DECISION OF THE TRIBUNAL
Reference: R/14/0081
Gender: Male
Aged: 17
Type of Reference: Contents of CSP
1. Reference
The Appellant lodged a Reference in accordance with Section 18(3)(d)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended (“the Act”). She disagrees with the information contained within the Co-ordinated Support Plan (“the CSP”) prepared by the Education Authority in respect of her son, The young person born in 1998.
The Appellant’s specific complaint regarding the information currently contained within the CSP related to the nature and extent of Speech & Language Therapy.
2. Decision of the Tribunal
In terms of the power contained within Section 19(4)(a) the Tribunal confirms the information contained within the CSP for The young person. The Tribunal does not require the Education Authority to make amendment of the information within the CSP.
3. Preliminary Matters
The reference was proactively case managed prior to the Oral Hearing taking place. Conference Calls took place on 10 February 2015 and 6 March 2015. The parties entered into a Joint Minute of Admissions.
The young person is non-verbal but has the benefit of an independent advocacy worker. The statement by the advocacy worker, dated 9 January 2015 was lodged (T21-T23).
4. Summary of Evidence
The Tribunal had regard to the bundle of papers indexed T1-T27, A1-A6 and R1-R137. The Tribunal also heard oral evidence from:-
the Appellant and child’s mother
Witness 1, Speech & Language Therapist (by telephone)
Witness 2, Speech & Language Therapist
Witness 3, Head Teacher, School A
Although the statement of the advocacy worker was not spoken to orally the Tribunal had regard to its terms.
5. Findings of Fact
1. The young person (“The young person”) was born on 1998 and is 17 years of age. He resides with his mother, the Appellant. He has one younger brother who also resides in family.
2. The young person has additional support needs as defined in terms of Section 1 of the Act.
3. The young person has a diagnosis of Autistic Spectrum Disorder (“ASD”), refractory epilepsy, severe learning difficulties and communication difficulties.
4. The young person’s ASD and learning difficulties cause significant barriers to his learning. His ASD causes a lack of language and communication skills.
5. There was previously a dispute between the Appellant and the Education Authority regarding the educational provision for The young person. Following a disputed Placing Request Reference (ASNTS/016/2012) in 2012 The young person commenced and continues to attend at School A.
6. School A is a special needs non mainstream school and has specific experience of educating pupils with learning difficulties and ASD. It is a purpose built multiagency campus. The school is nationally recognised for the additional provision which they provide to assist pupils with additional support needs with communication difficulties.
7. One of the reasons for The young person’s recommended placement within School A was the potential use of high tech communication aids ie Augmentative Alternative Communication (“AAC”). School A has a broad and technically advanced learning environment to support the use of such technology.
8. The young person is non verbal. He uses a total communication approach. This includes visuals, gestures, verbalised syllables and personalised signs (some of which are based on Makaton and BSL).
9. The young person receives intensive care and support at all times within his school and wider learning environment. Two teams of two support staff provide skilled consistent care.
10. The young person has progressed well at School A. He is well settled there. He is a strong, fit and healthy young adult. He particularly enjoys physical activity, music and art. His timetable has been individually tailored and weighted towards these subjects for his enjoyment and benefit. He is a particularly keen and able swimmer.
11. The young person has a Co-ordinated Support Plan (“CSP”). His current CSP is dated 6 October 2014.
12. The CSP dated 6 October 2014 requires Speech & Language Therapy to be provided on “a consultation basis to provide advice to staff working with The young person, to his mother and to other relevant people working with him”.
13. The Appellant believes that The young person requires and would benefit from the provision of direct Speech & Language Therapy.
14. Between The young person commencing School A in November 2012 and May 2014 The young person received 36 individual speech and language assessment and treatment sessions. These sessions were undertaken by Witness 2, Speech & Language Therapist, NHS.
15. It is highly unlikely that The young person will, at any stage, now or in the future, acquire the necessary skills required to speak. He will not develop sufficient spoken words to communicate. He only has the capacity to learn and use single syllables of words.
