This Scottish Government consultation sought views in relation to a draft Supporting Children’s Learning Code of Practice (third edition) 2017 – the statutory guidance for the Education (Additional Support for Learning) (Scotland) Act 2014.  My response to the consultation is below.

Introduction

10 – There is a discrepancy here in how an eligible school child is described.  Here it states that an eligible school child is under school age (i.e. under 5), whereas at Chapter 2, para 14, it states that they will be under the age of 3.  This is confusing and could be better described.

11 – It is important to note that the assessment of capacity and the assessment of impact on wellbeing are two separate tests.  It is not helpful to conflate the two, as here.  A child may have capacity to exercise a right even where it would adversely affect their wellbeing, and vice versa.

Chapter One

2 – Re: foetal alcohol spectrum disorder– the international standard spelling, which the Scottish Government, the BMA et al now use, is Fetal Alcohol Spectrum Disorder.  The following resources could be referred to as being useful for practitioners: NHS Education Scotland’s free on-line course/resource on fetal alcohol harm:  http://www.knowledge.scot.nhs.uk/home/learning-and-cpd/learning-spaces/fasd.aspx.

4 – There is no presumption in law that looked after children require a CSP, simply a requirement to determine if that is the case.

12 – The right to request that an authority determine whether “their child” has additional support needs doesn’t read well in relation to young persons or eligible children, and should be amended.

14 – I am concerned that the term “evidence based” in relation to assessment of capacity will lead to delay.  It should be stressed that an authority will usually know the child well enough to make this sort of determination quickly.  A time limit should be set out in the guidance so that children are not left in limbo being unable to exercise their rights.

Chapter Two

2 – The fact that children do not have to be in school to receive “school education” is a point well worth making here.

4 – Throughout the Code, the references to entitlements under Curriculum for Excellence is very welcome.  The reference to learning being supported by “the parents in the home or their wider community” is not clear whether this is intended to mean:

• Supported by parents a) at home and b) in their wider community; OR
• Supported a) by their parents at home and b) by their wider community.

5 – In the final sentence, it is not when the authority have determined that they have additional support needs that a duty kicks in for looked after children, but rather, if they have not determined that the child does not have such needs.

6 – Given that there is a duty on corporate parents to collaborate with each other, is there a case for expanding the definition of appropriate agency to include any agency acting as corporate parent in relation to an individual child or young person?  This can be done by Scottish Ministers by regulation.

9 – Strictly speaking, it is the provision required which is assessed against provision made in mainstream schools in that area, not the child’s needs.  The result of that comparison will determine in law whether the child has additional support needs.  (Also in 10)

14 – See comments on Intro, para 10

Chapter 3

1 – A child belongs to the area in which their parents reside, regardless of whether they also reside there.  As a side note, this can prove difficult where a child’s parents live in different local authority areas.  The law does not distinguish between e.g. resident and non-resident parents for these purposes.

7 – The need for a holistic assessment should her be tied back into the ASL Act, by reference to the authority’s duty to assess for additional support needs, and the parental right to make an assessment request.

8 – The terms “least intrusive and most effective” will often be contradictory.  More effective interventions may also be more intrusive.  A concern about intrusion should only be a concern in terms of interventions which may take place in a family’s home or where they have expressed reservations.  In relation to school based interventions, this becomes an almost meaningless expression, which must not be allowed to be used as an excuse for not making provision of additional support for children or young persons.  The 2004 Act does not have any such principle of non-intervention, indeed quite the reverse.  There is a statutory duty to make provision effective, but none to make it non-intrusive.  At the very least, the terms should be reversed “most effective and least intrusive” is slightly better.

9 – Reference is made to a child’s plan, without setting out the criteria for same.  This may be helpful.

32 – The flowchart at Stage 2 and Stage 3 uses the terminology “Situation not resolved and need for further action identified.”  Section 4 of the Act which sets out the duty for providing support does not require this sort of trial and error approach.  While this may be the way in which a need for support is revealed in some cases, in others it will be obvious at the outset that a child requires multi-agency support.  In such cases, there is no need for the child to start out with a Stage 1, single agency plan (as the flowchart implies).

