The Scottish Government

SECTION 4: SUPPORTING CHILDREN AND FAMILIES

This section of the Code describes the Act's provisions on advocacy and supporters, mediation and dispute resolution service. It looks at these within the context of what makes for successful participation of children, young people and their parents in education and learning. It also sets out procedures that should be in place to help avoid and resolve issues when things are not working as well as they could be.

Children, young people and families

1. All children and young people should be able to influence decisions made about them. They should be able to express their opinions and have these opinions taken seriously. They should be encouraged to contribute to decision-making processes, the setting of learning targets, the preparation of learning plans, reviews and transition planning. They need to know that what they have to say will be respected, listened to and, where possible, acted on.

2. Parents should also be involved fully in discussions and decisions about their children's learning. Parents want what is best for their children and have unique knowledge and experience to contribute to understanding their child's support needs. They, therefore, have a key role to play in their child's education and account should be taken of their wishes and the perspective they bring.

3. Professionals can be more effective when they involve parents and take account of their views on their children's development and education. Partnership with parents is therefore central to ensuring that children and young people with additional support needs benefit from education. The Act serves to strengthen further the involvement of children, young people, and their parents working with authorities to reach decisions which are best for children's and young people's learning.

Seeking views

4. The 2000 Act places a duty upon education authorities, where they are responsible for the education of a child or young person, to secure that the education is directed towards the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential. In so doing, the authority have to have regard to the views of children and young people (if there is a wish to express them) in decisions that significantly affect their education.

Standards in Scotland's Schools etc. Act 2000

5. The Act builds on this by placing a duty on the education authority to seek, and take account of views of, children and young people as the authority considers appropriate under specific circumstances.

s12 (2) and (3)

6. The education authority have a specific duty to take children's and young people's views into account where the authority are:

• establishing whether a Co-ordinated Support Plan is required;
• preparing a Co-ordinated Support Plan; or
• reviewing whether they still require a Co-ordinated Support Plan.

7. The authority have some discretion whether they seek the views of children or young people when they are establishing whether children or young people have additional support needs and when determining the provision they require. The purpose of this provision is to avoid over-formalising the dialogue between professionals, teachers especially, and children and young people by requiring the authority to take account of, and record, children's and young people's views every time they are considering whether children or young people have additional support needs. However, all children should be encouraged to take part in personal learning planning processes and in discussing, monitoring and evaluating their learning. Where it has been established that children or young people have additional support needs then it is expected that, except under exceptional circumstances, these needs and the support provided would be discussed with them and their views taken into account.

8. In order to express views, children and young people need to have experience of being asked for their views, being listened to, making some choices and having some influence over what they do. Schools and early years settings should create a climate where seeking children's views and encouraging participation in decision-making are part of every day activities.

9. Some children and young people with additional support needs will be able to express themselves clearly and directly. All they may need are the opportunities to do so. Other children and young people may need support with communication. Very few will be unable to express a view at all.

10. The education authority may have to make specific arrangements to seek out the views of some children and young people; for example, children with complex communication support needs; those who require an interpreter who or whose first language is not English; or, children with behavioural difficulties who may be unwilling to co-operate. But it is just as important and relevant for them to have their views listened to as it is for those who can more easily express views. A range of approaches will need to be considered to determine their views including, for example, the use of alternative or augmentative communication systems, including signing, the use of interpreters, and seeking out the views of others such as family members, social workers and other professionals who know the child or young person.

11. Communication with young children requires a range of different strategies which could include play, art, and the use of audio and video. A range of good practice points on communicating with children and young people is include at Annex C.

Taking account of views

12. Having sought the child's or young person's views, and recorded what these are, education authorities need to consider what weight to give to them. Taking account of these views does not mean education authorities have to accept and implement everything. At the same time, once sought and expressed, these views should not be disregarded and due weight should be given with consideration of the following:

• the child's capacity to understand the information on which these views were based
• the ability of the child or young person to express their own views
• the child's understanding of alternative options
• how well the people reporting the child's or young person's views know him or her

13. It is important that a balance is struck between what a child or young person may want and what is realistic and appropriate.

Children and young people who lack capacity

s3 (2)

14. The Act provides that children or young people may lack capacity to do something under certain circumstances; for example, where they are incapable of doing something by reason of mental illness, developmental disorder, or learning disability, or are unable to communicate because of a physical disability. However, the Act makes it clear that children or young people should not be treated as lacking capacity by reason only of a lack or deficiency of communication where an alternative means of communication or interpretation would assist them to make their views known.

