ASNTS_D_18_2012_19.12.12

 

DECISION OF THE TRIBUNAL

 

Reference:      D_18_2012                

 

Gender:           Male

                       

Aged:               12                   

 

Type of Reference:     Arrangements of CSP

1. Reference

 

The reference received on 9 November 2012 is brought by the Appellant for her son, in terms of Section 18(3) (d) (ia) of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) on the basis of an alleged refusal of the Respondent to provide or make arrangements for the provision of additional support specified in the child’s co-ordinated support plan (hereinafter referred to as “CSP”).

 

 

2. Decision of the Tribunal

 

1. The Tribunal finds that the Respondent (Education Authority) has failed in terms of s 18(3)(d)(ia) of the Education (Additional Support for Learning) (Scotland) Act 2004 “ to provide, or make arrangements for the provision of, the additional support...identified by virtue of s9(2)(a)(iii)” in respect of the following support specified in the child’s co-ordinated support plan:-

 

1. The CSP provides that the child “requires on-going support for communication from his class team. This will be supported and monitored by a speech and language therapist who will offer direct and specialist interventions as required.” The Tribunal finds there was a failure to ensure the class team were supported and monitored by a speech and language therapist offering direct and specialist interventions as required.

 

2. The Tribunal finds the Respondent failed to provide materials for the child’s parents to use at home when the child is not well enough to attend school.

 

2. Other than as specified at (a) above the Tribunal finds no further failures on the part of the Respondent.
3. By virtue of its powers specified in s 19(3) of the Education (Additional Support for Learning) (Scotland) Act 2004 the Tribunal requires the Respondent to:-

 

1. Make provision for the class team in providing communication support to the child to be supported and monitored by a speech and language therapist who will offer direct and specialist interventions as required. Such provision should be in place within 28 days.
2. Make provision to ensure that materials are provided to the child’s parents to use at home when the child is not well enough to attend school. Such provision should be in place within 14 days.

 

3. Preliminary Issues

 

 

At a conference call held on 17 December 2012 the Solicitor for the Appellant indicated he

believed the child’s views were the same as the Appellant’s and the Respondent’s

representative advised that the Respondent assumed this was the case. Given the foregoing and that the reference relates to implementation of a co-ordinated support plan the Tribunal did not consider it necessary to seek evidence of the views of the child.

 

At the same conference call the Convener agreed that evidence from two witnesses could be submitted in written statements, there being no objection to this approach from the Solicitor for the Appellant. This agreement was subject to the qualification that should the Tribunal consider it needed more information from the said individuals they could be asked to give oral evidence at a later date. In the event the Tribunal did not consider any further information was needed from these individuals. The written statements were accepted into the bundle as R122-R131.

 

Some further documents were accepted by the Tribunal on 19 December which are numbered A36 and R137-143.

 

The Tribunal met on 3 January 2013 to consider its decision and decided that it required further information in respect of the HOT Service. This was requested of the Respondent on 3 January 2013. The respondent produced a statement from Head of Service of HOT Service.  This was incorporated into the bundle as R153-R156. The Appellant’s Solicitor submitted written comments regarding the said statement which were considered by the Tribunal.

 

 

 

 

4. Evidence:

 

Documentary evidence was included within the bundle of papers T1-T39, A31-36, R1-R143 and R153-156.

 

The Tribunal heard oral evidence from the Appellant herself.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

 

 

5. Findings in Fact:

 

The Tribunal makes the following findings of fact relevant to its decision:-

 

1. The child was born in 2000 and lives with his mother (“the Appellant”), father and nineteen year old cousin.
2. The child has extremely complex health difficulties. He is registered blind, has severe physical impairments and is totally dependent on others for his personal care. The child has intractable seizure disorder. He does not produce cortisol, which can impact on his energy and resources. He has a tracheotomy and is oxygen dependent. He communicates through blinking. The child is unable to control his own temperature. He may overheat which can bring on seizures. He has a tendency to become hypothermic and may stop breathing. His tendency to hypothermia limits the extent to which he can participate in activities where he is likely to become cold.
3. The Respondent is responsible for the child’s school education.
4. The child has a co-ordinated support plan in place, most recently amended on 4 June 2012. The co-ordinated support plan specifies School A (hereinafter referred to as “the school”) as the school the child should attend.
5. Nursing support was available to support the child’s health needs in school and on home to school transport on 4 June 2012.
6. The child was well enough to attend school on 27 June, 30 August, 18 September and 8 October all 2012.
7. No nursing support was available to support the child’s health needs in school and on home to school transport on 27 June, 30 August, 18 September and 8 October all 2012.
8. Nursing support was available to support the child’s health needs in school and on home to school transport on the vast majority of school days.
1. No support or monitoring of the child’s class team was undertaken by a speech and language therapist during the period of the latest version of the co-ordinated support plan dated 4 June 2012.
10. The child’s speech and language therapist concluded that an eye-gaze assessment was necessary for the child at least as early as 21 May 2012. This constitutes direct and specialist intervention by a speech and language therapist. As at the date of the hearing the eye-gaze assessment had not been carried out.
11. No effective arrangement was in place for ensuring the provision of support by a speech and language therapist as specified in the CSP.
50. As at the date of the hearing the child has had 7 actual neuro-developmental interventions (or sessions) in the community during the lifetime of the current CSP and one wheelchair assessment. Four neuro-developmental interventions have been cancelled on behalf of the child. This amounts to regular sessions.
1000. Between the start of the academic year in August 2012 and the date of the hearing four hospital and teaching outreach service sessions were cancelled by or on behalf of the allocated teacher. Two in October 2012 were as a result of the teacher’s paternity leave and two in November 2012 because the teacher’s son was taken into hospital.
14. The Respondent has not provided materials for the child’s parents to use at home when he is not well enough to attend school as provided for in the CSP.

