(iv) an Individual Education Plan incorporating the recommendations of the RMIT Psychology Clinic; Ms Marilyn Black, Speech Pathologist; Ms Bettina Kaplan, Speech Pathologist; Ms Sharon Cowan, Audiologist; and Dr Rick Jarman, Consultant Paediatrician; such plan to be developed in accordance with the Respondent's own procedures and guidelines, and in collaboration with Jade's mother
111 IEP was used interchangeably with "Individual Learning Plan" or "ILP" throughout the proceeding. As previously mentioned, an IEP is statement of learning objectives and goals with regard to a particular student.
112 For students receiving funding under the PSD, IEPs are developed in consultation with the child's Student Support Group (referred to earlier as a SSG). SSGs have previously been known as "Program Support Groups" or PSGs, and both terms have been used interchangeably by Mr Hancock. SSGs are comprised, in accordance with the Program for Students with Disabilities Guidelines, of the students parent/guardian/carer(s), school representatives including the students teachers and any treating professionals.
113 From at least April 2009, when the Program for Students with Disabilities Guidelines 2010 was published, SSGs have been mandatory for students who receive funding under the PSD. They are also strongly encouraged for any student with additional needs.
114 IEPs are not, and were not during any period of the claim, mandatory for any student, or for students in receipt of funding under the PSD. Mr Hancock submits that IEPs are "best practice for students with disabilities under Departmental policies and procedures".
115 The recommendations of the experts mentioned in this element of Special Assistance were not the only recommendations made for Jade. Ms Beesley also made recommendations for Jade in 2005, but these have been omitted from this element of Special Assistance by Mr Hancock without explanation. In any event, there is no evidence that any of Jade's treating practitioners contemporaneously recommended that an IEP be developed for her, let alone one that included every recommendation made by the experts consulted by Ms Witcombe. Professor Reilly recommended that Jade's teachers and aides be assisted by a speech pathologist to develop an IEP that "creates a structured learning environment" taking into account Jade's language deficits. However, this recommendation is prospective in nature, to be taken from the date of Professor Reilly's witness statement, 7 June 2010, and is outside the period of the claim.
116 In his written submissions Mr Hancock points to three documents which purportedly ground this particular element of Special Assistance:
the first is a Royal Children's Hospital Education Institute document called Including students with disabilities: a curriculum toolkit for schools and teachers ("Curriculum Toolkit"), published in 2006. At pages 22 to 24 of that document, the role of the PSG (now SSG) is defined. At page 28 the document also says what a Student Education Plan (now IEP) is, although it does not suggest that IEPs are mandatory. Mr Tainsh, under cross examination, agreed that the Department provided funding to the publishers of the Curriculum Toolkit, but said it was not a Departmental document. He said that the Department does not take responsibility for all documents that it commissions or accept such documents as part of Departmental policy;
the second is a document titled Measuring Academic Progress Against each KLA. This document was published in August 2000. Mr Tainsh said this document is still available to teachers, although it is somewhat outdated. Mr Tainsh said that the Department recommends that teachers read references in the document to 'KLAs' as 'Victorian Education Learning Standards' ("VELS") which has since taken over from KLAs as the term of reference; and
the third is titled Victorian Essential Learning Standards: Students with Disability Guidelines, published by the Victorian Curriculum and Assessment Authority in 2005. Mr Tainsh stated that it was not a document that he knew intimately, but that this and other documents set the policy parameters in which Departmental staff operate. This document sets out role of the PSG (now SSG), stating that it is:
a team of people that work collaboratively to develop, write, monitor and evaluate the individual learning plan, a document which links the specific needs of the student to [the VELS].
117 None of the above documents make IEPs mandatory for any students, or students with disabilities, or set out any policy that the Department has failed to follow in regard to educating Jade. Several IEPs were in fact drafted for Jade. The relevant question is whether it can be shown that Jade suffered serious disadvantage in her education by reason that the State failed to provide her with IEPs in the terms set out by Mr Hancock.
