Transfer of Additional Support Needs Tribunals to First Tier Scottish Tribunal – Consultation Response

The functions and member of the Additional Support Needs Tribunals for Scotland will transfer into the Scottish Tribunals system on 30 November 2017, and become part of the Health and Education Chamber.

As part of this move, Scottish Government have consulted on draft regulations for the rules of the new Tribunals.  Below is my response to that consultation.

Tribunals (Scotland) Act 2014

Consultation on Draft Regulations

The First-tier Tribunal for Scotland and Education Chamber (Procedure) Regulations 2017

Part 1

Title of Part 1 currently reads “Part 2” in error.

Rule 1

The definition of “working day” should be revised so as to include days in July.  As things stand the biggest influx of cases to the Additional Support Needs Tribunals are placing requests, which are mostly determined, nationally, at the end of April.  This leads to a large number of references being lodged with the Tribunals during May and June.  By excluding July from calculations of time limits, case statement periods etc. this leads to real difficulties in ensuring that cases of this sort are determined in time for a decision to be taken prior to the start of the new school year, let alone to give any time for a meaningful transition.

While it is acknowledged that there may be difficulties arising from the availability of key personnel and witnesses during the school summer holiday periods, this will not always be the case, and should not automatically be hardwired into the rules.  The Tribunal is able to adjust case statement periods and other deadlines, and to set down hearing dates taking into account the availability of staff / witnesses under other Rules, and the exclusion of July from the calculation of “working days” is not necessary and is prejudicial to the wellbeing of children with additional support needs undergoing transition to nursery, primary or secondary school.

Rule 4

There is no need to distinguish between a lay representative and legal representative.  The current Rules do not do so, and the only practical difference in this set of Rules is that legal representatives cannot be ordered by the Tribunal to cease representing someone, even where they are unsuitable or the interests of justice so require.

Given that the Scottish Government’s policy is to promote the use of lay advocacy (as opposed to legal advocacy) at the Tribunals, it seems odd that the Rules should promote the use of legal representatives in this way.

Rule 5

The proposed role of a supporter in quietly advising on points of law and procedure would seem to be unnecessary in a system where lay representation is permitted, and public funding is available (in both the Tribunal’s jurisdictions) to allow those of limited means to be represented free of charge.

Rule 6

These rules on expenses differ from those currently in place.  In particular, they do not allow for expenses to be awarded whether the original decision or conduct challenged was wholly unreasonable.  The Tribunals have had cause to award expenses on this basis on at least one occasion (cf. https://www.asntscotland.gov.uk/sites/default/files/decisions/ASNTS_D_05_2009_16.07.09.doc) and it does provide the Tribunal the ability to recognise in an award of expenses unreasonable conduct which has led to a reference or claim being required, rather than just unreasonable conduct during the Tribunal procedure itself.

Rule 7

In my view, it is not appropriate for a staff member of the SCTS to carry out the judicial functions of the Tribunal.  Such a staff member would not have been through the requisite appointment process that Tribunal members and legal members have, nor would they necessarily be familiar with the context (additional support needs or disability in education) in which the decision was to be taken.

Rule 9

At present no request for permission is required before an appeal of a decision of the Tribunal is possible.  I am not clear that there is any evidence that there is a need for this kind of barrier to appeals to be introduced.  The number of appeals of decisions of the Additional Support Needs Tribunals every year is very low.  There have been no such appeals reported on the scotcourts.gov.uk website this year.  There was one in 2016, and none in 2014 or 2015.

The law in this area is still relatively underdeveloped and placing further barriers in the way of appeals being progressed could hinder the law’s development and opportunities to clarify the law.

Rule 12

Rule 12 is within Part 1, which are the general provisions, applying both to additional support needs cases and those brought under the Equality Act 2010.  Should there not therefore be an alternative provision allowing the monitoring of First-tier Tribunal decisions which require an independent or grant-aided school to do anything (as a responsible body under the Equality Act 2010)?

There would not necessarily need to be an equivalent to Rule 12(b) in relation to independent or grant-aided schools, but one could be devised where the President might refer such matters to HMIe / Education Scotland.

Part 2

Rule 14

(6) – To comply with a two month deadline in relation to a deemed refusal requires the parent to be aware of the law as it relates to this matter.  In my experience, most parents are not aware of the effects of the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005.  Particular flexibility needs to be given where parents only become aware of the position at some later stage.

(7) – Where there is an ongoing failure, then the two month deadline should operate as a rolling deadline, i.e. two months from the latest date on which the failure continued.  Otherwise there can be situations where the authority fail to prepare or review a CSP, and continue to fail to do so.  If no reference can be made after two months of failure, then the preparation or review may never be undertaken and the parent has no remedy by way of reference to the Tribunal.

Rule 17

(3) – First mention of the child’s views is here – but the draft Rules do not make any reference to the support service for children to be set up under Section 31A of the Education (Additional Support for Learning) (Scotland) Act 2004, which has a specific role in obtaining children’s views in the context of Tribunal proceedings.

Rule 19

(2)(g) – Again, there is no reference to the children’s support service re: child’s views.

(5) – The test to amend the authority’s response is “in exceptional circumstances”, whereas the test found in Rule 39(3) for the authority to rely on grounds not found in its response is the lesser “fair and just to do so” test.  This seems contradictory and potentially encourages a change of tack to be undertaken at a later stage in proceedings, rather than earlier.

