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CONSULTATION ON DRAFT EDUCATION
(ADDITIONAL SUPPORTFOR LEARNING)
(SCOTLAND) BILL

This document is also available in pdf format (212k)

Draft Education (Additional Support for Learning) (Scotland) Bill

The Scottish Executive would welcome comments on this draft legislation. All comments on the draft legislation will be considered carefully and will assist the Scottish Executive in preparing the Bill for introduction to the Scottish Parliament.

Comments should be sent by Friday 28 March 2003 to:

Elaine Lane
Additional Support for Learning Bill Team
Scottish Executive Education Department
Area 3B(N)
Victoria Quay
Edinburgh
EH6 6QQ

Telephone 0131 244 7139 or 1622

Email ASLBill@scotland.gsi.gov.uk

Please note that copies of responses received will, as is normal practice, be made available to others, on request, unless respondents indicate that all or part of their response is confidential. In the latter case, the confidentiality of the response will be strictly respected.

This document is also available on the Scottish Executive website at http://www.scotland.gov.uk.

If you require this document in an alternative form please contact the Bill Team at the above address or by email or by telephone.

Education (Additional Support for Learning) (Scotland) Bill (Consultation Draft) (pdf file 52k)

Consultation on draft Education (Additional Support for Learning) (Scotland) Bill

Background

2. The draft Bill arises from concerns expressed by many people that the existing assessment and recording system for children with special educational needs is outdated and overly bureaucratic. Comments on the need to review the current system also came from the Riddell Advisory Committee in a review of provision for children with severe low incidence disabilities (1999); and from the Parliament's Education, Culture and Sport Committee in its Inquiry into Special Educational Needs (2001).

3. When ' Assessing Our Children's Educational Needs: The Way Forward?' was published in May 2001, the Scottish Executive began a review of the assessment and recording system for children and young people with special educational needs. The Scottish Executive received 148 written responses. The vast majority of responses suggested that the Record of Needs procedure requires amendment and improvement. The Scottish Executive's response and outline proposals for change were published in February 2002.

4. Developing these proposals further has been informed by service users and providers. There were 3 seminar events which were attended by over 300 delegates, including parents, professionals and representatives from voluntary organisations. In addition 4 focus groups were held and the Executive commissioned Children in Scotland to carry out consultation with 6 groups of children and young people. The Scottish Executive is grateful to Children in Scotland and to all the parents, children, young people and professionals who contributed to the process and who have helped inform development of this draft Bill.

5. The following sections of this document explain what the draft Bill is aiming to achieve. The draft Bill follows thereafter.

6. However, legislation alone will not deliver all the changes required for a new Additional Support Needs framework. That is why the Executive, in conjunction with the Special Educational Needs Forum, a forum of professionals, parents and officials, is also publishing the framework document Moving Forward! Additional Support for Learning for meeting the needs of children who require additional support for learning.

7. There will also be a considerable need for guidance (some of which will be statutory) and Regulations to support implementation of the new arrangements. In addition, consideration must be given to the transitional arrangements for those children and young people who will be moving from the current system to the proposed system to ensure that their needs are still met.

8. Please note that wherever we refer to parents, we mean this to include anyone who has parental responsibility for a child, including carers/guardians, foster parents and social work services. References to young persons mean those aged 16 and over who are still receiving school education. Parents and young persons have the same rights in this draft Bill. Where the draft Bill refers to young persons being 'incapable' this relates to the Adults with Incapacity (Scotland) Act 2000.

9. Introduction

10. The Scottish Executive recognises that at some time or other, many children will experience greater difficulties in learning and progressing than their peers, and this may be for a number of reasons. A child may have special educational needs, may have a disability or may have other particular life or personal circumstances which could give rise to barriers to learning. Services and agencies need to take account of these if the child is to make the progress expected of him/her.

11. The aim of the draft Bill, and the new framework document, Moving Forward! Additional Support for Learning, is to provide an overarching framework that encompasses all children who may have a difficulty in accessing and benefiting from learning, whatever the reason or cause may be for that difficulty. It is not about labelling children or assuming that certain circumstances will always give rise to difficulties in learning. Each child is an individual. Some additional support needs will be temporary while others will present long-term barriers to learning.

12. These children already exist and are already being supported in their learning. But we need to make sure we have systems in place that ensure no child falls through the net and their learning needs are undiscovered, ignored or unmet simply because the label does not suit.

