 2009. Further therapy in the home environment had been indicated as the child was being considered for a communication aid but this was never provided. She understood the basis for the withdrawal was apparently due to little further progress being achieved.

 

The discharge report appears at R113 and is dated 11 March 2009. This states the child’s communications skills have steadily improved over the years. Much of this progress can be attributed to natural development and some to therapy.” He is described as using “a few single words but not consistently”.

 

The short report concludes by stating that “he can be re-referred at any time in the future if there is any significant change e.g. if he begins to show an increased interest in signing.”

There is no explicit explanation for the withdrawal of the service at that time.

 

The appellant’s representative had sought to have the Consultant Paediatrician cited since she appeared to have a co-ordinating role as regards the involvement of all the health therapies. A request from the appellant’s representative to have expert reports commissioned by the Tribunal in respect of occupational therapy and physiotherapy in addition to speech and language therapy were not acceded to as it was our view that even if some further input from these therapies was indicated, it would neither amount to significant nor be sufficiently related to the child’s ability to benefit from school education in terms of Section 1 (1).

 

The Consultant Paediatrician was the appellant’s choice of witness but with hindsight evidence direct from speech and language therapy may have been more informative at least in understanding why after such continuous therapy the service had ceased at that particular time. The Consultant Paediatrician was not able to contribute significantly to the Tribunal’s understanding of the manner in which speech and language therapy was delivered. She was at pains to stress that the child would remain under the supervision of the community based Child Development Team without this resulting in specific therapy involvement at this time. She stated she relied on the independent assessment of each of the therapies concerned and took no personal role in determining the support given by these services although her team was involved in the co-ordination. The Tribunal noted the recommendation concerning a “personal passport” but it did not seem that this document would have the result of ensuring continued therapy support but would simply give a detailed profile of his likes and dislikes and how he could best be supported.

 

It is indisputable that the child has a very high level of disability and a corresponding high level of need. He is fortunate to have been fostered, and now adopted, by extremely committed parents who are unstinting in the level of love, attention and support which they give him. This has enabled him to develop far beyond original clinical expectations but it is still acknowledged that he is going to require significant support throughout his life. The Appellant presented as a thoughtful and caring mother who was trying to do her utmost to ensure that the child could be supported as well as possible in his critical childhood development. She conducted herself with dignity throughout the hearing.

 

The primary issue for the Tribunal was firstly to identify and, if necessary, quantify, the support which the child required to benefit from school education in terms of Section 1 (1) of the Act and secondly to determine if that support could meet the criteria for a CSP in terms of Section 2 of the Act.

 

There was no dispute that the child has additional support needs arising form one or more complex factors. An acquired brain injury of the sort sustained by the child is a complex factor where the reasonable expectations in terms of development are sometimes difficult to predict. 

 

The needs which the child has arising from his condition are likely to continue throughout his life but the interpretation of needs “likely to continue for more than a year” must, following the opinion of Lord Wheatley, be linked to the actual support required and not the extent of developmental needs.

 

Section 2(1)(d) requires that significant additional support be provided by (i) the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education (but there was no argument that this provision could apply) or (ii) by one or more appropriate agencies(within the meaning of 23(2)) as well as by the education authority themselves.”

 

This provision has given rise to a number of appeals to the Court of Session and we are satisfied following the decision of the Inner House in Mrs J T as Legal Guardian for KT v Stirling Council [2007] CSIH 52 that we need to approach this provision with care. This case quotes with approval the guidance given in the Code of Practice Chapter 4 paragraph 16 which states

 

“The [2004] Act does not define what “significant additional support” means. The use of the term ‘significant’ signals that the scale of the support, whether it is in terms of approaches to learning and teaching...or personnel or resources, or a combination of these, stands out from the continuum of possible additional support. Judgements about significance have to be made taking account of the frequency, nature and intensity of the support, and the extent to which that support is necessary for the achievement of the educational objectives which will be included in the plan...”

