DE
Reference: D_12_2010
Gender: Male
Aged: 12
Type of Reference: CSP not Required (Disputed)
1. Reference:
The Appellant (“the mother”) lodged a reference dated 21 June 2010 under section 18(1) and (3) of the Education (Additional Support for Learning)(
2. Decision of the Tribunal:
The Tribunal confirmed the decision of the authority dated 6 May 2010.
3. Preliminary Matters:
A letter dated 19 October 2010 had been intimated to the authority and to the Tribunal the day before the hearing. This was allowed to be lodged late and numbered A33. The mother's representative asked to lodge another letter, which in the absence of objection was permitted to be lodged late and numbered A34. The authority sought to lodge a letter, again in the absence of objection, this was permitted to be lodged late and numbered R44-45. At lunchtime, additional information was produced by the authority, namely the child's first interim report: this was agreed should be lodged and was numbered R46 and R47.
4. Summary of Evidence:
The Tribunal considered the following evidence:
oral evidence of:
The child’s mother;
Deputy Head Teacher, the Secondary School;
Education Officer;
The papers in the bundle comprising:
1. Copy reference to Additional Support Needs Tribunal for
2. Sundry correspondence from the ASNTS secretariat to the parties;
3. The appellant’s case statement and submissions pages A1 to A34;
4. The respondents’ case statement and submissions, pages R1 to R47.
5. Findings in Fact:
1. The child is aged 12. He lives with his parents and younger sister. He is presently a first year pupil at the Secondary School, having started there in August 2010. He had attended Primary School until June 2010. At school the child has been assessed as making good or very good progress in all but one of his subjects; in that subject he is assessed as making fair progress. His behaviour and effort have been assessed as usually or always behaving well, and usually or always working conscientiously, apart from two subjects where some improvement is required for behaviour, and where the assessment is of making some effort but being capable of more. He takes part in PE and games. In a recent PE assessment, he ran a timed course, finishing in the top ten per cent of his class.
2. The child has mild cerebral palsy with a right sided hemiplegia; Meares Irlen syndrome (visual stress); gastro oesophageal reflux and vomiting; and attachment difficulties with corresponding anxiety problems. He has back pain. He wears leg splints. The visual stress results in fatigue and he may need extra time to complete tasks and exams. The right sided weakness means he becomes fatigued sooner than his peers, this may mean he takes longer to move from class to class. He has to leave classes early because of this. He can suffer back pain and should not sit for too long, he should try to ensure a good sitting position. He needs to stretch to prevent tightness and pain. He may benefit from using adapted utensils in practical subjects such as home economics and technical studies. He should use a slant board or lean on a ring binder when writing for longer periods. The child's anxiety may affect his ability to cope with his school work. Although there is no present concern of any behavioural issues at school, his psychological needs may have an adverse effect on his school education.
3. The child's mobility issues and physical and mental health related issues are additional support needs, not by themselves complex factors, but taken together, likely to have a significant adverse effect on his school education.
4. These needs are likely to continue for more than one year.
5. The child has a Pupil Support Plan and an Individual Education Plan. From the start of term he has had access to classroom assistants for learning support in about a third of his classes. This continues. After the October half term holiday he was transferred into a different English class where he also has access to a classroom assistant. He has access to aids, but prefers not to use them. He has access to the lift within the school to avoid having to use stairs. He sometimes uses the lift and sometimes the stairs. He is permitted to leave class early to enable him to have time to change classrooms between subjects.
6. The child is seen every month by his General Practitioner for pain relief medication for his back pain. He attends a Hospital for Sick Children twice a year. He attends an orthotics clinic at another Hospital every three months to check his ankle splints. He attends a Consultant Paediatrician at least twice a year for his gastric osteophagal reflux. He sees a Community Paediatrician at a Clinic every six to twelve weeks.