13. We want to encourage a more holistic system in education that identifies the educational needs of all children whenever they occur, supports those needs, and promotes a culture that welcomes diversity. It is about equality of opportunity for all - and that starts with helping and supporting children to make the most of the learning opportunities their school years offer.

14. Additional Support Needs

15. The draft Bill introduces a new duty on education authorities to identify and address additional support needs of pupils and therefore goes much wider than the current SEN framework. Additional support needs in this context means needs for support that are additional to those which other children normally receive, in order to help a child benefit from education and so make the educational progress which is expected of him/her. It was made clear to us at the earlier consultation seminars that the concept of additional support needs should go much further than the definition that we originally proposed in the response on Assessing Our Children's Educational Needs: The Way Forward?, and should include all types of support needs that all children may at some time experience.

16. Education authorities will not have to assess formally every child to establish whether they have any additional support needs, but they will be expected to take steps to ensure that the reasons for a child's lack of progress are identified and appropriate action is taken. That is not to say that formal assessment of a child's difficulties or disabilities is not important. It is, but only as one means to help identify the support needs of that individual child.

17. The duty will apply to those children (or young persons) for whom education authorities provide or are likely to provide, education, either directly or indirectly. This means pupils at local authority schools and nurseries, independent special schools where the education authority is meeting the fees, and independent nurseries that are in partnership with the education authority, or places other than schools where the authority is providing school education. Parents will be able to formally request the education authority to establish whether their child has additional support needs.

18. For children not in the public sector system, legislation already provides safeguards to ensure they are provided with suitable education appropriate to their age, ability and aptitude, either by their parents at home or at an independent school. However, to ensure that these children are not excluded from all education authority services, the draft Bill introduces a power for education authorities to assist in the identification and support of their needs, where they come to their attention. This power also extends to those under age 3 or not yet in nursery or school.

19. We have also recognised that, in some cases, identifying and addressing additional needs for learning will require input from other agencies. This already happens but we want to make it more consistent and promote integrated working in supporting the needs of children. There were many comments from our earlier consultations on the difficulties encountered when services are provided by different agencies and we want to reinforce the role other agencies have in supporting children's education.

20. The draft Bill therefore introduces a duty on other agencies, particularly health authorities and social work services, to help education authorities in supporting the education of children with additional support needs when requested to do so. It recognises the statutory or other obligations these organisations have in relation to children. This new duty will support a comprehensive approach to identifying and meeting all types of educational needs and promote a more integrated, efficient and effective provision for children with additional support needs.

21. Assessment and Intervention

22. There should be a simple, transparent and systematic framework for the identification, assessment and support of the learning needs of a wide range of pupils, arising from factors relating to social, cognitive, linguistic, disability, family/care circumstances. The framework needs to include diverse interventions to meet all types of support needs and should accommodate rather than duplicate other assessment and intervention systems (for example those for Looked After Children).

23. Comments from the earlier consultation favoured uniform procedures across Scotland. Although a single system throughout Scotland may be attractive, realistically this would be difficult to achieve. There are differing local arrangements and structures and progress on integrated working in children's services varies. What is important is that parents know and understand what the process is for identifying their child's additional support needs and what services are available to address these needs. Parents need to be given more information.

24. The draft Bill therefore introduces a duty on education authorities to publish local policies, arrangements and provision for children and young people with additional support needs and explain parents' role, responsibilities and rights. This could be as part of other local authority publications on services available to citizens in the area, or as part of Children's Services Plans or education Improvement Plans or Statements. It should cover, at least, all education authority schools and early year settings (including those in partnership with private sector). We will set a standard for minimum information that education authorities should publish.

25. To support a level of consistency across Scotland, guidance will be used to promote good practice and will set minimum standards for identifying and meeting the needs of pupils with additional support needs. An overall framework for intervention will also be developed to replace EPSEN (the HMIE report Effective Provision for Special Educational Needs) and the Level of Needs Matrix and incorporate other intervention systems.

