Mainstreaming, I presume? (Part 9)

And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty.  As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”

Continue reading “Mainstreaming, I presume? (Part 9)”

Additional Support Needs Update (Issue 7)

The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.

This edition looks at changes to the law brought about as part of the Scottish Government’s response to the Covid-19 pandemic, explaining changes to legislation and the new guidance applying to education.  There is a separate “how to” section with some tips in relation to placing requests, given the revised timescales which now apply.
The support spotlight this edition looks at different organisations across the country providing innovative responses to assist families at this difficult time.

Do let me know what you think about the newsletter in the comments.

Additional Support Needs Update (Issue 7) – PDF

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Case summary – Aberdeenshire Council v. SS and DS (Upper Tribunal for Scotland)

As will be apparent from the decision notice itself, this was one of my cases, with the permission to appeal hearing taking place in the days before lockdown restrictions came into force in Scotland and the Upper Tribunal’s hearings were put on hold.

This is only the second reported decision from the Upper Tribunal for Scotland in an appeal from the Health and Education Chamber.  It is another decision on the specific question of whether permission to appeal should be granted (this arises as a matter for the Upper Tribunal to consider only where the First-tier Tribunal has refused permission).

The case is that of Aberdeenshire Council v. SS and DS [2020] UT 25, an appeal against a decision of the additional support needs Tribunal to require the authority to place the child in question at an independent special school (i.e. a placing request appeal).  The case has already been very well summarised and reported on by clan childlaw here: “Upper Tribunal refuses appeal by Aberdeenshire Council in case concerning placement request for child with additional support needs”.  However, I will make one or two observations in terms of the case’s broader significance, and the issues raised.

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Placing request timescales amended

The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force on 23 April 2020, having been laid before the Scottish Parliament at 4.30pm the day before.

In short, they give the education authority more time in which to take a decision on placing requests, and education appeal committees more time in which to hear appeals.

Changes to the Education (Placing in Schools) (Scotland) Regulations 1982

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days

Changes to the Education (Appeal Committee Procedures) (Scotland) Regulations 1982

  • An appeal committee must now acknowledge receipt of an appeal reference within 28 days (an increase from 5 “working days”).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 3 months following receipt of the reference (an increase from within 28 days). If this is not possible “owing to circumstances beyond their control”, the hearing should be held “as soon as reasonably practicable” (changed from “as soon as possible”). The same applies to combined hearings.
  • The education appeal committee must now give notification of the date and other details of a hearing as soon as reasonably practicable (changed from 14 days after receipt of the reference in most cases).
  • The format of hearings may change, as the regulations allow for a hearing to be conducted in whole or in part by video link, telephone or “other means of instantaneous multi-party electronic communication”.
  • The appeal committee may also (if all parties agree) decide an appeal reference without a hearing, based on consideration of written submissions and evidence alone.
  • Education appeal committees have 28 days to notify parties of their decision, and the reasons for it (changed from 14 days).

Changes to the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005

These are the equivalent regulations to the Education (Placing in Schools) (Scotland) Regulations 1982, in relation to children and young people with additional support needs.

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days.
  • The deadline for the authority making known to the appellant and the committee all of the information relevant to their decision is now “as soon as reasonably practicable” (changed from “immediately”).

Observations

The changes to the education appeal committee regulations will impact on exclusion cases as well as placing request cases.

The deadline for a parental appeal to the education appeal committee remains the same at 28 days.

The deadlines applicable to appeals to the First-tier Tribunal for Scotland (Health and Education Chamber) remain the same. However, these were never as stringent in the first place, and are currently subject to the Guidance to Tribunal Members No 01/2020 “Hearings and the Covid-19 Outbreak” – which means that only time critical cases can currently proceed to a hearing (with a fairly strict definition of “time critical”).

As you know, most placing requests (including for children or young people with additional support needs) are heard by the education appeal committee. Appeals on placing requests for special schools (or special units), or for children and young people with a Co-ordinated Support Plan are heard by the Tribunal instead.

The implication of this is, of course, that if placing request decisions are not being taken until 31 May, and the appeal committee has up to four months to hear an appeal, in all likelihood that leads to significant numbers of appeals on placing requests not being heard until well into the next academic year. Apart from anything else, this makes transition planning for such cases challenging, to say the least.

The final point to make is that these regulations are not made under the new powers conferred by the Coronavirus Act 2020 or the Coronavirus (Scotland) Act 2020. They are made using existing regulation making powers. As such, there is no expiry date on these changes, and no scheduled review date. These changes will remain in force until further regulations are passed to amend them.

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Mainstreaming, I presume? (Part 8)

The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.

Continue reading “Mainstreaming, I presume? (Part 8)”

Case summary – Midlothian Council v. PD (Upper Tribunal for Scotland)

Since the beginning of 2018, further appeals in additional support needs cases go from the Tribunal to the Upper Tribunal for Scotland.  It has taken until now, however, for a case to actually get as far as that and yield a decision for us to look at.  Let us set aside for the moment my own personal disappointment that it was not one of my cases, and the fact that it is only a determination of the question of permission to appeal, and see what the case actually says.

The case in question is Midlothian Council v. PD [2019] UT 52 (PDF) and it is an appeal against a decision of the First-tier Tribunal for Scotland (Health and Education Chamber) to grant a placing request appeal in favour of the appellant (the parent of a child with additional support needs).

Continue reading “Case summary – Midlothian Council v. PD (Upper Tribunal for Scotland)”