The Scottish Government

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1. INTRODUCTION AND OVERVIEW

1.1. What this consultation paper is about

1.1.1 This paper sets out our proposals for how the new Additional Support Needs Tribunals for Scotland will deal with cases that are referred to them. The Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act") requires Scottish Ministers to make rules as to the practice and procedure of the Tribunals. The President of the Tribunals also has the power to issue practice or procedure directions as to how the Tribunals should operate. This paper aims to give an insight into how the Tribunals will work: not all of the matters covered in this paper will be dealt with directly in the rules of procedure.

1.1.2 For simplicity in this paper, we refer to parents making a reference but the 2004 Act provides that a parent or young person may make a reference. Further, we generally refer loosely to a/the tribunal without distinguishing in usage between a Tribunal of three members and the tribunal administration.

1.1.3 The Scottish Executive is happy to receive views and suggestions relating to any aspect of this consultation paper. To help you respond to the consultation, a response booklet has been produced as part of the consultation pack. The response booklet contains questions highlighting issues on which the Executive would particularly value your comments. We hope it will help you formulate your response.

1.2 Legislative framework

1.2.1 Section 17 of the 2004 Act, which was commenced on 3 May 2005, establishes Additional Support Needs Tribunals for Scotland and gives effect to Schedule 1. (This section was commenced now so that the recruitment of a President, conveners and other members could begin.) Paragraph 11 of Schedule 1 requires Scottish Ministers to make rules as to the practice and procedure of the tribunal. Paragraph 11 also sets out the matters which may be covered by the rules.

1.2.2 Some matters do not need to be covered by the rules because they are spelt out elsewhere in the 2004 Act (especially Schedule 1) or in other legislation, such as the Education (Scotland) Act 1980. The 2004 Act requires the Scottish Ministers to publish a code of practice and a number of sets of regulations and these have been the subject of consultations 01-09. Some of these regulations, e.g. in relation to co-ordinated support plans, will have a bearing on the Tribunals. Schedule 1 gives the President powers to issue directions and guidance in respect of the administration of the tribunal (paragraph 8 (3)) and directions as to the practice and procedure of the tribunal (paragraph 12).

1.2.3 Section 18 of the 2004 Act provides for parents and young persons to make references to the tribunal under the following circumstances. Any parent or young person, or where the young person lacks capacity, the parent, may refer to the tribunal specified decisions, failures or information of an education authority in relation to the child or young person's co-ordinated support plan. These include decisions in relation to the information contained in the co-ordinated support plan and failures or refusals to review the plan.

1.2.4 Reference to the tribunal may also be made regarding the refusal of a placing request: where a co-ordinated support plan exists; where the need for a plan is established but the plan is not yet prepared; and where a plan has been refused and that decision has been referred to the tribunal. (The circumstances under which parents may make a reference to the tribunal are outlined in more detail at paragraphs 2.1.3 to 2.1.5.)

1.2.5 Section 19 of the 2004 Act specifies the powers of the tribunal in relation to references made to it. The tribunal may require an education authority to take action on a timeframe set by the tribunal. In exercising its powers, the tribunal must take account of the code of practice (section 19 (7)). When considering the facts of a case, the tribunal will take account of the extent to which the education authority (and other bodies) have had regard to the code of practice in matters relating to the case. When determining references made to it, the tribunal will be informed by the code of practice.

1.2.6 Section 20 of the 2004 Act gives Scottish Ministers powers to add to the categories of matters that can be referred to the tribunal, taking its remit beyond co-ordinated support plans and into additional support needs more generally. The Scottish Executive has no intention to extend the types of matters that can be referred under the terms of that section at the present time.

1.2.7 The 2004 Act amends the Tribunals and Inquiries Act 1992 to bring the tribunal under the supervision of the Scottish Committee of the Council on Tribunals. The Council on Tribunals keeps under review, and reports on, the constitution and working of the tribunals under its supervision. The Council have produced a Guide to Drafting Tribunal Rules (November 2003) which has informed this paper and will inform the development of the detail of the rules governing the tribunal's procedures.