16. Due to The young person’s pervasive and severe autism which co-exists with his complex learning difficulties there is no clinical evidence of the potential to improve upon his existing language and communication skills.
17. The young person cannot initiate any form of communication. He requires prompting, support and guidance to respond. He does not understand the reciprocal nature of communication.
18. The quality and extent of The young person’s communication is unlikely to improve with the provision of direct Speech & Language Therapy.
19. The young person is not a suitable candidate to use high-tech AAC. He does not have the linguistic, social or strategic competence to do so.
20. The young person is unable to develop sufficient skills to use additional forms of AAC, and in particular utilise high-tech forms of AAC with the provision of direct Speech & Language Therapy.
21. The further provision of direct Speech & Language Therapy is not likely to be of any benefit to The young person and is not reasonably required.
22. The further provision of direct Speech & Language Therapy is not required to fulfil or promote the Educational Objectives contained within The young person’s CSP.
23. Speech & Language Therapy staff are based within School A. They are immediately on hand to provide advice and support on a consultative basis, as required by the CSP. Should it be identified that there is a role for any further direct work to be undertaken then this can happen expeditiously without the need for any formal referral. The young person can immediately benefit from the services of the Speech & Language Therapists whenever this is required.
6. Reasons for the Decision
The issue which the Tribunal requires to determine is whether or not the current provision for Speech & Language Therapy contained within The young person’s CSP dated 6 October 2014 is sufficient.
In the course of submissions the Appellant’s representative moved the Tribunal to incorporate an additional reference to Speech & Language Therapy within the “Additional Support Required” pertaining to the first Educational Objective contained within the CSP found at R11. The specific incorporation sought was:-
“Speech & Language Therapist to provide a block of 8 1:1 direct speech and language therapy sessions to develop The young person’s communication skills further, followed by a specific programme being delivered by teaching staff and assistants, with a review being undertaken at the end of term.”
The Tribunal considered all of the evidence described and was satisfied that there was sufficient evidence available to the Tribunal to reach a fair Decision on the Reference.
The Tribunal had regard to the Code of Practice - Supporting Children’s Learning (Revised Edition) as required by the terms of Section 19(7) of the Act.
The Tribunal also had regard to the Judgment in the case of Mrs J T as legal guardian for K T -v- Stirling Council [2007] CSIH52.
The Tribunal, in particular, has had regard to the frequency, nature, intensity and duration of the Speech & Language Therapy support reasonably required and the identity of those required to provide the support.
The relevant part of the Act is that found in subsections (c) and (d) of Section 2(1) of the Act.
The Appellant’s representative accepted that there was no substantive dispute or complexity regarding the relevant Law and that ultimately the decision-making of the Tribunal was focused in terms of determining whether the evidence of Witness 1 or the evidence of Witness 2 was preferred.
Speech & Language Therapy has been provided on an episodic basis to The young person since he was an infant. Following his admission to School A in November 2012, Witness 2 carried out a full and detailed assessment of The young person’s speech and language abilities and his capacity to develop his skills, including with the use of AAC.
The Tribunal is satisfied that the principal barrier to The young person’s overall learning and in particular his ability to communicate is his diagnosis of Autistic Spectrum Order. His capacity to use AAC is significantly limited as a result of his Autistic Spectrum Disorder. The young person’s condition of autism is profound. He has little or no capacity to initiate communication. It is recognised he can convey basic simple needs which arise on a daily or repetitive basis. Otherwise all of his communication is characterised by the need to be prompted, supported and guided by others.
In ensuring that a full and comprehensive assessment of The young person was undertaken, Witness 2 continued assessments over a lengthy period of time, exceeding one year. This amounted to 36 individualised one-to-one sessions, each of which lasted around 45 minutes in duration.
The young person’s two full-time support staff carers were present and had the ability and opportunity to observe and learn from these one-to-one sessions. Witness 2 continued the assessments so as to ensure that The young person’s integration into his new learning environment at School A was not an additional specific barrier to his communication performance and abilities.