6. Reasons for Decision

 

(i) submissions of parties

 

The Tribunal were assisted by the submission of parties, which are set out in summarised form below. All references hereinafter to sections and subsections are to sections and subsections of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”).

 

Submissions for the Appellant

 

Solicitor for Appellant referred to the relevant provisions of the Act. He referred to the definition of additional support needs in s1 and the contents required of a co-ordinated support plan in terms of s 9(2). Solicitor for Appellant referred to s11 which sets out the obligations a co-ordinated support plan imposes. There was disagreement between the parties regarding the correct interpretation of s11 (5) which is, accordingly, set out below:-

 

“S11 (5) Where this subsection applies, the education authority must—

(a) give a copy of the plan or amended plan—

(i) in the case of a child, to the child’s parent,

(ii) in the case of a young person, to that young person or, if the authority are satisfied that the young person lacks capacity to understand the plan, to the young person’s parent,

(b)ensure that additional support is provided by them for the child or young person in accordance with the plan or amended plan so far as they have power to do so,

(c)seek to ensure that additional support is provided for the child or young person in accordance with the plan or amended plan by any person (other than the education authority) identified in the plan as a person by whom such support should be provided,

(d)co-ordinate, so far as possible, the provision of additional support for the child or young person as mentioned in paragraphs (b) and (c) by the authority and any other persons by whom such support is to be provided, and

(e)inform such persons as they consider appropriate, being persons who will be involved in the provision of additional support for the child or young person, of such matters contained in the plan or amended plan as they consider appropriate.”

 

Solicitor for Appellant submitted that the requirements in s11 (5) (a) and (e) were administrative in nature but the remaining sub-paragraphs contained substantive duties. He submitted that as the requirements listed in the sub-paragraphs were joined with commas and an “and” all five duties apply together. He anticipated Counsel for Respondent’s submission that where the duties in sub-paragraph (b) apply those in sub-paragraph (c) do not. He submitted that there was no justification for such a position. The duties were not presented as alternative duties and the only circumstances in which an authority is relieved of the sub-section (b) duty is in circumstances where it has no power to provide the support and he submitted this meant legal power i.e. the Respondent cannot do anything legally incompetent.

 

Solicitor for Appellant proceeded to refer to s4 of the Act which, again as its interpretation was in dispute, is set out below:-

 

“4 Duties of education authority in relation to children and young persons for whom they are responsible

(1)Every education authority must—

(a)in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person, and

(b) make appropriate arrangements for keeping under consideration—

(i) the additional support needs of, and

(ii) the adequacy of the additional support provided for,

each such child and young person.

(2)Subsection (1) (a) does not require an education authority to do anything which—

(a) they do not otherwise have power to do, or

(b) would result in unreasonable public expenditure being incurred.”

 

Solicitor for Appellant submitted the duty in subsection 11(5) (b) is deliberately stronger than the duty in section 4 which has the caveat (in s4 (2) (b)) regarding avoidance of unreasonable public expenditure, a caveat absent from the provisions in s11 regarding the co-ordinated support plan. Solicitor for Appellant gave the hypothetical example of where the co-ordinated support plan provides for nursing provision as part of the support and the health board simply say “no”. The duty to provide nursing cover remains with the authority and it is for them to ensure it is provided by arrangement with other agencies. The content of a CSP and its delivery is the responsibility of the Education Authority with the sole exception of where they have no legal power. If that were not the case the Education Authority could, he submitted, render any CSP effectively optional by outsourcing all elements rendering the statutory compulsion toothless.

 

Solicitor for Appellant suggested the wording of s18 (3)(d)(i)(a) (which is the section that specifies the failure to implement terms of a CSP which allows a referral to the Tribunal) supports his contention that responsibility lies with the Respondent even if the nature of the support is typically regarded as social work or health.

S18 (3) (d) (i) (a) is set out below:-

 

“failure by the education authority to provide, or make arrangements for the provision of the additional support (whether relating to education or not) identified by virtue of section 9(2) (a (iii).”