1.3 Background

1.3.1 The 2004 Act replaces the system for assessment and recording of children and young people with special educational needs with a new framework around additional support needs. Additional support needs are defined more broadly than special educational needs. Children with additional support needs arising from enduring complex or multiple factors, for whose school education the education authority are responsible, and who require support from outside education services will receive a co-ordinated support plan. The tribunal will consider cases referred to them by parents on all matters relating to co-ordinated support plans. In the 2004 Act, these cases are called references.

1.3.2 If parents have not been able to reach agreement with the education authority about their child's additional support needs, they may be able to make a reference to the tribunal. The tribunal is an independent tribunal. Although Scottish Ministers appoint the President, legally qualified conveners and other members, they act independently and the Executive cannot influence the tribunal's decision. The tribunal has no connection with any education or other public authority.

1.3.3 There will be a two-month time limit for making a reference, which starts when the education authority gives parents its final written decision. Even if parents decide to make a reference, they and the authority should continue to try to reach agreement to avoid the need to go to a tribunal hearing.

1.3.4 The tribunal will not initially have jurisdiction over disability discrimination cases in Scottish school education, and so the rules of procedure do not cover such matters. The Executive will review the operation of the tribunal as part of wider review of implementation of the 2004 Act, in early 2007. Following the review, the Executive intends to consult on widening the scope of the tribunal to disability discrimination cases. The outcome of that review and consultation will inform whether or not the UK government should be approached (because it is a reserved issue) for provision to give the tribunal jurisdiction over such cases.

1.4 How a reference is handled

1.5 Timetable for handling a reference

1.5.1 arents should normally have the tribunal's decision on their reference in about three to four months (four to five months if July is included) from the date the reference is registered on the case management system.

1.5.2 The timetable below shows the number of working days each stage of a case may take. Working days do not include Saturdays, Sundays, bank holidays, any day between 25 December to 2 January inclusive, or any day in July.

2. START OF PROCEEDINGS

2.1. Action by parents

2.1.1 Why might parents need to make a reference? If parents disagree with the education authority about the way to meet their child's additional support needs, they should first try to sort the matter out with the education authority. But, if they cannot agree with the education authority and they are still not happy about its decision, or the information contained within a co-ordinated support plan, or where there is an alleged failure in relation to the co-ordinated support plan, they can make a reference to the tribunal about it. There is a two-month deadline for making a reference which starts when the education authority gives parents its final written decision. Parents and the education authority should still to try to sort matters out even after a reference has been made.

2.1.2 When can parents make a reference to the tribunal? The 2004 Act and associated regulations make provision for parents and young people to make references to the tribunal under the following circumstances.

2.1.3 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 co-ordinated support plan,
• to continue a co-ordinated support plan,
• to discontinue a co-ordinated support plan,
• failure to prepare a co-ordinated support plan within the statutory timescales set out in regulations.

2.1.4 In addition, they may make a reference to the tribunal, where a co-ordinated support plan exists, on:

• the information contained in the co-ordinated support plan,
• failure of the authority to complete its review of the co-ordinated support plan at the end of 12 months or within the timescale set by regulations,
• the decision of the authority to refuse a request from a parent or young person to review the co-ordinated support plan earlier than the regular 12 month review date,
• 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 support plan.

2.1.5 Reference to the tribunal may also be made regarding:

• the refusal of a placing request (where a co-ordinated support plan exists; where a need for a co-ordinated support plan is established but the plan is not yet prepared; and where a co-ordinated support plan has been refused and that decision has been referred to the tribunal).

2.1.6 What about issues the tribunal cannot deal with? The tribunal will only be able to deal with matters relating to co-ordinated support plans or decisions not to prepare a plan, as set out at section 18. The tribunal does not have any jurisdiction in respect of children who do not have a plan where the absence of a co-ordinated support plan is not disputed. Special dispute resolution arrangements ( external independent adjudication) are being developed by the Executive to deal with disputes concerning additional support needs outwith the jurisdiction of the tribunal.

2.1.7 What can parents do if they are not happy about issues that the tribunal cannot deal with? Parents should discuss their concerns with their child's school or the education authority, or both. Where they have concerns they may refer the matter to external independent adjudication, or the matter may be appropriate for mediation. Enquire, the national advice and information service will be able to provide advice on these matters. The education authority contact person will also be able to direct parents to appropriate advice and information.

