Have you looked on the SENDIST website at past decisions about ABA? It can get a bit obsessive, but will help you prepare and I also used copies of similar cases to J's to persuade the LEA that they really didn't want to go to Tribunal! They agreed .
The link is www.sendist.gov.uk/Public/search_results.aspx and I would search under Lovaas and ABA as keywords or home-based as schooltype.
Here is an example:
Key Words: Autism EarlyBird Lovaas ABA
Appeal No: 000917 Concerning: H
Gender: male Age: 2
Type of Appeal: Against the contents of the statement, parts 3 and 4.
Type of school named in the decision: Maintained nursery school.
Date of Decision: May 2001
Appeal
Preliminary
Counsel on behalf of both parties applied to the Tribunal to admit late evidence. On behalf of the
Parents; application was to admit:
a) A note taken verbatim from the LEA file when it had been inspected by them; and
b) Updated costings.
On behalf of the LEA; application was for the admission of-
a) Updated costings; and
b) The executive summary and an extract from a report produced by the SEN Regional Partnership on Autistic Spectrum Disorders.
We took the view that the costings were simply aides-memoire which would assist the Tribunal, rather than the introduction of new evidence. Admission of the verbatim note from the LEA file was opposed by the LEA's representative, who argued that it was irrelevant to the case. We were assured however by the parents' representative that the note had become relevant since very recent proposals made by the LEA to the parents. It would throw light, we were told, on the LEA's policies. We decided to admit the verbatim note on the grounds that, exceptionally, it could not
have been seen earlier that it would be relevant to the hearing, and to place such weight upon it as seemed appropriate.
In relation to the LEA's application to admit parts of a report on ASD, which was unopposed by the parents, we decided to admit this material because, exceptionally, it had already been referred to in expert evidence produced by the parents and we accepted that sight of the report itself would help us and make sense of the views expressed by either side in the case. We were told that the report had not been published at the time by which the LEA's evidence had to be sent to the Tribunal.
Facts
- H, who is not yet 3, suffers from a disorder on the autistic spectrum. Since the age of
19 months, he has been treated at his parents' own expense on an ABA programme by a
LOVAAS therapist. This is an intensive behavioural education programme, largely
based in the child's own home. The purpose of this appeal by H's parents was to
obtain an Order from the Tribunal that the ABA programme be named as special
educational provision in Part 3 of H's statement and that in Part 4, a combination of
home-based provision and nursery-based provision should be specified.
- As the appeal progressed towards a hearing, the LEA's position had changed and at the
time at which we heard the case, we saw correspondence dated 12 and 24 April 2001 from
the LEA to the parents which indicated that the LEA was prepared to pay a substantial
contribution towards the cost of the ABA programme for a limited period (albeit for a
lesser number of hours than the parents had arranged), to run in parallel with a transition to
nursery based provision. The LEA's proposal was that, with one to one support, H should be integrated into a nursery of the parents' choice, leading to full attendance (i.e. half time) by January 2002. Indeed integration to that extent and by that date, was common ground between the parties.
- The issues between the parties had therefore narrowed considerably from the time at which
the Notice of Appeal had been lodged. The parties were however unable to reach
agreement and it therefore fell to us to decide whether the provision to be ordered for
H was the ABA programme which he presently has for 36 hours per week (which the
parents wanted increased to 40 hours per week) for 50 weeks per year or the LEA's
alternative "eclectic" programme to include elements of the ABA programme and other
provision.
- We heard evidence from one of the senior educational psychologists for
the LEA, who has considerable expertise in home-based programmes. He had
had involvement with H, but had not seen him since February 13 2001. His
evidence was that he had doubts about most of the tests which had been administered by
the parents' privately instructed educational psychologist. The senior educational psychologist for the LEA doubts centred on the appropriateness of testing children as young as H and with his difficulties, in that way. Furthermore, by analysing the two sets of tests administered by the privately instructed psychologist, was able to suggest that the gap between H and his peers
was increasing rather than decreasing. He drew that conclusion from the Vineland test results, on which he was prepared to rely.
- The Senior Psychologist for the LEA also had concerns about Hs dependency on the ABA therapist and foresaw difficulties in Hs transition to nursery and eventual loss of one to one therapy. The LEA was opposed to 40 hours per week of the ABA programme; research indicated that 15 to 20 hours would be more than adequate and in any event H needed a wider range of provision, including a communication programme known as PECS and the LEA's own Early Bird.
- The evidence of the consultant child and adolescent psychiatrist who gave
evidence for the parents, however, was that the PECS Programme was for children who
are pre-verbal. H has made significant strides in language over the past few weeks
and the PECS Programme was no longer appropriate. Furthermore, the Psychiatrist also casts doubt on whether the Early Bird Programme would be useful. His view was that Early
Bird was directed towards the period after diagnosis of autism when parents were most
stressed. It was not relevant in this case, he said.
- The parents' evidence (supported by other witnesses) was that H had developed very
well since going on the ABA Programme. He was now using 180/190 words, socialising
with other children and relating well to his older brother. This was by contrast with his
attainments and behaviour only a year or so ago. He had started that day at nursery for the
first time. His physiotherapist had discharged him three weeks ago on the basis that his
gross motor skills were developing normally. We heard evidence that his eye contact had
progressed in leaps and bounds. He was now anxious for the first time if separated from
his parents.