26. The draft Bill removes the compulsory nature of educational, medical and psychological observation and assessments as part of the consideration by the education authority of a child's needs. We want the process to identify a child's additional support needs (and for consideration for a Co-ordinated Support Plan) to be as non-intrusive as possible, with other agencies and disciplines only being involved where necessary. Careful consideration should be given to the real need to conduct similar and often stressful and disruptive assessments by different professionals and these should especially not be repeated just because a child has moved between local authority areas or into Scotland. The effect on the child, and the added value any such formal assessments will contribute to the identification of a child's needs, must be considered first.

27. Education authorities will be obliged to seek advice and information from other agencies, where they think it necessary and appropriate, to assist with identifying additional support needs. The advice and information could well involve a formal assessment or examination, but alternatively could be a report based on existing knowledge and records of the child, where these are known to be accurate and still current.

28. In addition to seeking advice from other professionals, education authorities will also be obliged to take into account the views of the parents and the child and any information they may provide, for example, a privately obtained assessment report.

29. Parent and Family Involvement and Support

30. Under existing legislation parents have a duty to promote their child's development, to provide suitable education for their child, whether through the public system for education or otherwise, and to provide direction and guidance. Where parents elect to have their child educated in the public system, they therefore have an important role to play in supporting their child's education and can provide valuable help with homework, development of skills, etc. Good relations therefore need to be fostered between parents and authorities and schools so they can all work together for the best interests of the child.

31. The draft Bill therefore encourages education authorities to involve parents of children with additional support needs and to acknowledge the parents' role in supporting their child's education. This should not inhibit schools' reasonable exercise of professional judgement. It does not mean that they have to involve parents in every decision taken, nor do we want to try to force parents to be actively and continuously involved in their child's school education.

32. In order to be an effective partner in supporting their child's education, parents need to be fully aware of the process for identifying and providing for children's needs in education, understand the planning mechanisms and be familiar with the support services available in the school. The draft Bill provides a duty on education authorities to publish their policies, arrangements and provision for pupils with additional support needs and this will include how they intend to offer parents the opportunity to be involved. This information will be available to all parents in the area regardless of where their child is educated. It should also be available in alternative forms to meet any specific needs of parents.

33. To ensure parents do not have to chase round different agencies or professionals to obtain information about their child's additional support needs arrangements, the draft Bill requires education authorities to provide parents of children with additional support needs (and young persons with additional support needs) with a named contact person. This contact person will act on behalf of the education authority in liaising with parents regarding the Additional Support Needs process and should be whoever is most suitable in the individual circumstances. It could be a member of school staff or it could be an official with the authority.

34. Their role will involve providing parents with advice on the system, keeping parents up to date with what is happening with their child, ensuring that meeting arrangements and contact with parents is sympathetic to their needs and providing them with information about other agencies' services, where relevant. It will be the contact person who liaises with professionals within the school or authority and in other agencies about the provision being made for the child and, where there is a Co-ordinated Support Plan, leads the co-ordination and implementation of the process.

35. Separate from these arrangements, parents will be able to be accompanied by a 'supporter', if they wish, in all meetings or contact with the education authority (and the school). We are separating out the existing dual role of the Named Person. Earlier consultation made it clear that many parents would welcome being able to involve anyone they choose as a supporter to accompany them to any meetings, advise them of procedures and options and to offer practical and emotional support, as necessary. Parents will therefore be able to use different supporters for different meetings making it more flexible than the existing Named Person arrangements. This supporter could be a friend or relative, someone from a voluntary organisation or another parent with experience of the system. It will not be the responsibility of the education authority to provide parents with supporters, though they may wish to advise parents of possible sources.

36. Throughout all the earlier consultation, the importance of involving children themselves in decision-making processes has been emphasised. The point has been made that a child's age or ability to communicate should not be seen as a barrier to participation. Existing legislation obliges both education authorities and parents to take into account the views of children. We want to therefore ensure that wherever a child is willing to express views and be involved, they should be able and enabled to do so. Guidance will be used to promote the principles of involving children and young persons with additional support needs, whatever the complexity and from a young age, in decision making processes about their education.

37. Much of the criticism of current practice on children's involvement, stems from meetings not being receptive to their needs, their views not being listened to and options not being explained. The child will therefore be able to have a supporter to accompany them to meetings, act as their 'voice' where this is preferred, and explain the decision-making process to them.

