ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/02/2006

 

Gender:                   Male

 

Age:                        11

 

Type of Reference:  CSP not required              

 

 

 

 

 

­­­­­­­­­­­­­­­­­1. Reference:

The mother (“the appellant”) has referred to a Tribunal a decision of the Education Authority that her 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 a further document not already lodged as a production, namely a copy of a letter from the education officer dated September 2006 from the head teacher of his Primary School. 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, including the letter dated September 2006. 

 

The Tribunal heard oral evidence from the appellant, an educational psychologist, and the deputy head teacher. The authority’s representative gave informal evidence on a number of matters. The child’s father addressed the Tribunal on the subject matter of the reference.

 

5. Findings in Fact:

 

1. The child is aged 11 years. He lives with his mother. There are no other members of the household. The child’s father lives nearby and takes a close and active interest in him.

 

2. The child has Attention Deficit Hyperactivity Disorder. He has behavioural and learning difficulties which to some extent at least are associated with his ADHD. He takes 10 mg Risperidone twice a day.

 

3. The child is in Primary 6 at his local Primary School, having started school a year later than his contemporaries. He had been identified in nursery school as having behaviour, speech and fine motor difficulties.

 

4. In March 2001, a speech and language therapist suggested that the child might benefit from a programme to increase his confidence as a verbal communicator. In January 2002 a psychologist suggested that his Individualised Educational Programme should focus on his attention/concentration and confidence and self esteem as a learner. The psychologist also suggested a referral for assessment of the child’s fine motor skills.

 

5. In May 2003 the school agreed to make a referral to a speech and language therapist and that steps should be taken to have the child assessed to see if he had ADHD. His behaviour was regressing.

 

6. In October 2003 a speech and language therapist reported that the child had certain difficulties, including expressive language difficulties, and that he would receive speech and language therapy as appropriate.

 

7. In February 2004 the child was diagnosed as having Attention Deficit Hyperactivity Disorder. It was agreed that the NHS Project, which made the diagnosis, would have an input into the contents of the child’s Individualised Educational Programme.

 

8. In October 2004 the child was put on Risperidone.

 

9. In January 2005 the child displayed violent behaviour to another child. His deputy head teacher described the incident as “a serious matter”.

 

10. In 2005 the authority agreed to open a Record of Needs for the child.

 

11. It was noted, at that time, that the child had difficulty with most areas of language work. He would need supervisory assistant support to enable him to progress. He was easily frustrated in class and displayed violent outbursts in the playground, where he was provoked by other pupils. The school’s view was that given appropriate support the child could sustain mainstream education and access the 5-14 curriculum. His parents’ concern was that in the absence of adequate support he would not attain his full potential. The appellant was particularly concerned about the level of supervision he received, particularly in the playground.

 

12. In September 2005 a speech and language therapist reported that the child had difficulties in areas of word finding, semantics and auditory discrimination and would receive appointments in due course for speech and language therapy.

 

13. The Record of Needs indicated that education services should be (1) a place in mainstream; (2) supervisory assistance support; (3) an individual Behaviour Support Plan; (4) regular monitoring and review; and (5) ongoing home/school liaison. Other services would include speech and language therapy as appropriate and advised by that service. Other measures proposed by the school included consultation with the Unit, a service of the authority’s education department, and visits and advice from the NHS Project. It was noted by the school that the child might also require input from Occupational Therapy, mainly with regard to his pencil control.

 

14. In March 2006 a speech and language therapist reported that she had completed sessions with the child, in the course of which he had completed the targets that had been set other than in two specific areas where the work could be completed at home and/or school. She reported that the child was now discharged from the service as he required no more direct therapy.

 

15. In April 2006 the appellant wrote to the authority requesting a co-ordinated support plan for the child. She also asked for a psychologist’s report on IQ and for the child to be tested for dyslexia.

