ASNTS_D_01_2008_12.03.08

 

 

ANONYMISED DECISION OF THE TRIBUNAL

 

 

 

Reference:              d/01/2008

 

Gender:                   Male

 

Age:                        16

 

Type of Reference: CSP not required

 

 

 

 

 

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­­­­­­­­­1. Reference:

 

The Appellant made a Reference, received September 2007, under Section 18(1) of The Education (Additional Support for Learning)(Scotland) Act 2004 (hereinafter referred to as ‘the Act’) against the decision, dated August 2007, by the Local Authority (‘the Authority’) that a Co-ordinated support plan is not required for her son, applying Section 18(3)(b)(i) of the Act.

 

 

2. Decision of the Tribunal;

 

In terms of Section 19(2) (a) of the Act, the Tribunal CONFIRM the decision of the Education Authority that the young person does not require a Co-ordinated support plan.

 

 

3. Preliminary Matters;

 

A considerable amount of Late Evidence was received in this case, including additional assessments. The Tribunal sought the view of both parties who confirmed that there were no objections to either party lodging Late Evidence.  In view of the nature of the said Late Evidence, the views of the representations from both parties, their mutual consent and agreement to late lodging, the Tribunal were satisfied that, in all the circumstances, it would be fair and just to do so pursuant to Rule 34 of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (‘the Rules’).  All additional evidence was allowed to be lodged and numbered accordingly.

The Respondent submitted an application under Rule 7 after they had lodged their own case statement.  The application was refused by the Convener.

 

The Respondent requested a Postponement of the first hearing. This was also refused.

 

There were three case conference calls in respect of this reference in November 2007, December 2007 and January 2008.

 

Both Parties consented throughout the two day hearing to the presence of observers.

 

4. Summary of Evidence;

 

The Tribunal considered a bundle of evidence (including all the Late Evidence) containing:

 

1. Appellant’s Case Statement,
2. Authority’s Case Statement,
3. All Reports/Assessments and letters to and  from Specialists,
4. All school/class reports,
5. All school minutes  and correspondence,
6. All correspondence to and from the Appellant,
7. The Reference,
8. Documentation titled ‘In On The Act’ produced by the Respondent, and
1. All other correspondence and reports.

 

[The above is not an exhaustive list of all the documentary productions lodged by both Parties]

 

In addition to the above, the Tribunal heard oral evidence from the Appellant, the young person and all the witnesses.

 

5. Findings in Fact;

 

1. The young person is a sixteen year old boy who resides with his mother. He now attends High School C which is a local authority school within his area. He formerly attended High School A and then High School B.  The young person enrolled in High School C in October 2007. The young person is now in his fourth year in a mainstream class.  He will be sitting his standard grades in 2008.

 

2. The young person has additional support needs. The Authority accept that the young person has additional support needs.

 

3. The young person was diagnosed with post viral syndrome when he was 11 years old.

 

4. In December 2006 an independent educational psychologist, assessed the young person  (then aged 15 years 2 months) and concluded that he is ‘dyslexic’ and that ‘it is important that it is appreciated that the young person’s cognitive difficulties can account for the challenges he faces in school and need to be considered in future planning’.  A copy of the doctor’s report was submitted to the Authority for their consideration.

 

5. In a letter (dated January 2007) to the Guidance Teacher of High School A, a Clinical Psychologist stated   ‘the initial presenting problem was an ambiguous picture of physical problems (i.e. headaches) and psychological difficulties (i.e. behaviour problems and low mood). The impact of these difficulties had manifested in problems attending school.’  The young person has been acknowledged as suffering from sleep disturbance.

 

6. In April 2007 the Principal Psychologist wrote to the Appellant in response to her request that the school ‘recognise that the young person has both dyslexia and Asperger’s Syndrome and put in place measures and a learning assistant.’ The Authority stated that they ‘noted the Independent Educational Psychologist’s conclusion that the young person is dyslexic, but we could not see what evidence or argument this conclusion was based on’. The Principal Psychologist considered three possible definitions of dyslexia and concluded that the young person did not in his view meet any of these three definitions.  Whilst the diagnosis of dyslexia is disputed by the Authority, the Principal Psychologist in said letter stated that ‘the important question, however, is not whether the young person (or any other pupil) is dyslexic. What matters are the needs which result from this.  Some dyslexic pupils need very little or no support, others require additional support, and others again receive very substantial support in the absence of any such description or “diagnosis ‘.The Independent Educational Psychologist refutes the views of the Principal Psychologist and in an e mail dated January 2007, stated that:
   
   1. ‘Dyslexia is more than difficulties with literacy and the comments in the minutes seem to focus on literacy;
   2. It is not possible to diagnose dyslexia statistically – I and many of my colleagues use discrepancies in performance that are in fact very evident in the young person’s case as you pointed out at the meeting.’