 

In response to the submissions made by Counsel for Respondent which are recorded below Solicitor for Appellant stated that parties had two very different views of the legislation. Solicitor for Appellant questioned what the point of a CSP would be if Counsel for Respondent’s submissions were correct. Solicitor for Appellant submitted that if the duty under s 11(5) (b) falls away when s 11(5) (c) applies then it would allow the authority to delegate away a statutory responsibility to any person, not necessarily an agency that s23 of the act would apply to.

 

Solicitor for Appellant also submitted that it is not the case that an authority cannot undertake health care where defined as additional support in a CSP. Among other things the authority can employ a nurse.

 

Solicitor for Appellant also made an esto submission to the effect that if Counsel for Respondent’s submissions were correct the duty must implicitly be to make effective arrangements. An authority cannot satisfy the duty by making ineffective arrangements.

 

In relation to the facts, Solicitor for Appellant referred to the alleged failures of the Respondent as specified in the Appellant’s case statement at A1. The additional support that it was alleged the Respondent had failed to provide was referred to using the following numbering which will be used for simplicity later in this decision:-

 

1. “A nurse is required to support The Child’s health needs in school and on home to school transport.”   (hereinafter referred to as “alleged failure 1” )
2. “The Child requires on-going support for communication from his class team. This will be supported and monitored by a speech and language therapist who will offer direct and specialist interventions as required; indirect and advisory support for classroom staff; advice on adapting The Child’s curriculum; specialist training; assessment and support for the introduction of any communication aids; and advice to The Child’s parents.” (hereinafter referred to as “alleged failure 2” )
3. “He requires regular physiotherapy sessions, hydrotherapy and orthotic interventions carried out by a physiotherapist.” (hereinafter referred to as “alleged failure 3” )
4. (a) “The Child does not enjoy good health and he has missed a lot of school. His school will liaise with the HOT Service to provide teaching when he is in hospital,” (hereinafter referred to as “alleged failure 4(a)” )

(b) and will provide materials for his parents to use at home when he is not well enough to be at school.” (hereinafter referred to as “alleged failure 4(b)”)

 

 

Solicitor for Appellant suggested the Tribunal should accept the Appellant’s evidence that since 4 June 2012 there have been five days when the child ought to have attended school but could not due to lack of nursing cover. Solicitor for Appellant accepted that as a matter of law there would be a relevant defence of substantial compliance but what existed in this reference was a very substantial proportion of opportunities to attend were being frustrated by lack of provision.

Solicitor for Appellant submitted that the evidence of the Appellant was that she had no contact from speech and language therapy and there was no provision. The email from the speech and language therapist (R81-R82) includes a chronology of the actions she has taken and it is clear no provision has been made.

 

In relation to the alleged failure 3, the Appellant was not insisting on hydrotherapy, that having been agreed not to be appropriate for the child. There was no substantial dispute between the parties regarding the amount of support provided against this heading which he said was 7 physiotherapy sessions, 4 cancellations and 1 wheelchair assessment but this did not amount to regular physiotherapy sessions.

 

In relation to HOT Service (hereinafter referred to as “HOTS”), Solicitor for Appellant submitted that that it is not disputed that four sessions were missed in October into November and the case stated by the Respondent is that is not a good idea to have someone coming in who does not know the child, it is clear that the determining factor was the Respondent not having the capacity. Solicitor for Appellant submitted that lack of resources is not a caveat to provision of support as specified in a CSP.

 

Solicitor for Appellant submitted that the school does not claim to have provided materials. They do say that they don’t remember being asked and don’t think it is a good idea. Solicitor for Appellant submitted that the duty lies with the Headteacher in the school, not with the parent to suggest it.

 

 

Solicitor for Appellant concluded his submissions by stating that the CSP is a statutory document. Duties imposed by that document are in the terms the Respondent itself has drafted. It is not sufficient for the Respondent to say they have an arrangement with NHS Area who in turn have an arrangement with the nursing recruitment agency. It is not sufficient for the Respondent to say it has entered into an arrangement if it is not delivering on the statutory obligations the Respondent has adopted. Otherwise any content of a CSP could be converted to non-obligatory by the Respondent putting arrangements in place.

 

 

Submissions for the Respondent

 

Counsel for Respondent provided written submissions to the Tribunal which were supplemented by further oral submissions. The written submissions are now contained within the bundle of papers at numbers R144-R152.

 

Like Solicitor for Appellant, Counsel for Respondent referred to sections 1 and 18(3) (d) (ia).

 

Counsel for Respondent quoted s2 (1) of the Act which provides:-

 

“2 Co-ordinated support plans

(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) an education authority are responsible for the school education of the child or young person,

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

(i) one or more complex factors, or

(ii) multiple factors,

(c) those needs are likely to continue for more than a year, and

(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.”

 

Counsel for Respondent pointed out that subsections 2(1) (d) (i) and (ii) gave rise to different solutions.

