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Report of the Consultation on the draft Additional Support for Learning Bill

Part 1 - Consultation Report

15. The following report summarises the main issues that were expressed by respondents to the consultation as a whole. The report is divided into nine key areas:

• Additional Support Needs
• Assessment and Intervention
• Parent and Family Involvement and Support
• Mediation
• Transition and Future Needs
• Co-ordinated Support Plans
• Appeals and Tribunal
• Placing Requests
• Transitional Provisions

16. The report aims to give a flavour of the main concerns and recommendations made by all those who responded and to indicate where changes have been made to the draft Bill as a result. It should be noted that comments in the red text are made by the Scottish Executive and not respondents. Copies of the actual written responses are available in the Scottish Executive's library for anyone who is interested in accessing them (contact telephone 0131 244 4565).

Additional Support Needs

17. The change in terminology from special educational needs (SEN) to additional support needs (ASN) was generally welcomed, as was the duty on education authorities to identify, address and make adequate and efficient provision for all pupils with additional support needs. Currently education authorities have a duty to identify which children and young people have special educational needs that meet the criteria for a Record of Needs. The majority of people commented that the new term is more inclusive, less stigmatising and helps avoid negative labelling because it recognises that many children will need additional support at some time or other. It was also seen as positive that account is being taken of the fact that some additional support needs may be transient while others are much longer term.

18. The majority of people welcomed the fact that children who were previously excluded from the special educational needs definition would have their needs recognised and addressed. However, it was suggested that guidance will be needed to clarify the meaning of additional support needs. On the other hand, some voluntary organisations and parents of children with Records of Needs felt that the new definition could dilute the support children with more complex needs currently receive.

19. Some concern was expressed regarding English as an Additional Language being considered as an additional support need. This was felt to be detrimental to bi-lingual children and young people because it gives the impression that bi-lingualism is a condition or impairment rather than something to be celebrated. The point was made that the inclusion of English as an Additional language in the draft Bill indicated that systemic and institutional barriers were being perpetuated. It was suggested that there may be implications regarding the Race Relations Act and, as a result, the Bill should be examined for compliance.

20. It was never intended that English as an Additional Language should be seen as something not to be valued. English as an Additional Language was given as one of several examples of those who may require additional support such as Gypsy or Traveller children and gifted children but who may not have special educational needs. The intention was to show that the meaning of additional support needs is much wider and more encompassing. Education authorities will have a duty to identify all additional support needs whether that is where a child is not progressing as might be expected or where they are exceeding expectations and need to be stretched.

Assessment and Intervention

21. Many people commented that the move away from the deficit model of assessment to a new system which looks at what the pupil can do rather than what they cannot do was viewed as a positive step. It represents an opportunity to change practices and ways of working for the better. It was also generally welcomed that assessment should be as non-intrusive as possible and that children and young people would not have to undergo formal testing when it was not necessary. It also recognises that there is a lot of good practice regarding assessment and intervention and that this can be built on.

22. However, many felt that there should be a national compulsory framework for assessment and intervention to give coherence and equity across Scotland. Others expressed views that the system should be flexible enough to take account of local circumstances and the work many education authorities have already done in developing local frameworks and joint protocols. The vast majority of respondents called for guidance from the Scottish Executive on what is meant by assessment and to set minimum standards to assist education authorities.

Change to draft Bill as a result

Rather than guidance, a Code of Practice will be issued (section 22). The key topics to be included in the Code are outlined in the Bill (section 22(2)). The Code of Practice will be developed in collaboration with service users and providers. It will set minimum standards and will aim to promote more and better joint-planning and partnership, and consistency across Scotland.

23. The children and young people who responded expressed a strong feeling that they should have one person to co-ordinate the assessment process, whether it was to identify additional support needs or the requirement for a Co-ordinated Support Plan.

