Supporting Children’s Learning Draft Code of Practice (3rd ed) – Consultation Response

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

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The right help at the right time in the right place – consultation response

“Scotland’s Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs 2017-20206 aims to support improved outcomes for children and young people with complex additional support needs through strategic commissioning of national services; with particular focus on the provision of education. This strategy is based on recommendations made in the Doran Review published in November 2012. While this strategy also recognises the critical role played by social services and health in supporting educational outcomes, the strategy is set within the context of The Additional Support for Learning Act 2004.”

The consultation document sought responses to the proposed strategy for children and young people with complex additional support needs.  Below is my response to the consultation.

Responses are sought to this consultation document. I have prepared some comments based on my knowledge and experience of providing legal representation for the families of children and young people with complex additional support needs.

On page 4, I would suggest using the full title of the Act, i.e. “the Education (Additional Support for Learning) (Scotland) Act 2004”.

On page 6, the relevant Act for the criteria for a CSP is the Education (Additional Support for Learning) (Scotland) Act 2004, not the 2009 Act.

On p7, the Doran Review specifies an aspiration that services are delivered, where possible, “within the home community” (this is mirrored on p10 – “locally provided”).

The benefits to the child of having services delivered within their community will be many. However, care must be taken that this terminology is not seen as a reason to avoid choosing an out of authority placement for a child who would benefit from that service. It would be useful to set out what is meant by “locally” and “home community” and to stress that it is not shorthand for the specified area of the education authority in question. I have witnessed the argument being made that a child would benefit from being educated in their local community, when the local authority provision in question is many miles from their home. For a child living in Spean Bridge, Inverness is no more their “home community” than Glasgow is.

The Doran Review also specifies an aspiration that services are inclusive (and again on p10). No-one would argue that inclusion is not of benefit to the child. However, care must be taken that the term inclusion or inclusive does not become shorthand for mainstream school. While the presumption of mainstreaming is legally defined in very mechanical terms, of much more importance is the quality of the experience for the child at the provision in question and how that is perceived. How included does the child feel? How inclusive is the school experience for the child and their family?

A child attending a residential special school away from home may experience that as a wholly inclusive setting, whereas a disabled child attending a mainstream school where she is not permitted to attend school trips and is not selected for the sports teams may find that placement to be the opposite of inclusive. The child’s views should be central to this question.

On page 8, the document states “The decision as to the most appropriate interventions and placement lies with the home education authority ..” But should it rest there? There are problems with the current set-up in which the authority determines the child’s placement, unless overruled by a placing request on appeal.

In my opinion, the ideal would be for a system which successfully places at the nationally funded special schools only those children who need it most / would derive most benefit from that placement.

There is a danger with the current arrangements that children are instead placed at such schools for other reasons, for example:
• because their parents are more persuasive, articulate or knowledgeable than those of other children;
• because their parents’ representatives are skilled in making appeals to the education appeal committee or Additional Support Needs Tribunals as the case may be;
• because with the central funding available, the school is cheaper than more appropriate placements in other authority areas / independent sector;
• because the child or family is at crisis point and suitable social work support is not available, the child being placed for respite reasons, rather than educational ones.

A better system, in my view, would be to nationally fund the GASS schools (not necessarily the same ones as at present) in full to provide specialist places for a defined number of children with particular types of complex / severe additional support needs (as determined by the National Strategic Commissioning Group).

The schools themselves, as centres of excellence in their respective fields, would then be able to select the pupils who would most benefit from the places. Without a shortage of places, there would be no disincentive to transition back to the authority’s own schools. With no financial penalty for doing so, authorities would be free to recommend places for children suited for placement based solely on the child’s additional support needs and wellbeing.

Such a system also removes the need for an expensive, time consuming and stressful dispute resolution process which can damage working relationships and take up valuable resources (time, money, energy) which could otherwise be directed by authorities and parents alike to supporting positive outcomes for the child in question.
The Scottish Government already provides 100% capital and revenue funding for one mainstream grant-aided school (Jordanhill School) and there is no reason why it could not do so with (selected) grant-aided special schools. It would be simple to achieve, would not require any legislative changes, and provides savings elsewhere in the system.

In the first instance this could be piloted in relation to a small number of schools or even a single school.

Also of interest in this context are the proposed changes to the structure of Scottish education under the Scottish Government’s governance review. If the education authority are to remain responsible for additional support needs (cf. http://www.gov.scot/Publications/2017/06/6880/11) while schools acquire new autonomy for the delivery of education and responsibility for closing the attainment gap – then the current system where the authority is basically tied to offering places in its own schools in all but the most extreme cases could be modified.

