Additional Support Needs

“The Appellant”) has referred to a Tribunal a decision of the Education Authority (“the authority) that her child (“the child”) does not require a co-ordinated support plan. The reference is under section 18 (3) (a) (i) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

2. Decision of the Tribunal:

The Tribunal confirms the decision of the authority.

3. Preliminary Matters:

At the start of the hearing the Tribunal allowed the appellant to lodge further documents not already lodged as productions, namely a copy of a Pupil Progress Report dated June 2009 (A 22 –25) and information related to the child’s National Assessment in English dated March 2009 (A 26-27) and Maths dated January 2009 (A 28-29). The authority did not object to the lodging of the document.

4. Summary of Evidence:

The Tribunal considered a substantial bundle of evidence containing case statements for both parties and supporting documents. The authority’s statement of case and supporting documents are numbered R 1-36; the appellant’s statement of case and supporting documents are numbered A 1-29. Initial documents are numbered T 1-46.

The Tribunal heard oral evidence from the appellant, Speech and Language Therapist, Educational Psychologist, and Head Teacher. The appellant herself made a statement to the Tribunal.

5. Findings in Fact:

The child was born on 4 October 1999 and is now aged 9 years. He lives with his parents and siblings.

The child is in Primary 5.

In the course of 2009 the child has attained National Assessment Level C in Reading and Maths.

The child has difficulty with writing and spelling. He has difficulty in concentration and can be easily distracted or discouraged. Prior to January 2009 he had been using two specific teaching packages that provide additional support for learning. They were for word finding (“Education City” and “Memory Skills”). In January or February 2009, on the recommendation of an expert in information and communication technology, he was given a third such package (“Lexion”) for spelling.

The child had three 8-week blocks of speech and language support in 2006 and 2007. In 2006, he was found to have a patchy language profile and to have difficulties across all areas (attention and listening, comprehension/understanding of language, expressive language skills and phonological awareness skills). In January 2007, he was found to have made progress in all areas but continued to have a number of specific difficulties. By December 2008, he had made progress in a number of areas, although some difficulties, which would have an impact on his literacy, remained. The speech and language therapist felt that his difficulties were very specific and that he would not benefit from further speech and language therapy. She suggested that he might benefit from further specific assessment, by an educational psychologist, to identify the exact nature of his difficulties.

In July 2007, because of his difficulties with writing, the child was referred to NHS Paediatric Occupational Therapy Service. In a report dated 18 December 2007, it was stated that he presented with no functional difficulties and that assessment from an educational psychologist would be most appropriate to further assess his reported learning difficulties.

In October 2006 the child underwent Phonological Assessment Battery tests (“PhAB”). His number of highlighted PhAB scores was 1. In October 2007, he underwent a Dyslexia Screening Test. The screening diagnosis was “Not at risk”. He was further assessed in April 2009. The test results were all within the “average” range. His profile was stated to be typical of someone with no signs of dyslexia.

By letter dated 15 January 2009 the appellant requested the authority to establish whether The child has additional support needs and whether he required a co-ordinated support plan. “In order to inform this process”, the appellant requested a number of specific assessments or examinations. In particular, the appellant requested a full psychometric examination by an educational psychologist; a re-assessment by a speech and language therapist; an updated occupational therapist’s opinion; an assessment by an expert in information and communication technology; and a medical update on his hearing and vision.

In a letter dated 16 January 2009, to the child’s class teacher, the appellant raised a number of concerns. They included his difficulties with writing and spelling and her belief that he is dyslexic. The Head Teacher replied in a letter dated 16 January 2009. She wrote that tests did not indicate dyslexia; that there was support for the child’s spelling in school with Lexion; and that the educational psychologist has been regularly consulted and saw no need for further tests.

In a letter to the appellant dated 4 February 2009 the Head Teacher referred to the appellant’s letter of 15 January 2009 and stated. “….please be advised that we will undertake further investigations as per your request.”

In a letter to the appellant dated simply “February 2009”, the Education Officer acknowledged receipt of the appellant’s letter of 15 January 2009 and intimated that a decision on whether or not to proceed with preparing a co-ordinated support plan would normally be made within 4 weeks. She enclosed a copy of the authority’s draft information booklet for parents outlining procedures for meeting additional support needs.