Counsel for Respondent then referred to sections 4(1), 9(2) and 11(5). In relation to section 11(5) (b) she did not agree with Solicitor for Appellant’s submission that it referred to legal power. She suggested that in relation to nursing provision (reflecting Solicitor for Appellant’s hypothetical example) the Education Authority do not have their own nurses so cannot do it themselves. The Education Authority does not have the power as it cannot require teaching staff to provide nursing care.

Counsel for Respondent proceeded to refer to section 23 which is set out below:-

 

“23 Other agencies etc. to help in exercise of functions under this Act

(1)Where it appears to an education authority that an appropriate agency could, by doing certain things, help in the exercise of any of the education authority’s functions under this Act, the authority may, specifying what those things are, request the help of that agency.

(2)For the purposes of this Act, each of the following is, in relation to any education authority, an appropriate agency, namely—

(a) any other local authority,

(b) any Health Board, and

(c) any person, or a person of any description, specified for the purposes of this subsection in an order made by the Scottish Ministers.

(3)An appropriate agency must comply with a request made to it under subsection (1) unless it considers that the request—

(a) is incompatible with its own statutory or other duties, or

(b) unduly prejudices the discharge of any of its functions.

(4)The Scottish Ministers may by regulations provide that, where an appropriate agency is under a duty by virtue of subsection (3) to comply with a request made to it under subsection (1), the agency must, subject to such exceptions as may be provided in the regulations, comply with the request within such period as is specified in the regulations.

(5)Where it appears to an education authority that, by doing certain things in the exercise of any of their other functions (whether relating to education or not), they could help the exercise by them of their functions under this Act, the authority must do those things unless they consider that to do so would—

(a) be incompatible with any of their statutory or other duties, or

(b) unduly prejudice the discharge by them of any of their functions.”

 

In relation to s23, Counsel for Respondent pointed out that s23 (1) provides that the authority may request the help of the appropriate agency. There is a distinction in subsections (3) and (5) in the requirement to comply with a request under s23 (1) albeit with similar “get out clauses”.

 

Counsel for Respondent then made presented a legal analysis that differed materially from Solicitor for Appellant. She suggested that there is a clear distinction between additional support provided by the Education Authority and that provided by an appropriate agency. That can be seen in the differentiation between s 2(1) (d) (i) and (ii), between s 11(5) (b) and (c); and between section 23 (4) and (5). This distinction, she suggested, is reflected in the terms of s18 (3)(d) (ia) which she suggested provides that where the additional support is to be provided by an appropriate agency, the Tribunal will require to consider whether there has been a failure to make arrangements for the provision of additional support. Counsel for Respondent suggested the obligations on the Education Authority are limited in section 11 (5) to ensuring “so far as they have the power to do so” that additional support is provided by an appropriate agency. Appropriate agencies need not comply with a request where the exceptions in s 23(3) apply and the Education Authority has no powers under the act to force an appropriate agency to provide additional support.

 

Counsel for Respondent proceeded, with reference to s4(2)(b) to submit that the Respondent is not required to do anything which would result in unreasonable public expenditure being incurred and the  power of the Tribunal requires to be exercised in that context. If Solicitor for Appellant’s view regarding the inapplicability of s4 were accepted then the support that would go on CSPs would be very limited. Counsel for Respondent also referred to the best value duty imposed on local authorities by s1 of the Local Government in Scotland Act 2003.

 

We also record in passing that Counsel for Respondent indicated that the Respondent was not seeking to rely on any argument on whether nursing appears on the CSP but while not making any such argument in this reference they did not concede as a matter of law that nursing should be in the child’s CSP, and no assurances were given regarding nursing appearing on any future CSPs.

 

Counsel for Respondent then proceeded to summarise the evidence in relation to each alleged failure which she submitted largely supported the Respondent’s position.

 

Counsel for Respondent submitted that the evidence establishes that there has been no failure by the Respondent in terms of s18 (3) (d) (ia). The Respondent has made arrangements for the provision of additional support through the NHS in the areas of nursing, SALT and physiotherapy, and has provided additional support through HOTS. Additional Support has been provided.

 

The Respondent has sought in terms of s 11(5) (c) to ensure that the additional support has been provided by the NHS in the areas of nursing, SALT and physiotherapy. This can be seen through the steps taken by the Respondent in preparation for the tribunal. In relation to nursing, additional steps were taken by the Respondent to seek to ensure its provision.

 

The Respondent has ensured that HOTS was provided in so far as the Respondent had power to do so in terms of s 11 5(b). The reasons for the cancellation of 4 HOTS sessions were unforeseen and are not expected to recur, and the Respondent had no power to prevent them.

 

The provision made for additional support for the child is adequate and efficient in terms of s4. The child has complex needs. It would not be appropriate to substitute an individual to provide additional support for the child unless that individual knew the child’s complex needs and was able to work appropriately with him. Unreasonable public expenditure would be incurred if the Respondent were required to provide twice as many members to support The Child to cover for the occasional absence of the principal support provider. 

