Decision Report Case 5/2010-11
| Decision Number | 5/2010-11 |
| Year | 2011 |
| Court | Special Education Needs Tribunal for Wales |
Disclaimer: This document is an anonymised version of the specific decision. Each case is
considered by SENTW on its individualised merits, reflects the law as at the time the decision
was made, does not create precedent and should be relied on as such.
Decision
Date of Birth: 2002
Appeal of: The Parents
Type of Appeal: Contents of a Statement
Against the Decision of: Local Authority
Date of Hearings: May, June & July 2011
Persons Present: The Parents Parents
Parents Representative Solicitor
Parents Witness SALT
LA Representative Solicitor
LA Witness Educational Psychologist
LA Witness AENCO
Appeal
The Parents appeal under s.326 of the Education Act 1996 against the contents
of a Statement of Special Educational Needs issued by the Local Authority in
respect of their Child. The Statement is dated January 2011. The appeal is
against Parts 2 and 3 of the Statement.
Preliminary issues
The hearing follows on from an adjourned hearing that took place in May 2011.
At that hearing the Tribunal made a number of orders and directions which were
set out in a written decision.
The Local Authority applied to strike out the appeal under Regulation 44
paragraph 2 (b) of the Special Educational Needs Tribunal Regulations 2001.
The Local Authority claimed that in light of the diary evidence submitted by the
Parents in response to the directions given in May the appeal had become
scandalous, frivolous and vexatious. The application was opposed by the
Parents and their reasons for this are set out their written response dated June
2011.
Having considered the application and the written reasons for opposing the
appeal and having heard oral evidence from both representatives the Tribunal
decided to refuse the application. The Tribunal gave an oral explanation for the
decision at the hearing. The Tribunal did not accept that the content of the diary
entries was such as to render the appeal scandalous, frivolous or vexatious. In
the view of the Tribunal the content of the diary entries did not alter the fact that
there were relevant areas of dispute between the parties relating to the Child’s
special educational needs and the provision that is necessary to address these
needs. The Tribunal was of the view that it was in the Child’s interests to
resolve these issues. The Tribunal considered that the arguments made by the
Local Authority were more relevant to the issue of the reliability of the diary
entries and the weight that the Tribunal ought to attach to them. The Tribunal
also noted that similar diary entries had been submitted as evidence in the
bundle for the first hearing and these had not prompted the Local Authority to
make an application to strike out.
The Local Authority applied to admit 2 documents as late evidence under
Regulation 33 (3) of the Special Educational Needs Tribunal Regulations. The
first was a document prepared by the Educational Psychologist relating to the
percentage of time that the Child spends out of class. The second document
was a file note of a conversation that was had with the NHS Consultant Child
and Adolescent Psychiatrist, in June 2011 seeking clarification of the
recommendations set out in their report of March 2011. The application was
opposed by the Parents. The Tribunal decided to refuse the application on the
basis that the Local Authority had not established that there were exceptional
reasons to warrant the admission of either document and neither had it
established that there would be a serious risk of prejudice to the interests of the
Child unless either of the documents were admitted.
Both parties were in agreement that the Child’s revised timetable should be
considered by the Tribunal in place of the earlier documents that had been
submitted by the Local Authority as a result of the directions given in May. The
replacement document illustrated more clearly and accurately how the Child
was being supported in school. The Tribunal agreed to consider this document
in place of the earlier timetables that had been submitted.
At the hearing in May 2011, the parties had been able to agree a number of the
outstanding issues in respect of Parts 2 and 3 of the Child’s Statement. The
Tribunal clarified and agreed with the parties the points that remained
outstanding and therefore needed to be determined by the Tribunal.
Facts
1. The Child is now 8 years and 9 months old.
2. The parties agree that the Child has overall cognitive abilities within the
broad average range. They also agree that the Child has specific
learning difficulties, visual motor integration difficulties, some difficulties
with some gross motor activities that require precision and control and
hyper mobility affecting their joints, weak fine motor skills, and sensory
processing difficulties. In the SALT report dated April 2010 they
indicated that they believe that the Child has subtle but complex
language difficulties linked to a diagnosis of Asperger’s Syndrome and
the SALT recommended further specialist assessment to confirm this
diagnosis. In March 2011 it was reported that it fulfilled the criteria for a
diagnosis of Asperger’s Syndrome. The Local Authority has agreed to
record this diagnosis in Part 2 of the Child’s Statement.
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