The school has an internal Joint Assessment Team, led by the Head Teacher and an Assistant Head Teacher and Learning Support Co-ordinator. Among other things, this group considers whether particular pupils require assessment and/or have additional support needs. In the case of some pupils the Team calls on the Educational Psychologist or others for advice.

The child’s case was considered at a Joint Assessment Team meeting in January 2009. The advice of the Educational Psychologist was that the child was not “at risk” of dyslexia and did not require further testing. The child had begun using the Lexion programme on the advice of a special needs and micro-technology group.

In early February 2009, the Head Teacher learned from the authority that they were considering the appellant’s request that they establish whether the child required a co-ordinated support plan. She reported to the authority that in the child’s case “no other agencies were involved.”

In a letter to the appellant dated 4 March 2009, the Education Officer intimated that the authority considered that a co-ordinated support plan was not required. Document R 16 is a copy of her letter.

In a letter dated 24 March 2004, Educational Psychologist informed the appellant that she would discuss the details of an assessment plan with her and school staff at a meeting scheduled for 31 March 2009.

The date of the meeting was later switched to 30 April 2009. The meeting was attended by the appellant, Educational Psychologist, the Head Teacher, and Deputy Head Teacher and Learning Support Co-ordinator. Document R 8 is a minute of the meeting.

At the meeting, Educational Psychologist assured the appellant that further assessments would be carried out. There was no evidence so far that the child was dyslexic. “Psychometrics” was not indicated.

Educational Psychologist opened a file on the child in March 2009. Thereafter, she saw the child three times for the purposes of assessment. She understood that the principal concern was that he either did or might have dyslexia. She examined all the information the school had. She consulted another experienced educational psychologist who supported her view of the case. Educational Psychologist had not had time to complete a written report but intended to give feed-back to the appellant at a meeting to be held before the end of June 2009.

Educational Psychologist found that the child (at a time when his chronological age was 9 years 8 months) had a reading age of 7 years 11 months; a comprehension age of 8 years 5 months; and a spelling age of 7 years 10 months. His number operations age was around 9 years and his problem solving age around 8 years. These findings indicate that his abilities are within the “average” range and that he does not have substantial learning difficulties.

Educational Psychologist noted that the child has marked difficulty with memory tasks; he has difficulty in processing information, which is an exercise that is a product of working memory. The results of the dyslexia tests and the earlier PhAB test results were consistent with the view that the child did not have dyslexia.

It is likely that if The child can be encouraged to persevere with tasks that he now finds difficult or unrewarding, and is shown ways of tackling these tasks successfully without being discouraged or distracted, then in time his reading, writing and spelling will improve.

Head Teacher observed that when used by the child the behaviour of the Lexion programme, which was designed primarily to help pupils with dyslexia, was not typical of its behaviour when used by pupils with dyslexia.

For the time being, it is the received wisdom of educational psychologists that “psychometric” intelligence tests are not generally helpful and may put undesirable pressure on pupils undertaking them. Educational Psychologist found nothing to indicate that psychometric testing would be helpful in the child’s case.

On 29 May 2009, Education Officer on behalf of the authority wrote to the Tribunal that at that time it was not considered by school staff that the child had additional support needs that required to be met through development and implementation of an additional plan.

Recently, the child has been assessed by a specialist in relation to a possible diagnosis of Irlen syndrome. No treatment has been prescribed meantime. He is due to be seen again in March 2010 for further assessment.

The child has earned good reports from school. He tries hard, although he finds it difficult to concentrate sometimes and he finds writing and spelling difficult. He finds the additional support he receives helpful. He is worried about the possible effect of his difficulties with writing and spelling on his future progress.

6. Reasons for decision:

The appellant’s representative did not argue that the statutory criteria for a co-ordinated support plan were met. She maintained, however, that the authority’s decision, that the child did not require a co-ordinated support plan, was flawed. The authority has intimated its decision without undertaking any of the assessments specifically requested by the appellant. The appellant’s requests for specific assessments were reasonable. The authority had not informed the appellant that in their view her requests were unreasonable. They had not followed the proper procedure and their decision was on any view premature. If they had complied with the appellant’s requests, the assessments which they ought to have undertaken might well have shown that a co-ordinated support plan was required.

