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

Governance Review – Consultation Response

Response to Consultation
“Empowering Teachers, Parents and Communities to Achieve Excellence and Equity in Education” – A Governance Review

Introduction

1. My purpose in responding is to highlight certain legal issues which arise. It is hoped that these comments may be of assistance to those considering these matters.

2. Education law in Scotland already affords education authorities and Scottish Ministers a degree of flexibility in terms of governance arrangements. For example, section 24 of the Education (Scotland) Act 1980 allows for education authorities to make payments to independent schools or to other bodies providing education or education services, allowing authorities to procure educational services from third party providers in the voluntary sector. The section contains a mechanism for allowing authority representation on the boards or other governing bodies of such schools. Similarly, section 73 allows the Scottish Ministers to make payment of grants to schools (and other educational establishments) for the provision of education or education services. Section 74 allows such payments to be made subject to conditions. This is how Jordanhill School is funded, for example. Seven grant-aided special schools are also funded in this way, although this system is currently under review, following the Doran Review.

3. Scottish Government have a commitment to “empower schools and decentralise management and support through school clusters and the creation of new educational regions.” The creation of new educational regions will assist in delivering decentralisation if the bodies are taking on existing Scottish Ministers functions. If the proposal, however, is that educational regions take on local government functions, then that would be a process of centralisation, not decentralisation.

4. The consultation document contains “a presumption that decisions about individual children’s learning and school life should be taken at a school level”. However, section 28 of the 1980 Act sets out the general principle that children are to be educated “in accordance with the wishes of their parents” (subject to important caveats as to suitable instruction and public expenditure). The presumption in law is that decisions about individual children’s learning should be taken by their parents – and not by the school. In any event, a legal presumption of this sort – if that is what is being suggested – would require a significant structural alteration. At present, local authority schools do not have a separate legal identity – they exist only as part of the authority. This would probably need to change if this presumption were to be given legal force. There would also need to be clarity as to what is meant by “at school level” – does this mean by the Head Teacher acting alone? Or by a board or governors? Or something else?

5. The consultation document’s list of organisations involved in the governance of education does not take into account the UK context. There are pieces of UK legislation which significantly affect Scottish education, and which need to be considered. The best example would be the Equality Act 2010 – which is of particular relevance to disabled pupils and those with other protected characteristics. At present the education authority is the “responsible body” in terms of equality law for all public schools. Any proposed change to this positon would require an amendment to this Westminster legislation. That same list does not mention independent special schools or grant-aided special schools, which educate a number of children and young persons with additional support needs for whose school education the authority remain responsible. The impact of any changes to governance arrangements on pupils educated in these contexts will need to be carefully considered.

6. The emphasis on accountability in the OECD summary re: effective governance and successful reform is welcome. The current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Empowering teachers, practitioners, parents, schools and communities

7. At p9, the document states “We want to see more decisions about school life being driven by schools themselves.” As I mention above, this should not be allowed to override the existing legislative general principle that children are to be educated in accordance with the wishes of the parents.

8. As the document goes on to say, devolved school management already exists and can be used to ensure that some management and funding decisions are already taken at that level.

9. The document goes on to propose that legal responsibilities for delivering education and raising standards should be extended to schools (and teachers / head teachers?). To do so would require each school to have its own separate legal identity. The most likely form would be that the school would be constituted and have a managing or governing board of some sort. Parent Councils as currently legislated for, would not be able to fulfil this role (still less, Parent Forums) although legislative changes could be made to allow this. There would also be required legislation governing the relationship between these more autonomous schools and the education authority, the proposed educational regions and the Scottish Ministers. This is no small task and would involve a fundamental rewrite of much of Scots education law. The form of the governing bodies would require careful thought as well. Currently education authorities are subject to democratic oversight and control through local government elections. Even if new boards of governors are to be made by election, the reality is that many schools struggle to get sufficient volunteers for a full Parent Council, let alone to make elections worthwhile. It may be more difficult to attract volunteers in the event that legal accountability is a feature of such bodies.

