QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| London Borough of Hammersmith & Fulham
|- and -
|(1) Edward Pivcevic and June Goh
|(2) Special Educational Needs and Disability Tribunal
John Friel (instructed by Felix Moss) for the First Respondents
The Second Respondent did not appear and was not represented
Hearing dates: 2 and 3 May 2006
Crown Copyright ©
Mr Justice Stanley Burnton :
The parties' cases before the Tribunal
The written evidence before the Tribunal
(a) The LEA's evidence
"Queensmill School is an effective school. Overall pupils make good progress in their learning and very good progress in their personal development and behaviour. The quality of teaching is good. The leadership and management of the head teacher and deputy headteacher are very good and the school provides good value for money.
What the school does well:
- As a result of the very good leadership and management of the headteacher and deputy headteacher, there is a high quality staff training, excellent teamwork among all staff and an outstanding commitment to improvement.
- The quality of teaching is good and pupils make good progress in their learning. A particular strength of the teaching is the very good support and challenge provided by teachers and support staff which successfully enables pupils to develop their communication strategies.
- The very good provision for pupils' social and moral development, particularly the consistent management of pupils and the quality of staff/pupil relationships, helps pupils to make very good progress in their personal development and behaviour.
- The very good care and welfare of pupils fosters an effective environment for learning.
- The school's very good partnership with parents and its links with the community have a very positive impact on pupils' learning.
- The very good opportunities for the inclusion of pupils with their mainstream peers makes a significant contribution to the standards achieved by the pupils concerned.
What could be improved
- The allocation of time and breath of coverage of the National Curriculum in art, design and technology, geography, history, music and religious education.
- Schemes of work should provide more effective guidance for teachers' planning.
- The use of assessment information in all subjects should better inform planning and priorities for further improvement".
"Reuben is at the Queensmill School, in the pre-school class from 9am – 3pm everyday. He started at the end of January 04 and he seems to be enjoying it. There is no crying in the mornings although he wants to be carried in, there is some reluctance to be separated from me but when he gets to class, he happily goes it. I believe they keep him well occupied throughout the day and he seems happy and contented."
"Staff have seen a good rate of progress from Reuben in the 5 months he has been attending the school having already met most of the targets on his individual education plan (IEP). They have been particularly pleased with his speech and language development with Reuben now beginning to initiate verbal interaction with staff to indicate needs (in January he would only say numbers or 'bye bye' and tended to babble to himself at other times).
Reuben is now understanding a lot of routine commands and instruction when given clear contextual cues … (staff) feel that he is definitely understanding a lot more now than when he first arrived and I observed several instances of him reacting to verbal prompts and moving appropriately without a clear visual signal (though this was in reaction to familiar transitions/instructions within the normal classroom routine). At home Reuben is able to respond appropriately to a range of routine language …
… Reuben has made good progress … with the use of PECS …. This has contributed to Reuben's growing understanding that he can get his needs met through verbal interaction with an adult. Communication remains at a very contextual level with Reuben, though this may be an indication of his level of abstract thought rather than purely an indication of 'language delay.'
"Reuben is a child who has been diagnosed as being on the autistic spectrum. He has associated difficulties with language, communication, social and play skills. Despite his difficulties in these areas and his recent move from Moscow to London, Reuben has shown good progress since he began at Queensmill School in January. He has shown particular improvement with regards to communicative skill and intent. He is beginning to use expressive language to communicate his needs and is reacting well to the use of the PECS system to structure his language and development and this should be continued and extended. He has developed good learning skills and is able to access learning in a group, one to one and independent work sessions. Reuben is perhaps finding social interaction (with his peers in particular) and social understanding more difficult and this is an area that staff will target in the near future. It is likely that his developing language skills will assist his continued progress in all areas of functioning as time goes on."
"In terms of verbal means of communication, he has demonstrated an increase in the amount of his vocalisations since commencing at Queensmill School. When engaged in free play or working he demonstrates the use of some babble as well as singing but this does not appear to have any clear communicative intent.
He is able to repeat single words and learnt phrases. He has also developed his ability to spontaneously use very familiar nouns (e.g. juice, crisps) to request in context. He is also developing his use of social conventions (i.e. 'bye-bye'). Any attempts at spontaneous naming or use of language should be encouraged both at school and at home.
He is beginning to develop his request making by exchanging a photo from a selection of 4 in order to make a request for a desired item (e.g. toy, food item)."