The authority’s representative did not accept that the decision was flawed. He further submitted that even if the decision was flawed, there was nothing in the evidence before the Tribunal to suggest that the authority’s decision could have been any different; even if they had done all the things the appellant’s representative had submitted they ought to have done. He submitted that the authority, at the time when they made their decision, were entitled to hold that the child did not require a co-ordinated support plan. The result of previous assessments and information relating to the child’s progress in school were available. No agency other than the authority itself, in the exercise of their functions relating to education, was involved in providing additional support for the child. Accordingly, the authority had sufficient information to be reasonably certain that a co-ordinated support plan was not required. Further psychological assessment, subsequent to the decision that the child did not require a co-ordinated support plan, confirmed that no outside provision was required.

Section 2 of the Act provides, among other things:

(1) For the purposes of this Act, 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) ………………

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

(i) one or more complex factors, or

(ii) multiple factors,

(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.

(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 or young person,

(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 or young person.

The Tribunal was satisfied, on the evidence before it and on the facts found that the child does not require a co-ordinated support plan. The Tribunal considered that the child has additional support needs, within the meaning of the Act. His additional support needs are manifested in his difficulties with writing, spelling and concentrating. These difficulties can be attributed to difficulty in processing information and making effective use of working memory. These difficulties may well persist for over one year. They may reasonably be described as multiple, whether or not they can also be described as complex. They could have a significant adverse effect of his school education. There was, however, no hint in the evidence that the child’s additional support needs now require additional support to be provided by the authority in the exercise of “non-education” functions or by one or more “appropriate agencies”. That being so, he fails to meet the test set out in section 2 (1) (d) of the Act. There is therefore no need to consider whether his additional support needs require “significant” additional support.

The Tribunal is further satisfied that even if the authority had done all the things the appellant’s representative said they had not done, or should have done, their decision would not have been any different.

As recently as December 2008, the expert opinion was that the child would not benefit from further speech and language therapy. In December 2007, he was discharged from the Paediatric Occupational Therapy Service after he was found to present with no functional difficulties. There was nothing in the evidence to suggest that significant functional difficulties had emerged since that date. The child underwent PhAB tests and a Dyslexia Screening test in 2006. These tests did not suggest that he was at risk of dyslexia. Further testing in April 2009 confirmed that finding. After March 2009, the child was the subject of fairly thorough assessment by Educational Psychology which confirmed the impression that his difficulties could be dealt with within the school. The ICT recommendation, that he use Lexion, has been implemented. It appears that even if the child has Irlen syndrome, which was not clear on the evidence, he is not receiving treatment. In the light of all this, the Tribunal could not envisage that the further assessments sought by the appellant would have made any difference to the result. They could only do so if they indicated that there was a need for significant additional support to be provided by the authority in the exercise of “non-education” functions or by one or more “appropriate agencies”.

Educational Psychologist did not undertake a full psychometric examination, for reasons which she explained and were consistent with the Code of Practice under the Act (paragraph 3.02 in particular). Using a battery of other tests and her professional judgement, she felt able to identify the precise nature of the child’s difficulties and made suggestions as to what could be done to help. It is a pity that she was unable to prepare a written report or give feed-back to the appellant prior to the hearing, but she was able to fill in some of the gaps when she gave evidence at the hearing. She indicated that her written report would follow and it was her intention to meet the appellant again soon.

It is for the foregoing reasons that the Tribunal decided not to overturn the authority’s decision.

Before leaving the case, the Tribunal considers that it may be helpful to make one or two observations.

The appellant impressed the Tribunal as a conscientious and loving parent who has genuine concerns about her son’s prospect of getting the full benefit of his education. It was clear that the Head Teacher considered that there was every reason to be confident that the appellant and the school would continue to have a good relationship. The appellant gave an account of the child’s difficulties which the Deputy Head Teacher is reported to have stated was not one she recognised from working with the child in school. The Tribunal would like to make it clear that it accepted the appellant’s description of the difficulties she herself had observed. And it should be noted that the speech and language therapist, in her evidence, stood by her report and her statements that the child continues to have difficulties which are very specific.

