ASNTS_D_01_2010_11.01.10

 

ANONYMISED DECISION OF THE TRIBUNAL

 

Reference:                              D_01_2010

 

Gender:                                   Male

 

Aged:                                       14

 

Type of Reference:                 CSP not required disputed

 

 

 

1. Reference:

 

The Appellant made the reference in respect of the Education Authority’s decision that the child no longer required a coordinated support plan (CSP), under section 18(3)(b)(ii) of the 2004 Act.

 

 

2. Decision of the Tribunal:

 

The Tribunal confirmed the Education Authority’s decision.

 

 

3. Preliminary Matters:

 

A hearing was originally arranged for 2^nd October 2009. At the appellant’s request, the Convener agreed to postpone that hearing in order to allow time for her to instruct an independent speech and language therapy report, and for the education authority to respond to the independent report.   

 

Subsequently, both the independent report and the response to it were lodged. In keeping with a direction by Convenor, the education authority also lodged two further reports which were referred to in the education authority’s response report.

 

The Tribunal allowed all four reports to be received late.

 

The Convener determined, in the course of a teleconference with parties’ representatives on 3^rd December 2009, that the education authority should present its case first.

 

Finally, parties confirmed during the same teleconference that the only issue in contention between them was whether the child required significant additional support from an appropriate agency (section 2(1)(d) of the 2004 Act). The education authority accepted that the child met all of the other statutory criteria for provision of a CSP.

 

 

4. Summary of Evidence:

 

The Tribunal received a bundle consisting of documents lodged by both parties. In the course of the hearing, we heard evidence from two witnesses for each party: the Principal Teacher and also the Highly Specialist Speech and Language Therapist (both of the Secondary School) for the education authority; and an independent speech and language therapist for the appellant, along with the appellant herself.

 

We were satisfied that we had sufficient information on which to base our decision.

 

 

6. Findings in Fact:

 

1. The child normally lives with his parents. His mother (the Appellant) is his primary caregiver as his father works abroad for most of the year.
2. The Education Authority are responsible for the child’s school education.
3. The child has additional support needs in that he has a diagnosis of autistic spectrum disorder, with related language and social communication difficulties, and a diagnosis of learning difficulties. He is very delayed in terms of both general development and speech and language development. These factors have a significant adverse effect on the child and are likely to continue for more than a year.
4. The child attended Primary School up to June 2008. Although the School is a mainstream primary school, the child was placed within the School’s language classes, which provide additional support for up to 6 children in each class. He joined mainstream peers for certain classes and activities. Between May 2002 and June 2008, he received regular support from a speech and language therapist, both individually and as a member of his class group.
5. The education authority decided that the child required a CSP. A CSP was prepared and was dated 13^th December 2007. The educational objectives set out in the CSP were

• “Learn the technique Visualising and Verbalising to aid comprehension of written text;
• To develop his social communication skills and understanding of social situations”.

6. In respect of both objectives, the additional support required was stated as

• “Regular sessions with a speech and language therapist, 1 to 1 or in groupwork as required, normally weekly;
• Regular review and consultation between speech and language therapist and the class team to consolidate and integrate skills from sessions with speech and language therapist into daily classroom activities”.