 

16. A psychologist’s report dated May 2006 was duly obtained and was sent to the appellant. The report states that the child has matured in recent months. He has achieved Level C in national tests. He found writing difficult but could benefit from his tasks being differentiated and the use of organised structures to assist his writing. He was making progress with reading but had difficulty with word constructions and spelling, indicative of specific dyslexic difficulties. Concern over his behaviour had decreased since 2003 but there were still some difficulties. The report went on to list a number of educational needs.

 

17. A dyslexia screening test, carried out in May 2006, indicated that the child’s overall risk quotient was 1.0, which puts him in the lowest 14% of children of his age and is considered an “at risk” score.

 

18. A school report dated May 2006 refers to difficulties the child has with language, and the need for a supervisory assistant during language based activities to keep him on task. His behaviour tended to be obsessive and playground behaviour could be an issue. He could lose control, lash out and become quite violent. There was very close home school liaison.

 

19. At a meeting held in May 2006 with the authority’s ASL manager and others, the child’s parents were told that he did not require a co-ordinated support plan. Due to the fact that the child did not have various agencies working with him he did not qualify for a co-ordinated support plan.

 

20. On 7 July 2006 the education officer wrote to the child’s parents to confirm the decision taken at the meeting in May 2006, explaining that the child’s additional support needs did not require significant additional support to be provided by the authority exercising any function other than those relating to education.

 

21. In September 2006 the education officer was informed by NHS Community Child Health Department that the suggestion that the child be referred to Occupational Therapy had not been pursued, as the school were happy that he had been adequately assessed in school and that his handwriting was progressing.

 

22. A Liaison Teacher of the NHS Project was in touch with the deputy head teacher on some seven occasions between March 2005 and August 2006 in relation to the child. Her contact with the child was limited to observing him in class on two occasions.  She had discussions with the child’s class teacher, supplied the school with support materials and agreed that the school could contact her should it be felt necessary.

 

23. The child now has an up-to-date Individualised Learning Programme opened in August 2006. It specifies his short and long term targets and the specific resources and strategies to be used, all of them to be delivered by the authority’s educational team and none by medical or social work staff.

 

 

6. Reasons for decision:

 

1. In her closing submission, the appellants’ representative submitted that the authority had not followed the practice set out paragraph 4.35 in Code of Practice (“Supporting Children’s Learning”)[1]. The Tribunal considers that there is maybe some substance in this complaint, but it does not feature in the appellant’s statement of case and was only raised at the stage of closing submissions. For this reason, the Tribunal was unable to give proper consideration to the point. In any event, the Tribunal considered that the question of whether or not the authority had “complied” with this paragraph of the Code of Practice was not a relevant consideration, in this case, in determining the question that the Tribunal had to answer.

 

2. The authority accepted that all the criteria for deciding whether or not a co-ordinated support plan was required were met, with one important exception. The child had additional support needs arising from one or more complex factors which were likely to continue for more than a year, but the condition section 2(1)(d) of the Act was not satisfied. By virtue of section 2(1)(d) the child’s additional support needs must require significant additional support to be provided either by the authority in the exercise of any of their other functions, as well as their functions relating to education, or by one or more appropriate agencies as well as by the authority themselves.

 

3. There was no suggestion that the child’s additional support needs required support from the authority in the exercise of a non-education function. Accordingly, the question for the Tribunal was therefore whether the child’s additional support needs required significant additional support by “another agency”.

 

4. The appellant’s representative submitted that there should be further investigation of the child’s dyslexia; that the option of further speech and language therapy should be properly investigated; and that no regard had been had to the child’s poor motor control. In his letter of September 2006, the head teacher had acknowledged that the school agreed with the child’s parents that the school could not meet his needs to the level they (the parents) believed he required. The parents would be agreeable to the child attending a school with Enhanced Provision facilities, which in the appellant’s representative’s submission would make the child eligible for a co-ordinated support plan.

 

5. The authority’s representative pointed out that the authority had considered whether the child’s needs required significant additional support to be provided by any “other agency”. The only “other agency” suggested was the NHS. It was submitted that the evidence relating to speech and language therapy, occupational therapy and medical support did not suggest that any significant or ongoing support was required from the NHS.