15. The Act is clear also that the question of whether children or young people have the capacity to do something has to be considered at each stage of their involvement. When asked for a view, their capacity should be judged at that point on their ability to express a view with regard to the particular circumstances. For example, it should not be assumed that because a young person lacks the capacity to request the authority to establish whether they have additional support needs that he or she lacks the capacity to understand, or hold a view on, the support considered appropriate.

s7 (3) (b) (ii) and s7 (8) (b)

16. Questions of capacity arise largely for young people, that is, people over school age who are not yet 18. Young people enjoy the same rights as parents under the Act unless they are considered to lack capacity to exercise their rights. It is for the education authority to satisfy themselves that a young person lacks capacity to exercise their rights. This will be best done in agreement with those who know the young person well or have the professional expertise to assess this.

17. The Act allows parents to speak for their child, where the child or young person lacks capacity to express a view. Nevertheless, it is important to continue to support the child's or young person's participation in decision-making, at an appropriate level, at the same time as seeking the views of their parents.

18. Those who are closest to the child or young person can often give an informed view on whether or not he or she can understand a particular matter. These could include parents, teaching and therapy staff or social workers. A speech and language therapy assessment of comprehension should inform this process where there are differences in opinion. The education authority should consider what they say when being called on to make a decision about capacity. It is best to reach such decisions by consensus recording clearly why such a view was reached and how it was arrived at. Where a parent, child or young person disagrees with the authority's decision this should be recorded.

Adults with Incapacity (Scotland) Act 2000

19. An education authority may also need to take note of the arrangements for decision-making under the Adults with Incapacity (Scotland) Act 2000 and any persons with legal powers in respect of an adult for whom the authority is providing school education. An adult under this law is someone aged 16 and over.

Supporting parents

20. All professionals, schools, education authorities and other appropriate agencies should seek actively to involve parents in their work with children. They should value parents' contribution and regard them as partners in their children's learning.

21. In good practice, authorities and other agencies will ensure that parents are fully aware of the processes for assessing and providing for children's needs, understand the planning mechanisms and are familiar with the support services available from the school, the education authority and from other agencies, including voluntary organisations. Wherever possible, a partnership approach should be extended to include older children and young people.

22. Access to information and advice is central. This can be provided through the education authority's named contact person for additional support needs or by education authorities making parents aware of the availability of supporters and advocates. Education authorities should also be aware of the valuable role the voluntary sector has in supporting parents and should aim to establish links wherever possible.

23. Examples of good practice points on involving parents are provided at Annex D.

Supporters and advocacy

24. Supporters and advocates can help by making sure that a parent's or young person's view is understood, put across and taken account of in discussions where parents or young people feel unable or less confident to do so themselves.

25. The Act provides young people and parents with the right to have a supporter or advocate present at any discussions or meetings with an education authority in regard to the authority's functions under the Act. The education authority must comply with the wishes to have a supporter or advocate present unless these wishes are unreasonable. Education authorities should, as a matter of good practice, make parents and young people aware of this right and how they can find out what services there are in their area.

s14

26. Although a child does not have a right to have a supporter or advocate present and the education authority does not have a duty to allow it, there is nothing to stop a child making such a request, and an education authority agreeing to it, where it would be in the interest of the child.

Supporters

27. A supporter can be anyone the parent or young person wants to nominate. A supporter could be a relative, friend, befriender or voluntary organisation worker or other person. The supporter could also be a professional working with the family provided there is no conflict of interest with that professional's duty under the Act or his/her responsibilities as an employee. A supporter can attend discussions with the parent or young person. The supporter may assist in a number of different ways, including:

• acting as a sounding board for the parent in preparing for the meeting
• taking notes so that the parent or young person can participate more fully in the discussions
• suggesting points for further clarification, questions to ask or giving advice to the parent during the meeting.

Advocates

28. An advocate can come from a range of backgrounds, including:

• someone who has acted, or is already acting, as a supporter to the parent or young person - the parent or young person may wish the supporter to speak on his or her behalf
• a person not trained in advocacy but who is aware of education and other legislation
• a voluntary organisation which is not an advocacy organisation
• a formal advocacy service or agency, with trained advocates, possibly operating to its own guidelines or code of practice

29. The main objectives of advocacy should be to speak up on behalf of the parent or young person and to represent the parent or young person at discussions.

30. Education authorities do not have a duty to provide or pay for a supporter or advocate. They should include, in their information materials for parents, details about the right to an advocate or a supporter, and how parents or young people can find out what services there are in their area.