Witness 2 is a very experienced Speech & Language Therapist with over 30 years’ experience of working with children at School A (and elsewhere) with additional support needs, including autism and learning difficulties.
Witness 2 is equally very experienced in the assessment and use of all forms of AAC, including high-tech forms. She was absolutely clear in her ultimate conclusion that The young person is unable to meaningfully benefit from the continued provision of direct speech and language therapy. Similarly she was clear that The young person is unable to use or benefit from forms of high-tech AAC. Her conclusions in this respect are based upon the evidence collated over the lengthy assessment phase.
Witness 2 referred in her oral evidence, as she had in her Report dated 5 November 2013 (in particular at page R39), to the four prerequisite skills or competences required for effective and efficient use of any AAC aid. These four requirements are linguistic competence, operational competence, social competence and strategic competence. The only skills which The young person has a degree of proficiency in are operational in nature, namely that he has the physical ability to utilise a high-tech AAC device. His motor skills and hand eye co-ordination pose no barriers to their use. The young person’s diagnosis of autism however restricts and prohibits the linguistic, social and strategic competences required for any meaningful or successful use of AAC technology.
The Tribunal was wholly satisfied that strenuous efforts have been made by and on behalf of the Education Authority to fully assess, promote and advance the development of The young person’s speech and language. A sustained period of one-to-one work was undertaken by Witness 2 in accordance with the Tribunal’s findings.
The Tribunal was impressed by the nature and detail of Witness 2’s evidence and concluded that there was nothing suggested by anyone else, including the Speech & Language Therapist instructed by the Appellant, Witness 1, to undermine or call into question her clinical conclusions.
The Tribunal concluded that by comparison, Witness 1, had not had sufficient opportunity to assess The young person or information gathered from other sources for the purposes of coming to a conclusion regarding his future speech and language development including the use of high-tech forms of AAC.
Witness 1 assessed The young person on one occasion only, 7 October 2014. The informal assessments carried out then by her lasted no more than 30 minutes. They were conducted in a public area where there was a degree of background noise. This is not best practice.
Witness 1 accepted that she had not personally seen any form of initiation in communication by The young person. She made reference to the viewing of a video of The young person participating in a game with his brother at home, but the Tribunal was not of the view that this of itself was any justification for Witness 1 concluding that The young person is capable of initiating communication set against and compared with the large body of evidence otherwise in both the documentary and oral evidence of Witness 2. The game which The young person was participating in appeared to have been a familiar activity for him.
Witness 1 referred to the expectation that The young person could use an IPad for communication. There appears to be no doubt that The young person can use and does already benefit, as one form of his total communication, from the use of an IPad for certain purposes eg to make choices in addition to playing games. However his use of such technology is limited due to his autism and requires considerable guidance and support. A number of assessments were undertaken by Witness 2 using a range of different technology aids and programmes, none of which were indicative of The young person’s ability to use such aids.
The only two reasonable explanations for the difference in opinion between Witness 2 and Witness 1 is that one of them was either wrong, or at least was ill advised due to a lack of available information or; alternatively, that since the cessation of the individual work carried out by Witness 2 with The young person that he has made material progress in his communication abilities.
The Tribunal was not satisfied that there is likely to have been any significant improvement in The young person’s communication abilities since Witness 2’s formal work with The young person ended in May 2014. Although no longer directly involved she retains a consultative role and whilst she has not, as a matter-of-fact, been directly consulted about The young person since then she visits School A on a weekly basis where she is based one day a week and retains an awareness of The young person and his abilities.
Witness 2 saw The young person on one occasion, namely 4 December 2014, in school and interacted with him then and even although she was not involved in any form of assessment of him then was able to conclude that there had been no significant changes in his presentation. This post-dated the assessment of Witness 1 which was undertaken on the basis of a single assessment in October 2014. There was no other reliable evidence to suggest any change in The young person’s presentation since May 2014 to date.