36 – The Code here states that looked after children are considered to have additional support needs unless they have been “identified as not having them.”  This might be taken to mean that the process of placing a looked after child outwith the scope of the legislation can be done informally, which is not the case.  The phrase “formally determined as not having them” may be better.

40 – Considering advice or information from the local authority’s own social work services may not require consent from parents or young persons under the 2004 Act.  However, this would still amount to a processing of personal data in terms of the Data Protection Act 1998 and the local authority would still have to be able to justify that processing in terms of the grounds provided under that Act.

42 – The requires to assess capacity and wellbeing prior to the exercise of children’s rights are here described as “safeguards”.  This is inaccurate.  A better description would be “barriers”.  Please use this term instead.

“.. neither the child nor the education authority may exercise that right.”  The education authority would never have the right to do so under any circumstances.  This is not a by-product of the assessments.

43 – Given that the assessment requests in Section 8 & 8A overlap, it may be simpler to say that such a request can be made at any time, rather than trying to differentiate the two different sections under which a request can be made.

44 – There is a big jump between the second and third sentence, which could be linked by explaining that in the case of an assessment request which is medical, the authority may seek assistance from the NHS.

51 – It would be helpful to outline how long an education authority should take to respond to an assessment request, and how long to complete the assessment(s) requested.

63 – As before, the Act does not require a trial and error approach if it is clear that the support required by an individual is required from a number of agencies.

65 – While is it accurate that an education authority “are not obliged” to make provision in these circumstances, in exercising their discretion, they must do so reasonably and lawfully.

67           Again, where exercising their discretion, an education authority must do so reasonably and lawfully.

69 – It is not helpful, in this document to highlight coercive measures – which are only mentioned in the Code in relation to home educating families.  In chapter 5, para 24 for example, mention is made of parents who will not co-operate with a CSP process.  No mention of coercive measures is made here.

70 – Where the education authority refuse to make provision for a child in these circumstances, the exercise of their discretion may be subject to mediation or dispute resolution.

75 – Again, where exercising their discretion, an education authority must do so reasonably and lawfully.  The exercise of their discretion may be subject to mediation or dispute resolution.

91 – The Code thus far gives the impression that personal support (under CfE) includes additional support, whereas here, there is an attempt to distinguish the two.  Universal support may be a better term here, rather than personal support.

94 – If the answer to that question is “No” then the authority requires to notify the parent/young person/child that their decision is that they do not have additional support needs, and should inform them of their rights to request mediation and/or dispute resolution.

Chapter 4

5 – Children over the age of 12 do not have the right to request mediation, either.

6 – Again, in exercising their discretion, the authority must do so reasonably and lawfully.

9 – It is incorrect to say that mediation cannot be used because the authority have no duty to carry out an assessment. Section 15 of the 2004 Act allows for mediation concerning the exercise by the authority of any of its functions under the Act.

10 – The reason that the parents of a child in an independent school cannot access the dispute resolution process in your example is not because the authority has not duty, but because the matter is not a specified matter under the Regs.

11 – Eligible children cannot make a placing request under the revisions to the Act.  Nor can they make a placing request appeal under the Act.

33 – Where the pre-school provider is an independent special school, or nursery classes within an independent special school, then a reference to the Tribunals could indeed be made to the Tribunal, partnership agreement or no.

37 – Here, the reference to para 33, should include a reference to para 34 as well.

41 – Here, the reference to para 33, should include a reference to para 34 as well.  The “education authority appeal committee” should read “ education appeal committee”.

48 – Where the pre-school provider is an independent special school, or nursery classes within an independent special school, then a reference to the Tribunals could indeed be made to the Tribunal, partnership agreement or no.

The content of this chapter is at great length and becomes confusing.  Could some of this information be presented in tabular form?

Chapter 5

13 – Under learning environment, the phrase “because the appropriate measures have not been put in place” is used.  Care is needed not to feed the fallacy that where a child’s needs are being met they do not have additional support needs, or that they would not require a CSP.  This is not the case.

