ASNTS_D_18_2008_03.11.08

 

ANONYMISED DECISION OF THE TRIBUNAL

 

**This decision was appealed to the Court of Session on 15/12/2008 and the appeal is still pending**

 

 

 

Reference:              d/018/2008

 

Gender:                  Male  

 

Age:                        11      

 

Type of Reference: CSP not required.

 

­­­­­­­­­­­­­­­­­­­­­­­­­­­1. Reference:

 

The child’s guardian (his sister) (hereinafter “the Appellant”), lodged a reference dated 16^th July 2008 under section 18 (1) and (3) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) against the decision of the Education Authority (“the Authority”) to refuse to provide a Co-ordinated support plan (hereinafter a “CSP”) in respect of her brother (“the child”), which decision was dated 7^th July 2008.

 

 

2. Decision of the Tribunal:

 

The Tribunal hereby overturns the decision of the Authority dated 7^th July 2008 in terms of section 19 (2) of the Act and thus finds in favour of the Appellant. The Tribunal requires the Respondent to take the following action: To prepare a Co-ordinated support plan in respect of the child in terms of section 9 of the Act in the time-scales provided for in the Act.

 

 

3. Preliminary Matters:

 

The Appellant sought to clarify the basis on which the Respondent resisted the reference. The representative for the Authority confirmed it was resisted on the basis set out in section 2 (1) (d), parts (i) and (ii) of the Act only. In other words parts (a), (b) and (c) of section 1 of the Act were conceded by the Respondents.

 

 

4. Summary of Evidence

 

The Tribunal considered oral evidence from:

 

• The Principal teacher at the child’s school who is also the Additional Support for Learning team leader, and
• The Lead Speech and Language Therapist for Paediatric Services within the Authority, both for the Respondent.

and,

• The Appellant.

 

In addition the Tribunal considered the papers in the bundle which consisted of:

1. Copy reference to Additional Support Needs Tribunal for Scotland:
2. The Appellant’s case statement and submissions (“A1” to “A91”);
3. The Respondent’s case statement and submissions (“R1” to “R116”)

 

 

 

5. Findings in Fact

 

1.       The child is aged eleven. He lives partly with his parents and partly with the Appellant. At the time of the hearing he lived with his parents from Monday to Friday and with the Appellant at the weekend.

 

2.       The child is presently a primary 7 pupil. His school is a school designated by the Authority as a school for children on the autistic spectrum. The child has only attended there since September 2008. He previously attended a mainstream primary school.

 

3.       The child’s school has a roll of 101 pupils. It has both a primary and secondary section. The child’s class contains seven children with Additional Support Needs. In addition to the teacher there are one nursery nurse and two learning support assistants within the class. The school day is based in the one classroom but there are special teachers for PE, art, computing, drama and outdoor education who visit the school.

 

4.       The child has a diagnosis of autism with moderate learning difficulties and otitis media (causing a difficulty with his hearing),

 

5.       The child previously had a Record of Needs.

 

6.       The child has learning difficulties in the area of verbal comprehension, perceptual reasoning, working memory and processing. His IQ places him at the 0.1 percentile of the population. He responds to visual cues and strategies such as social stories. These are used to help his comprehension.

 

7.       The child has the involvement of the following agencies, outwith education:

• The Community Learning and Disability Nurse. She attends the family home once per week for about two hours. She has had involvement with the child for some time.
• Physiotherapy. A physiotherapy review was done on 1^st November 2007. The physiotherapist wished to observe the child to offer further advice but considered that input would be standard and would not continue for more than one year.
• Speech and Language Therapy (SALT). The child is currently being assessed by SALT at his school.
• Social Work Department. A section 23 report was completed by the social work department dated 27^th May 2007.
• Befriender. A befriender takes the child out once per fortnight for up to three hours.
• Occupational Therapy. The child had an Occupational Therapist but responsibility has transferred to the OT at his school. The child has had input from Occupational Therapy over several years to develop his motor and functioning skills and to support the development of his self-care skills and life-skills.

 

8.       The Respondents wrote to the Appellant on 7^th July 2008 indicating that a CSP was not required. This letter gave four reasons for that decision. The Appellant disagrees with that decision.

 

 

6. Reasons for Decision:

 

The Tribunal considered all of the evidence indicated above and was satisfied that there was sufficient evidence available to it to reach a fair decision on the reference.

 

The issue was whether or not the child satisfied the terms of section 2 of the Act and required a Co-ordinated support plan.

 

Section 2 (1) provides that a child requires a plan (a CSP) for the provision of additional support if:

1. “an Education Authority are responsible for the school education of the child…
2. the child…has additional support needs arising from;
   
   1. one or more complex factors, or
   2. multiple factors,
3. those needs are likely to continue for more than a year, and
4. those needs require significant additional support to be provided:
   
   1. by the Education Authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or
   2. by one or more appropriate agencies (within the meaning of section 23 (2) as well as by the Education Authority themselves.