Does an education authority, responsible for meeting a child’s additional support needs need to be tied to schools in a given area, if all such schools are acting autonomously?

Perhaps an education authority should be given the broader choice of “purchasing” a suitable placement for a child with complex additional support needs, whether that happens to be at a public school, an independent school or a grant-aided school.

On page 10, the Legislative and Policy Context, bullet point 1 should read “Education (Additional Support for Learning) (Scotland) Act 2004”, and bullet point 5 should read “Children and Young People (Scotland) Act 2014”.

Page 11 mentions a “3 year cyclical commissioning plan” which would allow alignment with education authorities’ accessibility strategies and other planning duties.

Page 12 notes the need for “proactive collaborative working” – but the current system does lead to disputes – better collaboration between grant-aided schools and authorities would be of benefit to pupils, but can be difficult to achieve on the back of a process in which parties are led to criticise the other’s provision.

Page 13 talks about the development of relevant professional learning opportunities, but there is a strong case for professional learning requirements. The Requirements for Teachers (Scotland) Regulations 2005 currently require suitable qualifications for those working wholly or mainly with pupils with a visual impairment, a hearing impairment, or a dual sensory impairment. Why is there no equivalent requirement for, say, those working with pupils who have an autistic spectrum disorder?

On page 14, the need for a strong partnership between parents and providers is noted. It can be difficult to engage with parents for special schools as there are often much larger catchment area, parents with additional caring responsibilities etc. Could the Scottish Schools (Parental Involvement) Act 2006 be extended to include grant-aided special schools, or guidance issued on adopting the same system on a non-statutory basis (which could be made a condition of funding)?

I would also observe that there is a need to maintain strong and ongoing local authority engagement where placements are made at grant-aided special schools, particularly in relation to educational psychology services and at the post-school transition stages.

Iain Nisbet
Education Law Consultant

 

Photo credit: (U.S. Air Force photo by Airman 1st Class Jeremy L. Mosier/Released)

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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 in January 2018, 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

Excluded from school – what next?

The research evidence on exclusions from school make for grim reading.

The 2013 Edinburgh Study on Youth Transition and Crime found that pupils who were excluded from school at age twelve were four times more likely to be jailed as adults.

Boys, children living in single parent families, and pupils from the poorest communities were most likely to be excluded from school. Equally badly behaved pupils from more affluent areas and those from two parent families were accorded greater tolerance and, as a consequence, were far less likely to be expelled.

The study findings show that one of the keys to tackling Scotland’s high imprisonment rates is to tackle school exclusion. If we could find more imaginative ways of retaining the most challenging children in mainstream education, and ensuring that school is a positive experience for all Scotland’s young people, this would be a major step forward.
– Professor Susan McVie, Co-director of the study

Additionally, Scottish Government statistics from December 2015 reveal that pupils with additional support needs are more than four times more likely to be excluded than pupils with no additional support needs.

And all of this records only formal exclusions, for which there is a paper trail. By definition, the use of “informal exclusions”, cooling off periods, invitations to remove a child, part-time timetables and other means of denying a child their right to education – are not recorded and therefore not widely understood. Anecdotally, this affects children with additional support needs and/or disabilities disproportionately.

Parents (and children with capacity – usually aged 12 or over) have a right of appeal against a school exclusion, whether it is a temporary exclusion or a removal from the school roll.

As things stand, an appeal will be heard, in the first instance, by the education appeal committee. After that, the parent, young person or child has a further right of appeal to the Sheriff Court. The appeal committee has the power to confirm or overturn the exclusion, and to vary any conditions for readmission. The Sheriff, on appeal, has the same powers.

In terms of the Tribunals (Scotland) Act 2014, this jurisdiction will be transferred to the First-Tier Tribunal for Scotland in due course – which is a very welcome change. A right of further appeal will lie to the Upper Tribunal for Scotland. This should make the process of appeal more transparent, independent and accessible.

The right of appeal only applies in relation to public schools, i.e. those managed by the local authority – although some independent schools may have equivalent procedure in place (e.g. an appeal to the board of governors).

Where the excluded child has a disability, an exclusion from school may amount to unlawful disability discrimination in terms of the Equality Act 2010. This is a complex piece of legislation and it can be difficult to tell without specific legal advice whether an act of discrimination has taken place.

