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

Part 2 - Changes made to the draft Bill

66. The main purpose of the consultation was to gather opinions and ideas to help with the ongoing process of developing and refining the draft version of the Bill. Everyone who contributed has played an important part in this. A lot has been happening since January and the draft has undergone some change in that time. There have been several key changes made as a direct result of the comments, ideas, concerns and suggestions received and these have already been incorporated in the summary of the consultation. Other changes were made as part of the process to refine the draft. The most significant changes made to date are listed below, including those already outlined in the report section. It is important to note that further changes can be made as the Bill makes its progress through Parliament.

Key changes:

• 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.
• 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)).
• 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 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.
• A lot of concerns were raised about the lack of appeal rights for parents whose children will not have Co-ordinated Support Plans. They will have access to mediation but will not be able to appeal to the tribunal when they are unhappy with provision or identification of additional support needs for example. As a result, a new clause has been introduced to the Bill enabling Scottish 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.
• Instead of issuing guidance as previously proposed, now a Code of Practice will be issued (section 22) and the key topics to be included in the Code are set out in 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.
• 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).
• It has been made clear that mediation services will be free of charge to parents (section 16(3)).
• If an education authority decides not to comply with a request to review a Co-ordinated Support Plan they must inform the person who made the request and give their reasons for refusing (section 8).
• When parents (and others) request that their child is assessed for additional support needs or for a Co-ordinated Support Plan they should give their reasons. This will better help education authorities consider if the request is reasonable or not. If it is established that the child does have additional support needs then the education authority must inform the person who made the request of the outcome (sections 4 and 5).
• It will now be possible to set different "appropriate agencies" for various parts of the Bill. This will allow voluntary sector provision, such as working with individual children on anger management and social skills or the provision of respite services, to be included in the criteria for a Co-ordinated Support Plan. This could also be used to bring Careers Scotland and Further and Higher Education providers into future needs planning (section 18(2)(e)).
• The Progress Report annex to the Co-ordinated Support Plan will no longer record minor changes in circumstances or diagnosis, targets or provision as described in the consultation narrative. Instead it will simply be a working record of the progress that the child is making to help inform reviews.
• It has been clarified in the Bill that the education authority must also consider the other non-education functions of the local authority in the same way it will consider the functions of other agencies such as health.
• The Bill introduces a new definition of "special school" which removes the connection with Records of Needs (as at present) or Co-ordinated Support Plans in the future (section 23(1)).
• There are two sections that bring in certain provisions from the Education (Scotland) Act 1980. This has been done to bring all the provision directly relating to additional support for learning together in this Bill. One section allows Scottish Ministers to make regulations about standards and requirements relating to the conduct of special schools (section 19). The other section allows education authorities to make arrangements as appropriate to enable a child with additional support needs to attend a school outwith the United Kingdom (section 20).
• The education authority has a duty to consult children with additional support needs (section 10). However, this formal consultation would be unmanageable if it was to be with every child, regardless of the extent of additional support needs, and on every matter relating to teaching and learning. A new subsection has been added therefore, and the Code of Practice will clarify how children should be consulted.
• There have been several additions to Schedule 1 which deals with the new tribunal. There is a new paragraph about the circumstances where the re-appointment of a member would not be appropriate (paragraph 5(2)) and one about Scottish Ministers' power to remove members from office (paragraph 6). Details of what can be included in the rules for the practice and procedures of tribunals is set out in paragraph 11. For example, the rules may include how appeals to a tribunal are made or allowing hearings to be held in private. A further new paragraph has been added about the payment of allowances for those attending a hearing or preparing a report (paragraph 17).
• To clarify the position on mainstreaming and consideration of placing requests, a new paragraph has been added to section 3 of Schedule 2. Education authorities must comply with all placing requests unless certain circumstances apply. The new paragraph makes it clear that such circumstances include those in section 15(1) of the Standards in Scotland's Schools etc Act 2000. This is commonly referred to as the "presumption of mainstreaming" (paragraph 3(1)(g)).
• A new schedule has been added which sets out all the modifications that will need to be made to other legislation, such as the Education (Scotland) Act 1980, as a result of the Bill (Schedule 3).

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