38. Children will be allowed to choose a supporter they feel most comfortable with whether that is a teacher or other member of staff, or someone else known to them such as their social worker, someone from a voluntary organisation, a friend or a relation. Authorities and schools should attempt to accommodate the child's choice of supporter unless they consider the child's interests to be at risk and can substantiate this. There should be a sensible balance between the freedom of the child to select their own supporter, and the need to avoid a situation that would be contrary to the interests of the child. It should not be the responsibility of the education authority to provide a supporter, but where the child elects to have a member of staff as a supporter then this should be facilitated.

39. Parents or children may also need an interpreter or signer to help them communicate and participate fully in meetings. Sometimes this person may also act as a supporter if the parents, or child, have someone they know with them. However, the education authority should always be able to provide signers or interpreters for meetings where necessary and should not expect the parents' or child's supporter to fulfil this role.

40. Mediation

41. Mediation is a process in which a mediator, who is an impartial third party, facilitates the resolution of disputes by promoting the participants' voluntary agreement to a solution. The mediator assists communication, encourages understanding and focuses the participants on their individual and common interests. He or she works with the participants to explore options, make decisions and reach their own agreements. The mediator does not impose his or her views on the participants or take sides, but facilitates discussion. There is no obligation on participants to reach an agreement if one of the parties does not want to.

42. Our aim in introducing provision for mediation is to ease the resolution of disputes, avoiding the breakdown of the relationship between parents and the school or education authority. Mediation services will be equally available to parents and to education authorities/schools. In other words, either party will be able to request the service. Mediation is quite distinct from conciliation or arbitration.

43. [In conciliation, the conciliator brings together the parties in a dispute with the aim of moving forward to a settlement acceptable to all sides. The conciliator will be knowledgeable about the subject under dispute and will contribute his or her views in the progress towards a settlement. Arbitration is where the parties who have a dispute present their case to a neutral person (the arbiter), who decides the outcome of the dispute. The arbiter's decision may well be binding in law.]

44. We do not intend to be prescriptive about what sort of mediation should be offered. The duty on education authorities to provide a mediation service offers flexibility for authorities to purchase the service from national or UK organisations or local voluntary sector organisations or to provide the service directly. It also offers flexibility to fit in with existing services and allows possible future development of the service beyond education, for example to include all children's services, or even all local authority services in an area. If the authority employs a mediator(s) it will be important that mediators are autonomous from decision-making structures in the education authority and are independent from those involved in the identification or provision for those with additional support needs. We will set out minimum standards that will also ensure consistency across Scotland.

45. We expect informal approaches at school or education authority level always to be tried first, with the authority or school aiming to resolve disputes at an early stage through meetings or discussions with parents. If informal efforts fail, formal mediation will be available, at the request of either party. Participation will be voluntary for both parties and neither party should be obliged in the mediation process to reach an agreement or accept a compromise they are not happy with. The use of mediation will be encouraged and we would expect parents to have tried this avenue before resorting to any appeals process. However, whether parents have tried mediation, or not, should not affect their right to appeal, nor should it influence the outcome of that appeal.

46. Education authorities will need to publicise mediation services so that parents know what is available and when they could use the service. Mediation will be for all parents within the area who have a dispute with the education authority on any function by the authority under this draft Bill. This is to ensure that those who access, for example, the educational psychological service, but who are being home educated or are at an independent school, will still be able to have any dispute with the education authority resolved through mediation. The education authority will be under no obligation to provide mediation service to an independent school or any other organisation - it will be for parents (and young persons) only and should only be about a dispute about their child. Where the child is at a pre-school centre run in partnership with the authority, or is placed in an independent special school, mediation would be available between the parents and the education authority (though in practice it is likely that someone from the school would attend).

47. Transitions and future needs

48. It was clear from the earlier consultations that all transitions need to be improved for those pupils with additional needs. By their nature, having additional support needs can mean that transition is a particularly difficult episode for children and young people. The key to successful transition, whether it be from one level of school to another or across the same level, is preparation and planning. As part of the general duty, therefore, to address additional support needs, education authorities must also pay particular attention to transitions, especially for those pupils where the additional support needs are significant and they expect the additional support needs to continue. By transitions, we expect this to mean from pre-school to primary, from primary to secondary, from one school to another (for example when a family moves house), or in or out of school from or to other arrangements, as well as leaving school once aged 16 or over.