2.1.8 Can parents complain to the Scottish Public Services Ombudsman? If they believe that an issue has not been dealt with properly by a public authority (e.g. the education authority), they may be able to complain to the Scottish Public Services Ombudsman. This is not the same as disagreeing with the decision of the authority which has been arrived at quite properly.

2.1.9 Where can parents get advice about whether they can make a reference? The tribunal can explain what parents need to do if they are considering making a reference and tell them what will happen. The tribunal cannot advise them whether or not they should make a reference. If they feel that they need more advice, they may be able to get help from: a voluntary organisation which helps people with additional support needs, for example Enquire; a parents' group; an independent parental supporter; or a parent partnership adviser. The education authority should tell parents about these. The education authority should also tell parents about its contact person. This person will provide parents with information and contact details of sources of appropriate advice and information.

2.1.10 Where can parents get help if they decide to make a reference? Parents' named contact person within the education authority may be able to provide contact details for an independent supporter or representative. Such external advisers will usually be able to give parents all the help they need. Parents may also be able to get Advice and Assistance under the Legal Aid system to subsidise the cost of advice from a solicitor about how to prepare their reference. Any solicitor participating in legal aid work can tell parents if they are entitled to this. The Law Society or their local citizens' advice bureau can give parents the names of solicitors who may be experienced in educational matters.

2.1.11 Do parents have to use the mediation services the education authority has told them about? All education authorities must provide mediation services to prevent or sort out disagreements. These must be independent of the education authority. Mediation services deal with disagreements relating to the education authority's discharge of its functions under the 2004 Act. The intention is that they will be designed to bring together education authorities, schools and parents in an informal way to sort out disputes. Using these arrangements is voluntary and does not affect parents' right to make a reference.

2.1.12 How do parents make a reference? If parents want to make a reference, they will be required to fill in the form provided by the tribunal. They will need to give their reasons for making the reference, enclose certain documents and authenticate the form. This form and guidance will be available on the tribunal's website as well as in hardcopy. Parents will be able to print out and fill in a copy of this form if they would prefer to use this, but the tribunal will also be able to accept an electronic submission.

2.1.13 Is there a time limit for making a reference? If parents decide to make a reference, they have two months to do so. The tribunal must receive their reference no later than the first working day two months after the education authority gave parents its final written decision and advised them that they could make a reference. If the end of the two months is in July, parents will have until the first working day in August.

2.1.14 How much detail should parents give? It is important that parents give the tribunal their reasons for making a reference. Depending on what their reference is about, parents may want to cover:

• why they think that their child is not making progress;
• why they think their child needs extra help at school;
• what sort of extra help they think their child needs;
• if their child has a co-ordinated support plan, what changes parents want to see; and
• if parents want their child to go to a different school, why parents think that school would be more appropriate for their child.

2.1.15 What documents should parents send with their reference? When parents send their reference and reasons for making a reference, they should attach:

• a copy of the education authority's letter which gives the decision about which they are making a reference;
• a copy of the co-ordinated support plan, if their child has one; and
• a copy of all the papers attached to the co-ordinated support plan.

2.1.16 If parents are making the reference because they do not agree with the school named in the co-ordinated support plan (the specified school), they must provide details of the placing request which they have made to the education authority, and should include the name, address and postcode of the school they want their child to go to. They must ensure that the school has a place available for their child, and tell the school that they are asking for it to be named in the co-ordinated support plan as the specified school. Parents will need to tell the tribunal that they have done this.

2.1.17 What if parents don't send in all the right papers? If parents do not send all of the information the tribunal need, as long as the tribunal can consider their reference, the tribunal will write and tell the parents what additional information is required from them for their reference to go forward. The tribunal will usually give parents 10 working days to send the tribunal this information.

2.1.18 Do parents have to send the original documents? Parents should keep all the original letters, the co-ordinated support plan and other documents, and only send photocopies.

2.1.19 Do parents have to send the reference themselves? Parents must authenticate the reference or an accompanying letter themselves. If parents have a representative who is helping them and they want the representative to receive papers on their behalf, parents should give their representative's name and address on the form. But their representative cannot authenticate the reference for them.

2.1.20 Does the tribunal write to their representative? The tribunal will then send all letters and papers to any representative named by parents. The tribunal will not send papers to both parents and their representative. Parents must let the tribunal know in writing if they later change their mind about having a representative, or if they change their representative.