The Tribunal also thought that the case revealed some cause for anxiety related to the practical working of the authority’s support for learning policy.

The witnesses for the authority regarded the parental request, under section 6(2) of the Act, that the authority establish whether there is a need for a co-ordinated support plan, and the assessment requests, under section 8 of the Act, as being separate matters. And so in a sense they are. But it should be noted that assessment requests, under section 8, are part of parcel of the consideration of whether or not a co-ordinated support plan is required. That should be clear from the terms of the section:

(1) Where—

(a) an education authority propose—

(i) in pursuance of any provision of this Act, to establish whether a child or

young person has additional support needs or requires, or would require, a

co-ordinated support plan, or

(ii) …………………., and

(b) the appropriate person makes a request that the education authority arrange for the

child or young person to whom the proposal referred to in paragraph (a) relates to

undergo, for the purposes of the proposal, a process of assessment or examination

(such a request being referred to in this section as an “assessment request”),

the education authority must comply with the assessment request unless the request is

unreasonable.

An assessment request is thus a request that the pupil undergo assessment “for the purposes of the proposal”; and the “proposal” is to establish whether of not the pupil has additional support needs that require a co-ordinated support plan.

The authority dealt with the appellant’s request under section 6 by sending her what their case statement calls a “standard letter”, i.e. Education Officer’s letter of 4 March 2009. It was plain from the evidence that at the time that letter was written none of the assessments sought by the appellant had been undertaken (which is somewhat inconsistent with Head Teacher’s letter to the appellant dated 4 February). Head Teacher’s evidence was that she was not a party to the decision that a co-ordinated support plan was not required; she simply reported that “there were no outside agencies involved”.

The letter of 4 March 2009 does not tell the appellant very much. It quotes, or rather misquotes, section 2(1) of the Act and goes on, “Having considered the child’s circumstances and needs against the above criterion, the education authority considers that…. a Co-ordinated Support Plan is not required.” The letter does not give any specific reasons for the decision. It does not say whether or not the authority regard The child as having additional support needs; or, if he has, whether the authority regards them as multiple or complex; or, if they are, whether they require to be met by “outside agencies.” The letter makes no reference to any of the appellant’s specific requests, made under section 8, for assessments “for the purposes of the proposal to establish whether of not the pupil has additional support needs that require a co-ordinated support plan.” In the Tribunal’s view, the letter fails to explain to the parent why the authority decided as they did.

The letter does not say the assessment requests were unreasonable. There was some discussion of assessment at the meeting on 30 April 2009, which was fixed after Educational Psychologist opened her file on the child in March, but it appears that there was no specific statement that the appellant’s assessment requests were unreasonable.

The Head Teacher was not aware of the appellant’s section 6 request until early February. The discussion of the child’s needs at the January meeting of the Joint Assessment Team was not in relation to that request. It is difficult to see what assessment was undertaken between 4 February, when the request was acknowledged, and 4 March, by which time the authority had decided to refuse the request. It seems that the school looked at the information already in their possession and reported that “there were no outside agencies involved”. The question, of course, was not whether outside agencies were involved, but whether the child had additional support needs that required significant additional support to be provided by “outside agencies.” The fact that no outside agencies were involved did not necessarily mean that the child did not require additional support from such agencies.

The authority did respond to the appellant’s assessment requests inasmuch as Educational Psychologist got involved, arranged a meeting and ultimately carried out a thorough assessment. If that was necessary to show that a co-ordinated support plan was not needed, and maybe it was, it should have been done as part and parcel of the process of establishing whether a co-ordinated support plan was needed.

The last point on which the Tribunal wishes to comment is the omission from the “standard” decision letter of any mention of the right to appeal to the Tribunal. The authority point out that there are references to rights of appeal in their draft Support for Learning Policy, which was issued to the appellant at an earlier stage. The Tribunal is of the view, however, that clear and specific information about rights of appeal should be included in all letters intimating a decision which may be appealed to the Tribunal.

ASNTS_D_03_2009_17.06.09

The Tribunal heard oral evidence from the appellant, Speech and Language Therapist, Educational Psychologist, and Head Teacher. The appellant herself made a statement to the Tribunal.

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