ANONYMISED DECISION OF THE TRIBUNAL
Reference: d/07/2006
Gender: Male
Age: 14
Type of Reference: CSP not required
1. Reference:
The reference was received in July 2006 and is against a deemed decision of the Education Authority under Section 18(3) (b) (i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) that the child does not require a co-ordinated support plan since he does not meet the statutory criteria set out in Section 2 of said Act. An explicit decision to this effect was issued by the respondents by letter dated September 2006.
2. Decision of the Tribunal:
The Tribunal confirms the decision of the authority
3. Preliminary Matters:
There were some doubts as to the competency of the reference and it was admitted by decision of a convener in July 2006.
There was late evidence tendered by both parties which is indicated by the prefix L in the schedule. This was admitted by the Tribunal having regard to the fact that there was no opposition to its late admission and the availability of this evidence considerably assisted the tribunal in reaching its decision.
The hearing was originally due to be heard in late December but was postponed by a convener mid-December. Thereafter directions were issued by that convener and further directions were then issued by the convener who chaired the present hearing.
There was a pre-hearing discussion by way of conference call which took place in January 2007 to ensure that the hearing arranged could proceed as intended
4. Summary of Evidence:
- The reference and the bundle preliminary papers
- The case statement for the appellant
- The response for the respondents
- Oral evidence from the parent, and from the 3 witnesses who attended.
5. Findings in Fact:
1. The reference concerns a child who was born in July 1992. He has attended his local High School which is a mainstream school within his local authority since August 2004. He attended a mainstream primary school.
2 He resides with his parents and nineteen year old brother who is currently at university.
3. The child’s needs arise from Developmental Co-ordination Disorder (DCD) which is the label given to a group of symptoms which result in the need for learning support normally in the absence of a more specific diagnosis of an underlying medical causation. Specifically, the child is dyslexic and dyspraxic. Dyspraxia was diagnosed by an educational psychologist.
4. There is no Record of Needs in place. He has an Individualised Education Plan (IEP) dated June 2006. He has difficulty meeting targets set for him.
5. The parent requested an assessment by a consultant paediatrician with experience of communication difficulties and dyspraxia but no such individual is employed by the local NHS board.
6. As at December 2005, the child has support for 20% of the curriculum.
7. The child’s education attainment is below his chronological age as indicated in an assessment of psychological services input dated May 2005.
8. There was a previous reference to the Tribunal concerning the child regarding the respondent’s failure to meet timescales for assessment which was decided by way of a hearing on the papers on March 2006.
9. The parent requested an assessment as long ago as November 2005 and has felt continually frustrated by the respondents’ inability to carry out assessments within a reasonable timescale. There have been changes in key personnel within the respondents’ responsible office and there have been three unfilled learning support posts within the child’s school and the absence of a fourth teacher on long term sick leave. These staff shortages have now been addressed and new staff should be in place very shortly.
10. The parent has found meetings held at the school to discuss the child’s needs unsatisfactory.
11. The parent is concerned that resource implications have affected the way in which the child’s needs have been assessed.
12. The parent is concerned to have a more accurate diagnosis of the child’s learning difficulties.
13. The reference received in July 2006 was on the basis of a deemed refusal to issue a co-ordinated support plan but a letter dated September 2006 was subsequently issued confirming the respondent’s decision that no co-ordinated support plan was required. The letter indicates that the child’s additional support needs can be met through staged intervention.
14. The child underwent assessment for ICT (Information and Communication technology) and this was reported by letter dated March 2006. This resulted in the provision of appropriate software and a laptop computer from June 2006.
15. The child underwent a Speech and Language Therapy Assessment. This included a questionnaire response completed by a Speech and Language Therapist who assessed the child in May 2006. The therapist indicated that the child’s need for SLT would not last for more than a year. An earlier assessment dated February 2006 resulted in the same conclusion.
16. The Speech and Language Therapy assessments disclose some language difficulties but also some strengths and he does not fit the classic dyslexia pattern in testing.