 

(2) For the purposes of subsection (1) –

(a)      a factor is a complex factor if it has or is likely to have a significant adverse effect on the school education of the child…,

(b)      Multiple factors are factors which:

(i)       are not by themselves complex factors, but

(ii)       taken together, have or are likely to have a significant adverse effect on the school education of the child…”

 

It was accepted by the Authority at the outset of the Hearing that it was responsible for the child’s school education, that he had additional support needs, and that these were likely to continue for more than a year. Therefore what was in dispute was whether or not subsection (d) was satisfied.

 

Evidence for the Appellant.

The Appellant gave evidence about her brother’s normal week. He goes to school from their parents’ home and lives with her at the weekend. He needs a lot of prompting to get up in the morning. His clothes have to be laid out for him and he has to be encouraged and assisted to dress. He has to be given his breakfast and is then collected by the school bus at 0745. He cannot dress himself. The child loves his food but needs to be prompted to drink at the same time as he is eating. The child uses visual cuing at home.

 

The child is interested in bionicles and transformers. His speech is difficult to understand. He can follow a maximum of three pieces of information at a time. The Appellant told us that the child has always had ear infection problems and was recently seen by a specialist who diagnosed hearing problems. A hearing aid would not help as it would amplify everything and that would not benefit the child. The child also dislocated his knee-cap this summer and is likely to need six months physiotherapy to recover.

 

The child shows behaviour problems when disciplined, for example when told to finish using the computer he will cry, throw toys, slam doors and so on. He has sensory problems with mint, resulting in great difficulty with daily activities such as tooth brushing.  Chewing gum makes him physically sick and he even reacts to seeing it. He “flaps” his hands when he is finding it hard to concentrate or when replaying happy memories. The Appellant considers SALT is paramount to meeting the child’s needs as his difficulties are all about communication. It is paramount to his functioning. The child is provided with SALT, with OT, with a Community Nurse from the disabilities team and a Social Worker is currently awaited. The child has a befriender and he gets help from the ethnic minorities team. The Appellant feels a CSP would make a huge difference to the child. It has always been a situation where she has had to help the professionals working with the child to “talk better”. There are review meetings but no-one appears to have liaised in advance of them. The Appellant felt a CSP would substantially assist things.

 

For the Authority.

The Principal Teacher at the child’s school confirmed the set up of the school and the level of inter-agency support provided to the child at present. She confirmed that the child receives once-weekly SALT intervention, delivered in the form of whole-class group therapy, with classroom staff participating. There was collaboration between the teacher and the SALT in the planning of the sessions, the purpose of which was to facilitate the development of vocabulary deemed essential for accessing the curriculum. There were also regular meetings between teachers and Speech and Language Therapists, to plan ahead for individual children. Teachers in the school were highly trained by the Education Authority but also through training specifically provided by the SALT. SALT is currently in the process of assessing the child. The therapist has been in class observing the child. Children in the school with more complex needs get 1:1 SALT support. She thought the therapist may decide that the child needed such support. SALT is in the primary part of the school four days a week. The teacher was unaware if the child was on the caseload of the OT. She did not think that the child was part of the Physiotherapist’s caseload. Collaboration between the teachers and therapists was time-tables. 8 out of 101 children at the school currently have a CSP. 5 more have a draft plan.

 

The Lead SALT is the line manager for the child’s therapist. She was part of

the team that devised the NHS guidance paperwork at R96. She advised that,

in order to qualify for a CSP, a child had to be in the category of “significant2 in terms of the guidance notes (Appendix A: A Table of Significant Additional Support Needs for Allied Health Professionals). When we asked how many of the criteria a child needed to meet in that column, she advised that she had not been asked that before. She confirmed that there was no additional information contained within the notes as to how the guidance was to be applied. She maintained that the child did not meet any of the three criteria under the sub-heading “substantial support” within this category and it therefore followed that he could not need significant support. She was not sure how many of those points in that column he needed to meet in order to need significant support. She was not sure how the table in Appendix A would have been interpreted by the SALT who undertook assessment of the child, in consideration of his need for a CSP. Specifically, it was unclear whether the SALT would have thought each point had to apply.

 

The Lead SALT advised that teaching staff at the child’s school were highly skilled and highly trained in SALT techniques and that meant a child at the school would rarely require “significant” support from SALT. She interpreted that to be support over and above the general support normally required by a child in the school. When asked if this meant that no child at the school would need a CSP she indicated that was one school of thought. She felt the type of child who should fall into the category of “significant” was the type with complex and multiple disabilities (particularly physical) who might have difficultly in eating, drinking or swallowing and who might have low tech or high tech communication aids individually tailored to their needs.

 

Submissions.