 

6. The appellant gave evidence. She said that the child hated school and did not want to go. He was picked on by other children. She had known for a long time that the child had dyslexia, but heard this from the school only very recently. The child’s main problem was with language. He struggled with words. She tried to help him. For a time she had employed a private tutor. The child had difficulty with motor skills. He held his pencil very tight. He found it awkward to use cutlery and preferred to eat with his hands. The appellant said that she was not suggesting that the child should go to another school, but thought that the facilities in the new school would help the child. He thrived on working one-to-one.

 

7. The appellant impressed the Tribunal as a loving and conscientious parent. She clearly thought that the school did not meet all his needs and recognised that her input was vital. She asked, “How can he cope if I’m not there?”

 

8. The child’s father explained to the Tribunal that he wanted the child to have the chance to develop his full potential, but he lacked confidence. If he couldn’t be helped to improve it was difficult to see how he could progress.

 

9. The Tribunal was impressed by the sincerity of the child’s father’s concern for his welfare and progress in education.

 

10. The deputy head teacher explained that the child had reached level C in all subject areas, a level which should be attainable in the course of P4-P6 by most pupils. He struggled in the area of writing, but had a minimum of 7 hours of one-to-one assistance, all focused on language. The deputy head teacher had a good relationship with the child, who could speak to her about the sources of his frustrations. He had special help with writing and spelling. As regards his ADHD, the school had had the benefit of advice and materials from the liaison teacher at the NHS Project. There was maybe a need for more supervisory assistant support in the playground, but the school’s resources in that regard were limited. The child’s difficulties could produce good written work if he was given time. He seemed to be in general reasonably happy in school, except when a situation arose. She had been in regular contact with the child’s parents all along.

 

11. The psychologist spoke to her report. The child had average ability levels and given his areas of difficulty had progressed well through the curriculum. He had specific difficulties with language and behaviour. The important thing was to maintain a balance between supporting him as required, through his IEP in particular, and developing independence. He had been discharged by the speech and language service but the school had been provided with strategies to cope with the child’s outstanding language difficulties. There would be further reviews of his progress. There was no need at present for support from outside agencies. There was no evidence to suggest that the child’s motor skills difficulties impacted on his ability to access the curriculum (even taking into account the deputy head teacher’s comments about his pencil control).

 

12. The psychologist took account of the finding of mild dyslexia. She did not undertake psychometric testing for what she considered to be sound professional reasons. The best predictor of future performance was past achievement. It was reasonable to expect that the child would reach level D by the end of P7.

 

13. The Tribunal accepted the psychologist’s reasons for not undertaking psychometric testing, but was concerned that these reasons did not appear to have been communicated to the appellant.

 

14. The psychologist stressed in her evidence that the provision of appropriate learning support must always be balanced against the need to develop independence, if progress was to be made.

 

15. Having considered all the material before it, the Tribunal concluded that it was not established that the child’s additional support needs required significant additional support to be provided by any one other than the authority in the exercise their functions relating to education. The Tribunal accepted the evidence of the psychologist in this regard and could find no clear or substantial evidence to the contrary. A possible need for significant additional support may emerge in future, as the child’s progress is reviewed. There is no evidence that further assessment is necessary at this stage. For these reasons, the decision of the authority, that the child does not require a co-ordinated support plan, is confirmed.

 

16. The Tribunal appreciates that this decision is likely to disappoint the child’s parents. The Tribunal hopes very much that the parents and the school will continue to co-operate and work together to help the child to achieve his potential. The evidence is clear that he has the potential to complete the 5-14 curriculum satisfactorily. On the other hand, it is also clear that he is a child with additional support needs; he does have problems with other pupils and there are no doubt times when school is very difficult for him. As he approaches secondary school age, he needs to be helped to develop more independence. It is possible that the parents and the school may continue to take divergent views on how the child may be best helped to make progress in education and become more independent. Both should endeavour to see the other party's point of view and if necessary make use of facilities that are in place for mediation.