"Reuben is demonstrating a growing interest in literacy sessions at school, however this is limited. His mother reports that he doesn't really like books to be read with him, with the exception of one. She is working on expanding the amount of enjoyable reading they do together, but Reuben doesn't like to be directed for these activities. He is showing skills in matching real objects to photographs and/or symbols."
"Reuben settled well into Turquoise class and has made significant progress during his time here. Reuben's social and personal skills have improved noticeably. He can name all of the peers and staff members in the class without prompting and has begum to look and attempt to make eye contact with his peers when sharing objects with them. He is far more tolerant of the demands placed upon himself by staff and will follow the classroom routines with the minimum amount of fuss. Reuben has been able to extend the amount of time he can concentrates on an activity and has become much less distracted during group activities. His independence skills have improved both in self-care and academic areas.
Reuben's functional language and communication has improved enormously and he is able to initiate his own communication by using a range of learnt words. He is also beginning to put simple two word requests together. Reuben has also developed a good understanding of visual learning reinforcers and has used PECS successfully to request preferred items such as food and toys.
Reuben has established a firm baseline for his academic skill in numeracy and literacy. He can work confidently with numbers to 10 and is beginning to enjoy looking at books with his peers at story time and these skills will provide a good basis for his academic learning next year.
Reuben has been a happy and confident member of Turquoise class and will be missed by all of the staff. "
"Reuben uses a range of non-verbal means to communicate these include reaching, smiling, laughing, use of vocalisation/babble, eye contact and gesture. Within the school situation Reuben is observed to be developing his use of the spoken word at a single word level primarily for requesting. There is gradual increase in spontaneity suggesting increasing confidence in the use of the spoken word and developing awareness of how he can use spoken language to influence his environment. Within structured group tasks he is also developing the ability to spontaneously name and label familiar vocabulary items linked to current class topics (e.g. transport).
Reuben continues to make some use of echolalia which allows him to practise language before he can use it spontaneously.
Reuben continues to develop his expressive communication where visual cues are used to support spoken language. When using the Picture Exchange Communication System (PECS). Reuben is now able to construct a 2 part phrase placing icons on the sentence strip in correct sequence to request a desired item, e.g. 'can I have juice'. Reuben will point to the sentence strip and use the spoken word to make the request."
"Reuben demonstrates an increasing interest in books and is able to share a book of his choice for a short period with a familiar adult.
Reuben is developing skills in symbol recognition and developing his ability to respond consistently to certain frequent symbols presented to him e.g. 'quiet' 'sit down' 'wait'.
As previously mentioned Reuben benefits from visual cues to support the spoken word and these cues are crucial to support both Reuben's attention to the spoken word and his ability to understand the key word in the instruction etc."
"Reuben presents with complex communication difficulties affecting his attention and listening, interaction, understanding and expression. He is developing in his ability to focus on set tasks as well as demonstrating increasing spontaneity and confidence in his use of the spoken word.
Reuben requires a classroom communication programme designed by the Speech and Language Therapist in liaison with his Teacher, which aims to increase his functional communication skills. The Speech and Language Therapist should be available as a resource for discussion with the class team and Reuben's home environment.
Reuben will also benefit from continued participation in a small communications group to focus on the development of:
- Following instructions involving 1-2 key pieces of information.
- Use of the spoken word for an increased range of function.
- Understanding and use of verbs.
- Development of interaction skills within a small group."
"Increasingly, he is requesting without the (PECS) symbols for very routine and familiar items such as 'juice' or 'pizza'.
He will respond appropriately to 'What do you want?', again in familiar settings.
He is learning to complete a simple sentence to say what he did yesterday or what he likes, then reread the adult's writing of that sentence, cut up the sentence into words and set it out correctly to re-read."
"Reuben now takes a great interest in the topic work we do and often names artefacts we have looked at the day before.
… He is a child who is becoming curious about his world, and he is now willing to try out new experiences, touching and sniffing items with less anxiety."
"Reuben is highly receptive to direct teaching, and learns quickly with visual support, quick tasks and repetition. He responds well to praise, and is now showing pleasure in his achievements. He works well when he knows what is expected of him and when clear structures about behaviour have been set up."
"Reuben is a delightful and happy child who is just beginning to enjoy having people to interact with. He has a real warmth and likes to request tickles from one of his classmates. …
"Reuben continues to make good progress within his own terms and those of his peer group at Queensmill. He has become much more comfortable in his surroundings and continues to react very well to the routines and general environment of the school. His communication skills are showing progress and his increasing awareness of his ability to act upon the environment to get his needs will hopefully lead to increased expressive language use over time. He is responding well to the PECS programme in place and the other visual cues used in the classroom to support use and understanding of language. Reuben continues to show interest in his peers though as yet does not possess the skills to interact with them in a meaningful way. His visual concentration and focus can be variable during group sessions and he needs frequent prompting from adults, (although it is likely that he is listening to more than he appears to be) This is in contrast to his higher level of engagement when in inclusion sessions in Peterborough School, where perhaps mainstream role models are of benefit to him. It is also likely that his concentration will improve as his language skills develop further."