A disability claim can be made in respect of any school exclusion, whether the school is an independent, grant-aided or education authority school. Such claims must be made within six months of the exclusion, and are heard by the Additional Support Needs Tribunals for Scotland. The Tribunals have much broader powers that the appeal committee, which might include ordering an apology, staff training, a change in the school’s (or Council’s) policy on exclusions etc. The Tribunal cannot, however, make an order for compensation.

Where a child with additional support needs has been excluded from school, do remember that there are routes by which that decision can be challenged. Particularly where the use of exclusion has become commonplace or is adversely affecting the child’s education or wellbeing, an appeal or a disability claim may be well worth considering.

Educational planning: CSP vs. Child’s Plan

In August 2016, Part 5 of the Children and Young People (Scotland) Act 2014 will come into force, putting the “Child’s Plan” on a statutory footing.  In some quarters, this is seen as the cue to put away all those pesky Co-ordinated Support Plans (CSPs) in a drawer, lock it, and move on …

However, this is not the legal position.  In fact, the new law does not alter the status or effect of the CSP at all.  Article 3(2)(b)(ii) of the Child’s Plan (Scotland) Order 2016 require a Child’s Plan to record all the information set out in a CSP which is “a record of any wellbeing needs which the child has and any action taken or to be taken to address those needs” – or, in other words, most of it. Article 7(9)(b) effectively ties the review cycle of a Child’s Plan to that of the CSP.

And despite these (and other) legislative developments within this time, the CSP remains an important part of the education policy. The Scottish Government recently listed their
‘continued commitment’ to the additional support for learning legislative framework as the key commitment in the field of education, in their Draft Delivery Plan (2016–2020) for the UN Convention on the Rights of Persons with Disabilities.

From a dispute resolution point of view, for all its faults, the system of mediation, independent adjudication and the Additional Support Needs Tribunals for Scotland provide a more robust system than the system of complaints set up under the Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016.

Therefore, it would seem that there is life in the old CSP yet…

GIRFEC – understanding the Code …

Much of the Children and Young People (Scotland) Act 2014 is due to come into force this autumn (subject to anything the Supreme Court may have to say in the case of Christian Institute & Ors v. Scottish Ministers). This has been characterised by some as GIRFEC (Getting It Right For Every Child) becoming law.

However, there are at least some parts of the GIRFEC framework which already carry (some) legal weight, by virtue of the Education (Additional Support for Learning) (Scotland) Act 2004.  That Act (in section 27) requires the Scottish Ministers to prepare a statutory Code of Practice (currently in its 2nd edition), to which education authorities and other appropriate agencies must have regard in carrying out their functions.

The Code has a lot to say about GIRFEC already (and it was published in 2010).  Here’s some of the highlights:

“Effective assessment, planning, action and review, consistent with the values and principles of Curriculum for Excellence, Getting it right for every child, the Early Years Framework and the provisions of this Act, involve:

  • taking a holistic view of children and young people and their circumstances, and what they need to grow and develop and achieve their potential;
  • seeking, taking account of and noting the views of children, parents and young people and involving them fully in the assessment process and in finding solutions;
  • ensuring that parents, children and young people, understand, and are asked to agree to, the aims of any assessment and the purposes of any action proposed ensuring that assessment is an ongoing, integrated process of gathering and evaluating information, planning, providing for, and reviewing, services for the individual;
  • adopting the least intrusive and most effective course of action affecting the lives of children, young people and families;
  • taking into account issues of diversity and equality and ensuring that outcomes do not discriminate against children, young people and their families. This includes not discriminating on grounds of race, disability, gender, sexual orientation, language, culture, religion or belief, and age.
  • working in partnership with, and building the capacity of, parents to secure education for their children and to promote their child‘s health and wellbeing, development and welfare.”

“Those with additional support needs comprise a broad group of children and young people whose needs require to be identified, understood and addressed to ensure that they benefit from school education. Education authorities need to play their part in ensuring that there is effective communication, collaboration and integrated assessment, planning, action and review when other agencies are involved.”

“Where lead professionals are working with children or young people with additional support needs then, in addition to the points set out below, they also have a responsibility to be familiar with the Act and, in particular, to ensure that parents and young people themselves are aware of their rights when they have concerns or disagreements about the provisions being made under the Act.”

“Where a range of individual assessments is required, the education authority should, in line with Getting it right for every child practice, seek to bring these within one assessment process to avoid duplication and placing the child or young person, and his/her family, under stress. This will involve ensuring that there is a lead professional co-ordinating the process when the assessments involve multi-professional staff. The ultimate aim will be to bring the assessments and their conclusions together into a single plan of action.”