 

In addition in paragraph 18 the Code refers to “substantial, direct and continuing intervention from another agency/agencies in order to benefit from school education.”

 

It appeared impossible for these conditions to be satisfied unless the child required to receive input from speech and language therapy on a regular basis. It was for this reason that the Tribunal sought evidence from an expert under the terms of Rule 24 (incidentally, the first time that this provision has been invoked) and also why the Tribunal arranged for the expert to give evidence by way of a conference call. The relevant reports appear at T85 to T98.

 

The expert speech and language therapy assessor report was helpful for the Tribunal in obtaining a better understanding of the complexity of the child’s presentation. For the Appellant, the report vindicated her view that the child’s needs require to be addressed specifically from the perspective of a child with an acquired brain injury (ABI). The report signposts various aspects which the school might consider in order to stimulate the child within that environment and the supplementary report highlights an organisation which may be of considerable assistance to the child and his parents and even support the teachers in acquisition of relevant skills appropriate to his needs. However, the crucial aspect of the expert speech and language therapy assessor’s evidence was the quantification of any continuing speech and language therapy input. Her report was silent on this aspect. However her oral evidence on this matter was considered and clear. 

 

The recommendation made was for three months therapy on a twice weekly basis, perhaps Tuesdays and Thursdays, delivered by speech and language therapy. It would best be delivered in the classroom and should involve regular meetings with staff to ensure that they know how to deliver the same strategies; it would be helpful to involve a neuropsychologist with the specialist expertise in ABI required to address the child’s particular needs. It would also be important that a fully trained speech and language therapist take the lead in delivering this therapy rather than simply instructing an assistant.

The apparent lack of a comprehensive understanding of the child’s ability to understand language was noted by the speech and language therapy assessor at T93 where the class teacher and nursery nurse reported that the child was not able to follow verbs and some pronouns whereas the assessor’s testing had established this ability.

 

This expert opinion was not challenged by either of the parties and no evidence was led by either which could controvert this view. It constitutes the best evidence available to the Tribunal on this issue.

 

The expert speech and language therapy assessor had noted no interaction between the child and his peer group at school during an observation lasting no more than two hours but the two most verbally proficient pupils in the class had been taken out to do other activities when the speech and language therapy assessor visited the school and her observations were carried out all in the same day. There was, however, no reason to think that this was not a typical day in school for the child or that her conclusions from observing him at home and at school were in any way unsound. Her observations did not materially differ from those of other professionals contained in the papers. For instance at R87 in the speech and language therapy notes the possible issue of lack of motivation to speak was mentioned.

 

The expert speech and language therapy assessor conclusions following those observations indicated the possibility of a more pro-active engagement with the child’s needs in the school environment having contrasted the Appellants ability to respond to the child’s needs at home. Nonetheless the speech and language therapy assessor did not indicate a requirement for enduring therapy contact.

 

The desirability of a neuropsychological assessment was highlighted by the expert speech and language therapy assessor in her report at T93. A clinical psychologist assessment had previously been raised by the school in trying to find a solution to the child’s temper outbursts in an attempt to discover appropriate strategies to deal with them. It is a matter of perspective. The Appellant had not been attracted to an assessment which characterised her son’s behaviour as deliberately disruptive but where an expert of ABI could be involved, such as a neuropsychologist, it was agreed that a better understanding of the child’s thought processes might mean that more appropriate strategies could be identified and used to address his needs. The time involvement of such an expert would not amount to “significant” applying the statutory interpretation having regard to time, frequency, intensity, even if the results of such a report could produce significant impact in terms of the school meeting the child’s needs.

 

The Appellant stated that it was her wish to ensure that the child could benefit from the best possible support within his school environment and she was clearly distressed by the contrast between his reported “behavioural” difficulties at school and the smiling happy child she experiences in the home environment. It was not possible for the Tribunal to determine whether this inconsistency in his reported behaviour is due to an inability on the part of the school to respond appropriately to his needs or whether there are other relevant environmental factors. Clearly the Appellant considers that the child’s behaviour is affected when he is not treated appropriately and that any unacceptable behaviour is a reflection of his unhappiness and not a deliberate intention to be disruptive. The Tribunal noted the willingness of both parties to explore assessment by a neuropsychologist and hope that this can be taken forward by agreement.