(b) The parents' evidence
"Reuben needs Occupational Therapy input to help him develop the sensory awareness in his hands in order to develop his pencil skills further. He also demonstrated some eye contact with the work that he was doing but again he needs more direct one to one teaching in order to expand the amount of time that he will co-operate with this particular task. The ABA type way of teaching would provide this type of level of input and Reuben certainly in my opinion presented as a boy who was very interested in developing his skills further. The combination of the Sensory Integration Therapy to improve his sensory processing within his hands and the ABA method of teaching I am of the opinion that Reuben would make changes fairly quickly."
"I am of the opinion that Reuben needs a more direct approach using the ABA method. The school can provide a multi-disciplinary approach with Speech and Language Therapists and Occupational Therapists working in conjunction with teachers using ABA, which would be appropriate for Reuben and this seems to be supported to a certain extent within the documentation. Reuben's sensory issues do not seem to be being addressed other than through the individual Occupational Therapy sessions."
"Reuben remains at Queens Mill School. Reviewing the documentation made available to me by Ms Goh, for example reviewing the Speech and Language Therapy programme that had been in place as a class programme, the programme which was in place for the Autumn term it is pleasing to note that Reuben is in the process of achieving a number of goals that have been set. The goals are clearly entirely appropriate for Reuben. It is most pleasing to note that Reuben is certainly making progress in the use of the Picture Exchange Communication System and is now travelling with this and also using this to structure his expressive language. Reviewing the documentation for his Annual Review within the Yellow class, it is pleasing to note the improvement in his communication skills that have been identified by his class teacher Ms Smith. Reviewing the Speech and Language Therapy report, again Reuben has clearly made progress and I would agree with the comments within the report regarding Reuben's level of understanding. The Therapist has also noted an increase in Reuben's expressive language and also the use of PEC's to support the development of his expressive language. I understand from discussion with Ms Goh that Reuben works directly with the Speech and Language Therapist for approximately twenty minutes per week with one other child. This level of involvement does not appear to be indicated within the report.
Reviewing Reuben's Statement of Special Educational Needs issued by Hammersmith and Fulham Council dated 22nd April 2005, it now appears that Reuben's communication has improved in respect of the fact that he now does use some spontaneous verbal language. It may be possible to continue to use Makaton in the form of supporting his receptive language, however it is unlikely that this will be a way forward to develop his expressive language. Although there is reference under Communication Provision for a structured language programme, there is no reference as to the frequency of the review of the programme. Reviewing the documentation provided for me by Ms Goh this communication programme is clearly updated by the Speech and Language Therapy staff working with Reuben on a termly basis and this is clearly appropriate and should therefore be included. Speech and Language Therapy is also listed under part 6. This is inappropriate."
"The Speech and Language Therapist will need to provide a very detailed programme which must be followed by all classroom staff working with Reuben. This will need to contain a series of targets and achievement criteria. The programme that has been provided within his present school is clearly a very good example of an appropriate type of programme for children of Reuben's age and ability.
Reuben clearly needs to continue to make use of augmentative communication systems to support and help develop his receptive and expressive language skills. He is currently using the Picture Exchange Communication System within his current school placement and this is clearly an ongoing need for him. He will also need visual support in the form of symbolic or pictorial timetables to continue to support his understanding of the structure of the day and the expectation of task completion type activities."
"(His) Performance IQ score was 88 with a range of 82-95 at the 95% level of confidence. This result places Reuben at the 21-percentile rank within the general population. The current Performance IQ Score attained can only be considered as an estimate of Reuben's Non Verbal ability as on some items he appeared to lose motivation. It is highly likely that he is capable of functioning within at least the average level of ability."
"Reuben's Non-verbal or performance ability has been currently assessed to be at least at a low average level and is highly likely to be at least at an average level. This means that his rate of non-verbal learning can be expected at a similar level to that of a normal child.
He clearly has a weakness in his ability to use language and this is currently at a severe level of disability.
