ASNTS_D_14_2010_01.11.10

 

 

DECISION OF THE TRIBUNAL

 

Reference:                              D_14_2010

 

Gender:                                   Male

 

Aged:                                       8

 

Type of Reference:                 CSP not required

 

 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

1. Reference

 

The Appellant has made a reference to a Tribunal in respect of  the decision of the Respondent (“the authority”) dated 28 May 2010 to refuse to open a co-ordinated support plan (“CSP”) for his son. The reference is made under section 18 (3)(b)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

 

2. Decision of the Tribunal

 

The appeal is refused. The decision dated 28 May 2010 is confirmed. The criteria for a co-ordinated support plan are not satisfied.

 

3. Preliminary Issues

 

Reference is made to the decision of the Convener on the preliminary issue of competence appearing at T14 dated 30 July and subsequent decision dated 16 August 2010 at T18.

 

A conference call with parties was held on 18 October 2010 to agree the procedures at hearing.

 

4. Summary of Evidence:

 

The Tribunal heard from the witnesses and had regard to the bundle of papers T1 – 23, R1 – 149 and A1 – 139. The respondents also produced a copy of the authority’s Handbook for Professionals, Meeting Needs, Supporting Learners, for information and supplied copies of missing pages numbered R73A and R75A. The authority organogram was added to the papers as R149.

 

5. Findings in Fact:

 

1. The appellant is the father of the child. He lives with his parents on and attends Primary School. The child has no siblings. He is now in year 4 having completed three full years of primary education. The school has a roll of 17 at present and the child is in the year 2 to 4 grouping. There are four children, including the child, in year 4.
2. The school is situated a few metres from his home and he walks to school. His attendance is generally good.
3. The child has no formal diagnosis of the factors which have given rise to additional support needs. His father does not wish a formal assessment to determine if he is on the autistic spectrum and no assessment has been carried out. Some behaviours consistent with mild autism are present and since attending school his behaviours have been modified though maturation, education and socialisation. The appellant has indicated that his son may have Attention Deficit Hyperactivity Disorder but no features of this diagnosis are evidenced either in the child’s reported behaviour or in any of the assessments.
4. When the child commenced his primary education in August 2007 his teacher noted that he had marked difficulties as set out at A60 which she sought to address by making referrals for assessments. Since that time the school has been working constructively to alleviate the barriers to education noted at A57 to 60. The child’s response to these strategies is evidenced by significant improvement over the past three years. Specifically he has largely overcome his phobia of noise; his obsession with lights; disjointed speech; underdeveloped fine motor skills and inability to exercise appropriate social skills. The very marked improvements in all these aspects has continued. This progress is acknowledged by the appellant.
5. He has no intellectual impairment and assessment at A42 to A46 establishes almost unimpaired learning. He is achieving educational milestones at a level consistent with his peers.
6. The child still requires to be supported in developing social competence and to address mild concentration difficulties. This support can be given effectively entirely within the school setting. Support in dealing with any transitions or unusual events may be anticipated but can be managed through education.
7. The child has been assessed but discharged from Speech and Language Therapy and from Occupational Therapy. Both services are prepared to review any needs in six months or at any time in the future if there is any change which indicates increased needs. No agency other than education is currently involved.
8. The child’s needs have been well addressed in school and by those professionals who have assessed him. The school provides an appropriate learning and nurturing environment. The child is a confident learner who communicates effectively with his peers and with adults.
9. The child’s parents are caring and are concerned to ensure that their son receives education which is of the highest standard so that he can fully develop his potential. They are actively involved in promoting his learning at home.
10. The Appellant has raised complaints in relation to the quality and delivery of the child’s schooling over the past three years. These complaints, and the failure to satisfactorily address them, have led to an increasingly fraught relationship between the Appellant and the school. Escalation of the complaints to the Education Authority has impeded a direct relationship between the child’s parents and the school. Mediation has not managed to achieve better relations and there is a risk that this situation could in itself impact adversely on the child’s learning or social and emotional development. 
11. The respondents implement a staged intervention approach for children with additional support needs. The child was at Stage 2 as he had action plans to address his needs but as from the commencement of session 2010-11 he has been moved to Stage 3 in that he now has an Individual Education Programme (A136 – 139) which sets out very specific educational targets designed to address the child’s areas to be developed. This is subject to ongoing reviews every term. The Appellant has not disputed its content or aims.
12. The child completed a Viewpoint On-Line Individual Report on 23/02/2010 (R30 to R32) indicating his positive response to his education experience. The authority has sought to take the child’s views into account and he is well able to express these. He is happy in his learning and enjoys attending school.