24. One of the main issues to be raised was the removal of the existing compulsory medical, educational and psychological assessments in the Record of Needs system. While many felt it was a positive move, many others expressed the fear that children will not be assessed properly and, as a result, will not receive the right provision. children who have additional support needs, including those who require a Co-ordinated Support Plan.all to those children who have, or are thought to require, a Record of Needs (currently around 2.2% of the school population has a Record of Needs). The draft Bill requires education authorities to identify onlyIt should be remembered though that this applies currently

25. It was generally felt that education authorities only having a power to assist in relation to children under 3 was detrimental because it does not take into account earlier and better screening methods and, therefore, the child's need for multi-agency support.

26. Parents and others welcomed the new duty on education authorities to take account of any relevant information and advice provided, such as independent reports and assessments. They also felt that it was essential for parents to have the right to request assessments otherwise the system will be biased and incomplete.

Change to draft Bill as a result

A new section has been added to the Bill giving parents the right to request a particular type of assessment, for example, psychological or medical assessments (section 6). This is in addition to parents being able to request that their child is assessed for additional support needs.

27. Other suggestions included making it a duty to develop joint protocols; that a multi-agency approach to assessment should be the norm; that there should be a duty on parents to co-operate in the process; and that there should be a statutory duty on education authorities to ensure that professional expertise is available and provided.

28. The point was made that there are not enough interpreters or interpreters with experience in additional support needs to allow assessments to be conducted in the appropriate language for the child or young person. It was suggested that this should be addressed as a matter of urgency to ensure that these children and young people are correctly assessed.

Parent and Family Involvement and Support

29. Parental involvement was recognised as an important issue by all parties throughout the consultation. Views were expressed that communication and ultimately relationships could be improved through parental involvement and partnerships. The proposals to ensure better involvement of parents and children and young people in the process were viewed as very positive on the whole.

30. There was wide support for a contact person to provide advice and information about the system to all parents of children with additional support needs and for the contact person who will be named on a child's Co-ordinated Support Plan. There were many suggestions as to who would be best placed to do this. These included: teachers who would know the pupil best, local authority staff with awareness of additional support needs, a key-worker or co-ordinator. A one-stop-shop to provide advice and information on additional support needs was also suggested. There was, however, some concern that the named contact person could end up being someone parents had previously been in conflict with and that education authorities may use the contact person as a buffer rather than as a facilitator. Some respondents felt that having a contact person would remove parents' rights to have direct contact with the professionals making provision for their children. However, parents do not have formal statutory rights of contact with all agencies within the 1980 Act. Current good practice encourages good communication and the proposals for a contact person do nothing to erode this. Parents would still be able to contact the professionals supporting their child.

31. There was also general support for parental and child supporters. This was because, unlike the named person in the Record of Needs, the person chosen as a parental supporter can be different for each meeting. This allows parents to select the person they feel most appropriate to attend the meeting with them. However, many parents and others felt that the ability to choose a supporter should be enshrined in the legislation. The supporter was also viewed as particularly welcome for parents who may be less articulate or confident or who have additional support needs themselves. It was also suggested that the parental supporter may be able to act as an advocate in these situations or where parents felt intimidated in meetings with professionals.

32. The duty to publish information regarding arrangements for identifying and providing for additional support needs was also viewed as a very positive step. Some parents commented that this would make a difference to them while others felt that the duty to publish does not go far enough and that there should also be a duty to disseminate the information. However, a parental concern was that education authorities and schools generally do not like giving information or providing choices and there was a danger that they would only pay lip service to this duty. Changes in attitudes and behaviour are needed as is guidance to ensure consistent procedures across Scotland.

33. Pupil involvement was viewed as positive by the majority of respondents, although some raised concerns over meeting the balance between parental views and those of the pupil, particularly if the two were in conflict. The children and young people who were consulted made it clear that all children and young people should be involved in decisions about, and the planning of, the support they receive to allow them to learn. They agreed with the proposal to publish guidance promoting the involvement of children and young people. There was general agreement that involving pupils in meetings from an early age was essential for increasing their confidence and helping prepare for other meetings in the future when making decisions that are more important. People were also very clear that children and young people should not be forced to participate but that if they did want to then every effort should be made to facilitate this. Children and young people felt it was essential to make sure that meetings are accessible, that they are supported and that their views are taken seriously.

