This paper sets out our proposals on arrangements for dispute resolution provided for under the Education (Additional Support for Learning) (Scotland) Act 2004. It comments on where dispute resolution sits in the whole prevention and resolution of disagreements process, particularly in the light of new duties on local authorities and others which will help strengthen parents' rights regarding their child's education.
An earlier version of this paper was issued to a small number of individuals from a cross section of authorities and the voluntary sector to help inform policy before this wider formal consultation. Dispute Resolution has also been discussed by the Additional Support Needs Advisory Group. In addition, advice has been taken from HMIE on mediation and dispute resolution arrangements in local authorities. The proposed policy and arrangements detailed in this paper have been informed by their findings and the earlier informal consultation.
The Scottish Executive is happy to receive views and suggestions relating to any aspect of the policy paper. You may find it helpful to read this paper in conjunction with Section 4 of the draft Code of Practice. To help you to respond to the consultation, a response booklet has been produced as part of the consultation pack. The questions which are included in this paper are also included on page 14 of the response booklet.
Section 16 of the Education (Additional Support For Learning) (Scotland) Act 2004 enables the Scottish Ministers, by regulations, to require education authorities to put in place procedures to resolve disputes, regarding any of the functions of the authority under the Act, which arise, between the authority and any parents or young people in the local authority area. The procedures must be free of charge. The regulations may prescribe which disputes relating to particular functions of the authority under the Act will be subject to dispute resolution. Parents, and young people, cannot be compelled to use any dispute resolution procedure put in place, nor will their entitlement to make a referral to a Tribunal be affected.
The key aim of dispute resolution is to further facilitate resolution for parents on matters that cannot be dealt with through formal appeal routes (described in paragraph 10). It will therefore help address the concerns of parents whose child does not have a Co-ordinated Support Plan but who does have additional support needs.
Proposals for Dispute Resolution
Who is it for?
The service would be for young people or parents belonging to the area of the authority, who are in disagreement with the authority over the way the authority are exercising their functions under the Act.
It will be for parents of children and young people in local authority schools and partnership nurseries. It will also be for young people and parents of children being educated in independent schools or at home, where the matter of dispute is about a function of the education authority under the Act affecting the individual.
Under education legislation, the term "parent" includes anyone who has care of a child or young person, including foster carers. The powers relate to disputes between parents and the education authority.
What does it cover
The service will be for disagreements about the education of individual children or young people. These disagreements may be about the assessment of additional support needs or the level of provision required or being provided to meet them, such as auxiliary or learning support, or support from another agency required to enable the authority to discharge their functions under the Act.
It will be for issues specifically relating to additional support for learning which are not covered by formal appeal routes. If the dispute is concerning any of the matters relating to Co-ordinated Support Plans, listed in section 18(3), then that matter cannot go to dispute resolution. Also if the dispute relates to the refusal of a placing request made under Schedule 2 of the Act then that dispute is not capable of being taken to dispute resolution. The new Additional Support Needs Tribunal will deal with appeals relating to Co-ordinated Support Plans. Education Appeals Committees will continue to deal with issues concerning exclusions and refused placing requests (except where there is an issue relating to a Co-ordinated Support Plan- in those instances, refused placing requests will go to the Additional Support Needs Tribunal).
In addition, it will not be for matters relating to broader strategic matters of policy or about allegations of misconduct or, for example, school closures. It is also not intended to be for personal disputes between parents and any member of staff at the school or education authority. All such matters should continue to follow established local authority procedures.
What is meant by dispute resolution?
In this context, we propose that dispute resolution will allow for a formal review of an individual case by an independent third party, external to the local authority, who would consider the circumstances leading to the disagreement, would reach a decision, and make recommendations for all parties.
We also considered whether we should have a two tier dispute resolution process where the first stage would be where the education authority undertook a formal investigation of the case by an officer independent of any other education officers previously involved in making decisions relating to the child's case. This would be before the case is passed for external adjudication. However, the majority of comments received from our informal consultation (as referred to in paragraph 2), viewed this process to largely duplicate arrangements already in place in local authorities. We therefore propose a single stage formal dispute resolution process, independent of the local authority.
Dispute Resolution would be one of a range of measures open to parents and authorities to resolve disagreements and has to be seen in the context of the existing and evolving structures of support and advice for families in the light of the Act.