7. In August 2008, the child transferred to Secondary School.
8. The Secondary School is a special school, managed by the education authority, with a roll of about 100 children of primary and secondary age. Most of the children have a diagnosis of autistic spectrum disorder. There are up to 6 pupils per class, with each secondary class having a teacher and a learning assistant.
9. The Secondary School staff have considerable experience and expertise in working with children with autistic spectrum disorders. The whole curriculum of the School is designed and delivered so as to assist children with autistic spectrum disorders in developing their social communication and behaviour in particular.
10. In addition, therapists employed by the Health Service work in the School, including 2 speech and language therapists (2 days a week each) and a speech and language assistant (1 day a week).
11. The speech and language therapists primarily provide advice and consultancy to the teachers and other classroom staff. They work directly with only a small number of pupils in the School.
12. The child has received no direct speech and language therapy input, whether one to one or in a group setting, since his transfer to the School. The speech and language therapists in the School did not assess him until asked to do so for the purposes of these Tribunal proceedings. Assessments undertaken in recent months indicate that the child has made little progress, in terms of language and communication skills, at least since his transfer to Secondary School.
13. On 1^st December 2008, a meeting was held at the School to review the child’s CSP. As the meeting progressed, the School and therapy staff present formed the view that the child might no longer meet the criteria for a CSP, on the basis that in the specialist setting of the Secondary School the child did not require additional support from speech and language therapy to meet his educational objectives.
14. A further multi-disciplinary review meeting was held at the School on 4^th February 2009. Other than the Appellant, all present at the meeting took the view that the child no longer required a CSP.
15. The education authority subsequently decided that the child no longer required a CSP, on the basis that he did not have additional support needs which required significant additional support from an additional agency. The decision was communicated to the parents by letter dated 22^nd June 2009.
16. The child initially settled well into Secondary School. More recently, he appears to be making less progress than was anticipated at school, and his behaviour at home has become increasingly challenging.
17. The child has an individualised education programme (IEP) at Secondary School. His IEP contains specific targets relating to social interaction and communication, with a focus on areas such as taking turns in conversation. It contains no targets with a specific focus on language skills.
18. Teachers and other classroom staff have focused primarily on working with the child to improve his social interaction and communication. Beyond the general care taken to design and deliver the curriculum appropriately for children with communication difficulties, staff have not focused on working with the child to address his specific language difficulties.
19. As matters stand, it is not possible to determine whether, in order to address the child’s language difficulties effectively, he requires further additional support from a speech and language therapist.

 

 

7. Reasons for Decision

 

7.1 Law

The Education (Additional Support for Learning) (Scotland) Act 2004 sets out the powers and duties of education authorities in relation to children with additional support needs. Where a child meets the criteria set out in section 2 of the Act, the education authority is under a duty to prepare a coordinated support plan (CSP) for the child (s.9). The same criteria apply to the review of existing CSPs: under s.10(6), the education authority must establish whether the child still requires a CSP.

 

If, as here, the education authority decides that the child no longer requires a CSP, the child’s parent may refer that decision to the Tribunal (s.18(3)(b)(ii)). On hearing the reference, the Tribunal may either confirm the education authority’s decision, or overturn it and additionally set out any consequential steps the authority are to take (s.19(2)).

 

Only one of the criteria for decision-making on CSPs was in dispute here, namely whether the child required “significant additional support to be provided by one or more appropriate agencies” (s.2(1)(d)(ii)). By virtue of s.23(2) of the Act, The Health Service constitutes an appropriate agency. As the speech and language therapists based in the School are employed by the Health Service, the question in practical terms is thus whether the child requires direct speech and language therapy support, over and above that provided for all children in the School through advice and consultancy for education staff, to a level that could be described as significant in terms of its frequency, nature, intensity and duration (City of Edinburgh Council Appeal vs ASNTS Decision, CSIH 09.06.2009, at para. 17).

 

7.2 Evidence

The principle Teacher has been a teacher for 30 years, 15 of them at this Secondary School, and has several post-graduate qualifications relevant to her current work. She described the needs of the children in the Secondary School, the expertise of staff, the design and delivery of teaching and learning, and the role of specialist therapist staff. She felt that previous individual therapeutic work with the child appeared to have produced little benefit. The School was working with him to improve self-understanding and social communication, but in a different way to that suggested in his CSP. All staff, including therapists, were able to contribute to a child’s IEP. It was for education staff to approach the speech and language therapists with concerns about a child. Language targets in a CSP would generally be very broad: specific targets would normally be placed in an IEP. She accepted that education staff in the School had not been aware, prior to the recent assessments, that the child’s language and communication skills were assessed as equivalent to a 6 year old’s level.

 

The Highly Specialist Speech and Language Therapist has specialised in working with children with autistic spectrum disorders and with emotional and behavioural difficulties since qualifying in 2001. She had not considered that the child would require speech and language therapy support, on account of the specialist expertise of the School staff. About 10% of children in the School received direct support, mostly on account of communication difficulties outwith the autistic spectrum. Education staff would seek advice about other children when required; none had been sought for the child. He had made little progress even when previously receiving therapy input, and it was more appropriate now (based on common sense, rather than research) to focus on advice for staff. It was not practicable for the therapists to re-assess every child periodically. The child’s language development appeared to be in line with his general cognitive development. She accepted that the child’s IEP should be amended to include more specific language targets, although these could still be addressed by classroom staff with therapist advice. It was better to target things in class than by taking him out to see a therapist for half an hour a week: progress made there might not transfer back into other environments. 