34. Suggestions for better involvement included peer supporters and that advocacy could be provided for pupils to ensure that their views were heard. A further suggestion was made that self-advocacy training schemes for young people should be endorsed as these provide young people with skills and empower them to engage with the process of their own education.

Mediation

35. The majority of respondents commented on the proposal that education authorities will be required to provide mediation services. On the whole, mediation was seen as being a positive and relatively successful way of taking the heat out of disputes and for resolving some disagreements. However, some views were expressed that mediation does not yet have a proven track record and, as a result, there is insufficient evidence to show that it actually works. There was a feeling that resources could be better directed to reducing conflict at a much earlier stage such as, through the development of parent partnership services in all local authority areas and for teachers to be better trained in working with parents. In addition, there was broad support for advocacy or conciliation rather than or in addition to mediation because it was felt that mediation only comes into play once the relationship has broken down.

36. A commonly shared view was that if mediation is to attract public confidence then it must be independent of and not funded by the education authority and be free of charge.

Change to draft Bill as a result

It has now been made clear that mediation services will be free of charge to parents (section 16(3)).

37. There was general support for the need for Scottish Executive funding and for guidance on minimum standards of good practice to ensure consistency across Scotland. Concerns were raised by all parties about the lack of trained mediators currently available and the implications this would have, particularly for education authorities. Other comments included the need for clarification on when mediation would be offered, the need for assurances that parents would not be forced to undertake mediation, that non-participation would not affect their appeal rights and the need for timescales to be set to avoid the process becoming too drawn out.

Transitions and Future Needs

38. Some of the main strengths of the proposals regarding transition to post-school were thought to be the focus on building on a young person's aims and ambitions as well as preparing the pupil for life after school. Also, getting other supporting agencies involved sooner and the fact that a wider group of pupils would be addressed under the new proposals rather than just those with Record of Needs as at present were welcomed. There was also general agreement that there is a need for more and better forward planning in this area and it was welcomed that the draft Bill provides the opportunity to target supporting agencies more appropriately than at present.

39. The main concerns centred round the removal of the Future Needs Assessment as a formal separate process and a possible misunderstanding of the proposed timescale of 6 months for notifying other agencies. For some the Future Needs Assessment report was the most important part of the Record of Needs system while for others it was seen as ineffectual because there is no duty on other agencies regarding the future needs report once the young person leaves school. Many felt that although the Future Needs Assessment would no longer be a statutory process, there should at least be some record of the outcomes or decisions of the meetings. The children and young people who were consulted felt that the Future Needs Assessment process was important for preparing them for leaving school and without it the transition could be more stressful.

40. The majority of respondents made it clear that the proposed 6 month deadline for notifying other agencies about the young person and their post-school needs was not long enough and that at least 12 months would be more realistic. This may have been partly due to people interpreting this as meaning the process was to start no later than 6 months before the young person left school rather than the process to have been completed by then, as is the intention. That aside, there was still a feeling that legislation should specify an actual starting point, with some suggestions as early as S1 but certainly no later than age 15.

Change to draft Bill as a result

Provision for future needs has been strengthened. Several new clauses have been added to provide for establishing future needs post-school and planning for that transition. There will now be a duty on education authorities to get information about the provision other agencies will have to make for the future needs of the young person once they have left school, and plan accordingly to prepare the young person and to support the transition to these other services. This must be done at least 12 months before the young person leaves school (section 10(5)-(8)). This complements the duty in section 11 to provide information to other agencies at least 6 months before the child or young person leaves school, in other words when the leaving date is approaching, so agencies can prepare future support. And a new duty is added to ensure that education authorities inform other agencies when the child or young person actually leaves school, so the future support can be put in place.