The emphasis should always be on preventing disputes arising in the first instance, with good structures of support, advice and information being available for all stakeholders involved in additional support for learning. When disagreements do develop the emphasis should be on early resolution at a local level, particularly at school level. Prior to any referral to mediation services or dispute resolution (or any formal appeal being made), informal steps should be taken to reach agreement, as is current standard practice in schools. Conciliatory and informal mediatory approaches to negotiations should be encouraged and developed.
Discussion between parents and the child's teacher should be the first step to resolving any concerns parents may have about their child's additional support needs. If that does not resolve the matter, then there should be the opportunity to discuss the matter with a more senior teacher or the head teacher. Parents should also be informed about local voluntary support and advocacy services. The emphasis throughout should be on reaching a solution that is acceptable to all.
The next step should be discussion and review by the education authority (and, if relevant, representatives from other agencies or parts of the local authority). If a solution is still not reached, then use of mediation services may be helpful, if not used already. This would help to establish the areas where there is concord, isolate the issue of contention and identify possible solutions.
If mediation, or further meetings with key stakeholders, is not successful in resolving the matter, then referral to dispute resolution arrangements or, where appropriate, taking the matter to formal appeal will be the next step.
As already described, local authorities will be able to build on current good practice for resolving disagreements. Before a case is considered for dispute resolution, the expectation is that all informal steps at school and at education authority level, as well as mediation, should be exhausted . In addition, we would expect a senior officer in the education authority, to review the case, with a view to establishing, that from the authority's perspective, all appropriate steps have been taken to resolve the disagreement, before it is referred for dispute resolution.
The use of an independent tier to adjudicate matters within disagreement processes is used in other agencies and public bodies, for example, Inland Revenue, Care Commission and Social Work. The role of External Independent Adjudication is to objectively and independently review all the information relating to the case, and reach a conclusion on the best way forward to ensure that the child's learning is supported. We propose that the adjudication is a paper exercise. However, if the Adjudicator felt that further information/clarification is required, he/she would have the right to ask for this. To ensure that the process is speedy, it is therefore crucial, that education authorities have fully reviewed the case and have all relevant paper work ready before passing for External Adjudication.
The expectation would be that both parties would accept the outcome of the process. While education authorities would not have a legal duty to implement the conclusions of the adjudication, they would generally be expected to do so. Decisions, therefore, should be accepted in all but very exceptional circumstances.
Nothing provided for under the regulations relating to dispute resolution will affect the rights that parents or young persons currently enjoy to refer alleged failings to carry out a statutory education duty to Scottish Ministers under section 70 of the Education (Scotland) Act 1980, or to refer issues of service failure or maladministration to the Public Services Ombudsman, or to seek judicial review in the courts of the actions of the education authority.
A flowchart illustrating dispute resolution in the context of the whole prevention and disagreements process is provided at Annex A.
It is important to parents that the dispute resolution process is seen to be impartial, independent and provides a speedy response and redress, where appropriate.
We propose that there should be a pool of individual experts that education authorities could call upon. This could be organised on a national or regional basis. One person would be allocated independently (see 30 below) to adjudicate on the case and make the final recommendation. The adjudicator selected for a particular case could not be employed by that local authority. These experts could be drawn from a number of areas such as former inspectors or associate assessors from HMIE; former teaching or authority education staff (with no previous involvement in the case); health and/or social work staff; voluntary sector representatives. Administrative issues such as fees for Independent Adjudicators and access to legal services have still to considered.
We propose that HMIE oversee the selection and training of the pool of adjudicators and monitor the effectiveness of the process. The involvement of HMIE provides the opportunity for greater uniformity, consistency of decision making and accountability across the country. Importantly, this process would be viewed as a clear, separate process from appeals and tribunals. The main disadvantages of the system proposed include the time constraints on HMIE and the availability of people with expertise.
We also considered a second option of setting up a small panel of adjudicators at a local level, comprising members with appropriate skills, knowledge and expertise. They would be managed by the education authority, although would include people external to the education authority such as those from health and the voluntary sector. However, from our limited consultation to date, it was felt that the issue of independence from the local authority would be a key concern to parents and the availability of suitable local people could be difficult. In addition, it was felt that the involvement of HMIE would provide credibility and accountability. The notion of a panel could also cause confusion with other appeal routes. We therefore propose the model outlined in paragraphs 26 to 28.