7. He receives Occupational Therapy support. Over the summer period the Occupational Therapist visited his home, and before he started secondary school she visited the school to assess what aids may be needed. She provided the family with exercises and aids, including aids for a "speed-up" writing programme which the parents use with the child for forty five minutes every second evening. She can be contacted for advice by the parents or the school. The mother is in contact on the telephone about once every two months. The OT will visit the school in early November. The child has had no direct contact with the Occupational Therapist since beginning secondary school. Aids including a move and sit cushion and adapted tools for use in technical and home economic classes have been provided to the school although the child chooses not to use these.
8. The physiotherapist visited the school before the child started to advise. She visited the child's home twice during the summer holidays. She advised exercises which are carried out daily. The mother speaks with her on the telephone every couple of months.
9. The child is prescribed fluoxetine and this medication is monitored by a CAMHS Centre. He is likely to attend this service on an ongoing basis for consideration of the potential diagnosis of Attachment Disorder, and for the monitoring of medication. If he is not to be seen by a psychologist at CAMHS, he may attend a similar service at Hospital.
10. The supports referred to in paragraphs 4 to 7 above are all provided by NHS.
11. The child sees an orthoptist at a University in respect of the visual stress. He is provided with tinted glasses, which are checked annually.
12. The child's needs do not require significant additional support to be provided by the authority. They do not require significant additional support to be provided by the Health Board or other agency, namely the University.
6. Reasons for decision:
1. The Tribunal considered all the evidence indicated above and were satisfied that there was sufficient evidence available to the Tribunal to reach a fair decision on the reference.
2. The issue was whether or not the child satisfied the terms of section 2 of the Act and required a co-ordinated support plan (“a CSP”).
3. Section 2 (1) provides that a child requires a plan (a CSP) for the provision of additional support if:
“(a) an education authority are responsible for the school education of the child ...
(b) the child … 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 of more appropriate agencies (within the meaning of section 23(2) as well as by the education authority themselves.
(2) For the purposes of subsection (1) –
(a) a factor is a complex factor if it has or is likely to have a significant adverse effect on the school education of the child …,
(b) multiple factors are factors which –
(i) are not by themselves complex factors, but
(ii) taken together, have or are likely to have a significant adverse effect on the school education of the child ...
4. It was accepted by the authority that they were responsible for the child's school education, but they did not accept that the other criteria in section 2(1)(b) (c) and (d) applied.
5. For the mother it was submitted that the child met the criteria in section 2, and that in accordance with the powers set out in section 19 of the Act the Tribunal should direct that the authority open a CSP within six weeks or such other time as was deemed appropriate.
6. We accepted the mother's evidence that the reflux and vomiting problem was experienced by the child at home at night, and that this disturbed his sleep; such sleep deprivation from time to time affected his ability to concentrate and learn during the school day. Although the school is satisfied with his work and behaviour, we accepted the mother's concern that his anxieties and his overactivity, disclosed by his behaviour at home, were likely to affect his school education. The right sided weakness, the visual stress, the fatigue and the problems moving about the school in busy corridors and stairways are all factors which affect his school education.
7. We accepted the evidence of the Head Teacher of the Secondary School that the child, in her personal knowledge and from the information she was given from other staff members, did not appear to have problems sitting in class without the use of the move and sit cushion. The mother told us that the child suffered back pain as a result of not using it and we found this evidence credible, given that the cushion was provided on physiotherapy and occupational therapy recommendation.
8. We appreciated that the initial report from the child's teachers (R40 and R41) and the interim report R47 showed that the child was managing in school: as the Deputy Head Teacher said it was "not a bad report", there were no major concerns; along with about 85% of first year children, at times he could be distractible. His teachers did not note any problems even though he did not use the aids provided.
9. The child's determination not to appear different from the other children meant that he chooses not to use the cushion, and the resultant back pain is a factor that is likely to impact on his education. The preference not to use the coloured glasses and overlays prescribed for the visual stress may also impact on his education, as will his refusal to accept a scribe in class.