25 – Where the eligible child is to be informed of a proposal to establish whether they require a CSP, it would be in addition to their parent(s), not instead of.  Strictly speaking, before an eligible child would have the right to be notified of the authority’s proposal, they would be expected to notify the authority of their intention to exercise this right.  How they do this, without knowing that the authority are planning to notify them of their proposal is not clear.  Perhaps the authority should notify the child of their intention to notify him or her that they propose to establish whether or not they require a CSP.  Then the child could notify the authority in return that they intend to exercise their right to receive notification of that proposal.  Then the authority would require to assess the child’s capacity to exercise that right, and whether it would adversely affect their wellbeing to do so, before finally agreeing that they should be notified.  This all seems unnecessarily complex, but appears to be required by the amended Act.

30 – There may be a requirement to notify the eligible child of a decision regarding a CSP as well.

78 – Reference to “paragraph 78 above” appears instead to be a reference to para 77?

80 – Reference to paras 75 and 78, appear to be a reference to para 74 and 77 instead?

100 – The involvement of two or more agencies is not the criteria for a child’s plan in terms of Section 33(1) of the Children and Young People (Scotland) Act 2014 and it is misleading to include that here.

Chapter 6

7 – Section 13(6) of the 2004 Act makes the regulation applicable to “children and young persons having additional support needs” and the Regulations do not seek to restrict this category.  There is no lawful basis for denying some children access to these transition procedures – the authority do not have a discretion on this.  This is incorrect and needs to be altered.

20 – This para make reference exclusively to young people.  For a school leaver planning to leave school at 16, the transition provisions would also include children.

23 – Footnote 70 makes reference to the old definition of “young person”, rather than the revised definition which will be in force at the same time as the Code is published, as I understand matters.

32 – The Scottish Transitions Forum is mentioned here – further detail from the Principles of Good Transitions 3 should be made: including setting out the seven principles in full in the body of the Code.  At the very least they should be included in an Appendix.

37 – The duty in Section 12(6) applies to “any child or young person having additional support needs”. There is no lawful basis for denying some children access to these transition procedures – the authority do not have a discretion on this.  This is incorrect and needs to be altered.

38 – The phrase “best interests of the child” is used here.  In keeping with terminology used elsewhere, a reference to “wellbeing” may be more appropriate.

45 – The refusal to give permission to share personal data with other agencies can presumably only act as a bar to bringing a reference in relation to transition duties to share information.  The other transition duties (to gather information about likely provision etc.) still apply and could be the subject of a reference to the Tribunal.

Chapter 7

7 – The views of the parents are sought even where the child also has capacity to express a view.

14 – How well the person taking the child’s view know him/her should not be regarded as a matter which gives the child’s views extra weight.  The familiarity may bring with it a knowledge on the part of the child of the answer the adult regards as the right one and an unconscious pressure to give that answer.  The best way for a child’s views to be taken is by an independent children’s advocacy worker who has had the opportunity to build trust with the child.

19 – The terminology used by the Act is “adversely affect the wellbeing of the child” – this is not the same as avoiding any adverse impact on wellbeing.  The wording used in the Code here overstates matters.  Particular consideration in the assessment of wellbeing in these matters should be given to the wellbeing indicator of Respected – the child’s right to respect for their decision to exercise their rights must be of paramount importance.

23 – Parents are also empowered to speak and act for their child, even where the child does have capacity – the child may prefer that their parents do the talking in a review meeting for example.

31 – This has been the subject of a Section 70 complaint, in which Scottish Ministers indicated that to exclude a supporter or advocate, the authority would require to show evidence of their unsuitability – it is not enough to have a subject view to that effect.  The parent’s choice of supporter or advocate should be respected in all but the most extreme cases.

37 – Is it intended that details of the Children’s Service be given here?  Also at 39?

Chapter 8

2 – I disagree.  Authorities should not give precedence to their own internal complaints processes over the specialist dispute resolution mechanisms provided for in the Act.  In two separate decisions in 2015, against Highland Council and Fife Council, the SPSO upheld complaints by parents who had been through the Council’s own complaints process. The Ombudsman found that they “had a right to be made aware of the alternative dispute resolution provision” (https://www.spso.org.uk/sites/spso/files/decision_summaries/201302996.pdf) and recommended that the Council ensure parents were appropriately advised of their rights to independent adjudication.  The same issue arises in relation to the flowchart on p135, which also manages to imply that mediation must be attempted before accessing the Tribunal (which is specifically ruled out by s15 of the Act).

 

Picture Credit: By Tss.pk (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons