ASNTS_D_07_2009_09.07.09

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/07/2009

 

Gender:                   Male

 

Age:                        13

 

Type of Reference: Contents of Co-ordinated Support Plan

 

 

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1. REFERENCE: 

 

The Appellant, the mother (hereinafter referred to as ‘the Appellant’) lodged a Reference dated 16^th October 2008. The basis of the Reference is the Appellant’s disagreement with some of the information/wording within a Coordinated Support Plan (hereinafter referred to as ‘CSP’) prepared by the Education Authority (hereinafter referred to as ‘the Authority’) for her son (hereinafter referred to as ‘the child’) in respect of:

 

1. The factors from which additional support needs arise,
2. The educational objectives that have been set taking account of these factors,
3. The type of support proposed to help meet these objectives, and
4. The person or agency who will provide that support, 

 

all in terms of Section 18(3)(d)(i) of The Education (Additional Support for Learning) (Scotland) Act 2004, (hereinafter referred to as ‘the Act’).

 

 

2. DECISION OF THE TRIBUNAL:

 

In terms of Section 19(4)(b) of the Act the Tribunal requires the Authority :

 

1. To  amend the September 2008 CSP under appeal (at T28-34) so that it contains the information in the revised draft March 2009 CSP (at A88-A96);
2. To delete all references to gross motor skills at A91 under Educational Objectives and Additional Support Required;
3. Against Behaviour and Transition Educational Objective,A92, Para 1, under Additional Support Required amend the frequency of monitoring and review to ‘Regular Ongoing’;
4. Against Awareness of Danger Educational Objective A92 Para 1 under Additional Support Required the frequency of opportunities therein shall be amended to ‘Regular Ongoing’;
5. To amend the typographical error in respect of the co-ordinator’s forename at page A95.

 

The Tribunal further requires the Authority to make all the aforementioned amendments of the information in the CSP within four weeks from the date of this decision.

 

 

3. PRELIMINARY MATTERS:

 

The original Reference was lodged by representatives on behalf of the Appellant. The Appellant now has legal representation. 

 

There have been several Case Conference Calls and Convener Directions issued in this case.  The parties agreed that the Appellant was to lead in evidence.

 

Additional witnesses were called by the Appellant in this case in addition to the normal number permitted within the Rules. Efforts had been made by both parties to focus the matters in dispute prior to the first date of the Hearing. 

 

It is recorded that both parties raised observations and objections in respect of legal issues and the leading of evidence, in advance of the first day of evidence and thereafter. This included the layout of the hearing room itself.

 

The Tribunal noted there has been a previous placing request hearing in respect of the child.  The Appellant’s Representatives in this CSP appeal did not act in the placing request appeal. The Tribunal is mindful that the Appeal before us would inevitably revisit areas of evidence previously considered by the placing request hearing. We understand that the previous Appeal was heard over 6 days between October 2007 and March 2008.  In fairness to the Appellant, the Tribunal permitted the Appellants Solicitor to present to this Tribunal her case, subject to the evidence being relevant to the issues in dispute, namely the content of the CSP.

This Appeal is not a placing request and parties appropriately restricted themselves to the content of the CSP.

 

The Appellant intimated by email (dated 25^th May 2009) an application to the Convenor to make two Directions. In view of the lateness of this request the Convenor declined to consider these sitting alone. It was considered more appropriate for all Tribunal members to consider matters. It is noted that we were only formally invited to consider making one Direction preventing the Respondent from leading any evidence in respect of the deletion of gross motor skills from the CSP.  The Tribunal carefully considered both parties submissions and ruled that it was, in all the circumstances, appropriate for the Respondent to lead evidence in respect of gross motor skills [subsequently the Appellant withdrew seeking reference to gross motor skills, and accordingly the Tribunal were not invited to consider this].

 

This was a three day hearing in respect of the oral evidence and significant and complex legal submissions carefully prepared by both Representatives.  In view of the detailed evidence, the documentary productions and legal submissions presented to us, the Tribunal adjourned to a fourth day to allow the Tribunal commence their deliberations.

 

 

4. SUMMARY OF EVIDENCE:

 

The tribunal considered the considerable papers in the bundle together with:

 

1. Copy Reference to the Tribunal,
2. Appellant’s case statement and all written submissions,
3. Respondent’s case statement and all written submissions,
4. All oral submissions made on 25^th June 2009,
5. Case law referred to by both representatives,
6. All documentary productions.