Reuben clearly is able to learn within a one to one context on a very structured programme as provided by an ABA therapist. Initially even on a limited intervention of 5 sessions per week resulted in dramatic progress. When the ABA form of therapy is not implemented Reuben's rate of learning or progress decreases to below what could be expected of an autistic child of nearly average non-verbal ability with significant verbal disabilities.
The initial set of school reports of Reuben's progress to July 2004 does not easily discriminate between the work that was initially conducted with him by the ABA therapist in Russia and the effects of the first 8 months of school intervention. It is likely that when compared to his previous rate of learning it decreased during this time leading to the comments made by Karen Massey in her review of progress conducted in August 2004.
The second set of school reports April 2005 also incorporates the work of a home school programme conducted in the afternoons. Even with both interventions (home and school) the rate of learning particularly in the verbal area does not appear to approximates an average rate of learning.
Recent research conducted with children with similar levels of difficulty as Reuben indicate that a strict ABA approach is more effective than various combination treatments. Refer Howard, S., Sparkman, C., Cohen. H. Green, G. and Stanislaw, H. 2005. in their recent report "A comparison of intensive behaviour analytic and eclectic treatments for young children with autism". Published in Research in Developmental Disabilities, 26, 359-383.
Of particular note is the near normal or above normal average learning rates attained by the students on the intensive ABA programme in all skill areas including Receptive and Expressive Language. The non-intensive ABA groups approximated normal learning only in the Motor and Non-verbal areas.
Of concern was the observation that 'The non-intensive "eclectic" treatment experienced by our GP group (15 hours per week of developmentally appropriate' activities and sensory experiences provided in a 1:6 adult: child ratio) was not just ineffective; it produced negative mean change scores in multiple skill domains. In short, the effect of 'eclectic' treatment on both the AP and GP groups was to flatten or decrease rather than increase the slopes of the developmental trajectories of most children. Based on these findings, we would project that those children will lose more ground to their typically developing peers the longer they remain in such intervention programmes.'
These differences continued to be statistically significant on follow up.
Reuben's profile of strengths and weaknesses as well as his likely learning slope (rate of learning) is consistent with a non-intensive eclectic approach to learning. This means the longer he remains in his current setting the further behind he is likely to get from his predicted (learning rate) slope.
The above observations and results clearly indicate the Reuben is highly amenable to and is very responsive to an ABA programme.
It is also highly likely that his learning rate would approach the normal rate in a very structured ABA therapeutic environment.
It is considered that given his level of disability and learning ability his needs are such that he requires an ABA program that is based on a 24-hour intensive ABA curriculum model."
The first hearing
The first decision
"(ii) Reuben has made remarkable progress with ABA, both in 2003 and in 2005, even though the periods of time were relatively brief. We accepted the evidence of Mr Pivcevic, Ms Goh, Ms Massie and Mr Flower on this point. Ms Woolf's graphs provided firm evidence, backed by data, that Reuben was making very significant improvements over relatively short periods of time.
(iii) We concluded from this evidence that successful intervention by way of an ABA programme could result in significant improvement of his verbal skills.
(iv) The success of ABA indicates the Reuben responds well to structured 1:1 intensive tuition. We accepted the evidence of his class teacher, Ms A Smith, that he was highly receptive to direct teaching and learned quickly with visual support, quick tasks and repetition.
(v) Reuben appears to learn less well in groups. Ms Smith reported that he had difficulty and became easily distracted and started to 'dream and chatter to himself'. Mr Flower observed at school the he was 'on task' for much less of the time in group teaching.
(vi) We accepted the evidence of Mr Flower, Mr Pivcevic and Ms Goh that the rate of Reuben's progress in verbal skills at Queensmill in 2004 had been slow, and noticeably less than during the two ABA programmes. We concluded that much of the progress in verbal skills made by Reuben during 2005, relied on by Ms Harker, was probably attributable to the home programme, not the teaching at Queensmill. We noted, that Ms Smith, in April 2005, reported progress in areas of receptive and expressive language which were targets of his home based verbal behaviour programme.
(vii) The LEA's assertion that the principles underpinning ABA were in use at Queensmill, although not labelled at such, was not substantiated by the evidence. Ms Harker was unable to point to aspects of the teaching which utilised ABA principles, despite considerable prompting from the Tribunal. The 1:1 teaching at Queensmill, relied on by Mr Ghosh, was not the structured, intensive teaching which was central to an ABA programme.
(viii) MS Harker agreed that the approach at Queensmill was not ABA based and was 'eclectic'. We accepted Mr Flower's evidence that, in Reuben's particular case, this non-intensive eclectic form of education was less effective than an intensive ABA programme, and could flatten or decrease the rate of his developmental progress.