17. He has received 8 sessions from SLT up to December 2006 and is now awaiting some classroom input for a few sessions to support the teachers but no further strategies can be put in place.
18. The child is the only child to be receiving support from SLT in his school.
19. There is currently no educational psychology and none is planned.
20. The child underwent a Triage assessment by the Occupational Therapy Department in January 2007 which concluded that the child does not have significant gross or fine motor skill difficulties that impact on everyday life and that 2 – 3 sessions would be sufficient to address issues such as tool use and handwriting in a classroom setting.
21. The findings of all these reports are adopted by the Tribunal in reaching its decision.
22. The parent is currently arranging for the child to attend a Dyslexia Institute which costs £43 per week. He also has a maths tutor once a week which is paid for privately.
23. The child is very frustrated and angry that he is not making progress at school. He is sometimes emotional about his problems. He is embarrassed by his dyslexia. He wants to be normal. He finds the work at school very difficult and he does not feel he has enough support.
24. The child currently receives a scribe and reader in test or examination circumstances only.
25. The child is a sociable boy who has a circle of friends. He attends a modelling club and goes about three times a month. He has been on one school trip which involved being away from home overnight in 2006. He does not like to attend school discos or dances. He does not feel comfortable in that environment.
26. The child attends classes in Maths, English, History, Physics, Art and Design, Craft and Design, PE and RE. The child needs significant parental support to undertake school project work in subjects such as Art. Nearly all subjects are being studied at foundation level.
27. The provision of the laptop was poorly supported by training and manuals in order to get the best outcome. The child currently uses the laptop in some classes and is learning to touch type but the parent has arranged a touch typing course which the school has not provided.
6. Reasons for decision:
The issue before the Tribunal was whether the child meets the criteria for a co-ordinated support plan set out in section 2 of the Act.
In deciding this matter the Tribunal were greatly assisted by the three witnesses and the parent, together with the helpful input of representatives for both parties. All witnesses gave clear and consistent evidence. There were no issues of credibility and no conflicts of evidence.
The patient is anxious that the child receives a CSP as she fears that in its absence the school will not be bound to provide the level of support which she considers necessary to ensure that the child can “benefit from school education provided” as set out in section 1 of the Act.
The Tribunal fully understand the parent’s concerns. These may have substance. The parent’s concerns have been made more acute by the time taken by the respondents to attend to the assessment of the child’s needs, the lack of satisfactory communication between the school and the patient, the shortage of support for learning teachers within the school which the child attends and the frustrations at not having a satisfactory explanation for the child’s learning difficulties. The Tribunal’s sympathy with these very real issues but the Tribunal is only empowered to take decisions which are in within our jurisdiction. It is our duty to apply the statutory criteria which we will address in turn.
Section 2(1) (a) education authority are responsible for the school education of the child
There was no dispute that the child attends a school for whom the education authorities, the respondents, are responsible.
Section 2(1) (b) the child or young person has additional support needs arising from
- one or more complex factors, or
- multiple factors
The Tribunal heard evidence on this aspect although it was not formally disputed and we are satisfied that the child’s Developmental Co-ordination Disorder is a complex factor as it is not fully understood and his pattern of testing for dyslexia does not fit the classic pattern. There was also some debate about whether a complex presentation in testing for dyslexia amounted to a “complex factor” as set out in the legislation but it is not necessary for us to reach a view on this aspect within the current reference.
Section 2(1) (c) those needs are likely to continue for more than a year, [and]
Although it appeared that this was a matter to be challenged in the initial responses from the respondents, at a conference call prior to the hearing it was conceded that the needs were likely to continue for more than a year and the main argument to be put forward was that the child does not meet the terms of Section 2(d). However we did hear evidence and argument on how this provision should be interpreted. It was suggested that as the child’s difficulties were likely to persist then his needs would persist also. The parent, in particular gave strong evidence that with regard to the Speech and Language Therapy needs, the child could be taught various strategies to try and overcome his difficulties but the role was an enabling one. It would never intended, for someone with the child’s problems to provide long term support because if the strategies were not working after several sessions and the appropriate training being put in place then the technique would not have demonstrated any improvement and where there was no discernable difference then the support was not likely to continue. In other words there could only be a “need” for therapy where it was shown to make a difference. If the additional support provided actually made no difference then there could not be said to be a “need” for that additional support even though the condition might continue. There was no evidence to support a finding that support from Speech and Language Therapy of from any other agency would continue for more than a year from the present time. It was certainly true that there would be Speech and Language Therapy involvement for almost a year in total to in or about March 2007 but in considering a Co-ordinated Support Plan any involvement was likely to have ceased by the time the plan was prepared. In any event, section 2 (1) (c) has to be read together with section 2 (1) (d).