 

6. Reasons for Decision

 

The Tribunal was unanimous in confirming the decision of the respondents. The sole issue before the Tribunal was whether the statutory criteria for a CSP could be met on the evidence available. The Tribunal is bound to consider the situation prevailing as at the date of the decision in May 2010 down to the date of their decision. The child’s situation has not substantially changed over that period and he continues to make positive progress.

 

In reaching this decision we are conscious that the Appellant still has unresolved complaints in relation to wider education issues over which we have no jurisdiction. The powers of the Tribunal are circumscribed by section 19 of the Act and had we allowed this appeal it would have resulted in a direction to the authority to open a CSP; we would not have proceeded to prescribe the content of that document and if the Appellant then wished to dispute the content of the document, that would have given rise to fresh appeal rights. In his submission he asked that the Tribunal refer the child for further assessment in order to better specify his needs and how these could be addressed. We did consider this course of action but could not find that the evidence reasonably supported an adjournment to enable further assessment.

 

The Tribunal was assisted by the oral evidence of the five witnesses for the respondents. We find that all these professionals had carefully considered the child’s needs; they had carefully assessed these; they had responded appropriately to them and had reached reliable conclusions in their reports based on their findings. The appellant had disputed some of the methodologies employed, particularly with regard to testing the child in familiar settings when he was likely to perform less competently in unfamiliar settings but we could find no flaw in the way in which these assessments had been carried out. The reality is that the child is being educated in a familiar setting and it would be unreasonable to expect assessment to take place in an artificial environment. It is noteworthy that he has completed the Viewpoint at R30 to R34 at the Secondary School and the Principal Educational Psychologist had interviewed the child in his office (A44) and neither of these unfamiliar settings had any adverse impact on his behaviour or performance. These instances did not support the appellant’s hypothesis about the child’s lack of motivation in unfamiliar settings and there was no indication of any adjustment disorder.

 

We were impressed with the thoroughly professional approach of all the witnesses in setting to one side the Appellant’s grievances in trying to ensure that the child’s needs were prioritised.

 

It was notable that at the hearing the Appellant did not challenge the oral evidence of the witnesses in any detailed way through questioning. This was in contrast to the way he had raised issues in his correspondence contained in the papers. He explained that he was better communicating in writing and he asked few questions of the witnesses. It was also noted that the Appellant did not appear to dispute any findings in the reports but was not satisfied that the assessments, in particular the occupational therapist assessment, were of the quality he expected as he considered that the methodology was flawed. It was difficult for the Tribunal to assist the Appellant exploring specific points with the witnesses as, despite the volume of documentation, the papers did not make out a focussed dispute on the statutory criteria to be applied. Notwithstanding the Tribunal proceeded to question the witnesses on the applicable criteria to ensure that they addressed the relevant issues.

 

In reaching this decision we have had regard to the statutory criteria set out in section 2 of the Act. Although the decision letter from the authority dated 28 May 2010 at A28 relies solely on the basis that “other agencies outwith education do not feel there is a need for them to be involved on a continuous basis over the next 12 month period” the Tribunal is entitled to address all the criteria to determine which are met on the basis of all the available evidence.

 

The Code of Practice, Supporting Children’s Learning (2005 edition), to which the Tribunal are obliged to have regard, sets out the status of the CSP as follows:

 

The co-ordinated support plan is a statutory document which will be subject to regular monitoring and review for those children and young people who meet the criteria for requiring one. Education authorities must have arrangements in place to identify from among those children and young people for whose school education they are responsible, those children and young people with additional support needs who require a co-ordinated support plan and the particular additional support needs of the children so identified.

 

The criteria for requirement for a plan are as follows:

 

… a child or young person requires a plan (referred to in this Act as a

“co-ordinated support plan”) for the provision of additional support if-

 

(a) an education authority are responsible for the school education of the child

or young person,

(b) the child or young person has additional support needs arising from-

(i) one or more complex factors, or

(ii) multiple factors,

(c) those needs are likely to continue for more than a year, and

(d) those needs require significant additional support to be provided-

(i) 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

(ii) by one or more appropriate agencies (within the meaning of section

23(2)) as well as by the education authority themselves.

 

The first test in Section 2(1)(a) test is met and not disputed in that the authority is responsible for The child’s education.

 

The second test which the Tribunal is bound to address is whether under Section 2(1)(b) The child has additional support needs arising out of one or more complex factors or multiple factors which result in a significant adverse effect on his school education.

 

The Code provides the following guidance:

 

The Act states that 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 or young person.