“In all circumstances, planning should aim to ensure the effective co-ordination of support, including parents and the child or young person, so that it is clear what the intended learning outcomes are and what additional support is required to achieve these. Every opportunity should be taken to ensure that there is an integrated plan of action for a child or young person where more than one agency or service is involved and the aim should be to have one plan in line with the principles of Getting it right for every child.”

When is school not at school?

Section 1 of the Standards in Scotland’s Schools etc. Act 2000 says that every child of school age (roughly: ages 5-16) has the right to “school education” by, or arranged by, an education authority.

However, not every child of school age receives education by way of education at a school or other establishment.

Some children are, of course, home educated.  But even where the education authority remain responsible for a child’s school education, the law requiring “school education” does not necessarily imply that the education will be provided in a school.

For example, in Section 3(2) of the 2000 Act, education authorities are obliged to secure improvement in school education provided in their schools; and in s.3(3), those duties “shall apply also in relation to school education which is provided in pursuance of any arrangements made, or entered into, by an education authority under (a) section 14 of the 1980 Act; or (b) section 35 of this Act.” that is education while excluded from school or unable to attend school due to ill-health; and nursery education provided by partnership nurseries.

Section 16 of the 2000 Act forbids corporal punishment given by, or on the authority of, a member of staff to “a pupil .. for whom school education is provided by an education authority (whether or not at a school);”

In the Explanatory Notes to the Standards in Scotland’s Schools etc. Act 2000, it is explained that “Section 16(1)(a) covers school education provided by an education authority, whether at school or elsewhere, for example at home or in hospital.”

Section 277 of the Mental Health (Care & Treatment) (Scotland) Act 2003, amends Section 14 of the Education (Scotland) Act 1980 to require education authorities to make arrangements for “school education” for children unable to attend school because they are subject to compulsory measures authorised by the 2003 Act or, in consequence of their mental disorder, by the Criminal Procedure (Scotland) 1995 Act.

The legal definitions of “pupil”, “primary education” and “secondary education”, found in the 1980 Act, do not necessarily require attendance at school or any other establishment.

This is of relevance in the context of new duties to be introduced by Section 21 of the Education (Scotland) Act 2016.  Section 21 introduces a new Section 2ZA (“Learning hours”) which requires education authorities and grant-aided schools to provide a minimum number of learning hours per annum for every pupil.

Section 2ZA(12) defines “learning hours” as “hours of school education of such type as may be prescribed”.  Much may depend on the precise form of the regulations which are to follow, but it is worth noting that this definition does not necessarily require all (or any) of these learning hours to take place at school.

Additional Support Needs

boydrawing
Freeimages.com / Viviane Stonoga

This is the first post on this new blog, which takes a look at legal issues relating to additional support.  What better place to begin then, than Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended?

Specifically, we need to know what is meant by “additional support needs”? This is an important question as various rights and duties arise in law where a child or young person has additional support needs.

However, whether a child or young person has additional support needs is a question of fact, and does not rely on whether the education authority have formally assessed the child / YP or not.(cf. Parents of Child J v. Dumfries & Galloway Council 2015 SLT (Sh Ct) 253)

A child or young person is said to have additional support needs where “for whatever reason” they require additional support in order to benefit from school education (see below for more on the term “school education”).

The Code of Practice (“Supporting Children’s Learning”) suggests the following as examples of factors which may give rise to additional support needs:

  • having English as an additional language;
  • being a young carer;
  • being looked after by the local authority;
  • having a sensory impairment;
  • having a specific language impairment;
  • having other learning difficulties;
  • being bullied;
  • children with behavioural difficulties;
  • “gifted” or able pupils (e.g. RB v. The Highland Council 2007 SLT 844)

Since the 2009 Act, looked after children are presumed in law to have additional support needs, unless the authority have formally assessed them as having no such needs.  Where a looked after child has additional support needs, the authority must formally determine whether they require a Co-ordinated Support Plan.

It is worth reminding ourselves how broad the phrase “additional support needs” is. Also, note that a child or young person may have additional support needs due to a variety of factors.

“Additional support” is defined as provision which is additional or different to the provision normally made for pupils of the same age in local mainstream schools.

References to school education include, in particular, education which is “directed to the development of the personality, talents and mental and physical abilities of that child or young person to their fullest potential.”

That wording is taken directly from Article 29 of the UN Convention on the Rights of the Child, and underlines that the provision to be made for children with additional support needs should be made with a view to significant educational progression – including development in areas which would not traditionally be regarded as academic.