ANONYMISED DECISION OF THE TRIBUNAL
**This decision was appealed to the Court of Session. The opinion of the Court was issued on 22/08/2008. The appeal was refused. **
Reference: d/08/2007
Gender: Male
Age: 8
Type of Reference: CSP not required
1. Reference
The mother lodged a reference dated October 2007 under section 18(1) and (5) of the Education (Additional Support for Learning) (
2. Decision of the Tribunal
The Tribunal confirm the decision of the Authority dated October 2007 and thus find in favour of the Respondent.
3. Preliminary Matters
The Appellant sought to lodge late paperwork on the morning of the Hearing. No objection to the late lodging was taken. Nonetheless in terms of Rule 34 of the Additional Support Needs Tribunals for
4. Summary of Evidence
The Tribunal considered oral evidence from:
- Educational Psychologist
- Depute Head teacher
- Education Officer; all on behalf of the Respondent.
and
- The child’s mother; on behalf of the Appellant.
In addition the Tribunal considered the papers in the bundle which consisted of:
1. Copy reference to Additional Support Needs Tribunal for
2. Sundry correspondence from the ASNTS secretariat to the parties;
3. The Respondent’s case statement and submissions, pages 1 to 48 (described further as “R1” to “R48”)
4. The Appellant’s case statement and submissions pages 1 to 25 (described further as “A1” to “A25”)
5. The Appellant’s further documents pages A26 to A32, referred to under preliminary matters above and A33 and A34 being letters lodged during the course of the oral hearing without objection by any party.
5. Findings in Fact
1. The child is aged eight. He lives with his mother who is a single parent. The child has lived with her since he was fifty weeks old. He was formally adopted by the Appellant in June 2001.
2. The child is presently a P3 pupil at Primary School. This is a mainstream primary school, although it is designated by the Authority as a school for children with physical impairment. The child has attended there since P1. His start at Primary School was deferred for one year due to his difficulties and he continued to attend the school’s nursery class. The Primary School is in close proximity to the child’s home, but he does not actually live within its catchment area.
3. The child’s class has a high incidence of children with Additional Support Needs in that there are ten such children in a class of twenty-four. Out of these ten children four are described by the school as having ‘higher needs’ and the child is one of these. In addition to the teacher there is a classroom assistant and learning support auxiliary within the class. The latter works closely with the child and is his “named supporter”. She is not the named supporter for any other child in the class.
4. The child has an abnormality of the twenty-second chromosome known as DiGeorge syndrome or Velo-Cardio-Facial-Syndrome. As a result the child has certain health difficulties, namely minor heart problems, fluctuating hearing loss, pains in his feet (particularly at night), low muscle tone, reduced stamina, bowel problems and learning difficulties.
5. Whilst at nursery the child had an Individualised Educational Plan (IEP). This did not continue in Primary 1.
6. Within the classroom the child is described by the school as having low self-esteem and lacking in confidence. He is reported to be shy when outside the classroom. Although he has learning difficulties in the area of processing, particularly auditory processing, he is in the top reading group in the class.
7. The child has the involvement of the following agencies, outwith education: a/ Community Paediatrician. The child attends regular review clinics with the Community Paediatrician. These are sometimes held within the school. b/ School Nurse. The nurse attends the school infrequently and has had no involvement with the child since May 2007. c/ Physiotherapy. A physiotherapy assessment was done in respect of the child. In March 2007 the child was discharged from physiotherapy with the conclusion “The child is an active boy who participates well in all activities at school offering no complaints.” d/ Speech and Language Therapy (SALT). The child is seen by the therapist who attends the school regularly to see the children on her caseload. She saw the child for assessment and two blocks of therapy over the course of 2007. She feels he would benefit from regular practice of his speech, even for five to ten minutes each day and the school are aware of this. They can provide either the classroom assistant or the learning support auxiliary to fulfill this role. e/ Children’s Service Worker. The child had input from this worker to help him develop socially and behaviourally in P1. She has no input with the child at present although he has recently been re-referred. She is part-time in the school and is jointly funded by education and social work.