49. Where such a transition can be foreseen, which will be in the vast majority of cases, the education authority must consider the impact the change is likely to have on the pupil and take appropriate action to lessen any potentially adverse effects or reactions. This should form part of their on-going consideration of additional support needs. They must also identify who will be responsible, or play a key role, in supporting the pupil in his/her new environment, involve them at an early stage in the planning and preparation work and ensure sufficient information is provided to allow a continuum of support. Parents and the child should be fully involved in the planning and preparation for the change.

50. The transition from school education to adulthood is invariably the most important of all the transitions.

51. Earlier consultation showed that people do not want a formal, bureaucratic process that is cumbersome to operate and has limited value once the pupil leaves school education. Planning and preparing the pupil for post-school life must be geared towards the young person's individual needs and ambitions, and like other transitions, should be aimed at ensuring a continuum of support where it is required. Additional support needs, as defined, relate to barriers to learning. Post-school, the needs of the young person could be much broader, for example support to live independently from parents. These are outwith the remit of any education authority, even to identify, and it also has to be recognised that the formal responsibilities of the education authority end the day the young person leaves school education. But this should not mean that the young person falls into a void as support ends.

52. The emphasis for the education authority needs to be on preparing the pupil for 'life after school'. To do this they need to discuss with the pupil (and parents) what his/her ambitions are and what options there are. A young person's views should be given precedence over those of the parents. The authority then needs to identify who will be involved in supporting the young person towards realising their ambitions in the future, where the additional support needs are such that the education authority considers that the pupil is likely to have difficulties with the transition and will need extra support beyond school. This may be an agency with statutory responsibility, such as adult social work services or a Further Education College, or it could be a key worker under specific support initiatives or a voluntary organisation or even the parents or young person themselves.

53. The education authority needs to work with this agency or person to identify future needs for support (not just learning-related), based on the direction the young person wants to take. This is broadly the same process as for all other transitions, but the main difference is the change in the type of support needs that there may be. The aim is still to ensure a continuum of support for the young person to assist them to fulfil their potential.

54. The education authority must, formally, notify relevant agencies, about such a pupil undergoing a transition and do so a minimum of 6 months prior to that transition (or as soon as possible once they are made aware of a transition if this is within 6 months). Information provided would be with the permission of the parents or young person.

55. Guidance will detail the minimum requirements for preparing and planning transitions, particularly for the leaving school transition. For example, we would expect preparations for leaving school to begin soon after a pupil reaches age 14.

56. At this stage, we do not consider it necessary to have separate statutory reports of the planning and preparation arrangements, or any formal record of agreed future needs. In practice this will form part of other planning mechanisms, such as Personal Learning Plans, Individualised Educational Programmes and Co-ordinated Support Plans, and the planning mechanisms of future lead agencies, such as FE Colleges.

57. The planning and preparation for all transitions will equally apply to those who are excluded or are "out of school" for any other reason, or who are receiving education provision from the education authority but in a non-education authority school.

58. Co-ordinated Support Plan (CSP)

59. The draft Bill introduces a statutory Co-ordinated Support Plan (CSP). The aim of the CSP is to plan long term and strategically for the achievement of learning outcomes and to foster co-ordination across the range of services (multi-agency and multi-disciplinary) required to support this. CSPs will be for those children who face complex or multiple barriers to learning which significantly, and adversely, affect (or could reasonably be expected to affect) their educational development over the long term; and who require frequent access to a diversity of services outwith services from the school and education authority. These external services could be therapy services provided by NHS or respite care from social work services, for example.

60. The basis for needing a CSP is that the child requires support from a range of service providers and this needs to be co-ordinated. Where support is provided entirely by the school (or from within the education authority) then this should be easily managed or co-ordinated by the school and there should be no need for any extra plan to facilitate this.

61. As well as the duty on education authorities to identify additional support needs, the draft Bill also introduces a duty to consider whether a child or young person with additional support needs requires a CSP.

62. Parents will have a right to request the education authority to consider their child for a CSP. Independent schools and grant-aided schools will also be able to make such a request (except for any pupil who attends the school under arrangements made by an education authority). This will allow them to seek help from the education authority where they perhaps feel the needs of a pupil are moving beyond what they can provide for. The education authority will be able to refuse a request if they consider it to be unreasonable. They would have to have grounds for doing so and would need to provide these to the parent or school making the request.