118 The first IEP that was drafted for Jade was in June 2007, when Mrs Hirth introduced the use of IEPs to Briar Hill. As mentioned earlier, Neale test results and other data were used to determine which students should have IEPs developed for them. Ms Boyle gave evidence that prior to this time, it was not common practice to draft IEPs for students who did not receive funding under the PSD. Ms Boyle drafted a literacy and numeracy IEP for Jade in accordance with a template that was provided by the school after a training session on drafting IEPs. The IEP, dated 1 June 2007, set out Learning Improvement Goals, Learning Indicators, Classroom Activities and suggested Home Activities. Ms Boyle gave evidence when drafting Jade's IEP she incorporated the recommendations of the expert reports she had received to date as much as possible.
119 IEPs are intended to be revised annually. Jade was provided with a new IEP for both literacy and numeracy on 10 August 2008. Under Classroom Activities, the 2008 IEP notes Jade's involvement in CRP, her reading aloud to Ms Boyle and parent helpers, and modifications of main lesson work. The IEP also notes that the FM device was being worn by Jade and Ms Boyle at that time, and that in the future Ms Boyle would make her instructions to Jade more explicit.
120 IEPs were again drafted for Jade in July 2009 in literacy and numeracy. The numeracy IEP, dated 27 July 2009, notes that Ms Boyle would undertake "small group intervention" with Jade. The literacy IEP dated 31 July 2009 notes, among other things, Jade's continued instruction in CRP "with a trained facilitator", and her access to "a range of tools to assist with the spelling process."
121 The following evidence demonstrated that Jade's teachers had other plans and strategies, though not formally documented in an IEP, on how to educate Jade and accommodate her disabilities:
at Glen Katherine, Ms Reeve gave evidence that after receiving the reports of Ms Beesley and Ms Kaplan in 2005, she implemented as many of their recommendations as possible, though she did not formally document this;
Mrs Hollyoak said she had discussions with Ms Reeve about strategies for teaching Jade "continually throughout the year";
Ms Saunders also said she had a plan for teaching Jade in 2006, after discussing teaching strategies with Ms Reeve, Mrs Hollyoak and Ms Kaplan. She also read Ms Beesley's report and implemented it as much as possible; and
after Jade moved to Briar Hill in Term 3 2006, Ms Boyle agreed with Ms Witcombe that the plan was to allow Jade to 'settle in' to her new school. Nonetheless, Ms Boyle spoke with Ms Kaplan, read the expert reports on Jade and implemented them into the classroom as much as possible.
122 The wording of this element of Special Assistance seems to allege that each of the recommendations made by Ms O'Donnell and Dr Hempenstall, Ms Black, Ms Kaplan, Ms Cowan and Dr Jarman should have been incorporated into an IEP and implemented by the Department at all times during the period of the claim. There are several difficulties with such an allegation:
first, is clear from the evidence and was conceded by Ms Witcombe, that the above specialists made different recommendations for Jade "depending on what year she was in and the stage she was at and the challenges at the time." Applying all recommendations for the whole period of the claim, as alleged by this element of Special Assistance, is therefore impractical and would have little benefit for Jade. It is obvious that a recommendation made in 2005, when Jade was in Grade 1, might no longer have been appropriate in 2009, when Jade was in Grade 5. So much was clear from the evidence of Dr Hempenstall and Professor Reilly that Jade's educational needs may change over time;
second, some recommendations, such as the use of an FM Device, were tried and abandoned as ineffective. Continuing the use of such a device would not have any benefit for Jade and may have hindered her 'access to education' as she found the device distressing at times; and
last, the recommendations made during the period of the claim (approximately 96 in total) were on occasions similar or overlapping. There is little utility in implementing each individual recommendation where, for all practical purposes, one may be only a slight variation on another.
123 For the above reasons, this element of Special Assistance seems to have been inferred by Mr Hancock without a reasonable basis. It was suggested by him in cross examination of Jade's teachers that an IEP with more detailed content or more frequent review might have been "better" for Jade. This assertion may be correct. However, there is no satisfactory evidence before the Court that in the absence of an IEP of the type alleged by Mr Hancock, Jade suffered serious disadvantage in her education.