 

In addition the Tribunal heard evidence from five witnesses and the child’s mother.

 

 

5. FINDINGS IN FACT:

 

1. The child is thirteen years old. He resides with his parents.
2. The child has additional support needs and it is agreed by both parties that the child meets all statutory criteria required for the opening of a CSP. The child has an individualised educational programme (IEP).
3. The child attends a school under the management of the Authority.
4. The Appellant previously made a reference to the Tribunal for a placing request for the same child. This request was refused by the Tribunal.
5. The child has an Autism Spectrum Disorder with associated severe learning and communication difficulties and challenging behaviour. He also has sensory processing and fine motor skills difficulties.
6. The Authority produced a CSP template in October 2007.
7. In September 2008 the Authority issued the CSP under appeal.
8. The child does not have gross motor skills difficulties. The Appellant’s representatives agree that this should not be included within the CSP after they considered the oral evidence from professional witnesses.
9. The child experiences residential respite and autistic society outreach sessions.
10. The respite the child receives is provided for the child and his family. It is not provided as additional support without which the child would be unable to benefit from school education under the Act. Furthermore it is not directed towards meeting the educational objectives of the child’s CSP.

 

 

6. REASONS FOR DECISION:

 

The Tribunal considered all of the evidence indicated above and all oral evidence from the witnesses in this case, together with the Appellant. The Tribunal is satisfied that there was sufficient evidence available to enable it to reach a fair and informed decision on the reference.

           

The Tribunal utilised its special expertise and knowledge of good practice in determining the Reference. We also carefully considered case law and the Code of Practice.

 

The submission on behalf of the Appellant was that she felt the CSP was inadequate in certain areas. The Tribunal does not consider it necessary to fully revisit, summarise and comment upon all of the evidence in this case, in view of the parties agreeing to start from the revised draft CSP at A88 to A96. Both parties invited us to work from this jointly agreed starting point. The Tribunal concur with this approach. It seems appropriate for us to proceed to consider the remaining outstanding areas in dispute listed at T126.

 

Gross Motor Skill:

We do not therefore revisit the evidence led in respect of gross motor skills as the Appellant withdrew the request to include this in the CSP. This is not an area in dispute.

 

The Tribunal consider that all the witnesses, including the child’s mother, presented themselves as both credible and reliable.  Whilst his mother knows him better than anyone else in this case, she did not seek to present herself as an expert in school education or therapy. When giving evidence before us, she presented herself as someone who was prepared to reflect upon the evidence from the experts in school education and therapy. She did not present herself as seeking to be disruptive to the school or behaving in a vindictive manner.   Indeed  the Tribunal note that after hearing the first two days of evidence the Appellant accepted and agreed with the wording of the Educational Objective for Environment. The Appellant explained in her evidence that she considered it necessary to proceed with the Reference in the knowledge that there was a disagreement with the Authority on the inclusion of social work in the CSP, and accordingly she proceeded with making the Reference.

 

The Appellant was praiseworthy of the school in her evidence.  The Tribunal observe however that there were several occasions during the hearing when she appeared not to be fully aware of some of the information being led in evidence. It is vitally important for the child, his parents and the school that there are clear mechanisms in place to ensure effective communication between the school and home.  We hope that the Appellant has achieved a greater understanding of what the school are doing, how they operate, and how she can meaningfully communicate any concerns/questions she may have about her son’s education in the future.

 

We note that the Appellant has made this Reference because she is concerned to get the best possible outcome for her son so that his needs are met.  Clearly an accurately worded CSP is important for everyone involved professionally with the child. In all our deliberations the Tribunal have strived to ensure that the child’s educational needs are properly reflected in the final wording of the CSP.

 

The Tribunal acknowledge that our jurisdiction is limited to consideration of the issues within section 9(2)(a) of the Act.  For example we have no jurisdiction in respect of the wording of the Profile. 

 

In the Respondent’s original written skeletal submissions at T108 we are invited to consider:

1. Is the involvement of the provider for the purpose of providing additional support to the child to enable the child to benefit from school education; and
2. How does the involvement of the provider contribute to the provision of additional support for the purpose of enabling the child to benefit from school education, or without which the child would be unable to benefit from the school education to be provided.   The Tribunal accept these are critically important considerations and appropriate in this case.