 

The Appellant highlighted other aspects of the school regime which she felt were unhelpful for the child such as the excessive use of his wheelchair, not simply for movement around the school, but as the preferred chair for classroom activities and lunchtimes, even though he has a reasonable level of mobility and the family has been advised that it is best for him to be out of his wheelchair as much as possible. This was also noted by the expert speech and language therapy assessor and it appears to be a reasonable cause for concern.

 

Another issue of concern for the Appellant, already noted above, is the apparent regression in the child’s linguistic ability where his small but significant use of words had now reduced to only five or six. This is remarked on in the speech and language therapy notes at R100 dated 30/05/2008 – “less speech heard today than before when I visited at home”. It was felt that this was due, at least in part, to being in a school environment where the other children do not have language, and that another class may be more appropriate for his needs. It is now a matter for the school to discuss this aspect with the Appellant following this decision. The reports in the oral evidence that communication with the school had stalled pending the Tribunal hearing are regretted since the Tribunal is concerned to ensure that whatever the outcome, parties are able to develop a positive continuing dialogue.

 

The suitability of the allocated class was also an issue in relation to his toileting where the toilet adjacent to the classroom had a small toilet suitable for young children but not appropriate for a child of his size and disability where his back needed to be supported. The impression was that the child’s peers were younger than he is although no direct evidence was heard on this point. His ability to indicate his toilet needs at home contrasted with his inability to express these needs at school and was, in part, attributed to the lack of an adjacent appropriate facility.

 

The expert speech and language therapy assessor’s report highlighted the apparent absence of outdoor play equipment which might be suited to the child. This was denied by the head teacher but the Appellant confirmed this opinion and stated that it was her understanding that the child was confined to small areas where the equipment was not accessible to him and the outdoor activities described such as looking at plants were not the sort of thing that he would enjoy.

 

All these aspects are recorded since they emerged strongly at the hearing and are understandably important to the parent. However we have a statutory jurisdiction and these matters are not directly relevant to the issue before the Tribunal which was the extent to which the input of agencies other than education could, or should, be reflected in the current CSP.

 

The remedies of mediation and independent adjudication are available where there is a dispute relating to the delivery of additional support falling short of issues which would give rise to a co-ordinated support plan but it is hoped that the opportunity to air these issues might promote a more productive communication between the Appellant and the school.

 

The position of the respondents was that while they properly conceded that on a strict application of the criteria set out in Section 2 of the Act, the child would not currently meet the criteria for a CSP, they were content that such a plan remain in place for the time being given the extent of his needs and the possibility that he might “dip in and out” of the statutory test to be applied.

 

This appeared to the Tribunal to be a reasonable and appropriate response. The child’s needs had in no way lessened over the years. He was still under regular review (usually three monthly) by the child development team and other agencies would be involved in developing a personal passport for him even though therapies would not be delivered in the frequency or duration required to meet the criteria for a CSP. While the Tribunal has the power to direct that a plan be required in terms of Section 19(2)(b), there is no corresponding power to insist that the respondents terminate a plan already in existence simply because the criteria are not currently met where the parent has not brought a reference on this issue.

 

The Tribunal consider that existence of the plan and the statutory meetings, if adhered to, provide a forum which can involve the child’s parents and all those responsible for his education and care. It would not be constructive in a reference of this sort for the Tribunal to seek to apply the statutory provisions in an unduly restrictive way, even though we acknowledge that the existence of the plan in itself has not, so far, resulted in the issues giving rise to grievances being satisfactorily addressed. It is hoped that in deciding this matter as we have parties can thereafter proceed to reach a settlement on the classroom issues referred to above.

 

Finally, the Tribunal wishes to record its appreciation to the parties and their representatives of the positive manner in which they approached the hearing.