 

7. The Appellant wrote to the Authority in April 2007 requesting that the Authority determine whether or not the young person required a Co-ordinated support plan and requesting several types of assessments [from the educational psychologist, speech and language therapist, occupational therapist, information communication technology specialist and medical consultant].  At the time of said request the young person was enrolled at High School A which is a mainstream school. The Authority replied to the Appellant in May 2007 agreeing to assess the young person and to consider the requests for several types of assessments.

 

8. The Authority requested the Additional Support for Learning (ASL) Team Leader of High School A to commence the assessment process.

 

9. In a letter (March 2007) to the Appellant and the young person, a representative from the Young People’s Unit, concluded the Autism Diagnostic Observation Schedule (ADOS) assessment indicated that ‘the young person is on the Autistic Spectrum. His history and his responses in the assessment seem to fit a diagnosis of Asperger’s Syndrome.’

 

10. A multi-disciplinary review took place at High School A in May 2007. This meeting discussed a number of issues including the types of support in place for the young person’s S3 exams.

 

11. In June 2007 the Area Principal Psychologist, prepared a report on the young person who was initially referred to him in April 2006 due to a drop off in school attendance.  The Area Principal Psychologist met with the young person and his mother in May 2007 to carry out further standardised assessments. The Area Principal Psychologist disputes that the young person is dyslexic, a diagnosis previously made by a private practitioner (previously referred to as the Independent Educational Psychologist) and also offered support and advice if required for the school staff, especially following the relatively recent diagnosis of Asperger’s Syndrome. He also highlighted the importance of enhancing the support in place to support the young person’s return to school and good attendance.

 

12. In June 2007 the ASL Team Leader submitted a recommendation that a Co-ordinated support plan was not required, stating that at the aforementioned multi-disciplinary meeting ‘only health was a factor and the doctor present said that she would no longer have an input to the young person’, and that no significant additional support is required either from the Education Authority or from another appropriate agency and/or from the Social Work Authority to meet the additional support needs of the young person.

 

13. In August 2007 the Authority wrote to the Appellant stating that in terms of Section 2(1)(d) of the Act they had decided that the young person does not require a co-ordinated support plan. The Authority further stated that they had decided it was not reasonable to obtain additional assessments from a Speech and Language Therapist, an Occupational Therapist, an Information and Communication Technology specialist and a medical consultant, all as previously requested in April 2007.
14. After issuing the aforementioned decision, the young person attended High School B which is a mainstream school. This was on a hosting basis whilst the young person remained on the roll of High School A, until October 2007 when the young person enrolled at High School C.

 

15. The Authority accept that they are responsible for the school education of the young person.

 

16. The Authority accept that the young person has additional support needs which are likely to continue for more than a year.

 

17. In October 2007 the young person turned sixteen and the Authority thereafter deemed him to be a ‘young person’.

 

18. In November 2007, the Authority requested the hearing set for December 2007 be postponed. The Authority had consulted with colleagues in the local authority and had come to the conclusion that ‘a speech and language therapy assessment should be obtained for any child with a diagnosis of autism.’ The Authority had also decided that ‘it would be appropriate to seek an occupational therapy assessment.’

 

19. The new Educational Psychologist, met with the young person in December 2007.

 

20. In December 2007 there was a transition meeting at High School C. The young person and his mother were present. The minutes confirm that the young person has three periods a week at the Support Base. Additional assessment arrangements were discussed and it was minuted that ‘the young person can have whatever arrangements are considered appropriate by his teachers, but there has to be evidence to back up such requests.’

 

21. The Educational Psychologist agreed with the young person that she would undertake some work with him to explore his approaches to learning, study and assessment in order that school staff can support the young person in preparation for his examinations. This will involve on-going work at the individual level and at the consultation advice level with staff.

 

22. The Speech and Language Therapist and the Occupational Therapist carried out two assessments of the young person at joint meetings in December 2007 and January 2008, initially within the young person’s  home and then in a treatment centre.

 

23. The Speech and Language Therapist Report (January 2008) concluded that the young person does not have any indication of language disorder, concluding that she does ‘not feel that individual Speech and Language therapy is indicated.’ 