(ix) We considered it highly significant that the headteacher of Queensmill and the LEA gave Reuben's parents permission to remove him from full time school for three afternoons a week, in January 2005, to provide him with ABA and a verbal behavioural programme. We concluded that the headteacher and the LEA would not have agreed to this course of action unless they believed that the ABA and VB programmes would meet Reuben's needs. Ms Harker said that the headteacher had agreed to this in order to work in partnership with the parents. Mr Ghosh said that the LEA did not agree with the decision. We felt that this was an attempt to explain away a decision which the LEA would have allowed Reuben to be absent from school if they thought the ABA and VB programmes did not benefit Reuben educationally.
(x) It was common ground between the LEA and the parents that it was not desirable for Reuben to continue with part time school and part time ABA.
(E) We concluded that Reuben's educational needs required provision of an intensive structured ABA programme. The educational provision at Queensmill was not adequate to meet Reuben's needs in relation to his verbal skills. In the circumstances, the appropriate placement was the Rainbow School, which could provide Reuben with the intensive, structured ABA programme which he required. Although Rainbow School would be considerably more expensive for the LEA to fund, we did not accept that this would be an inefficient use of resources or unreasonable public expenditure, since the placement was necessary to meet Reuben's special educational needs, and the current place was not adequate."
The application for a further hearing
The applicable procedural regulations
The decision of the tribunal may be given orally at the end of the hearing or reserved and, in any event, whether there has been a hearing or not, shall be recorded forthwith in a document which save in the case of a decision by consent, shall also contain, or have annexed to it, a statement of the reasons (in summary form) for the tribunal's decision, and each such document shall be signed and dated by the chairman.
(1) A party may apply to the Secretary of the Tribunal for the decision of the tribunal to be reviewed on the grounds that-
(a) its decision was wrongly made as a result of an error on the part of the tribunal staff;
(b) a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear;
(c) there was an obvious error in the decision; or
(d) the interests of justice require.
The grounds of appeal
(a) The conduct of the hearings before the Tribunal
(b) Other grounds of appeal
(a) There was no evidence to support the key findings of the Tribunal.
(b) The Tribunal's decision was irrational.
(c) The Tribunal applied an incorrect test: although the wording of their first decision suggests that they determined whether Reuben would not receive an adequate education at Queensmill, but would do so at the Rainbow School, in substance the conclusion they reached was that Reuben would receive a better education at the Rainbow than at Queensmill.
(d) The Tribunal failed to give adequate reasons for their decision.
Did the Tribunal apply the correct test?
The second decision
"35. We were impressed at the appeal by the careful analysis which Mr Flower carried out on all the available evidence of Reuben's development, and we accepted the main conclusions in his report, namely that Reuben made good progress on a 1:1 structured ABA programme, but when the ABA form of therapy was not implemented, his progress decreased to below the level to be expected of an autistic child of his level of ability. Mr Flower's analysis was supported by the powerful evidence or Mr Pivcevic and Ms Goh, describing the remarkable progress in verbal skills their son had made on the ABA programme, contrasted with the lack of progress at Queensmill. We were satisfied that in 2004 the parents had genuine concerns regarding Reuben's lack of progress at Queensmill, although initially they had been very pleased to get a place there. This is confirmed in the report by Ms Massey of the assessment they sought in August 2004. The progress made by Reuben was also recorded in Dr Wolff's evidence (the graphs and data-based evidence now criticised by the LEA). Ms Massey, the clinical psychologist, who had assessed Reuben both in June 2003 and August 2004, confirmed the progress made with the early, limited ABA programme, and that his rate of progress during 2004 at Queensmill did not match his abilities.
36. In reaching this view, in favour of the evidence presented on behalf of the parents, and against the LEA, we carefully considered the oral and written evidence of Reuben's progress at Queensmill, set out in the Annual Reviews, the reports of Mr Dwyer, and the oral evidence of Ms Harker and Mr Dwyer. The essence of the LEA's case was that Reuben was making satisfactory progress at Queensmill. We were unable to accept this, and we preferred the conflicting evidence adduced on behalf of the parents, summarised in paragraph 35 above.
37. Mr Ghosh, Mr Dwyer and Ms Harker did not effectively address, or contradict, the evidence form Mr Flower, Mr Pivcevic, Ms Goh and Ms Massey of the remarkable progress made by Reuben when on ABA programmes. Although the LEA and Mr Dwyer have since made critical observations on the data and report of Dr Woolf, these points were not made at the appeal."
A final observation