Rule 29

(1) – In practical terms, both sides are frequently in the position where the extension of time (particularly) for lodging of documents etc is required.  The Tribunal are good in taking a pragmatic approach to this.  The test of “exceptional circumstances” seems too high.  It is wholly unexceptional for new information to become available in relation to a child’s education during the currency of a Tribunal case.

It also conflicts with the test applied for trying to lodge documents at the start of a hearing (Rule 45) which is “fair and just to do so” – again this potentially encourages parties to delay lodging documents to the day of the hearing, which cannot be a smart idea.

Rule 33

(5)(b) – This provides for expenses of attendance for witnesses called by the parties.  Should there be an equivalent rule to provide for the payment of expenses for witnesses called by the Tribunal under Rules 34 or 35?

(6) The equivalent Rule 85 for claims, specifies that the witness count does not include the claimant themselves.  Is the implication that the two witnesses here do include the appellant and/or the authority’s primary attendee?  If so, this has not been the practice of Tribunals to date.

Rule 35

(2) – The education authority for the area to which the child belongs would not always be the relevant extra authority to call.  The circumstances in which the “home” authority would be needed (and not already the main authority in the case) would be most likely a placing request for an out of authority placement.  The purpose of calling the “home” authority would be that they would know about the child’s current schooling and needs.  However, the child would not necessarily be at a school in their home area.  A child who lives in Glasgow and attends school in East Renfrewshire, whose parents make a placing request for a new school in South Lanarkshire would be ill-served by this rule.  The benefit to the Tribunal would be in being able to call East Renfrewshire, not Glasgow (as this Rule would suggest).

A rewording to allow the Tribunal to call the education authority which is currently (or about to be) responsible for the child’s school education – either instead of or in addition to the current wording would avoid the above problem.

Rule 37

(4)(b) – The implication here is that decisions in cases where there is no hearing must be taken by the legal member alone.  Would it not be preferable for the option to exist for these to be taken by the Tribunal as well?  This would allow access to the non-legal members’ expertise in the field of additional support needs to be applied to the decision in relevant cases.

Rule 38

(7)(c) – Does this mean a supporter in terms of Rule 5?  Or someone in addition to that?  If it is a supporter, that term should be used to avoid confusion.

Should a reference to the children’s support service (s31A, 2004 Act) be explicitly included here?

Rule 39

(3)(b) – Cf. comments on Rule 19(5) earlier.

Rule 43 & 44

Rule 44 should include the power similar to one found in Rule 43 to appoint a suitable person to facilitate the seeking of views of the child.  A reference to the children’s support service (s31A, 2004 Act) would be pertinent here.  The person so appointed should then be added to the list of those permitted to attend a hearing in Rule 38(7).

Part 3

Rule 61

(3) – This rule places the onus on notifying the Equality and Human Rights Commission with the claimant.  Given that many claimants may be unrepresented, this is an easy thing to miss.  It would be better to require the Tribunal to pass a copy of the claim to the Commission.

(4) – There is missing from the six months time limit provisions equivalent to Sections 118(6) and 123(3) of the Equality Act 2010 that “conduct extending over a period” is to be treated as done at the end of that period.  The absence of this potentially leaves those bring claims to the Tribunal at a disadvantage compared with those bringing similar claims to the Civil Courts or Employment Tribunals.

(5) – Section 27 of the Equality Act 2006 has been omitted by virtue of Section 64(1)(b) of the Enterprise and Regulatory Reform Act 2013.

Rule 66

(5) – The test to amend the responsible body’s response is “in exceptional circumstances”, whereas the test found in Rule 85(4) for the responsible body to rely on grounds not found in its response is the lesser “fair and just to do so” test.  This seems contradictory and potentially encourages a change of tack to be undertaken at a later stage in proceedings, rather than earlier.

Rule 75

(1) – In practical terms, both sides are frequently in the position where the extension of time (particularly) for lodging of documents etc is required.  The Tribunal are good in taking a pragmatic approach to this.  The test of “exceptional circumstances” seems too high.  It is wholly unexceptional for new information to become available in relation to a child’s education during the currency of a Tribunal case.

It also conflicts with the test applied for trying to lodge documents at the start of a hearing (Rule 90) which is “fair and just to do so” – again this potentially encourages parties to delay lodging documents to the day of the hearing, which cannot be a smart idea.

Rule 83

(4)(b) – The implication here is that decisions in cases where there is no hearing must be taken by the legal member alone.  Would it not be preferable for the option to exist for these to be taken by the Tribunal as well?  This would allow access to the non-legal members’ expertise in the field of disability to be applied to the decision in relevant cases.

Rule 84

(7)(c) – Does this mean a supporter in terms of Rule 5?  Or someone in addition to that?  If it is a supporter, that term should be used to avoid confusion.

Rule 85

(4)(b) – Cf. comments on Rule 66(5) earlier.

Rule 89

Rule 89 does not include an equivalent duty on the Tribunal to that found in Rule 44, i.e. to seek the views of the child (presumably only necessary where the child is not a party to proceedings).  Where this duty is introduced, it should include the power similar to one found here to appoint a suitable person to facilitate the seeking of such views.  A person so appointed should then be added to the list of those permitted to attend a hearing in Rule 84(7).

 

Respondent Information

Iain Nisbet, Education Law Consultant