8. In July 2007 the Appellant wrote to the Respondents requesting a determination as to whether the child required a CSP. The Respondents acknowledged this letter in early August 2007. The Appellant again wrote to the Respondents in September 2007 following a meeting in early September 2007. The purpose of the meeting was an inter-agency discussion on whether a CSP was required. The meeting concluded it was not. The Appellant’s letter made certain specific requests for information from the Respondents. This was for information that should have been given in any event in response to a previous letter. The Respondents answered the Appellant’s letters by letter dated late September 2007. This letter was not sufficiently informative.
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 -coordinated support plan (“a CSP”).
Section 2 (1) provides that a child requires a plan (a CSP) for the provision of additional support if:
“(a) an education authority are responsible for the school education of the child …,
(b) the child … 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 of 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 they were 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 mother
The Appellant did not feel that the child was coping well at school. He often reported to her that ‘no-one played with him’. When she brought this to the school’s attention she was told that the child has friends. The Appellant does not feel the child is up to a good standard of reading, writing or spelling. He spells phonetically and she did not feel he was reaching Primary 3 level. When she did his reading with him at night he continued to struggle with certain words. She felt that he was also struggling with maths. Overall she felt that he did not have the opportunity to work to his full potential and thought he could do better if he was properly supported. She felt that someone in the classroom, whom the child could access to help him with work he found to be difficult, was necessary. In nursery he was reported to have had dedicated support.
She felt that the child needed social work support to help improve his social skills. He also needed assistance at school with his pencil grip. He ascended stairs by using two feet on one stair each time and was described as being very clumsy. All of these were reasons for the child to be assessed by an Occupational Therapist. In addition the child seemed to be learning from a computer they had at home, now in need of repair, and that was why she wished an ICT assessment.
For the authority
The educational psychologist had carried out an assessment of the child at the end of 2006. This had included observation of the child within his class. She concluded that the child was well placed within his class and was making good progress across the curriculum. Guidance was provided to the school in order to assist the child to learn. The educational psychologist has not been directly involved with the child since.
The Depute Head confirmed the levels of inter-agency support provided to the child past and present. She confirmed having had sight of the Appellant’s letter requesting that the child be assessed for a CSP and had arranged a meeting in respect of it. She had considered the question of an Information Communication Technology Assessment (ICT) raised within that letter and she felt that the presentation of the child’s learning difficulty was not at the severe level required for such involvement. She had sought advice from the Support for Learning teacher in making that decision. There were no formal criteria to apply in making such a decision relying rather on professional judgement.
The Education Officer had overall management responsibility for the CSP assessment. He accepted he had received the Appellant’s letter of request. He also accepted that the letter made certain specific requests. He considered that sufficient information was gathered in all areas of request, except in the areas of Occupational Therapy and ICT. With regard to the former he accepted that the Authority had “slipped up” and with regard to the latter he concurred with the Depute Head’s view that the child did not require assessment in this area. He had had regard to the criteria in the Act, and the Code of Practice and guidance. The Authority would continue to monitor and assess the child’s needs throughout his life at school. Finally, the Education Officer accepted that the Authority did not meet the legal time-scale set down for responding to the Appellant’s request for assessment. He again offered apologies for this and pointed out that this was due to a key staff member’s illness.
Submissions
The solicitor for the Authority submitted that the evidence produced for the Authority showed that there was no significant additional support from the Authority either as an education authority or in the exercise of any of its other functions, nor was there any significant additional support from any other appropriate agency. What was important, he said, was that there was no ongoing physiotherapy, speech and language therapy, social services and occupational therapy input. The meeting, convened to decide if a CSP was required, had had multi-agency attendance with all agencies well represented. The community pediatrician was also there. They concluded that the child did not need a high level of support.