 

 

(ii) Tribunal’s reasons

 

The Tribunal carefully considered all of the evidence heard, the written evidence produced and the parties’ submissions on the law and matters in dispute. In relation to the interpretation of the act Parties’ agents were asked, given their completely different interpretations, whether there were any authorities that could help the Tribunal in its considerations but unfortunately they both indicated that there were none. It is unfortunate that what follows in this decision is extremely legalistic given the Tribunal attempts to operate in a manner easily understood by those who participate in the process including Appellants. Unfortunately in the present reference the Tribunal considered a fairly detailed legal analysis to be unavoidable given the materially different views of the law expressed by parties and the complexity of the statutory provisions referred to.

 

 

Tribunal’s decision on interpretation of the Act

 

The Reference having been brought in terms of Section 18(3) (d) (ia) of the Act the Tribunal considered the terms of s 18 (3) (d)(ia) first. The said section allows an appeal to the Tribunal where there has been a “failure by the education authority to provide, or make arrangements for the provision of, the additional support (whether relating to education or not) identified by virtue of section 9 (2) (a) (iii).” It is only if a failure as described in s 18(3) (d)(ia) is established that the Tribunal has power to make findings against the Respondent. At the centre of the legal dispute between the parties is the interpretation of s 18(3)(d)(ia), in summary the Respondent’s position was as long as the Respondent has provided the support itself or made arrangements for the support to be provided then there is no breach of s 18(3)(d)(ia). On the other hand the Appellant’s position is the Respondent must provide the support and cannot pass on its responsibility to provide that support to another person or body. Both agents made references to other parts of the act in support of their positions and much of submissions was spent considering the particular duties falling upon the Respondent in terms of s11(5). The Tribunal considered that it would have been simpler to come to a view had the wording of s 18(3) (d) (ia) referred to failures to comply with the duties described in s 11(5). Nevertheless, the Tribunal has determined that for there to be a breach of s 18(3) (d) (ia) there has to both a failure to provide the identified support and a failure to make arrangements for the support. In the Tribunal’s view it is enough that the Respondent either provides the support or makes arrangements for it to be provided. The Tribunal considered this to be the natural meaning of s 18 (3) (d) (ia).

 

 

However this is not the end of the consideration of s 18(3) (d) (ia). Parties’ representatives spent longer in submissions looking at the terms of section 11(5) and particularly subsections (b), (c) and to a lesser extent (d) thereof. Having regard to Counsel for Respondent’s submissions it could have been simpler to accept that s 11(5) as well as other sections of the act (2(1) (d) and 23(4) and (5) make a distinction where the support is provided by the Education Authority or another agency, such a distinction being as Counsel for Respondent submitted reflected in the terms of s18 (3) (d) (ia). However the Tribunal was unable to agree with these submissions. Firstly, as Solicitor for Appellant submitted, the authority could name an individual as being responsible for particular support in the CSP and make arrangements with that individual.  Section 23 allows Education Authorities to request certain other agencies to help the Education Authority with its functions under the act which request, with provisos, must be adhered to. That individual would not fall within the terms of s23 yet could not be considered part of the Education Authority (unless perhaps an employee). Similarly an outside agency named in the CSP might not fall within the meaning of appropriate agency as contained within s 23.  Secondly, section 2 is concerned with the circumstances when a CSP is required not with the duties following upon a CSP. Of perhaps most significance is the interpretation of s 11(5). The Tribunal had no difficulty in accepting (with one proviso detailed below) the majority of Solicitor for Appellant’s submissions in relation to its interpretation. The Tribunal considered that the various duties in that subsection were clearly written as a list, as cumulative duties and were not listed as alternatives.

While not ultimately relevant to this decision, the Tribunal were not, however, convinced that the reference in s 11(5)(b) to “so far as they have power to do so” refers simply to legal power, there being no material put before the Tribunal to suggest such a restrictive interpretation. It is perfectly possible that an Education Authority may not have the power to provide certain support in accordance with a plan for practical as well as legal reasons.

 

Returning to s 18(3)(d)(ia) given (firstly) that  s11(5) provides the authority has, inter alia, separate duties to  ensure additional support is provided by them, to seek to ensure additional support is provided  and to co-ordinate support arrangements and (secondly) s 18(3)(d)(ia) was inserted into the act by the Education (Additional Support for Learning) (Scotland) Act 2009 specifically to provide parents or young persons a legal route to enforce the provisions of a CSP, it would be absurd if s 18(3)(d)(ia) were interpreted in such a way that an authority could avoid the commitments in a support plan by making arrangements with a separate person or agency. The Tribunal accordingly accepts the submission made by the Solicitor for the Appellant that it is implicit that the duty must be to make effective arrangements. An authority cannot be said to satisfy the duty by making ineffective arrangements. Any other interpretation would allow an authority to avoid any possibility of enforcement by the Tribunal in respect of the support specified in the CSP by providing that the support be provided by other bodies or persons.