Unreasonable requests and conduct

31. An authority might consider it unreasonable to include a supporter or advocate in discussions, where the supporter or advocate is frequently obstructive, uses inappropriate language, or where they express their own rather than the parent's or young person's views.

Resolving differences

32. Early dialogue with good support and advice can help prevent disputes arising in the first instance. However, when disagreements do develop the emphasis should be on early resolution at a local level, particularly at school level. Schools and authorities should encourage the development of strategies and new initiatives that encourage co-operation, mutual respect, and a 'no blame' culture. Examples of good practice are highlighted in Annex E. However, sometimes a third party is needed to help facilitate dialogue and agreement. In such circumstances, the Act makes provision for mediation and dispute resolution services.

Mediation

s15 (1) and (2)

33. Mediation is a process in which disputing parties seek to resolve their differences with the assistance of a mediator acting as an impartial third party. Mediation aims to offer the disputing parties the opportunity to be fully heard, to hear each other's perspectives and to decide how to resolve their dispute themselves.

34. Every education authority must make mediation services available, free of charge, as an option for avoiding or resolving disagreements between the authority and parents or young people belonging to the area of the authority. The disagreements must relate to matters concerning the exercise of the authority's duties under the Act in relation to children and young people. If the young person lacks the capacity to express a view or make a decision, then parents can pursue mediation on behalf of the young person.

35. Parents need not use the mediation service, if they do not wish to do so.

Independent

36. Mediation services are independent if the person providing the services has no involvement in the exercise by, or on behalf of, the authority of their functions under the Act. This means that authorities may choose to offer as mediators, staff members from outside the department providing education services or making decisions relating to additional support needs. Alternatively, the authority may choose to employ a freelance mediator on a case-by-case basis, or to contract with a mediator or a mediation provider using a service level agreement. They may also choose to collaborate with another authority to provide mediation on a reciprocal basis.

37. Independence and impartiality are key principles for whichever option is chosen. All parties concerned need to be satisfied that the mediator is truly independent. All parties should be assured that mediators are appropriately trained, accredited and engaged in continuing professional development. Mediators should also carry appropriate security clearance for working with children and young people. There should be policies in place to ensure confidentiality. Any mediation service should operate to recognised standards. Annex F provides examples of the benefits and features of mediation.

Aims of mediation

38. Mediation services can help families and authorities to build or rebuild a positive relationship, leading to co-operation in making arrangements for the child or young person. They can help avoid conflicts that arise out of misunderstandings or lack of shared information by helping parents, teachers, authority officials and others involved to communicate directly with one another.

39. Mediation can be used at any time in the life of a disagreement between an authority and parents or a young person. The process can be used more than once as it is useful for resolving parts of a disagreement, as well as the whole of a disagreement. It can improve strained relationships among individuals who have experienced conflict in the past and prevent the escalation of disagreements.

40. Mediation may not be appropriate in all cases. For example, the parents or young person may not wish to engage in mediation. In addition, mediation is not the appropriate vehicle for parents who have disagreements with the school about issues other than additional support needs. In such situations, parents should follow normal school and authority complaints procedures.

41. Parents must be informed that opting for mediation does not interfere with any rights they have to make a reference to the Additional Support Needs Tribunals, in respect of matters concerning Co-ordinated Support Plans.

42. It is not envisaged that the parties would need to bring legal representation to mediation. The Act gives parents and young people the right to have a supporter or advocate present at any discussions or meetings with the education authority. However, it is important that mediation remains as a joint problem-solving process rather than an adversarial forum. All participants, including the child, need to feel confident that their views and concerns will receive equal respect. The purpose of mediation is to achieve a solution to a difference of views without having to apportion blame.

Other Issues

43. he Act requires education authorities to publish information on the mediation arrangements they have in place within their area. This information should be widely available for authority staff and parents and young people. There should also be administrative support for arranging mediation meetings at a neutral venue with all the relevant people. Arrangements should be made for recording outcomes.

44. Sources of further information and advice on mediation services are referred to in Annex F.

Dispute Resolution

45. Dispute resolution is one of a range of measures open to parents and authorities to resolve disagreements. It will allow for a formal review of an individual case by an independent third party, external to the local authority. This person will have appropriate knowledge and experience of children and young persons with additional support needs. They will consider the circumstances leading to the disagreement, reach a decision, and make recommendations for all parties.

46. The key aim of dispute resolution will be to further facilitate resolution for parents on matters that cannot be dealt with through formal appeal routes. It will help address the concerns of parents whose child does not have a Co-ordinated Support Plan and, therefore, cannot go to a Tribunal but who does have additional support needs.