10. There can also be real benefits to having decisions taken on a strategic basis at education authority level, and unintended consequences which may arise from devolving powers to schools. It has been measures taken by education authorities which have been responsible for the reduction in the numbers of exclusions, rather than (on the whole) schools acting individually. Duties like the duty to provide alternative education where a pupil has been permanently excluded from a school would require to remain at authority level as well. To give another example, the duty to plan for improvements to school accessibility by way of an Accessibility Strategy is one which lies with the education authority. There is one plan for all the authority’s schools. The guidance allows for authorities to specialise, to have one school which is particularly accessible for pupils with a particular disability, which allows for a more efficient use of resources. If each school was to be responsible for these duties directly, then this concentration of supports and resources would not be possible.

11. The empowerment of children and young people within schools is not only beneficial, it is also an obligation in terms of the UN Convention on the Rights of the Child. Some local government education committees already include pupil representation, and a statutory requirement to pupil membership/representation (alongside parental membership) of schools’ governing bodies (whatever form they take) would be a real step forward in this area.

12. Devolving decision making to “teachers, schools and communities” sounds like a proposal for new boards of governors with staff and parent or community membership or input. If that is the case, then the devolution is actually to the board or other similar body – and the devolution to parents etc. only then works so long as the board is representative of the wider parent body / staff group / community. Support would be needed to encourage and facilitate involvement, and to ensure that boards or similar bodies are both representative and diverse.

Strengthening ‘the middle’ – how teachers, practitioners, schools and other local and regional partners work together to deliver education

13. Collaboration within education is undoubtedly a good idea, but the idea of mutual or collective responsibility for improvement and results is more problematic. Certainly, it should not be attempted to put this on a legal footing. A legal accountability across clusters and networks would be impractical, to say the least. Whether it is put on a legal footing or not, the danger is that in sharing accountability, there is no one body who is themselves accountable. From a desire to make everyone accountable, you can end up with nobody being accountable. Many parents of children with additional support needs are already familiar with being directed from education authority to school and back again in search of support, answers etc.

14. For children with additional support needs in particular, the key collaborations are often not just with other schools, but with colleagues in social work, associated health professionals and CAMHS teams. Co-locating relevant professionals, akin to the New Community Schools pilot from the early 2000’s, would allow for the co-ordination and availability of specialist support for children who most need it.

15. It is not clear from the document what the purpose or role of educational regions would be. There are numerous examples of education authorities working together to share best practice etc. Even if it were thought to require a renewed emphasis, the setting up of educational regions as an additional layer in the system is not obviously the best answer. As stated above, if the educational regions are to take on Scottish Government functions, then this could be seen as decentralisation of a sort. If they are to take over education authority functions, then the reverse would be true. There is also the possibility of future funding disputes, which particularly affect children with additional support needs – is the cost of additional support going to come from a school budget? Or an authority budget? Or the regional budget?

A clear national framework and building professional capacity in education

16. On p 13 it states “National government is responsible for setting clear priorities for Scottish education”. This has been the case since National Priorities for Education were introduced in 2001. Latterly Scottish Government stopped monitoring the priorities and the measures attached to them. The National Priorities have been replaced and updated as part of the National Improvement Framework. It is disappointing to see additional support needs falling off this list of priorities at this stage.

Fair funding – learner-centred funding

17. The nature of the funding formula is of great importance if the aim of equity is to be achieved. In the event that funding and responsibility is devolved to a school level, then careful management will be required in order that we do not end up with a situation where there is a financial incentive to reject or exclude pupils with additional support needs whose education is the most expensive to provide.

18. One obvious way of countering this would be to ensure that funding was indeed truly learner-centred by a) reflecting the cost of making provision for the child’s individual needs and b) following the child. Done on an individual basis, this would require a much more detailed and widespread system of statutory education planning than is in place at the moment. This does introduce more complexity into the system, however. A system of pupil premiums as operated in England & Wales, might be a more broad brush method of achieving similar goals.

Accountability

19. As mentioned above, the current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Respondent Information
Iain Nisbet
Education Law Consultant