Continuing our consideration of the ASL Review Report, the main section of the report begins with “Theme 1: Vision and visibility”. This covers two big issues. One is that there is no defining national agenda or narrative in relation to additional support needs, demonstrated perhaps by their absence from the National Improvement Framework. The second is that the term “additional support needs” continues to be misunderstood and misinterpreted, with the result that particular groups of children and young people who are covered by the law missing out on their rights in practice.
As promised, and following a delay (for which I apologise), I finally turn my attention to the independent review of the implementation of Additional Support for Learning legislation in Scotland. The review was chaired by Angela Morgan, and the report, titled “Support for Learning: All our Children and All their Potential” was published in June 2020. A formal response from Scottish Government and COSLA is expected in the Autumn.
There has not been much in the way of commentary on the review, with this interesting article by Alison Brown being a rare example.
I plan to take the same approach as I did with the mainstreaming guidance, which is to consider the report in shorter chunks. This keeps things manageable for me, and allows for a more in-depth analysis of each section. As always, my focus is on the legal implications.
In this, my second blog post to mark Deaf Awareness Week 2019, I wanted to look at the rights of deaf pupils at school. What are those rights, and how does that translate into actual support for deaf pupils in reality?
A child or young person has additional support needs if they require additional support in order to benefit from school education (Section 1, Education (Additional Support for Learning) (Scotland) Act 2004). This applies to all children and young people for whose school education a Scottish education authority are responsible. So, anyone at a local authority school or nursery, or placed at an independent or grant-aided special school by their local authority.
The type of additional support which may be required will vary from one deaf pupil to another, but the education authority has a duty to make “adequate and efficient” provision for those needs, whatever they happen to be (Section 4(1)(a) of the 2004 Act). The Code of Practice, for example, makes specific reference to support from a “peripatetic teacher of the deaf” (Chapter 2, para 13).
Also of relevance is the Equality Act 2010, which imposes a reasonable adjustment duty on schools in relation to disabled pupils – including deaf pupils. This duty applies to all schools in Scotland, whether they are public schools, grant-aided schools or independent schools. Again, what constitutes a reasonable adjustment for one deaf pupil will not necessarily mean that it is appropriate for another. It all depends on the individual child or young person, their needs and their preferences.
The Technical Guidance for Schools in Scotland does have some useful and instructive examples. At para 6.40, there is an example of a deaf pupil who reads lips – in that case “a reasonable adjustment would have been to train all staff to ensure that they face the pupil when speaking to him”. At 6.48, a list of potential reasonable adjustments includes “Assistance from a sign language interpreter, lip-speaker or deaf-blind communicator”.
Whether relying on the rights found in the 2004 Act or the 2010 Act, deaf pupils and their families have access to various dispute resolution mechanisms, including mediation, independent adjudication and the Health and Education Chamber of the First-tier Tribunal for Scotland (also known as the Additional Support Needs Tribunal).
I spoke to Alasdair O’Hara, Head of Policy and Influencing at the National Deaf Children’s Society (Scotland) , in order to get an idea of the current picture of support for deaf pupils in Scotland’s schools:
Deafness isn’t a learning disability and we know that deaf children can do just as well in life as any other child, so long as they get the right support.
Deafness is a low incidence need with 87% of deaf children and young people educated within mainstream schools, meaning those professionals and teachers that support deaf pupils often require access to specialist expertise such as Teachers of the Deaf.
The latest Scottish Government data shows that deaf young people are now 30% less likely to collect Highers or Advanced Highers than their hearing classmates, with only 42% deaf young people collecting the qualifications, compared to 60% of their classmates.
The data also shows that 10% of deaf children will now leave school with no qualifications at all, and are half as likely to go to university as their hearing friends.
To work towards closing this unacceptable attainment gap, other simple improvements can be made in mainstream education settings. Good classroom acoustics, deaf pupils having access to technology and ensuring teachers are deaf aware and know how to use the technology correctly are all vital in supporting a deaf child’s learning.
This tells me that while there is a good level of inclusion for deaf pupils within mainstream schools, more could still be done to ensure that there is a level playing field, allowing them to access education on the same terms as their hearing peers. Last year, the Tribunal reported only one case which concerned a deaf pupil. Where additional support and/or reasonable adjustments required are not in place, pupils and parents alike should be made aware of their rights – and how to enforce them.
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.
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.
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.
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
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.
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?
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.
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.
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?
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
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.”