 

The Act does not define the length of time over which a complex factor has an effect (although the additional support needs arising from one or more complex factors have to be likely to last for more than a year for a child or young person to require a

co-ordinated support plan). Nor does the Act define the term ‘significant adverse

effect’. However, since a complex factor is one that has a significant adverse effect on the school education of the child or young person, it is likely that it will affect most

aspects of learning. 

 

Applying this guidance to the child we cannot be satisfied that this test is met as the evidence does not support the finding that the factors identified as applying to the child result in a significant adverse effect and certainly none that will “affect most aspects of learning” as specified by the Code. The evidence of the child’s sustained learning over the last three years cannot support a finding of any significant adverse affect required by the legislation.

 

The third test for the Tribunal to consider in Section 2(1)(c) is whether the additional support needs are likely to continue for more than a year.

 

The Code states that “professionals involved with the children and young people must determine how long those additional support needs are likely to last. For a co-ordinated support plan to be required the judgment must be that these needs are likely to continue for more than a year”.

 

The Tribunal find it likely that at least some of the child’s needs may well be enduring although capable of improvement and moderation through interventions and training delivered exclusively through education.  The letter from the authority does not accurately reflect the statutory test as it applies the 12 month test in relation to the need for the agencies outwith education to be involved “on a continuous basis over the next 12 months” and that is not the interpretation indicated by the Code. However this is not material having regard to all the criteria to be addressed as sections 2(1)(c) and 2(1)(d) both need to be satisfied.

 

The fourth test in Section 2(1)(d) relates to the provision of significant additional support from an education authority, and either the local authority exercising their functions other than education (e.g. social work services) and/or one or more appropriate agency/agencies, within the meaning of the Act and the associated regulations, if a co-ordinated support plan is to be required.

 

One purpose of the co-ordinated support plan is to ensure that support is co-ordinated effectively when at least one service is required from outwith what the education authority provides as part of its educational functions. The guidance the Code provides is:

 

The 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 (e.g. adaptation or elaboration of the curriculum) 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. Full-time placement in a special school or unit would count as significant additional support, as would provision of personnel full-time to support a child or young person in a mainstream school, and provision of specialist aids to communication.

 

Taking account of this guidance it would be perverse of the Tribunal to find that this final test could be satisfied. The input of any professionals outwith education currently delivered is purely consultative and there is no indication that this is inappropriate having regard to the child’s needs.

 

The Tribunal is aware that the decision of the Tribunal may serve to exacerbate the Appellant’s sense of grievance and that this appeal addresses only one of the matters which he is currently pursuing. The two encouraging aspects of the case were firstly the very significant and positive progress made, and still being made, by the child during his first three years at school largely due to the good quality of education and support he is receiving. The second aspect is the child himself and the maturity he is showing coping with the assessment process and his insight into his strengths and weaknesses.

 

We acknowledge that the Appellant has anxieties about how well the child will be supported in the future. This was reflected in his arguments made to the Tribunal. His first submission relied heavily on academic research applying to studies of children with ADHD and autism but the needs of children with such diagnoses are likely to be far in excess of the needs which we could possibly identify in relation to the child’s profile. He suggested, for instance, that ABA (Applied Behavioural Analysis) might be an appropriate strategy to improve the child’s concentration. The intensity of such a therapeutic response would be disproportionate to the behaviour currently displayed, particularly in the light of the very substantial progress the child has made purely in response to educational support. In any event, ABA is an approach more usually applied to children on the autistic spectrum.

 

In relation to social skills the Appellant identified this as the second area of need but did not specify what particular strategies might be employed to address any socialisation issues. Indeed in his evidence he indicated that the child was now keen to play with other children in the local play park and was now able to go unaccompanied and that his enthusiasm about attending school was associated with his eagerness to socialise with other pupils. The evidence of his socialisation at school indicated greatly improved interactions with other children and adults.

 

The third area of need identified was the desirability to involve another authority in supervising the performance in respect of the planning and delivery of the respondents meeting the child’s needs.  The Tribunal is not satisfied that even if this strategy was thought to be appropriate, that we have the power to instigate this sort of relationship between two authorities, although we accept that an authority may ask another authority to provide supplementary resources in some circumstances. We could not be satisfied that the conduct of the respondents in relation to the matter before the Tribunal was such that the need for any external intervention was identified. The Appellant appeared to concede that improved communication directly with the school would be the most constructive way to repair damaged relationships. In the light of this concession, the involvement of any external additional oversight would be unnecessary.  We were encouraged by the Appellant’s expressed willingness to explore these routes to resolution of fractured relationships and by the authority’s offer of further mediation through  the recently appointed Learning Community Principal.

 

The Tribunal sincerely hopes that the appellant can build on these aspects to re-establish more meaningful relationships with those supporting the child in his education.