 

Section 4 provides for the general duties that education authorities owe to children or young persons with additional support needs for whose school education the authority are responsible including making “adequate and efficient provision for such additional support as is required by the child or young person” and making arrangements for keeping under consideration both the additional support needs and the adequacy of the support provided. It is clear from s 4(2) that these duties do not require an Education Authority to do anything that would result in an unreasonable public expenditure being incurred. The duty to provide additional support and to keep its adequacy under consideration applies whether or not a CSP is in place. While there are in the Tribunal’s view many benefits if a CSP is in place and duties that follow upon a CSP being put in place, a CSP of itself does not create the duty to provide the additional support. The provisions of section 4 do this and if a CSP is put in place (in accordance with s2 of the Act) the additional support will be recorded in the CSP. Where a Tribunal orders an authority to provide support specified in a co-ordinated support plan it is effectively ordering the authority to provide support that the authority is required to provide by virtue of section 4(1) (a) of the act and accordingly Counsel for Respondent’s submission that the powers of the Tribunal required to be exercised in the context of s4 (2) (b) of the act is accepted. Of course it may often be difficult for an authority to argue that the provision of specific support that the authority itself has specified in the CSP would result in unreasonable public expenditure being incurred.

 

 

Tribunal’s Decision on Facts

 

The Tribunal considered each of the alleged breaches as follows:-

 

 

 

Alleged Failure 1 Nursing Cover

 

The case statement for the Appellant suggested that during the lifetime of the current CSP the child did not receive nursing support as required by the CSP on 5 occasions; 4 June, 27 June, 30 August, 18 September and 8 October all dates in 2012. In her statement (at R130) accepted that for various reasons the support was not provided on all the dates with the exception of 4 June. In relation to that date a timesheet signed as authorised by the child’s father, (R121) appeared to confirm the support was provided. The child’s attendance record at T32 indicates that the child had a self certified absence- although the Tribunal were not convinced that the attendance record was completely accurate, something Counsel for Respondent accepted while arguing that it was substantially accurate. The Appellant also, fairly, accepted that the dates in the case statement may not be 100% accurate as they had been compiled by looking through her records. The Tribunal concluded that nursing cover was available on 4 June, based on the evidence of as supported by the signed authorisation at R121 and the demand book records at R28. To have concluded otherwise would have required the Tribunal to accept the Appellant’s suggestion that her husband had made a mistake and that the nurse named in the authorisation and demand books was receiving training that day.

 

In relation to the other dates referred to, the Tribunal accepted that there was no nursing support available for the child. This was accepted in the evidence of. There was some evidence suggesting otherwise, the attendance record at T31-32 suggested the child was at school on 27 June and 8 October. However the Tribunal concluded that the attendance record was not completely accurate, it contradicted the evidence of both and the Appellant and it also purported to show the child was in school on 3-5 December 2012 when the child was in hospital. The Appellant was clear in her evidence that other than in the very early stages of the child’s attendance at the school (around June-September 2010) there were no occasions when the child had not been taken to school when no nursing cover was available. There were also inconsistencies in the attendance records in relation to how afternoons (when the child does not attend school) were dealt with between the record for 2011/12 and that for 2012/13.

 

A from NHS Area in an email dated 7 December (R15) doubted whether the child would have been fit to attend school on 27 June given he had been in hospital the day before and was in hospital for two days after. The Appellant gave evidence as to the fluctuating nature of the child’s health difficulties. Further, whether or not the child was fit to attend (and the Tribunal finds that he was) the nursing support to enable him to do so was not available. 

 

It was argued by Counsel for Respondent that the fact The Child had HOTS sessions arranged at home for 2-3pm on both 30 August and 18 September (R108) called into question whether it was envisaged the child would attend school on those dates. The Tribunal considered this suggestion to be speculative and contrary to the specific evidence of the Appellant that there could be HOTS sessions at home on school days.

 

It was suggested in the case statement for the Appellant that cover was not in place for a number of dates in November & December 2012 after the case statement had been prepared. The Tribunal accepted Counsel for Respondent’s submission that it was implicit in the statement of that the shifts may have been filled but also, as suggested by Solicitor for Appellant, that had the child been able to attend school it is possible that some of the shifts fixed on the rota might ultimately not have been filled. Either way the Tribunal felt it would be highly speculative to come to a view about what may or may not have happened had the child been fit to attend school on the dates suggested and accordingly did not feel able to come to a view on whether cover would have been in place on those dates.