The Tribunal concluded that Witness 1 did not have sufficient evidence available to her to support her conclusions. Witness 1 indicated that her conclusions were based upon her “experience”. The Tribunal is in no doubt that she has relevant experience, both academically and in practice. She is employed in a residential special needs school and has experience of working with children with autism.
The particular experience which Witness 1 relied upon in her evidence was that of another child with autism who, at the age of 15, made significant progress to the extent that he was able to benefit from the use of high-tech AAC. The Tribunal were not convinced that referring to that other client as the basis of her specific experience and prognosis for The young person who is the subject of this Reference was sufficient to conclude that The young person, whom she assessed only once for a limited period of time, with limited information available to her and within an environment not conducive to assessment has the ability to communicate with the use of high-tech AAC given the reliable body of evidence available which suggests otherwise.
Both Witness 2 and Witness 1 were in agreement about the fact that The young person is unlikely to ever develop sufficient spoken words for functional communication.
The Tribunal was impressed with the degree of knowledge which Witness 3 expressed regarding the provision of additional support for The young person. He is the nominated Additional Support Provision Co-ordinator in terms of the CSP. He has known The young person throughout his placement at School A. Witness 3 has significant experience and expertise in the provision of education to children with additional support needs.
Witness 3 spoke of the school’s approach to recognising all pupils’ individual needs and utilising the GIRFEC approach. There is a continual ongoing assessment of all pupils within the school, including The young person, on effectively a daily basis. A copy of The young person’s folder is kept in paper form but an electronic version is available to all school staff at all times. Any updating of the file can be immediate and is immediately informed to all other members of staff by email.
Witness 3 spoke of his awareness of the significant steps taken by Witness 2 in the assessment of The young person continuing over 36 sessions. He is aware of the long-term investment which was involved which took into account the need for The young person to become settled in his new learning environment at School A for a period of time. Witness 3 is satisfied that there is no requirement for any further direct speech and language therapy being provided. He indicated that there would simply be no benefit to this. He went so far as to indicating that The young person would not enjoy it and that it would detract from his ability to be involved in other activities which he does enjoy.
The school have not closed their mind to the need to seek to develop The young person in all aspects of his functionality including his communication. This requirement is importantly enshrined within the Educational Objectives provided for within the CSP.
The Tribunal was satisfied that in the absence of any direct therapy being provided by the Speech & Language Therapy Service is that The young person is not being deprived of any opportunities which may be of benefit to him. The school has, at its disposal, a huge range of resources which can be utilised in the absence of direct speech and language therapy provision.
The evidence of Witness 2 and Witness 3 was consistent with one another, detailed and their conclusions and opinions were evidence based. The Tribunal found the evidence of Witness 2 and Witness 3 both credible and reliable.
The Tribunal’s findings are otherwise supported by other professional assessments and opinions which are readily found within the documentary evidence available. We highlight three examples (of which there are a number) for reference. Firstly, The young person’s Additional Support Plan (ASP) found at page R16 refers to The young person communicating his basic personal needs but otherwise benefiting from prompts and specifies that he does not initiate social relationships. Secondly, N, Nurse Therapist, LD - CAMHAS, carried out a VABS-11 Assessment. Her Report starts at R58. The assessment discloses that The young person’s receptive communication is significantly delayed. Her view generally is that there requires to be significant adaptation and concentration on the provision of all communications to The young person and gives no indication of any confidence that initiated communication is a viable option. Thirdly, at document R66-67 there is a Report of a meeting with The young person undertaken by, Deputy Head Teacher at School B which took place in January 2014 for the purposes of assessing his understanding and use of sign as a means of communication. This provides further evidence from another professional that his language and communication skills are at a very early developmental level and show no evidence of initiated communication.
The Tribunal is satisfied that The young person continues to receive adequate support in the course of the education provision being made available by the Education Authority at School A in accordance with the detailed CSP currently in existence.
The evidence available suggests that The young person is performing well and attaining his set targets at School A where he is in S5. The School Report prepared in November 2014 was produced and is positive in its terms.