41. In addition, there were quite a few suggestions that there should be a key person in place to co-ordinate this process, particularly for those pupils with additional support needs but no Co-ordinated Support Plan. Other suggestions included that the Co-ordinated Support Plan process should be extended post-school in line with the proposed extension of Educational Psychology Services to cover the age 16-25 population.

42. There was a general view that the real difficulties in post-school transition are maintaining the level of support required for the pupil from the other providers such as Health and Social Work Services. Possible solutions included placing a compulsory duty on them to fulfil their obligations post-school, better monitoring by the education authority or Her Majesty's Inspectorate of Education and for the other agencies to be involved in advising, planning and providing support at a much earlier stage.

43. There was some concern voiced regarding the role of Social Work Services in relation to section 13 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (duty to give opinion as to whether or not the child or young person is a disabled person) if the Future Needs Assessment was discontinued. Some people felt that guidance was needed on this.

44. Views were expressed regarding the need for more attention to be paid to transition from home to nursery and that the rights of under-2s should be better addressed. The pre-school assessment team (pre-SCAT) system was given as an example of good practice in this area. There was also concern expressed regarding transitions from school to school, particularly in the case of looked after children. There were representations made that the system for transferring documentation from school to school or authority to authority should be as simple as possible as this would assist the swift transition of pupils, and ensure their education was maintained.

Co-ordinated Support Plan

45. The proposals for the replacement of the current Record of Needs with a Co-ordinated Support Plan possibly provoked the strongest reactions. Views ranged from the belief that the Record of Needs system would have worked if it had been monitored more effectively, to comments that the process is cumbersome and confusing and, therefore, incredibly stressful for all involved. There was also a difference of opinion about potential numbers of Co-ordinated Support Plans. While education authorities were of the opinion that there would be more Co-ordinated Support Plans than Records, parents on the whole took the opposite view.

46. This echoed the views about the actual definition of who would be eligible for a Co-ordinated Support Plan. Some felt that the definition was too narrow and restrictive and would exclude too many children and young people. Others felt that it was broadly acceptable but would require clarification and guidance and that the exclusion of under-3s should be reconsidered. It also became apparent that one of the main parental concerns was whether children with Records would get Co-ordinated Support Plans. Parents were particularly worried that the legal rights afforded to them by the present system will be taken away. A further concern was that there will be no means of documenting the additional support needs of children and young people who do not get Co-ordinated Support Plans.

47. While there is no proposal to introduce a separate record of additional support needs, these would as a matter of good practice, be noted in other appropriate planning mechanisms such as Personal Learning Plans and Individualised Educational Programmes. Education authorities will be expected to take steps to identify all additional support needs and to ensure that appropriate action is taken to address them and this will include those children and young people whether or not they currently have Records.

48. One of the main benefits identified was that the proposed Co-ordinated Support Plan would be a working document that helps to ensure a multi-agency approach to the provision of support for those with the most complex needs. There was some concern again though about the onus of delivery of support falling to the education authority alone rather than being a shared responsibility. There were several calls for guidance from the Scottish Executive on eligibility for Co-ordinated Support Plans, for ensuring effective multi-agency involvement and for appropriate record keeping for all children. Some suggestions were made that the Bill should clarify what Co-ordinated Support Plans will actually mean for parents and children because without their support the whole system will fail.

49. Some people felt that the suggested format of the Co-ordinated Support Plan is too similar to the existing Record of Needs and, as an alternative, all children should just have a Personal Learning Plan with extra plans added as appropriate. The part of the Co-ordinated Support Plan that raised the most objections was the non-appealable Progress Report for recording any minor changes in circumstances, progress and provision. Parents in particular were worried that the provision could be changed in the Progress Report and they would not be able to challenge it. Recommendations were made for either the right of appeal to be extended to the Progress Report or for its purpose to be reconsidered.

As a result

There will no longer be an annex as described in the draft Bill consultation narrative. However, there may be an annex, which for information, would simply record the progress the child or young person is making towards achieving the planned learning outcomes. This could, for example, be used in the classroom to plan lessons or to inform reviews.