The representative for the Authority submitted that the evidence produced for the Authority showed that support from the Education Authority was significant but that there was no significant additional support from the Authority in exercise of any of its other functions, nor was there any significant additional support from any other appropriate agency. He submitted that placing the child in his current school, which was not a mainstream school, was significant. However, thereafter, the amount of other support, such as from SALT, that was provided, was less, for example, than to a child with a diagnosis of Specific Language Impairment in a mainstream school.

 

He referred to the Lead SALT’s evidence about R96-105 and R101 particularly whereby SALT concluded that the child was provided with an intermediate level of support. He referred to the specific “every day” examples which the witnesses had given as to the type of case which she felt would be “significant” in so far as the level of support was concerned. He felt there was no aspect of the SALT being provided to the child that could not be found in the intermediate support column. He accepted that the guidance document had no legal status but advised that the local NHS had put a lot of effort into creating the document so it should be given some weight.

 

In relation to the Social Work and Community Nurse involvement he submitted that these were not required to meet the child’s educational objectives and thus, with reference to the opinion of Lord Wheatley in SC v City of Edinburgh Council 2008 CSOH 60, they were outwith the scope of the Act.

The Appellant’s representative began by referring to the child’s Social Work involvement. She pointed out that he had been the subject of a section 23 assessment. She believed that the letter at R52 was referring to the educational targets contained in the document at R26. Those targets did not appear to have been significantly changed by the child’s school and so the child, in the assessment of the Social Work Department, did require support from them to meet his educational targets. R65, which assisted the Social Work Department in judging the significance of Social Work Support, was fundamentally flawed. The child met all of the criteria in the left hand column except for the fact that he did not have a care plan or child protection plan. Many children subject to section 23 have neither.

 

In relation to the significance of the Lord Wheatley decision she submitted that it had nothing to do with this case as it was mainly concerned with the provision of respite. In this case, by the admission of the Social Work Department, their involvement was related to the child’s educational objectives.

 

With reference to section 2 (1) (d) (ii) the child has required the involvement of a SALT, an OT and a Physiotherapist from nursery onwards. When considering whether the input was “significant” we should look at the therapists in the round. The child had had involvement in every area. The Appellant’s greatest fear was that all the services would not be co-ordinated; she herself had so far been the co-ordinator.

 

Reasons

The Tribunal was not impressed with the document R96-105. It was not clear as to how the document was to be applied or how it had been applied by the SALT who undertook assessment of the child. We were not told what aspects of the criteria she felt did not apply to the child. The witness felt that six out of ten of the criteria applied to the child but was adamant that his SALT input was not “significant”. The Tribunal felt that the child fell into all but two of the ten points in that column. The submission made by the representative of the Education Authority (that the child met all of the criteria in the “intermediate” column) was not of any assistance, as the whole point of the table was that the criteria became progressively more onerous as you moved along the column. Therefore, it would have been impossible to consider whether the child’s input was significant unless you had already established that it was intermediate. In any event, even leaving that document to one side, the Tribunal felt the child’s SALT input was significant. At the time of the SALT’s assessment it involved blocks of direct therapy; the provision of appropriate visual cues; ongoing input and was directed towards his significant language difficulties. Furthermore, at the child’s school it involved weekly direct therapy aimed specifically at accessing the school curriculum and which was based on close collaboration between the SALT and teacher. That was considered a requirement irrespective of the assessment currently underway to determine possible additional SALT input.

 

In addition the Tribunal was aware of the many other agencies involved with the child. The Tribunal therefore found that section 1(d) (i) and (ii) was satisfied in that the child’s needs did require significant additional support from a function of the Authority other than education, and from other appropriate agencies. The Tribunal agreed with the points made in the submission by the representative of the Appellant in reaching this decision.

 

In relation to the involvement of the Social Work Department, guidance is to found in Chapter 2 of the Code of Conduct, paragraph 13. This acknowledges that family circumstances may give rise to additional support needs and concludes: “In these circumstances support from social work services may be needed to ensure that the child or young person is able to benefit from education.” We formed the view that this was the case for the child. We also agreed with the submission made by the Appellant’s representative regarding R65 in this regard.

 

In relation to the point made by the Respondent, the Code of Conduct seems to make it clear that children attending non mainstream schools and thus benefiting from various forms of input are still receiving additional support. Chapter 2, paragraph 5 states: “Some children and young people require support which is additional to, or otherwise different from, the educational provision that is generally provided to their peers in order to help them benefit from school education.” It seems clear to us that the child is obtaining support at his school that would be additional to and different from a child in mainstream. Therefore we were not attracted to the argument advanced by both the lead SALT and the Respondent in submissions (that the child’s school provides the same high level of SALT to all pupils so its SALT provision cannot therefore be viewed as “significant”.)

 

We considered the opinion of Lord Nimmo-Smith in Mrs JT v Stirling Council 2007 CSIH 52, where consideration was given to the definition of “significant” where it appears in section 2. Having considered that opinion and having observed that the extent of the provision, rather than the effect on the child, is what is important, we consider that the level of support being given to the child is significant and does require co-ordination.