47. Full details of the proposed model for dispute resolution are set out in Consultation Paper which is published alongside the draft Code of Practice (reference additional support needs-05). This section of the Code will be developed in the light of responses to the policy paper.

Additional Support Needs Tribunals

48. The Tribunals have been established to provide independent and expert adjudication in a user-friendly way on certain matters relating to additional support needs. The Tribunals' statutory functions, decisions and dealings with its users and the public are independent of government, national and local.

49. The aims of the Tribunals are:

• to make fair and workable decisions in respect of cases brought before it, without fear or favour, and to operate impartially, efficiently and effectively, in accordance with the Act;
• to develop a dedicated knowledge base, ensuring a consistent approach to decisions regarding support for the most vulnerable children;
• to assist in promoting best practice in relation to additional support needs; and
• to discourage formal, litigious encounters between parents and education authorities and promote constructive dialogue.

50. In exercising its powers in relation to a reference made to it, a Tribunal must take account of the code of practice (section 19 (7)). When considering the facts of a case, a Tribunal will take account of the degree to which the education authority (and other bodies) have had regard to the code of practice prior to the hearing. When determining the content of a decision, the Tribunal will be informed by the code of practice. A Tribunal decision may require an education authority to take action on a time frame set by the Tribunal.

51. The Act and associated regulations make provision for parents and young people to make references to the a Tribunal under the following circumstances.

52. Any parent or young person, or where the young person lacks capacity, the parent, may refer to a Tribunal decisions of an education authority:

• to prepare a Co-ordinated Support Plan
• not to prepare a Plan
• to continue a Plan,
• to discontinue a Plan,
• regarding the timescales for the Plan.

53. In addition, they may make a reference to a Tribunal, where a Plan exists, on:

• the information contained in the Plan
• failure of the authority to review the Plan at the end of 12 months
• failure of the authority to review the Plan within the timescale set by regulations
• the decision of the authority to refuse a request from a parent or young person to review the Plan
• the decision of an authority not to comply with a request to establish whether a child or young person has additional support needs requiring a Plan.

54.Reference to a Tribunal may also be made regarding:

• The refusal of a placing request (where a Plan exists; where the intention is to prepare a plan but is not yet prepared; and where a Plan has been refused and the decision is being appealed to the Tribunal).

Parental right of appeal

55. The relevant education authority is responsible for informing parents of their right of appeal to a Tribunal, whenever the authority makes a decision in relation to any of the matters listed above. Education authorities should include references to this right of appeal in any relevant documentation, e.g. accompanying a Plan. The education authority should also make clear to parents that they may bring a supporter or advocate to a Tribunal hearing as well as at other discussions with the authority (subject, of course, to any restrictions in the Tribunals rules of procedure).

56. In terms of the detail of the appeal process, the President will publish a guide for parents on how to appeal, which will also be useful to education authorities and others. The Code is not intended to cover this ground.

Tribunals and dispute resolution

57. Dispute resolution procedures are intended to cover matters which are outside the Tribunals' remit. These are principally cases in which the child has additional support needs but does not require a Plan because all the needs can be met by the education authority solely through exercising functions in relation to education (see section 2 (1) (d)). Education authorities are advised against providing dispute resolution services for matters which are covered by the Tribunals.

58. Where a child's circumstances change such that they fall within the remit of the Tribunals, previous discussions held as part of dispute resolution are to be treated in confidence by both sides unless otherwise agreed. However, the outcome of previous dispute resolution may be relevant to a Tribunal.

Tribunals and mediation

59. The use of mediation procedures does not in any way affect the parents' entitlement to take a matter to a Tribunal. Conversely, the lodging of an appeal with a Tribunal does not in any way affect their entitlement to use mediation services. The education authority should make this clear to parents when the possibility of mediation is raised by parents or the authority.

60. A Tribunal may wish to ascertain whether the parents were aware of any mediation services available (for performance monitoring reasons). However, discussions held as part of mediation are to be treated in confidence by both sides unless otherwise agreed. This means they are not to be disclosed by either side at a Tribunal.

Tribunals rules and regulations

61. The Act provides that the Tribunals will be governed by rules and regulations separate from the Code. Detailed operational and procedural matters for the Tribunals are set out in the Additional Support Needs Tribunals for Scotland (Appointment of President, Conveners and Members) Regulations 2005 (subject to ongoing consultation) and the rules of procedure (subject to future consultation (Reference Additional Support Needs 01)).