50. The proposal for statutory timescales to be set for drawing up a Co-ordinated Support Plan and for reviewing it were seen as positive. Most people who responded felt that the proposed timescales of 3 months and 12 months respectively were realistic and achievable. However, education authorities wanted it to be acknowledged that there may be occasions where, despite every effort, these could not be met.

51. There was also broad agreement that the Co-ordinated Support Plan should be shared in its entirety with all those involved in supporting the child or young person as opposed to the proposal that the other agencies should only get the information relevant to them. This would help to ensure that the Co-ordinated Support Plan meets the aim of being a working document of use to all involved.

52. The issue of resources, or lack of them, was another key theme particularly in relation to the delivery of support. Many expressed fears that budgets are already over-stretched and that there are severe shortages of therapy staff and social workers in particular. However, others commented that existing resources could be better used and targeted. In addition, while the benefits of having a named contact person to co-ordinate the process were recognised, there were doubts about the impact such a role could have on existing workloads especially for Support for Learning staff.

Change to draft Bill as a result

There is a new duty on education authorities to specifically co-ordinate the support to be provided as set out in the Co-ordinated Support Plan (section 9(5)(d) and (6)-(7)). The individual who will manage the day to day implementation is to be named in the Co-ordinated Support Plan, but this can be delegated to an individual outside education if they are more appropriate for the young person, such as a health worker or social worker who may have involvement with the wider family (section 7(2)).

Appeals and Tribunal

53. The proposed establishment of an Additional Support Needs Tribunal was broadly welcomed as it should provide a quick and efficient appeal route that is independent of education authorities. Parents particularly welcomed the ability to appeal against the provision detailed in the Co-ordinated Support Plan but disagreed with the proposal that the Progress Report could not be appealed. The main areas that were commented on included:

• how effective the Tribunal system would be;
• what powers the Tribunal would have;
• the expertise of members;
• no right of appeal for those without Co-ordinated Support Plans;
• the lack of legal aid.

54. Many parents and voluntary organisations felt that the Tribunal's remit should not be restricted to issues relating to Co-ordinated Support Plans alone. Their concern was that a two-tier system was being created whereby parents of children with additional support needs but no Co-ordinated Support Plan would not be able to appeal to the Tribunal and would have no right of appeal against the provision specified by the education authority to meet their child's needs. They would only be able to use local complaint procedures or appeal to an Education Appeal Committee regarding placing requests and exclusions or, as a last resort, pursue more formal legal remedies. As a result, many people felt that if the Tribunal's function was not to be widened to include additional support needs then the current inadequacies of the education appeals system must be addressed.

Change to draft Bill as a result

A new clause has been introduced to the Bill enabling Ministers to require education authorities to provide dispute resolution, as well as mediation, to further facilitate resolution for parents who will not have access to the formal appeal routes (section 17). This new process of dispute resolution is still to be developed but will particularly aim to address concerns of parents whose child does not have a Co-ordinated Support Plan, but who does have additional support needs.

55. While most people welcomed the emphasis on the Tribunal system having to be family friendly, there were concerns that care must be taken to ensure that it does not become as adversarial as the court system. A few comments were also made in support of the current system where appeals are investigated by Her Majesty's Inspectorate of Education. In addition, there was some criticism of the Tribunal systems in England and Wales and concern that the Scottish system would simply replicate them.

56. Most people raised the issue of the Tribunal only having jurisdiction over education authorities. Education authorities felt that they would be put in a difficult position in trying to ensure provision from other agencies who could not deliver because their resources were already over stretched. Many felt that Tribunal decisions should therefore involve and be binding on all the agencies that are supporting the child or young person. There was a call for guidance from the Scottish Executive on the types of cases the Tribunal would consider and to clarify how decisions relating to resource issues may be arrived at. It was also recommended that the workings of the Tribunal should be closely monitored to ensure consistency in the process and in decision making. In addition, there were some suggestions that the Tribunal should be able to set precedents with regard to resource allocation, so that the Tribunal may challenge the policy of individual education authorities.