He referred to the opinion of Lord Nimmo-Smith in Mrs. JT v Stirling Council where consideration was given to the definition of “significant” where it appears in section 2. He submitted the Tribunal could be satisfied that a CSP was not appropriate as it was clear from R48 (Update re; the child as at early December 2007) that the child was progressing well in school. There was no evidence that the Authority’s conclusions were erroneous or evidence that there is need for co-ordination. The Appellant’s letter requesting a CSP had not been dealt with properly but there was a remedy available to the Appellant in that regard and the Tribunal should not find against the Authority on the basis of that letter. The Appellant’s specific requests for occupational therapy and ICT assessments required to be evidenced and the Authority did not have any evidence that they were necessary.
The Appellant’s representative submitted that the Appellant had the right to ask if the child needed a CSP. There was a difference between assessment and examination. Assessment is a process of overview whereas examination assumes direct engagement. The reason the request was made was that the Appellant believed that the child had more potential than he was being credited with. The child had done remarkably well because he had had input in nursery and P1. As the child was getting older communication was becoming a bigger barrier. She maintained that the child required occupational therapy. The Authority should have complied with that request by the Appellant. There was also the wider requirement to ensure that the child reached his full potential. In addition the Authority did not meet the timescales. As a result the whole process was fundamentally flawed. The Authority should not have come to that decision.
The comments on the interpretation of “significant” by Lord Nimmo-Smith referred to by the Respondent’s were made in a case that is under appeal to the House of Lords. The test was whether the input was going to significantly help the child. The child needs a programme. One could not know whether the child would be helped by social work or occupational therapy or whether these would have educational objectives. We had heard that the child was to have further Social Work involvement. All of these services need to be co-ordinated. There should be a CSP for the child.
Reasons
The Tribunal accepted the evidence from the school and the educational psychologist that the child is coping well and is receiving additional support appropriate to his needs.
Although the Appellant was adamant that there was a need for occupational therapy and ICT assessment the Tribunal concluded that it was not possible, without evidence of what support may be needed, to find that any other agency required to provide significant additional support to the child.
The Tribunal were concerned that the Appellant had made a detailed request for specific assessment and examination of the child and this had not been comprehensively dealt with by the Authority. The Tribunal’s view, having regard to section 8 of the Act, was that it was proper for the Appellant to request other types of assessment beyond education (para 39 of the Code of Conduct) but not to specify the steps that that assessor required to take e.g. not to require the educational psychologist to “determine the child’s potential/IQ…”. It was also open to the Authority to refuse the assessment request as unreasonable (section 8(1) of the Act). That is what the Authority purported to do here in relation to the Appellant’s specific requests for assessment by an occupational therapist, ICT specialist and Social Work Department. However, it is the Tribunal’s view that the Authority’s written response fell far short of the requirements contained within section 28(2) of the Act.
Nevertheless, in considering whether the Authority made the correct decision in not complying with the Appellant’s request the Tribunal had regard to para 38 of the Code of Conduct. This sets out reasons that the Authority may have for such a refusal to comply. The Authority’s position at the Hearing was that assessment was not undertaken in those three areas as there was no evidence of a need for any of them. The Tribunal noted that this was one of the reasons set out in para 38 (bullet point 2). The Tribunal agreed with this position, having regard to the evidence in the child’s case.
In summary the Authority have failed to comply with the technical requirements of section 28(2) but their refusal to carry out the Assessments sought by the Appellant is justifiable. In these circumstances the Tribunal considers that the Authority’s failure in this area does not constitute a fundamental flaw of their whole decision to refuse a CSP. However, it is to be hoped that the Authority will take steps to ensure that the requirements set out in section 28 are fully complied with in the future.
The Tribunal found that neither section 2(d) (i) or (ii) was satisfied in that the child’s needs did not require significant additional support from any function of the authority other than education, nor from any other appropriate agency. The Tribunal agreed with the points made in the submissions made by the solicitor for the Respondent in reaching this decision.