63. Others will be able to draw to the attention of the education authority the need for a child to be considered, for example, head teachers or other school staff in education authority schools, health professionals, social workers. It will only be a child or young person who is educated within the public sector who will be eligible to have a CSP opened, in other words those who are being provided with school education either directly or indirectly by an education authority. The education authority in other circumstances will be able to offer advice.

64. The education authority will need to inform the child's parents (and school) of their intention to consider a child for a CSP and will need to carry out the appraisal within a set time period. The authority will then need to inform the parents (and school) of the outcome of the appraisal and whether a CSP is appropriate or not for the child's circumstances.

65. If the answer is yes, then the education authority will arrange for a CSP to be drawn up, again within a set time period. This should only be done for those pupils who are in receipt (or are likely to be in receipt in the near future) of education provision from the education authority either directly or indirectly. By this we mean all pupils at local authority schools, early years settings and special schools, pupils placed in independent schools by the authority and those being educated away from school by the authority (for example, in hospital, at home, on gypsy or traveller sites). Drawing up the CSP will involve the school, other agencies and also the parents and child or young person.

66. For those pupils placed at independent schools by their parents, or who are being educated at home by their parents, then the education authority is not required to open a CSP for the child even if the outcome of the appraisal is affirmative. However, the education authority will be expected to provide information and advice to the parents about their child's additional support needs. In opting out of public provision for the education of their child, the responsibility rests with the parents to ensure that the child is provided with education appropriate to their 'age, ability and aptitude' (section 30 of the Education (Scotland) Act 1980).

67. We consider that it would not be appropriate for an education authority to be held responsible for a CSP where they play no part in providing for the child's education (either directly or indirectly). We have also concluded that current legislative provision is sufficient to ensure that parents act on the findings of the education authority and that the authority has power to take action if they do not. The provision in this draft Bill will not prevent informal (non-statutory) CSPs, or other planning mechanisms, being operated for these children or young people if the education authority is willing, based on the power to assist in addressing the additional support needs of children brought to their attention. This will also apply to those under age 3 where provision of such assistance will be encouraged.

68. Details of the format of the CSP will be set out in Regulations. It is expected to contain biographical information about the child, name the people involved in the CSP (various professions and others (and their agency), parents, child), a named contact person responsible for co-ordinating the CSP, parents' views and child's views, details of the authority's conclusions regarding the additional support needs, the learning outcomes (both short term and long term) and the services to be provided, the nominated school and the proposed date of next review.

69. We will produce guidance which will outline how the CSP will build on other educational plans already in place as well as linking with plans in health and social work services, if applicable. The CSP will detail the long and short term learning outcomes for the child or young person. Long term target outcomes are expected to be for a minimum of 12 months and ideally for 2 to 3 years (or longer) where practicable and realistic. In practice, the CSP will include information that would otherwise be found in an Individualised Educational Programme and Personal Learning Plan. The aim is to have a streamlined system that avoids duplication or repetition of basic information about the child or young person.

70. Most importantly, the CSP will be a 'working' document that records target outcomes, provision of support and facilitates practice. Parents or the young person (and the child if appropriate) will receive a copy of the CSP (and subsequent copies each time it is amended or updated). All those involved in providing the necessary support to the child and monitoring their progress will also be provided with the information they require from the plan.

71. Once the CSP has been finalised, after discussions with the parents or young person, the child, appropriate school staff and those from other agencies, then the education authority will be responsible for implementing the Plan. The education authority will also have to ensure that the CSP is maintained for as long as it is necessary and that the content is up to date and relevant. To achieve this, the short term targets of the CSP and the provision needed should be updated as required throughout the year. To facilitate this, the CSP will have an annex (Progress Report), the content of which cannot be appealed. This will record any minor changes in circumstances or diagnosis, progress towards the agreed short term outcomes and any new outcomes set or changes to the provision. It should be referred to in conjunction with the main body of the CSP. All members of the team (professionals, parents, child/young person) should add to the annex as appropriate and have an amended version for reference.

72. The CSP will be reviewed at least annually. The frequency of reviews more often than annually will depend on the child's individual support needs and progress towards planned outcomes. The review will ensure that the information contained in the CSP about the child's or young person's additional support needs is still relevant and that the educational outcomes and provision being specified are still appropriate. Reference should be made to the information in the Progress Report which will have built throughout the year and should therefore provide the basis for discussion at the review.