Having concluded that nursing support was not provided as specified in the CSP on four dates, namely 27 June, 30 August, 18 September and 8 October, the Tribunal then considered whether there was a failure on the part of the Respondent. The procedure for staffing the nursing support is articulated in detail in statement (R127-R131) and the demand day book (R28-64) records the shifts allocated and cancelled. Very broadly from evidence was where a shift has been cancelled. (who are a nursing recruitment agency who normally arrange for the shifts to be filled) notify the Staff Bank (described as an in-house recruitment agency). If cannot allocate the shift the Staff Bank will ask another recruitment agency, to fill it. The Tribunal considered the circumstances causing the lack of support on each of the relevant dates. On all 4 dates the shift had initially been filled. On 27 June the shift was cancelled by the nurse on the morning of the shift and the Staff Bank were notified 29 minutes after the shift was due to start. Similarly for 30 August the shift was cancelled due to sickness at 3.39 pm the day before, notified at 4.07pm. On 8 October the shift was again cancelled in the morning, shortly before it was due to commence. In relation to 18 September the shift was cancelled on 14 September and could not be filled by (who advised the staff bank on 17 September) and ultimately remained unfilled.

 

Solicitor for Appellant accepted that as a matter of law there is a relevant defence of substantial compliance. In the Tribunal’s view the Respondent has substantially complied with the duties in respect of nursing cover. Clear arrangements are in place to ensure the support is provided as detailed in the statement by. Similarly clear arrangements are in place for filling any shift where there is a cancellation. It is very difficult for an authority to arrange cover when a specialist staff member cancels a shift shortly prior to its commencement, as was the case on 30 August and 8 October – far more so when the cancellation is intimated as late as it was on 27 June. Indeed the Tribunal considered that the only way the Respondent could ensure that cover in the event of very late cancellations would be to arrange cover from 2 members of staff. In the Tribunal’s view this would go beyond the duty in s4 (1) (a) to make adequate and efficient provision for additional support and would, as Counsel for Respondent suggested, result in unreasonable public expenditure.

 

The Tribunal were not impressed by the lack of support provided on 18 September. The Tribunal considered that where a cancellation of cover is notified so far in advance of the shift that the Respondent ought to have a process in place that will ensure that the shift is covered. Having said that, as indicated above, the Tribunal concluded that the Respondent has substantially complied with their duties in respect of the requirement in the CSP to ensure “a nurse is required to support The Child’s health needs in school and on home to school transports.” The Tribunal were satisfied that the Respondent had made effective arrangements for the provision of nursing support and accordingly were not in breach of s 18(3) (d)(ia) in respect of nursing support. Evidence of this includes the statement of that provides the detail of the arrangements for nursing support and the Demand Day Book (R28-64) which clearly demonstrates that cover was in place for the vast majority of possible shifts.

 

 

Alleged Failure 2 Speech and Language Therapy

 

In relation to this allegation it was accepted by the Solicitor for the Appellant during the conference call on 17 December that the Appellant did not know whether “indirect and advisory support for classroom staff; advice on adapting The Child’s curriculum; specialist training; assessment and support for the introduction of any communication aids; and advice to The Child’s parent’s had been provided.”  The Solicitor accepted that the onus was on the Respondent to establish a failure. In the event there was no evidence brought before the Tribunal that it considered would entitle it to make a finding against the Respondent in relation to the foregoing.

 

The position in relation to the first part of this alleged failure (the child “requires on-going support for communication from his class team. This will be supported and monitored by a speech and language therapist who will offer direct and specialist interventions as required”) was somewhat different. Certainly there was no suggestion in the evidence that the class team were not providing support with the child’s communication but it was not apparent that the remainder of the support was provided for. The evidence of the involvement of speech and language therapy came from two emails from, speech & language therapist dated 7 & 13 December (R81-R82). The Tribunal accepted the submissions of Solicitor for Appellant that while the support required by the CSP does lacks specification it is clear from the response that none of the suggested elements are in place. R81-82 discloses no support or monitoring of the class team by the speech and language therapist. Given R 82 documents the speech and language therapist’s “input and correspondence since end of March [2012]” the lack of a reference to any support or monitoring of the class team entitles the Tribunal to find that no such support or monitoring was provided.  R82 provides evidence that an eye-gaze assessment was necessary and accepted as so at least as early as 21 May 2012. The Tribunal considered that this amounts to direct and specialist intervention. As at the date of the Tribunal this had not taken place for various reasons including the child being unwell. It was suggested by the Respondent that one of the reasons was the child’s parents did not respond to an offer made on 17 July of a visit for 2 months. The Appellant was however clear in her evidence that she spoke to Dr , Consultant Paediatrician who indicated she would respond directly to the offer. The Appellant’s understanding was the speech and language therapy would arrange to see the child when he was in hospital. It may well be that the support was not provided due to a mixture of misunderstandings and failures in communication however it is the Respondent’s responsibility to ensure that the support detailed in the CSP is provided and to co-ordinate (so far as possible) the provision of additional support. It was clear to the Tribunal that any arrangement that may have been in place was ineffective and the support had not been provided. Indeed the evidence at R81 of the input of speech and language therapy suggested no efforts had been made by the Respondent to ensure that the support was provided. Accordingly the Tribunal concluded that in respect of  the speech and language therapy as specified above the Respondent has failed to comply with the terms of s 18(d)(i)(a) to provide, or make arrangements for the provision of the support.