 

The independent speech and language therapist qualified as a speech and language therapist in 1994 and, until August 2009 was a principal therapist in an English NHS trust, specialising in autism spectrum disorder. She is now an independent practitioner. She considered there was some dubiety about the diagnosis of learning difficulties, and that her assessment showed the child’s language to be significantly more delayed than his global development. To suggest that he had made no progress over five years was mind-boggling. To abandon him from therapy now he was at secondary school would be unfortunate. His language deficits were significant but specific and could be targeted. The School’s approach to addressing social skills was very impressive, but they seemed unaware of the extent of the child’s language delay. It was surprising that the therapists would intervene only when asked to by the teaching staff. The child needed specific language development targets and regular, individual therapy plus in-class activities to support the targets. The response from the School therapists seemed, inappropriately, to imply that he wouldn’t require therapy because of his learning difficulties.

 

The Appellant said the child is sociable, but misunderstands situations. He has progressed over time: at age 5, he had only 3 words. Problem behaviour had developed at school and at home, partly due to his frustration, and she now felt he was all at sea. She had not realised direct therapy had ceased on his transfer to Secondary school until the meeting in December 2008. The child needed direct therapy to help him academically and with his life in general. She had not been aware of a diagnosis of learning difficulties until the child’s child health review in February 2009.

 

7.3 Submissions

Before hearing submissions, which were helpfully given in written as well as oral form, the Tribunal raised a question as to whether there was an ambiguity in the evidence regarding the dual diagnosis of learning difficulties, and if so whether that required further clarification before proceeding to a decision. The Additional Support for Learning Officer considered there was no ambiguity; the Appellant’s representative left it as a matter for the Tribunal. After due consideration, we were satisfied that we had sufficient evidence before us and that we would be able to reach an appropriate decision on the central issues.

 

The Additional Support for Learning Officer said that the evidence demonstrated that the current level of support sufficed to meet the child’s needs. He was in a specialist provision with highly skilled staff. The independent speech and language therapist had limited experience of the model of provision offered at the Secondary School, and had given evidence in rather emotive terms. Indirect therapy provided as part of the curriculum would not constitute “significant additional support” in terms of section 2(1)(d)(ii), for the reasons given in the City of Edinburgh Council appeal case of June 2009 at para. 23 of the Inner House’s judgement. The court in that case accepted that a child might require a lower level of speech and language input when transferred into a specialist setting. The child’s needs had been considered individually, as required by the Act and the associated Code of Practice, and direct therapeutic support was not required.

 

The Appellant’s representative argued that the child did still require a significant level of direct speech and language therapy support. Each child’s needs had to be assessed individually (Code of Practice, page 37, para. 62 of Chapter 3). The 2009 Edinburgh appeal was not directly in point as the issue there was whether the Tribunal had sufficient evidence to justify its decision. While the need for direct therapy might reduce on moving to the Secondary School, in fact the child’s CSP had been closed without further assessment of his individual needs, even though he had clearly found many aspects of learning extremely difficult and his progress had now stalled. She accepted that a need for assessment alone would not be enough to meet the statutory test; but the independent speech and language therapist had gone beyond that to identify specific speech and language difficulties that could only be addressed properly through direct therapy at a significant level. She accepted, contrary to her written submissions, that it was for the appellant rather than the education authority to establish her case, and founded on the independent speech and language therapist’s evidence in asserting that she had done so.

 

7.4 Assessment of Evidence

We found all four witnesses to be credible and reliable in general terms. While the independent speech and language therapist did use somewhat emotive terminology in giving evidence, it could equally be said that the written response to her report from the School’s therapists was couched in rather touchy and tendentious terms. There were, however, certain specific issues on which the evidence either differed or appeared ambiguous. Our assessment of these issues is as follows.

 

Firstly, the child’s diagnosis of learning difficulties was evidenced by the child health assessment report of February 2009 (Bundle R22-24) and the educational psychology assessment report of September 2007 (Bundle R25-27). In both reports the diagnosis was stated succinctly but clearly. The independent speech and language therapist disputed this diagnosis on the basis of certain tests carried out during her assessment of the child, but we did not consider the tests she used, or the results she described, to be sufficiently authoritative to displace the paediatric and psychological reports. Finding (3) thus reflects the evidence led by the education authority.

 

A second and related question is whether the child’s speech and language development is more delayed than his global cognitive development. For the reasons given in the last paragraph, we consider that the evidence does not support any finding to that effect.