10. We concluded that, given the many medical and psychological factors, the tests set out in section 2 (1)(b)(ii) and (2)(b)(i) and (ii) are satisfied. We further concluded that all of the child's physical and mental health related issues are likely to continue for more than one year, and that the test in section 2 (1)(c) is satisfied.
11. We required to consider the tests in section 2 (1)(d) (ii). This required us to consider if the child's needs required significant additional support to be provided by an appropriate agency as well as by the education authority. In terms of section 23(2) the Authority Health Board and the University are appropriate agencies.
12. The solicitor for the mother submitted that the child had been considered by the authority as a child with significant additional support needs, as the planning for the child's transition between primary and secondary had begun in the summer term of P.6 rather than waiting until P.7. The Education Officer had given evidence that the authority began to prepare early for transition for those children with "significant additional support needs". The solicitor noted that there were only four part-time classroom assistant staff, one working only seven hours a week, in the whole school, and from that limited source the child had eleven periods a week and now additional English classes with classroom assistants. This was a high level of support in the context of the support available to all pupils in the school. He submitted that this supported his contention that the child required to be provided with significant additional support by the education authority. The support provided by the Health Board was significant additional support.
13. The mother's solicitor referred us to paragraphs 22 to 25 of JT v Stirling Council [2007] CSIH 52 and to Chapter 3 para 77 and Chapter 4 of the Code of Practice. He submitted that the test was to consider whether there was a requirement for additional support to be provided; was that additional support significant; was there a need for the additional support to be co-ordinated. If these questions were answered positively, the authority was obliged to open a CSP.
14. The authority submitted that the support provided for the child was appropriate to his personality and his additional support needs, but that it was not "significant" additional support. The transition planning for the child had begun early as he was treated as a child whose additional support needs had been highlighted as needing enhanced transition. Early planning allowed time for any adaptations to be made, allowing for liaison with any specialist services, to carry out an environmental audit, to have appropriate meetings with guidance or other staff. The Deputy Head Teacher knew the child personally, teaching him for one class a week. She met weekly with guidance staff and would be made aware of any issues. If she had any serious concerns she would convene an Extended Support Meeting to which would be invited any person who may be involved with the child such as the physiotherapist, Occupational Therapist, the parents, someone from CAMHS etc.
15. The solicitor for the authority submitted that although the child has a number of health related issues, and attended a number of professionals, there was no necessity for any co-ordination between their roles and the authority for the purpose of the child's school education. The evidence of the extent of medical support provided did not support the claim that this was significant.
16. The solicitors for each party were in agreement regarding the legal tests. When considering the additional support provided by the authority, which, in our view was sufficient for the child's needs, we concluded that these supports were:
use of lift;
leaving class early;
classroom assistant present in a number of classes to assist the child and any other children who required help;
availability of move and sit cushion;
availability of aids supplied by OT.
We considered that the extent of the additional support provided was fairly low level. We did not consider that the authority in its function relating to education, provided significant additional support to the child.
17. Accordingly the test in section 2 (1)(d)(ii) cannot be satisfied. However, we proceeded to consider whether or not the child's needs required significant additional support provided by the Health Board and the University.
18. We considered the extent of the contact the child had with the various health professionals. The physiotherapy and Occupational Therapy support is mainly consultative and advisory with an occasional visit to the school. There did not seem to be a need for any co-ordination with regard to the various paediatric medical appointments. The school are aware of the aids available for him. Similarly, the school are aware of the coloured glasses provided by the visual stress clinic at the University. His contact at the clinic is for annual review.
19. We did not consider that the extent of the additional support provided by the appropriate agencies or either of them is significant.
20. The information provided by CAMHS (A33) suggested that after assessment there may be some intervention which may include the education authority. There is insufficient evidence to give any consideration to this at this stage. The solicitor for the authority indicated that if in due course support was provided by this service, the authority would be naturally have regard to any need to consider this.
21. The Tribunal had regard to the Code of Practice in terms of section 19(7) of the 2004 Act. We had regard to the overriding objectives in Rule 3 of the Additional Support Needs Tribunals for
