Proposed Disabled Children and Young People (Transitions) (Scotland) Bill – consultation response

Johann Lamont MSP recently launched a consultation on a proposed private member’s Bill in the Scottish Parliament.  The consultation period for the Disabled Children and Young People (Transitions) (Scotland) Bill ended today (22 January 2020).

The proposals for the Bill were developed with the assistance of Camphill Scotland and Inclusion Scotland.  As the consultation document points out:

At age 16, the aspirations of disabled and non-disabled young people are broadly
the same. By 26, however, disabled people are more likely to be out of work than
their non-disabled peers, and are three times more likely to feel hopeless and to
agree that “Whatever I do has no real effect on what happens to me”.

The Bill, as set out covers three main big ideas:

  1. A National Transitions Strategy;
  2. A Scottish Government Minister with special responsibility for transitions; and
  3. Transitions plans for every child and young person with a disability.

In principle, the Bill addresses some big issues, but I do think the details and structure proposed need some work.

My full consultation response can be found below.

 YOUR VIEWS ON THE PROPOSAL

1. What challenges do you think children with a disability face in the transition to adulthood?

The difficulties for disabled pupils in transitioning to post-school environments are well documented. From a legislative point of view the pupil’s transition is also from a well regulated field with an emphasis on parental involvement as the norm (for all children and young people, disabled or not) to areas which are much less detailed in terms of focus and substantive rights to additional support etc., where parental involvement would be much less usual, and with less accessible dispute resolution mechanisms.

2. Do you think that children and young people with a disability should have a statutory right to a transitions plan?

A transitions plan would no doubt be of use for many disabled pupils during a post-school transition. Whether a statutory requirement to prepare a detailed ten year plan for every disabled child and young person is required is perhaps another question.
A system whereby a plan can be requested and/or subject to set criteria, like a Co-ordinated Support Plan (CSP) or Education, Health and Care Plan (EHCP), might be better – and involve less unnecessary administrative burden (for all sides).

3. Why do you think that a transitions plan would be helpful or unhelpful?

For suitable cases, a written, child-centred, objective-driven, multi-agency plan would be useful in bringing a focus to discussions and ensuring that all agencies were working to the same goals. The ability to enforce a plan would undoubtedly lead to such plans being taken more seriously.

4. Will a National Transitions Strategy assist disabled young people to achieve independent living?

I think this largely depends on the contents of the strategy. It may be that more locally or regionally based transitions strategies would be of more practical use – they could be arranged around health board areas / regional college areas, for example?

5. What do you think the advantages and disadvantages would be of a National Transitions Strategy?

See above.

6. Do you think it is necessary for there to be a Minister in the Scottish Government with special responsibility for ensuring that children and young people with a disability receive appropriate levels of care and support in the transition to adulthood?

7. Do you have any other comments?

As a general point, I would say that the Bill fails to link with existing post-school transitions duties contained in Sections 12 & 13 of the Education (Additional Support for Learning) (Scotland) Act 2004, which are well established (if not always correctly implemented) and supported by a Code of Practice, non-statutory guidance (Principles of Good Transitions 3) and a clear dispute resolution mechanism to the First-tier Tribunal for Scotland (Health and Education Chamber).

The Bill applies only to disabled children and young people, to the exclusion of others with additional support needs who also have well documented concerns in terms of post-school transitions e.g. looked after children, young carers etc. While there are specific other duties which apply to looked after children, my view is that the better route would be to bring these duties within the existing ASL framework, rather than create another distinct, parallel system.

Section 8 of the Bill imposes the statutory duties which flow from the transitions plan, which are loosely framed and would require to be made more precise. The obvious rewording would be a requirement to ensure that provision is made by the authority, or arrangements made by the authority for provision, for the child or young person in accordance with the plan or revised plan.

Section 9 of the Bill sets out the required contents of the plan, which are needs-led. While a plan clearly needs to reflect the needs of the child or young person in question, this structure would inevitably tend towards deficit led discussions. A better model is to begin with the transition objectives: where does the young person want to end up? Then the plan can record the provision needed to achieve those goals – rather than to “address these needs” in the abstract. In fairness, the Bill does later on (s.11(5)(a)(iii)) imply that a plan should indeed cover “the outcomes which the plan is intended to achieve” – this needs to be brought front and centre.

Section 12 gives powers to the Scottish Ministers to put in place dispute resolution mechanisms. As above, the Health and Education Chamber of the First-tier Tribunal for Scotland already has a jurisdiction in relation to post-school transitions. Rather than creating a new mechanism, it would make sense to have these matters handled by the same body. Further in the event that it is necessary to include provisions about capacity of children (who would necessarily be on the cusp of turning 16 in any event) it cannot be the authority’s judgement as to whether the child has capacity – as that would be to allow one party to a dispute to determine the other party’s ability to proceed with the dispute. Such decisions should fall to the Tribunal or other decision maker itself.

Section 16 defines “child” as a person under 18, when in all other educational contexts it is 16. I realise that other legislation adopts 18 as an age limit, but 16 makes much more sense in this context. Also defining a child as under 18 raises even more problems with the capacity issues discussed above.

The definition of disability by reference to Section 6 of the Equality Act 2010 is the correct approach, but it is not a definitive dividing line. Using this definition does invite disputes as to whether a particular pupil is, in fact, disabled and therefore entitled to a plan. Any dispute resolution mechanism needs to be equipped to give a quick and definitive answer to this (complex) question.

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