 

We are invited to consider ‘frequency’ of reviews in a number of areas.

 

Outstanding matters in dispute:

 

As stated above all the evidence was duly considered in our deliberations. In providing our Reasons we simply highlight some of the evidence the Tribunal found persuasive.

It does not follow that any evidence not referred to herein was either disbelieved or discounted from our deliberations.

 

1. Against Communication and Language Educational Objective A9,  Para 1  (under Additional Support Required)

 

(i)Frequency of sessions with SALT (to delete ‘Normally’)

 

From all the evidence before us, including the evidence from the Appellant, the Tribunal is not minded to change the proposed description of the frequency of sessions with the speech and language therapist. We are satisfied that ‘Normally weekly’ complies with the Code of Practice at Chapter 4 Para 55 which states:

 

‘The statement of support to be provided should be clear and specific and, wherever possible, should be quantified. Everyone should be clear about what is being provided and why it is being provided. Statements such as “learning support as necessary” or “speech and language therapy as required” are too vague to be helpful.’

 

We considered the evidence of the Speech and Language Therapist (SALT). She stated that she currently sees the child once a week at his work station for direct therapy. We also note her evidence about group snack sessions and indirect input in the school. She stated that by describing the additional support required for the child as ‘normally weekly’ brought flexibility to the sessions.  She further argued that for a variety of reasons (which she spoke to in her evidence) - “You don’t necessarily want weekly…A CSP is for a whole year”.  

 

The Tribunal is satisfied, from the totality of evidence before us, that the child is not prejudiced by the wording proposed by the Respondent.  The proposed wording within the agreed draft March 2009 CSP commencing at A88 is appropriate and will better serve his needs. Whilst evidence from the Head Teacher broadly supported the parents, we preferred the evidence of the SALT. We are not satisfied that ‘Normally’ should be deleted.  

 

(ii)Frequency of review and consultation between therapist and class team

    (to replace ‘Regular’ with ‘Half-termly’)

 

The Inner House decision [2009] CSIH 46 XA207/08 (9^th June 2009) distinguished between therapy provided directly to the child by the SALT and indirect therapy provided as part of the curriculum. The Court held that it was only if the direct therapy was significant additional support that a CSP was required. Only direct therapy which required co-ordination in respect of the child requires to appear on the CSP.  The Tribunal note however that the Respondent is content to retain “Regular” for this frequency.  The Appellant sought to amend this to “Half- termly”. The evidence from SALT referred to a formal annual review. She also described informal reviewing and consulting throughout the school year. The Tribunal accept the evidence of the SALT to be both reliable and credible.

 

The Tribunal considered all the evidence before us, including the evidence of the Appellant and legal submissions. The Tribunal is satisfied, having considered the totality of evidence before us, that the child is not prejudiced by the wording proposed by the Respondent. The proposed wording within the agreed draft March 2009 CSP commencing at A88 is appropriate for the child. We are not satisfied that ‘Regular’ should be removed and substituted by ‘Half-termly’.

The Tribunal observe that ‘Regular’ is more needs led and allows for greater flexibility in addressing issues as and when they arise.

                                                                                                                      

2. Against Behaviour and Transition Educational Objective A92 Para 1 (under Additional Support Required)

 

(i)Monitoring and review (replace ‘Regular’ with ‘Daily Ongoing’)

 

The child’s teacher at school, stated in her evidence that his behaviour was reviewed regularly. She also described the frequency of review as almost being “minute to minute”.  The Respondent proposes the frequency of monitoring and review as ‘Regular’ whilst the Appellant seeks ‘Daily Ongoing’.  She stated in her evidence that any professional would monitor behaviour constantly. The Tribunal accept that these matters are primarily matters for professional judgement in light of changing circumstances. This may require to be more, or less frequent, on the basis of need. ‘Daily’ is too prescriptive in the opinion of the Tribunal for specific inclusion with the CSP having regard to the totality of evidence before us.

 

The Tribunal considered all the evidence before us, including the evidence of the Appellant and legal submissions. The Tribunal is minded however to amend the description of the frequency to ‘Regular Ongoing’. We consider this frequency to be both appropriate in all the circumstances and consistent with the totality of evidence.  We therefore add in ‘Ongoing’ after ‘Regular’ into the revised CSP of March 2009. We formed the clear view that this reflects what the school currently provide for the child.  We are not minded however to amend the frequency to ‘Daily’.

 

3. Against Independent Living Skills Educational Objective A92 Para 3 (under Additional Support Required)

 

(i)Review and consultation frequency (Replace ‘Regular’ with ‘Termly’)

 

This is another request to amend the frequency. The Appellant seeks to replace ‘Regular’ with ‘Termly’.  Witnesses referred throughout their evidence to the need for flexibility for review and consultation.  The Teacher explained that there was termly review and felt that input was probably more frequent than termly. The Occupational Therapist described a formal annual review but she also tried to go round all the staff at the start of the academic year and probably went around the classes termly. The Occupational Therapist further stated that in addition the class team were very good at coming forward to discuss issues with her.

 

The Tribunal considered all the evidence before us, including the evidence of the Appellant and legal submissions. We are not minded to accede to the request to replace ‘Regular’ with ‘Termly’ having regard to the totality of the evidence before us.  It might indeed be argued that it is perhaps beneficial to the Appellant to have ‘Regular’ as the frequency period rather than the somewhat restricted inflexible frequency period of ‘Termly’.  The child is not prejudiced by the wording proposed by the Respondent and we consider the proposed frequency to be more appropriate having carefully assessed the evidence from the professional witnesses.

 

4. To Amend Independent Living Skills Educational Objective A92 Para 3

 

The Tribunal had some sympathy with the Appellant in this matter. The Teacher stated that the aim was the ‘transfer of skills’ but whether skills were actually transferred depended on the individual child. She argued that whilst delivery was guaranteed within the classroom it was dependent on others outwith the classroom. She preferred the wording of the Objective proposed by the Respondent’s Educational Objective at A92 rather than the Appellant’s proposed revisals. The Teacher stated whilst it would be ideal if the child could transfer skills, the critical issue was “deliverability in school”.  She stated for example that the school have no control over respite periods.  The Tribunal noted the evidence of all other witnesses in this matter. The Assistant Manager of the residential respite facility, described the child as “compartmentalised” and this suggested that a transfer of skills is not a realistic target for him. The Occupational Therapist, argued that the Educational Objective, proposed by the Respondent, could be done in school, whereas the transfer of skills would depend on the family. She stated that whilst she could evaluate what was done in class, she did not have the same ability to assess and evaluate what went on at home, or anywhere out with school.

 

The Tribunal considered all the evidence before us, including the evidence of the Appellant and legal submissions. Having further regard to the Code of Practice, the Tribunal agree that the wording of this Educational Objective as proposed by the Respondent should remain unaltered.

 

There is not, in our opinion, a legal obligation upon the Authority to deliver the Appellant’s proposed amendment to the Educational Objective, namely to transfer learned independence skills to home and community. We consider this is a stage beyond what the school does. The Appellant’s proposed wording is aspirational. It follows that we are not minded to incorporate this amendment into the CSP.

 

5. Against Awareness of Danger Educational Objective A93 Para 3 (under Additional Support Required)

 

(i)Frequency of opportunities (replace ‘Regular’ with ‘Daily’)

 

This is another request to amend the frequency. The evidence showed that it is somewhat artificial to attempt to regulate the teaching of awareness of danger.  The Tribunal explored an acceptable wording for the frequency. We note that the Authority can accommodate ‘Ongoing’ rather than ‘Regular’. The Appellant however seeks ‘Daily’.

 

It is noted that the Teacher gave evidence of daily opportunities.  She gave several examples to us.  She argued that it was probably more appropriate with a child with additional support needs to show and demonstrate with a particular example as and when the opportunity arose, rather than discussing danger in the abstract. 

 

The Tribunal explored the feasibility of the Appellant’s request for ‘Daily’.  The Teacher stated that she thought this could not be done arguing that situations change and a teacher would adapt as the situation changed.   She taught as needs arose.  Whilst planned opportunities were important flexibility was critical. Once again we observe that the need to be flexible was a common theme throughout the evidence of all the professional witnesses.

The Head Teacher stated that she could live with ‘daily’ as requested by the Appellant as long as there would be a modicum of common sense.

 

The Tribunal carefully reflected upon the request to replace ‘Regular’ with ‘Daily’. The Tribunal considered all the evidence before us, including the evidence of the Appellant and legal submissions. We formed the view that ‘Regular’ should remain with the addition of ‘Ongoing’ added thereafter, namely the frequency will be ‘Regular Ongoing’. We are satisfied that this accords with the spirit of the totality of evidence. We formed the clear view that this reflects what the school currently provide for the child. We accept the requested frequency of ‘Daily’ is too prescriptive and not the appropriate frequency to be included in the CSP.

 

6. Against each Educational Objective (under Additional Support Required, Persons providing Additional Support AND the School Annual Review)

 

(i)Add residential respite service and autistic society

 

The Tribunal conclude that no evidence was led by the Appellant to support the argument that respite was additional support required by the child and without which he would be unable to benefit from school education.  The Appellant explored the purpose of various educational objectives and argued forcefully the need for consistency from professionals. There was little resistance from anyone that consistency is important.  There were examples in this case of joined-up working, joint approaches to practice and to the sharing of important information for the child. 

 

Having regard to Section 23(2) of the Act, the Tribunal do not consider the autistic society as an ‘appropriate agency’ in terms of Section 23(2) of the Act. In any event their involvement is not for the purpose of providing additional support to the child to enable him to benefit from school education

 

The Tribunal noted the extensive evidence presented to us about Respite care providers.  Some outreach respite has now ceased and the Appellant will have 6 hours worth of vouchers a week to provide outreach sessions with agency workers.  The school has no control over this. A qualified social worker is invited to attend the annual school review where everyone can share knowledge and experience about working with the child.  Respite providers do not know what he is being taught in the classroom and they do not give feedback to the school in respect of the Educational Objectives. Once again the practical importance of consistency was highlighted in evidence. The Social Worker stated that the respite care worker, whilst having a care plan, the plan does not involve the school.  Those involved in goal setting were respite staff, the child and his family.  If they had noted a behavioural change they would contact the school to see how they manage behaviour.  The only exchange of information is at the end of the day when the child goes to respite.

 

The Tribunal accept that the evidence before us clearly indicates that the respite is not an additional support need and that the respite providers are not teaching towards Educational Objectives or targets. The Head Teacher was also in no doubt that respite is not directed towards meeting the Educational Objectives in the CSP. The child is able to work towards those Educational Objectives and benefit from school education without respite in her opinion.

 

In our careful deliberations the Tribunal also carefully considered  the Outer House decision, dated 15^th April 2008,  C-v-City of Edinburgh Council 2008 SLT ([2008] CSOH 60, Lord Wheatley) and the more recent  Inner House decision, dated 9^th June 2009, City of Edinburgh Council-v-ASNTS, ([2009] CSIH 46 (XA207/08),  Lord Hardie). We are not persuaded to depart from these decisions or to differentiate this Appeal from said decisions in any material way. There is no evidence provided to the Tribunal that the present input from social work services is to support the child to achieve his Educational Objectives, without which he would be unable to benefit from school education.

 

The Tribunal accept that whilst social work input is required it provides useful support and respite to the child and his family, but it is not required to benefit him from the education provided or achieve the Educational Objectives.

 

The Tribunal fully accept that the use of non-statutory materials may be an aid to the interpretation of a statute. Even having considered all the extraneous material relied upon by the Appellant to identify the purpose of legislation, we are not persuaded that social work services, namely the residential respite service, and the autistic society, should be included within the CSP for the child.

 

The Tribunal considered all the evidence before us, including the evidence of the Appellant and legal submissions. The Tribunal is not persuaded that the suggested wording by the Appellant be incorporated into the final CSP

 

It follows that the Appellant’s request to include the residential respite service and the autistic society against each Educational Objective under the Additional Support required and under ‘Persons Providing Additional Support’, together with inclusion within the School Annual Review will not be incorporated within the CSP.

 

 

We recognise that both Parties attempted to agree the contents of the CSP and resolve their outstanding Disputes in advance of the Hearing. Unfortunately this was not possible resulting in this Hearing.  This required the Tribunal to consider the evidence, legislation, the Code of Practice, detailed legal submissions and case law. The Tribunal allowed both parties to present their cases fully, subject to the evidence being relevant to this Appeal. We did not direct the exclusion of evidence, e.g. gross motor skills or social work services.

 

The Respondent has indicated that they may wish to seek Expenses against the Appellant.   We invite the Authority to intimate if they wish to request an Order of Expenses to the Secretariat in writing within fourteen days from the date of this decision. The Tribunal will thereafter consider Rule 39 and return to both Parties.