57. Many felt that panel members must undergo compulsory training in additional support needs. Also that lay members should be parents as well as professionals and that they should have specific expertise in the additional support needs relating to the case being considered.

58. Several of the voluntary and non-statutory organisations felt that a child with capacity should be able to appeal to the Tribunal and that they should have the right to instruct a solicitor in matters that affect them directly under sections 2(4A) and 2(4B) of the Age of Legal Capacity (Scotland) Act 1991. It was felt to be anomalous that a child could make a legal challenge by way of judicial review but would be denied access to the more accessible forms of dispute resolution such as mediation and the Tribunal. will detail how this can be done successfully.Code of PracticeThere are, however, statutory responsibilities already placed on parents, so they are responsible for safeguarding their child's health, development and welfare. They are also responsible for acting as their child's representative. In the proposed system, children's views should be taken into account by the education authority and by their parents. The involvement of children and young people will be encouraged and the

59. Perhaps the main area of concern though was the matter of legal aid. Many respondents felt that education authorities would be inclined to bring legal representation or would at least have had the opportunity to consult their legal teams beforehand. There was a view that if there is no legal aid available then parents will be automatically disadvantaged. Legal representation will not be encouraged for either party. will outline how the Tribunal works, what parents can expect to happen at the hearing and how to prepare for it. In addition, they will be able to take someone of their choice to support and advise them as appropriate. Code of Practice as possible, along similar lines to the Children's Hearing system. The informal, family-friendly and as non-threateningLegal aid will be available, to those who are eligible, to seek legal advice both before and after the Tribunal hearing. However, the aim of the Tribunal is to be

Placing Requests

60. There were mixed views about the advantages of opening up the right to make placing requests to independent special schools to parents of children with additional support needs. Some people felt it was equitable and in line with the concept of broadening the system from special educational needs to additional support needs. The view was held by others that the ability to make a placing request to an independent special school runs contrary to the legislation on mainstreaming and the inclusion agenda as a whole. However, others felt that it was acceptable to have the option to make a placing request to an independent special school if it was felt that the school would be able to offer specialist support to the pupil not available elsewhere. Representatives from independent special schools were worried that once this comes into force schools may be overwhelmed by the demand for places.

61. There was some concern that appeals on placing requests for pupils who do not have a Co-ordinated Support Plan will still be routed through Education Authority Appeal Committees rather than being heard by the new Tribunal. Parents were uneasy about Education Authority Appeal Committees which on the whole were perceived as biased and one sided. Another view was that these Committees would not be able to cope with the potential increase in placing request appeals.

Change to draft Bill as a result

If parents are appealing to the Tribunal the decision by the education authority not to prepare a Co-ordinated Support Plan, and, at the same time, wish to appeal a placing request, then the appeal on the placing request will also be referred to the Tribunal (sections 13 and 14).

62. It was suggested that to aid parents to understand and use the appeal routes available to them, guidance explaining the system and procedures should be produced. In particular, it was suggested that the different appeal routes should be clearly set out.

Transitional Provisions

63. There was particular concern regarding the transition from the current system to the new system. Parents of pupils who currently have a Record of Needs were concerned as to whether their son or daughter would receive a Co-ordinated Support Plan under the new arrangements. It was suggested that guidance on the changeover from the current system to the new system should be produced, to ensure that the transitional arrangements are understood.

64. There were differing views as to how many pupils would receive Co-ordinated Support Plans. Some parents thought that fewer pupils would get Co-ordinated Support Plans than currently have Records. However, education authorities thought that more pupils would get Co-ordinated Support Plans than those who currently have Records.

65. It was suggested that there should be a realistic, staggered timescale for the introduction of the new system to allow for training and to ensure that appropriate staff, for example Tribunal staff, are recruited and trained. Other suggestions included that the old and new systems should continue to run in tandem for a while, that education authorities should not be required to review all existing Records at once and that perhaps all Records should be transferred to Co-ordinated Support Plans automatically.

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