73. The review will include a fundamental consideration of the child's or young person's circumstances (for example a change in diagnosis or becoming a Looked After Child), the long and short term outcomes and the setting of new ones, the support required in light of these, as well as consideration of the parents' and child's or young person's views.

74. The time taken to conduct the review and to amend the CSP will be set. The existing CSP will stand during the review period and must continue to be implemented accordingly. The education authority must send a copy of the revised CSP to the parents or young person and again provide appropriate information to those involved in providing support and monitoring progress of the child or young person.

75. The education authority or parents or young person will be able to request a review sooner than annually when there has been a significant change in circumstances including progress towards the learning outcomes. If the education authority is unwilling to review then they should inform the parents (or young person) of this giving their reasons. The parents (or young person) will then have recourse to mediation and ultimately the new Tribunal. If parents or the young person disagree to a review, then the authority will have no power to force them (or the child) to participate, though this will not prevent the review going ahead without them. The parents or young person will still have recourse to mediation and appeal if they are not content with any aspect of the resulting revised CSP.

76. There are also key transition points at which special attention will be needed. Transitions between schools should be planned and prepared for well in advance, as should the transition to leaving school. The development outcomes and provision in a CSP must take account of this.

77. The draft Bill provides that all parts of the CSP, including provision, will be eligible for appeal to a new Tribunal, as will decisions to draw up or not to draw up a CSP, to discontinue it or not to review it. Parents will also be able to appeal to the Tribunal if there is undue delay in drawing up or reviewing a CSP.

78. If as a result of a review, the education authority decides that the child or young person no longer meets the criteria for a CSP, the parents or young person should be notified in writing of this decision and advised of their appeal rights. If there is no objection to this decision then the CSP will be discontinued and preserved for a suitable length of time. Education authorities should discontinue the CSP if directed to do so by the Tribunal. It should also be discontinued once the young person is no longer receiving school education.

79. Appeals and the Tribunal

80. The draft Bill provides for new, independent, expert Tribunals to be established. At present the new Tribunal is referred to as the Additional Support Needs Tribunal. The new Tribunal will fit in with the standard procedures for Tribunals, as set out by the Council on Tribunals (who will monitor the work of the new Tribunal) and will be headed by a President. The President will constitute Tribunals as required and hearings will be expected to be held in locations across Scotland.

81. The provisions in the draft Bill cover the Tribunal's constitution, membership and power to impose decisions, together with powers for Scottish Ministers to make Regulations to cover Tribunal practice and procedures.

82. Each Tribunal will consist of three members: the Chair will be legally qualified and the other two members will have knowledge or experience of working with children with additional support needs. There may be value in the Tribunal having access to specialist advice, depending on the nature or complexity of the additional needs of the child or young person.

83. There will be a panel of members from which the members of a Tribunal will be drawn. Members will be appointed by Scottish Ministers for a period of up to 5 years. The normal procedures for public appointments will be followed. The legal member will be the chair at every hearing. Members will be expected to have to divulge their interests (for example having worked for a local authority) and will not be expected to be involved in a hearing of a case where they have, or have had, an interest (for example, they know the family).

84. Tribunal members will receive allowances for preparing for and attending hearings and will be expected to participate in appropriate training and to be objective in making their decisions.

85. The draft Bill sets out the types of appeal that can be taken to the Tribunal. Parents (or young persons) will be able to appeal against an education authority's decision on whether or not to prepare or review or discontinue a Co-ordinated Support Plan for their child and against the Co-ordinated Support Plan's contents. This includes the educational outcomes which have been set for the child and the provision (including the nominated school) proposed to meet these outcomes. There will be no right of appeal against the contents of any annexes to the CSP.

86. A hearing will be attended by the education authority and by the parents or young person. The child will also be able to attend the hearing if they wish to do so, although it may not be appropriate for them to be in the hearing room for the entire duration of the hearing. If the child, young person or their parents have communication difficulties or require an interpreter, provision should be made by the Tribunal as necessary to support them at the hearing.

87. The Tribunal will be expected to have regard to all relevant education legislation, for example sections 2 and 15 of the Standards in Scotland's Schools, etc. Act 2000. Although the interests of the child will be the primary concern, the Tribunal will be expected to take account of the implications of any order it makes for setting precedents and for public resources (and consequently provision for other children). This means that the Tribunal should never make a decision which would not be in the interests of the child.