- His LOVAAS supervisor said that H was well motivated and that made
him different from other children on the programme. She knew of no research which
would justify any decision to limit an ABA programme to 20 hours per week. It was an
intensive programme which needed to carry on through the holidays (which the LEA's
alternative did not offer). Children came off the programme in other cases and she would
expect H to be in nursery half time by January 2002. H's parents assured us that
their objectives are that he be educated in mainstream school.
- We heard from the LEA's Assistant Education Officer about the two
alternatives which were available for nursery provision Special Nursery School A and
the nursery at Primary School B which was the parents' preference. It was
there that H had started on the day of the Tribunal. The LEA did not oppose the
parents' preference and it was therefore unnecessary to explore the alternative any further.
10. We also received written and oral evidence about the costs of the proposals of both parents
and the LEA. This was unclear and inconclusive and in view of the decision which we
have come to it was not necessary for us to have regard to the evidence of costings and we
do not record it here.
Tribunal's conclusions with reasons
a) We were impressed by the evidence we heard of H's progress particularly over the
past few weeks. Cross examination did not undermine this. In our view, it is not credible
to maintain that the ABA programme which H undertakes for 36 hours per week has
not been a significant contributor to that progress. This is not to say that other
programmes might not be effective; we are however satisfied that the programme which
H has is effective.
b) The alternative offered by the LEA was described by them as both "eclectic" and
"bespoke". It contained an element of ABA Programme, together with nursery education,
and both of these are part of his parents' plans for H in any event. Other parts of the
LEA's proposals lost credibility during the course of the hearing, particularly the PECS
and EarlyBird programmes and it was not clear to us what other provision the LEA was
actually proposing.
c) The weight of the evidence of progress, together with the absence of any satisfactory
alternative, therefore led us to the conclusion that the appropriate provision for H at
the present time is the ABA/LOVAAS Programme on which he is engaged at the present
time for 36 hours. We are satisfied that this would appropriate provision, but we are not
satisfied that the LEA's alternative would constitute such appropriate provision.
d) We see no need to order an increase in the provision which H is at present receiving,
of 36 hours per week for 50 weeks per year. We heard no convincing evidence which
persuaded us to order an increase.
e) We take at face value the assurances of the supervisor of H's programme,
that she would expect H to make a successful transition to nursery education and of
H's parents that their objective is full time primary provision. We do not consider that
we are in a position to order a limit to the time for which the ABA Programme should be
provided, but we are aware that in the case of children under 5, LEAs should, according to
paragraph 5.22 of the Code of Practice, informally review their statements at least every
six months to ensure that the provision is appropriate to the child's needs. Such reviews
complement the statutory duty to carry out an annual review. We take the view that in this
case the LEA have made commendable efforts to reach agreement with H's parents as
to the provision which is appropriate to him (although as we have said we have been
unable to find that the provision at present proposed by the LEA would be appropriate for
H?s needs at this time) and we express the hope that in the context of continued
dialogue between the LEA and Henry's parents, six monthly reviews will constitute
effective monitoring of the continued usefulness of the ABA Programme as H moves
into increased provision in nursery and primary school. We have included an appropriate
monitoring provision in our order.
f) Our powers to make orders in respect of children under 5 are to be found in Section
312(4)(a) of the Education Act 1996, read together with Section 319. The effect of these
two provisions, read together, is that we may arrange for special educational provision for
a child over the age of 2 which is additional to, or otherwise different from, the
educational provision made generally for children of his age in schools maintained by the
LEA (other than special schools) and that such provision may be arranged to take place in
whole or in part otherwise than in a school. This power may be exercised by us where under Section 319(1) we are satisfied that it would be inappropriate for the special educational provision which H's learning difficulty calls for, or any part of such provision, to be made in a school. We are so satisfied. Furthermore, having concluded that his current provision is appropriate while the LEA's attention is not approrpriate we do not need to form a view as to whether the provision made for H in accordance with parental wishes is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (Section 9 Education Act 1996).
g) The Order we make below reflects so far as possible amendments which were canvassed
during the course of the hearing.
Order
The LEA is ordered to amend the Statement of H to delete the current text (so far as it is inconsistent with what follows) and to specify provision as follows:-
a) To amend 11JA and 111B to set out that H requires an intensive behavioural and
educational programme, which can be provided by the ABA/LOVAAS Programme. This
should be provided as follows:-
i) On a one to one basis for 36 hours per week for 50 weeks per year.
ii) Supervised by a LOVAAS trained supervisor for 3 hours every three weeks at a
meeting with all the trained therapists.
iii) A LOVAAS trained therapist will accompany H during his attendance at
nursery (as provided in Part 4 of this Statement). For the avoidance of doubt, such
time is included in, and not additional to, the total therapy provision of 36 hours
per week.
b) To amend HID to add a requirement for informal six monthly reviews of H's
Statement to ensure that the provision specified continues to be appropriate to his needs.
c) To amend Part IV to provide for:
Primary School B?s nursery class.
ii) ABA LOVAAS therapy programme for 36 hours per week, 50 weeks per year.