 

Thirdly, on the child’s rate of past progress, the Highly Specialist Speech and Language Therapist’s evidence reflected the terms of her joint report with her colleague (Bundle R17-21) that the child had made little progress over the last 5 years, despite significant therapeutic input up to June 2008. Both the independent speech and language therapist and the Appellant disputed that assertion. We do not consider it necessary at this stage to make a finding on whether or to what extent the child benefited from direct therapy up to 2008. Of more significance is the assertion by the education authority’s witnesses that the suggested lack of progress under previous therapy was an argument against further direct therapy. When seen particularly in the light of the clear evidence that the child’s progress has stalled since joining the Secondary School (Finding 12 refers), we consider that assertion misplaced.

 

This may be connected, fourthly, to the point emphasised by both education authority witnesses that it was for the education staff at the School to approach the therapists with any concerns about a child. The Highly Specialist Speech and Language Therapist appeared content with what is essentially a reactive model of service provision, and considered the only alternative to be direct periodic assessment of each child, which she considered unsustainable. We were surprised and disappointed to note, in the context of such a specialist provision, the absence of a more imaginative and proactive approach to speech and language therapy input. In The child’s case, notwithstanding the extent of previous direct input an assumption was made – but not tested other than by the absence of requests for assistance by education staff – that the child’s needs would be met by the general provision at the Secondary School.

 

Fifthly, the sharpest point of dispute in the evidence concerned the central issue of whether the child requires direct therapeutic input. The education authority witnesses disputed that direct input was required, although the Highly Specialist Speech and Language Therapist accepted that there had been insufficient focus to date, in the child’s IEP, on targets specifically relating to language development. The independent speech and language therapist identified a number of language skills that, in her view, required direct therapeutic input as well as an in-class focus.

 

We considered the argument against further direct therapy to be based on a somewhat complacent view as to the effectiveness of provision at the Secondary School. On the evidence, we have no doubt as to the expertise and experience of staff, and it was clear that the School is well able to help a child such as this develop in terms of social behaviour and communication. But - as the Highly Specialist Speech and Language Therapist, to her credit, accepted - there appears to have been insufficient assessment of and focus on the child’s specific language difficulties. Given the independent speech and language therapist’s lack of detailed knowledge of the provision at the Secondary School and the expertise of its education staff, however, we cannot go as far as her and find that direct therapy is thus required.

 

There is no doubt that the School requires to focus more clearly on the child’s language development. But on the evidence before us, the case is not made that such a focus requires to go beyond the identification of specific language targets in his IEP, which would be addressed by education staff with therapist advice and back-up, as far as direct therapeutic input. At the very least, however, a period of active focus on such targets should establish with far greater clarity whether direct therapy is also required.

 

A further aspect of this issue was the question of whether the child had the capacity to benefit from sessions of individual therapy. The education authority witnesses were insistent that the child would not be able to concentrate on a therapy session lasting more than 10 minutes or so. The independent speech and language therapist noted that he had twice concentrated for over 40 minutes in sessions with her. The Appellant also pointed out that the child had worked with his previous therapist for such periods. The education authority’s evidence on this point must, in our view, be rejected: as the independent speech and language therapist said, it is part of the therapist’s skills to ensure that an individual therapy session is engaging for the child. But we have made no specific finding on this issue as it is not relevant to the nub of the issue as we see it.

 

Finally, although not a point of contention we did detect a sense that the Appellant had felt rather excluded from the process of decision-making at various points. She appeared, for instance, to have been unaware that the direct input prescribed in the CSP was discontinued once the child moved to Secondary School. The handling of the decision about closing the CSP, and of the communication of that decision, were also less than ideal.

 

7.5 Conclusion

For the reasons given above, we are unable to make a positive determination that the child requires significant, direct support from a speech and language therapist to address his additional support needs. As things stand, he does not meet the “significant additional support” test for creating or continuing a CSP. Accordingly, we confirm the education authority’s decision.

 

In giving an outline of our decision orally to parties’ representatives, we asked the Additional Support for Learning Officer to discuss further with the School the issues of identifying more language-focused targets for the child, and of the scope for a more proactive model of therapeutic input. We are grateful to him for agreeing to do so, and also for his acknowledgement that the quality of communication with the Appellant in this case had been less than ideal. We also wish to express our gratitude to him and to the Appellant’s representative for their thorough and fair-minded advocacy.