 

Alleged Failure 3 Physiotherapy

 

It was accepted by the Appellant that hydrotherapy was not in the child’s best interests and accordingly no order was sought requiring hydrotherapy. In relation to the support provided there was no substantial dispute between the parties. Statement at R122-R126 sets out the arrangements for physiotherapy for the child in detail and explains productions R83-R102 that detail the physiotherapy interventions. It was accepted by parties that the physiotherapy interventions relevant to the CSP are the neuro-development physiotherapy. The child’s community neuro-developmental physiotherapist aims to see the child fortnightly when he is in the community and well enough. Pages R86-87 of the community intervention sheets  show 7 actual  neuro-developmental interventions (or sessions) in the community during the lifetime of the current CSP and one wheelchair assessment as well as 4 cancellations on behalf of the child. The evidence of, an experienced physiotherapist, is clear that in her view the interventions amount to regular neuro-developmental physiotherapy and this evidence is accepted by the Tribunal. While the Tribunal did not agree with submissions made by Counsel for Respondent that the Tribunal would require alternative evidence from a professional to reach another view the Tribunal were satisfied having regard to the evidence of lothianthat the support has been regular, given the particular circumstances of the child, and accordingly there has been no failure by the Respondent in respect of interventions carried out by a physiotherapist.

 

 

Alleged Failure 4(a) Hospital and Outreach Teaching Service

 

It was accepted by parties that four sessions in October and November 2012 were cancelled by the teacher due to reasons the Tribunal accepted as being exceptional. These were the teacher being on paternity leave slightly earlier than anticipated and being on carer’s leave due to his son being taken into hospital. The Tribunal considered that the HOTS support as specified in the co-ordinated support plan was in place and it had only not been provided in exceptional circumstances that were unlikely to be repeated.

 

 

 

Alleged failure 4(b) Materials for parents to use at home

 

The evidence from the Respondent in relation to this alleged failure is as contained at R117-118 and R 132 (all emails from the seconded head teacher at the school). It is apparent from both that evidence and the evidence of the Appellant that the Respondent has not provided materials for the parents to use at home when the child is not well enough to attend school. The closest the Respondent seems to have come is in advising the Appellant that “Goodnight Mister Tom” is an excellent resource for life during World War 2 and can be viewed on you tube. In the email numbered R132 the seconded head teacher indicates that the school thought the parents were happy with current arrangements and Counsel for the Respondent suggested this issue could have been raised with the school. While the Appellant clearly could have raised this issue directly with the school the Tribunal accepted the Solicitor for the Appellant’s submissions to the effect that the responsibility for providing the support lies with the Respondent and it being provided for within the CSP; the parents should not have to ask specifically for the materials. The acting head teacher offers the view with reference to a medical report from Great Ormond Street Hospital that “The Child’s health needs are such that it would not be appropriate for school to seek to send materials home on a weekly basis as he would not be capable of completing the work comprised in such an arrangement.” Of course the CSP does not demand that materials be provided on a weekly basis and the Tribunal did not consider the said report suggested it would not be appropriate to provide materials for the parents’ use at home. How often materials are to be provided is not specified in the CSP, being left for the Respondent to determine. The Tribunal would expect the frequency and amount of materials would be dependent on the child’s needs.

Accordingly the Tribunal finds that the Respondent has failed to comply with its duty under s 18 (3) (d) (ia) in respect of the provision of materials for the child’s parents to use at home when the child is not well enough to be at school.

 

 

Tribunal’s Decision on Remedy

 

Having found two failures on the part of the Respondent the Tribunal requires to consider an appropriate remedy. The Tribunal’s powers are contained in s 19(3) of the Act which provides “the Tribunal may require the education authority to take such action to rectify the failure as the Tribunal considers appropriate by such time as the Tribunal may require.” The section allows the Tribunal to be quite specific about what action the Respondent should take but the Solicitor for the Appellant suggested that the Tribunal should simply require the Respondent to take the action specified in the CSP and not adopt a prescriptive approach. The Tribunal agreed with this suggestion. In relation to the failure to provide materials for the parents to use when the child is not at school, the Tribunal considered this was a relatively simple requirement in the CSP to comply with and accordingly decided on a 14 day period for provision of the support. In relation to the support from speech and language therapy, Counsel for the Respondent suggested the Tribunal should have regard to the period of at least 10 weeks (specified in SSI 2005/264) that an appropriate agency has to respond to a request made under s 23 of the Act. The Tribunal did not accept this submission. A request, if needed, should have been made at the latest shortly after the CSP was concluded. To delay matters for at least a further 10 weeks was not considered appropriate by the Tribunal. The Tribunal considered the necessary support to the class team should be put in place as soon as possible and, at the latest, within 28 days.