88. The Tribunal will be able to compel witnesses to attend to give evidence or to produce any document. The Tribunal will be able to order the education authority to open (prepare and maintain), discontinue, amend the contents or review a CSP. Provision will also be required in Regulations for enforcement of orders made by the Tribunal within specified timescales.

89. The Tribunal will only have jurisdiction over education authorities. Where any order of the Tribunal relates to provision of services or support from another agency, then such an agency will have to consider its duties under this draft Bill to help the education authority when requested to do so.

90. Appeals against the decisions of the Tribunal will be to the Court of Session but on a point of law only. Legal aid will be available to children and their parents (if they qualify for it) for appeals to the Court of Session on the same basis as for other appeals in civil proceedings.

91. It is expected that the Tribunal will operate in a 'user friendly' manner and will aim to be less intimidating for parents and children than a more traditional court setting. Tribunal members will be expected to use clear, plain English. Under such a system, legal representation (for either party) will not be encouraged. Although parents or young persons will be able to have legal representation if they wish, they will not be entitled to legal aid for this purpose (although they could clearly still get legal aid to consult a solicitor in advance if they were eligible for this). Parents and young persons will however be entitled to bring a representative to the hearing as a supporter.

92. Tribunal hearings are normally held in public, but rules of procedure will make provision for hearings to be held in private and we would expect this to be frequent practice since proceedings will relate to children. The President will publish an Annual Report and this is expected to contain a variety of data about appeals: what was being appealed, what the main difficulty in learning was and whether each appeal was successful. The Report is also expected to include a breakdown of appeal numbers by local authority, or groups of authorities if small numbers mean confidentiality may be breached. This should protect individuals from being identified, but will allow interested parties to see what the most common areas of appeal were and how successful certain types of appeal were.

93. Placing Requests

94. The draft Bill extends to all parents of children with additional support needs and to young people with additional support needs the right to make placing requests to independent special schools. At present, only parents of children with a Record of Needs can request a place at such a school. (The definition of a special school, in the Education (Scotland) Act 1980, will need to be amended to remove the reference to Records of Need.)

95. The education authority will have to comply with a placing request to an independent special school unless the child or young person does not have the appropriate additional support needs for that school or the education authority can make provision for those support needs in a school under its own management or by other arrangements (taking account of legislation on mainstreaming). Appeals against the decision of the education authority on a placing request will continue to be to the Education Authority Appeals Committee in the first instance, and then to Sheriff Court, unless the child or young person has a Co-ordinated Support Plan.

96. Where a child has a Co-ordinated Support Plan, education authorities will have to consider the parents' (or young person's) views on their preferred school as part of the process for drawing up or reviewing the Plan. If, after discussion, the school nominated in the Plan by the education authority is not the preferred school, the parents (or young person) will be able to appeal to the Tribunal. This appeal would be on the contents of the Plan. Appeals regarding the decision of the education authority on the nominated school in the CSP will not be able to go to the Education Authority Appeals Committee. For those in the process of obtaining a CSP or appealing to get a CSP, provision needs to be developed. We need to avoid overlaps of the two appeal routes.

97. Transitional Provisions

98. Provisions in the draft Bill for arrangements on the transfer from the current system to the new Additional Support Needs framework are being developed. It is expected that those children or young people who currently have a Record of Needs will be considered under the new framework whenever their Record comes up for review. Consideration will need to be given to the most appropriate planning arrangements for the individual child. It could be a Co-ordinated Support Plan is required or that an Individualised Educational Programme or even a Personal Learning Plan is more appropriate. Whatever planning arrangements are thought appropriate, the child's or young person's support needs should still be identified and addressed. In this way, the current provision they receive to support their learning should remain, regardless of what planning tool replaces their Record, assuming their needs remain the same.

99. The new Tribunal would be set up as soon as is practical after the proposed Bill has completed the whole Parliamentary process. It is expected that appeals which are ongoing at that time, will be completed under present arrangements and will not transfer to the Tribunal. However, no new Records of Needs will be opened once the Co-ordinated Support Plan has started to be phased in. Appeals to the Tribunal will not be allowed to be retrospective. They will only be about CSPs.

Scottish Executive Education Department
January 2003

Education (Additional Support for Learning) (Scotland) Bill (Consultation Draft) (pdf file 52k)