 

24. The Occupational Therapist Report (January 2008), concluded that ‘the assessment results do not reveal any significant motor difficulties. His sensory profile is congruous with a typical adolescent.’ It was noted during writing tasks that the young person ‘appeared to tire very quickly and developed a sore hand during the speed test.’  The Occupational Therapist recommended that consideration be given to writing tools which might perhaps best suit the young person.  The Occupational Therapist stated that in discussion with the young person and his mother it was recognised that he finds it ‘difficult to accept strategies that have been offered in school such as a scribe and additional time.’ She concluded that the young person should be ‘encouraged and supported to explore his own solutions, considering the strategies that are available in school and how they can work for him.’

 

25. There are no recommendations for individual Speech and Language Therapy or Occupational Therapy for the young person.

 

26. In his letter of January 2008, Consultant Neurologist A stated that after a consultation with the young person and his mother in December 2007 he diagnosed the young person as suffering from ‘Migraine with aura’.   A number of recommendations were made but no routine follow up appointment was issued.
27. In February 2008 a ‘pack’ was issued to all staff at High School C providing relevant information to the staff in respect of the young person. This is a published pack (‘Creating Opportunities, Releasing Potential, Achieving Excellence’) incorporating ‘generic strategies’ in the classroom.

 

28. In February 2008 the young person attended an outpatient appointment with Consultant Neurologist B.  It is understood that the Consultant Neurologist B confirms the working diagnosis of migraine and will be contacting the young person’s General Practitioner with ‘some suggestions for more suitable preventive medication’.   Further investigation will also be carried out in respect of an additional diagnosis, namely optic neuritis.

 

29. No assessment was carried out by an Information and Communication Technology Specialist. The Authority do not consider this a reasonable request on the basis of existing assessments and the principle of avoiding over assessment. There was also no assessment by a medical consultant at the Young People’s Unit, a unit managed by the Child and Adolescent Mental Health Service (CAMHS) of the local health board. The Authority do not consider either of these assessments to be a reasonable request as the Clinical Psychologist from the CAMHS  stated in the multi-disciplinary meeting in May 2007 that ‘there were no further supports that the school could offer or specific advice that she could give’.

 

30. The Authority have previously  put in place various supports for the young person including, the support base, support for learning, learning assistant, reader, scribe, referral to school medical service, referral to YPU and Educational Psychology. It is acknowledged that the young person has had difficulty engaging with these processes.

 

31. The young person does not have an Individualised Educational Programme nor an Additional Support Plan.

 

32. The young person has a Pupil Personal Record and an Additional Support for Learning folder within High School C which has a roll of 1460 pupils. No pupils there have a Co-ordinated support plan. The young person is the only pupil with Asperger Syndrome within his school.

 

33. The Appellant does not seek to remove the young person from High School C.

 

34. The young person seeks to continue his school education beyond his current fourth year and is also considering further education. 

 

6. Reasons for Decision;

 

The Tribunal considered all the evidence, in oral and written form. We were satisfied that there was sufficient evidence available to the Tribunal to reach a fair decision on the Reference.

 

The Education Authority do not seek to argue that the statutory requirements referred to in Section 2(1) (a), (b) and (c) of the Act were not met in respect of the young person.  They only seek to argue that the requirement referred to in Section 2(1) (d) of the Act did not apply.

 

The Tribunal having heard all the evidence and the representations of the parties were satisfied that the young person fulfilled the statutory requirements in Section 2(1) (a), (b) and (c) of the Act. 

 

The Tribunal considered the requirement of “significant additional support” in Section 2(1)(d) of the Act, together with the guidance provided within the Code of Practice at Chapter Four, paragraphs15,16, 17 and 18 together with the Flow Chart on page 53.

 

“Significant additional support” is not defined in the Act. The Tribunal appreciates that it is not possible to generalise as to what should qualify as significant and that consideration must be given to the circumstances in individual cases.

 

The Tribunal notes that in paragraph 15 of the Code of Practice, it states that ‘these additional support needs must also require the provision of significant additional support from an education authority, and either the local authority exercising their functions other than education (e.g. social work services) and /or one or more appropriate agency/agencies, within the meaning of the Act and associated Regulations.’

The Flow Chart on page 53 asks the question:

 

“Do these needs require significant additional support to be provided, by the education authority exercising their education functions as well as by one or more appropriate agencies and/or the authority in discharging their functions other than education?”

 

Paragraph 16 of the Code of Practice further states that ‘Judgements about significance have to be made taking account of the frequency, nature and intensity of the support, and the extent to which that support is necessary for the achievement of the educational objectives which will be included in the plan.’