The argument for the respondents relied mainly on the interpretation of “significant” and having regard to the evidence heard it was somewhat surprising that the respondents had conceded the issue of the time period of the provision of the support as section 2 (1) (c) was not met on our findings above.
Section 2(1) (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
- by one or more appropriate agencies (within the meaning of section 23 (2) as well as by the education authority themselves.
The only agency which had any structured input into the child’s needs in the past year was Speech and Language Therapy. There had also been very recent contact with occupational therapy for assessment purposes but this was highly unlikely to result in continued input. It was certainly arguable, although the argument was not presented, that the ICT support provided was provided by the education authority “in the exercise of any of its other functions” since the provision of a suitable laptop computer could be regarded as an aid or adaptation for the disability over and above a provision which would be made in the exercise of the education authority’s purely educational function. The consultant was a chartered psychologist and a computer consultant and therefore his skill background was additional to a purely educational one. Once provided and after initial instruction, however, this aid was not likely to require continuing “significant” additional support input. It relied on the user making use of the aid appropriately. If the aid could not be used effectively independently then its use was not likely to make a difference to the child’s learning.
Finally, we were presented with late evidence which was a letter dated January 2007 confirming than an appointment had been made for the child to see a nurse therapist because of the adverse effect which the current situation was having on the child’s mental health. There was no evidence or submission to the Tribunal to the effect that this was likely to result in any long term or substantial input.
Having regard to the statutory test to be applied, the Tribunal could not be satisfied that the evidence reasonably supports a finding that the child’s needs require significant additional support. Accordingly since this provision is not met we cannot direct that a Co-ordinated Support Plan be prepared.
In reaching this conclusion we have relied on the following aspects:
- It was clear that although SLT had been involved over the past year, the difficulties with which the child presents due to his dyslexia are not those which Speech and Language therapists are normally concerned. The therapies which they suggest are limited and once the child has been taught to apply these and there is some reinforcement from his teachers, their input would not be required. The future involvement of Speech and Language Therapy is not likely to be significant, if it is to be present at all in any form.
- The needs (as reflected by additional support input) are not likely to continue for more than a year.
- Neither the parent nor her representative could identify the nature or type of additional support which they would ideally be seeking. Although the child’s views were not specifically sought, the credible evidence from the parent was that the child did not want attention to be drawn to his difficulties in a classroom setting.
- The parent was clearly concerned to have a better understanding and identification of the child’s difficulties through further assessments but it was not clear that this would result in the need for further support and it was probable that it would not.
- Developmental Co-ordination Disorders present with a wide range of symptoms which vary to a considerable degree. The child’s difficulties on this spectrum are mild. This is not to minimise the impact which these difficulties have on his learning but those difficulties are capable of being addressed within the resources and skills of the education authority without them having to exercise “any of their other functions”.
- The child is having difficulty and experiencing emotional anguish about his inability to meet the educational objectives set in his IEP. It may be that this has to be revised to allow for more achievable outcomes. We accept that the parent is not taking steps to address this aspect but the Tribunal could not be satisfied that this was likely to result in long term referral.
In reaching this decision the Tribunal does not wish, in any way, to minimise the problems which the child is experiencing and we fully acknowledge the considerable family support which the child receives from his parents in dealing with these difficulties. However we have carefully considered the statutory criteria to be met and, in this case, for the above reasons, we are unable to allow the grounds of the reference