The Tribunal noted that there is reference to “speech & language therapy” in the list of those providing the additional support corresponding to the educational objective of “The young person will continue to develop independent skills in preparation for adulthood”. The Education Authority presented their case on the basis that this was an erroneous reference and, indeed, it was to be their position that they were to invite the Tribunal to remove the Reference. Witness 3 indicated that in his view the reference to speech and language therapy was quite proper there. Such service may or not be involved but is on hand and readily available should it be required and the Reference to Speech & Language Therapy there may provide comfort to the Appellant. Ultimately, at the time of submissions the Education Authority did not insist upon their earlier stated position.
The Tribunal is satisfied that The young person’s rights protected by the United Nations Convention on the Rights of The young person (“UNCRC”) have been respected and have not been breached by the decision making of the Education Authority.
The Tribunal is obliged to refuse the Reference given their Findings of Fact and corresponding Reasons. The Tribunal is not satisfied that The young person’s CSP requires amendment as proposed by the Appellant in order to fulfil the Educational Objectives set out in the CSP. These Educational Objectives are not the subject of dispute by the Appellant.
7. Observations
i. The Independent Speech and Language Therapy Report prepared by Witness 1 (T13-T14) is worthy of some comment. Given that that was the principal originating document upon which the Appellant’s case was founded, it was barely sufficient or adequate. There is no indication as to the author’s qualifications or experience. There is no indication as to when The young person had been assessed, where, or for how long. There was no indication as to what information and materials the author had available to them. There was no indication as to the foundation for their conclusion. The Report effectively consisted of a document with narrative no longer than one A4 page. The Tribunal would not encourage the use of Independent Reports of that standard or quality. The lack of detail ultimately caused delay as at the pre-Hearing Management Conference Call stages. It was necessary to seek further information. Even after the Convener asked for further specific information this was only partially co-operated with initially.
ii. The Appellant made reference in her own evidence to some feelings of disappointment that a home school diary had not been implemented for the purposes of daily information sharing. The Tribunal noted that this is a specified provision within the Additional Support Required defined within The young person’s current CSP. The matter was subsequently explored with Witness 3. His understanding of the circumstances is that there is a significantly high level of oral communication on a daily basis between the Appellant and the school such that this has obviated the need for a written home school diary to be created. He indicated that should the Appellant wish such provision made then this can happen with immediate effect. On the basis of all of the evidence available the Tribunal are of the view that the level of communication which the school offers to the Appellant is at a high level and the Appellant has every opportunity to readily be informed and inform herself regarding The young person’s daily activities, routines and more general educational provision and progress.
iii. The Tribunal took account of the statement made on behalf of The young person by his advocacy worker. The Tribunal accepts and recognises the need for non-instructed advocacy as a general concept. However the Tribunal had some concern regarding the nature and detail of the advocacy statement presented on behalf of The young person. The Tribunal were of the view that it went beyond the remit of the advocacy worker and contained matters which were outwith their remit, skills and expertise. There is an element of the statement which effectively criticises decision-making on the part of other professionals and this does not appear, in the view of the Tribunal, to be consistent with the spirit of their role.
iv. In the event that we had preferred the evidence of Witness 1 the submission of the Education Authority was that the nature of the direct provision to be provided by Speech & Language Therapy was not of such significance having regard to the frequency, nature, intensity and duration proposed by the Appellant that this would qualify for incorporation within the CSP. We do not agree with that view. For the purposes of opening and maintaining a CSP it is the totality of the professionals’ input outwith the Education Authority which together can amount to the significant additional support necessary to require a CSP. The Code of Practice stipulates within paragraph 19 of Chapter 5 that “… the cumulative effect of these professionals’ involvement may amount to significant additional support from that agency even although the input from each professional individually is not significant”. If we had found that the provision of Speech & Language Therapy as suggested by the Appellant should be provided to The young person it would be nonsensical to thereafter fail to order the incorporation of such provision within the existing CSP. To do so would dilute the authority of the Tribunal such to have made the whole process futile.