 

The Depute Head Teacher of High School C attended on both days to give evidence. She stated that after the preliminary examinations there would be a complete review of the results, the necessary support required and of the young person’s views.  She stated that the young person’s attendance would also require to be reviewed and that any further information received would also be fed into the ongoing review of the young person within the school.  Home Team meetings also take place on a weekly basis. The Depute Head Teacher described the training and advice her staff can access in respect of a young person with Asperger’s Syndrome.  On day two the Depute Head Teacher updated the Tribunal of all developments for the young person within the school since the first day of the hearing.  We noted that she met with the young person in February 2008 and he indicated he did not like the reader or the scribe.  She described the young person however as more relaxed and alert, with good communication and showing humour. In February 2008 a meeting with the E-Team took place to consider the application of IT for the young person with the possible use of a laptop. 

 

The Area Principal Psychologist attended and commented upon his assessment of the young person and reflected upon the independent report from the Independent Educational Psychologist. The Area Principal Psychologist was of the view that the young person ‘struggles with the pragmatics of language’ whilst recognising that the young person has ‘no problem with phrenology, syntax and semantics.’ In essence the young person has, in his opinion, a difficulty at times with grasping the inference/meaning to be appropriately drawn from some use of language.  The Tribunal were advised that the Area Principal Psychologist has given guidance to the school to speak in ‘plain English’ in all of the young person’s classes.

The Area Principal Psychologist stated that his report was not linked to the question of a Co-ordinated support plan, but about trying to find out more about the young person’s needs. The Area Principal Psychologist refuted the diagnosis of dyslexia. The Area Principal Psychologist stated that he had the benefit of the diagnosis of Asperger’s  Syndrome when fully considering the Independent Educational Psychologist’s diagnosis. Furthermore he  was of the view that the ‘label doesn’t matter’ as long as the staff have an informed understanding of what the young person’s needs are and what they required to do to meet his identified needs.

 

The Appellant described her experiences of the young person within the school setting, at home and elsewhere. She objected to the young person being labelled as ‘lazy’ and was of the view that the young person’s health difficulties had not been properly addressed within the school.  The Appellant described the various strategies she has previously adopted and what she considered would assist the young person at school. She is anxious that there be no gaps in people’s awareness within the school and a shared understanding of the young person, his health difficulties, and his needs by all the school staff.

 

All of the oral evidence from the witnesses, the Appellant and the young person, together with the documentary productions lodged by both parties, were considered by the Tribunal. The submissions from the representatives for the Authority and the appellant were carefully considered. The Tribunal noted that the Appellant was of the view that matters had progressed significantly since she lodged this Reference and that the young person was being acknowledged as a young person with potential and this had boosted his self esteem.

 

The Tribunal carefully considered the recently requested Speech and Language Therapy Report and the Occupational Therapy Report. Neither Report suggests direct individual input is required from either service for the young person. The Tribunal considered carefully the oral evidence from the two specialists who also attended the hearing to speak to their reports directly and who were appropriately questioned in respect of the terms of these reports.

 

The Tribunal is not satisfied that significant additional support is currently required for the young person’s additional support needs by, either 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, as well as by the Education Authority themselves.

 

The Tribunal acknowledge their appreciation to the young person who attended on day one of the hearing. The young person was able to advise the Tribunal that he preferred his current school and the problems he had experienced thus far in previous placements.  He described his experiences with headaches and sleep. He referred to attending the Support Base for three periods a week and the help in place at High School C. He stated going to the Base helps him to catch up. He stated the importance of receiving individual support from his teachers.  He also referred to the use of a scribe and reader but stated that he had not really had the opportunity to practice with them. The young person advised us that he has extra maths lessons at home through a private tutor.  He was able to tell us that he struggles to concentrate at school when he has headaches. The Appellant advised the Tribunal that the young person enjoyed meeting the Tribunal members and had indicated that he was happy to attend again on day two of the hearing.

 

The Tribunal noted with interest the written comments from the young person and his request for further time in the Base to assist specific revision time. The Tribunal noted that the young person expressed his desire to take up further education at College or University, possibly ‘to do something with business’.

 

Whilst the Tribunal is not satisfied, from all the evidence before us, that a Co-ordinated support plan is required for the young person, it is critical to the young person that there are effective communication channels in place. The Tribunal recognise that there may be a possible need for significant additional support in the future.

 

The Authority publicly apologised to the Appellant during the hearing of the Reference for not following their own procedures in respect of communicating with both the Appellant and the young person. The Authority having identified this failure and stated that they have taken the appropriate steps to prevent this error occurring again.