2.1.21 Do references have to be made in English? If English is not the parents' language, parents may make a reference in their own language and the tribunal will arrange for the documents to be translated. However, this may add to the time it takes to handle the reference. The hearing will be held in English but the tribunal can arrange for an interpreter to be there. The tribunal will pay for this. Parents will need to ask for this well before the hearing to enable appropriate arrangements to be made. They can make a request on the reference form.

2.1.22 What if parents have any other needs? If parents have any special requirements, they should let the tribunal know as soon as possible. If, for example, they want to make a reference in Braille, need a signer or interpreter at the hearing, or need special arrangements to be made for them to come to the hearing, they should let the tribunal know and the tribunal will make the arrangements. The tribunal will pay for these. They can make a request on the reference form.

2.1.23 How long will a reference take to process? The tribunal will normally make a decision in about three to four months (four to five months if July is included) from the date when the tribunal register the reference.

2.2 Action by the Tribunal

2.2.1 What will the tribunal do when it receives a reference? When the tribunal receives a reference, the tribunal will first of all decide whether, on the face of it, the subject matter of the reference appears to fall within the tribunal's jurisdiction.

2.2.2 If not, the tribunal will write to tell parents and give them the chance to send the tribunal more information or details to allow the tribunal to consider whether, in light of the further information, the reference is within their jurisdiction. If their reference is late and parents have not given reasons, the tribunal will give them a chance to explain why it was late and ask the tribunal to register it.

2.2.3 If the tribunal can consider their reference, the tribunal will tell parents that the tribunal has registered their reference and send to the education authority copies of all the documents parents have sent. The tribunal will send parents information about the tribunal procedures.

2.2.4 The tribunal will tell parents when their hearing is likely to be held and will ask parents for dates when they and their witnesses would be able to come to a hearing.

2.2.5 What should be included in a case statement? Once the tribunal has registered their reference, the tribunal will send both parties some guidance to help them prepare their case.

2.2.6 Parents' case statement should include anything they have not included in their original reference which they consider is relevant to the subject matter of the reference and which they would like the tribunal to take into account. They can also include any up-to-date information they have received since they sent the tribunal their reference, and attach any other written reports they have. If parents want to send a video or audio material to support their reference, they should send the tribunal five copies (one for each tribunal member, one for the education authority and one for the tribunal administration) and keep one for themselves. However, if parents feel that they have provided as much as they can with their reference, they do not need to send the tribunal a case statement but should confirm that they have no further information or comments to make.

2.3 Action by the Authority

2.3.1 What will the education authority do about the reference? The education authority will have the same deadline as parents to send the tribunal a case statement and supporting information. The education authority's case statement must say whether or not the education authority opposes the reference and, if it does, it must say why. The education authority should also say who is dealing with the reference within the authority, provide a summary of the facts and let the tribunal know what the child thinks about the issues.

2.3.2 What about the child's views? Generally education authorities must find out children's views about their needs wherever possible. The tribunal may ask education authorities for the child's views so the tribunal can take account of these. Parents can also let the tribunal know their child's views in their case statement or supporting information. The child can also come to the hearing.

2.3.3 The education authority may contact parents about their reference. It may have looked at the case or supporting information again and feel that it can provide some or all of what parents want. While the reference is before the tribunal, parents and the education authority should continue to talk whenever possible. The education authority should have already told parents about mediation services which may help them sort out their concerns.

2.3.4 What will happen if the education authority does not oppose the reference? If the education authority does not oppose the reference, the tribunal will write and ask if parents want to withdraw their reference. Parents will need to decide if they are happy with what the education authority has said it will do. The tribunal will send them a withdrawal form to sign and return if parents want to withdraw their reference, and the tribunal will not take any more action.

2.3.5 If parents are making a reference about the information contained in their child's co-ordinated support plan, and the education authority has decided to make changes following the reference, the education authority must give the tribunal details of the changes it has agreed to make.

2.3.6 In some cases, the education authority may withdraw their opposition to the reference. If parents make a reference about the education authority's decision, failure or information contained in the co-ordinated support plan and the education authority tells the tribunal that it does not oppose the reference (that is, it agrees to provide what parents have asked for), the tribunal will treat the reference as decided in parents' favour. The tribunal may set the education authority (using its powers under section 19 of the 2004 Act) a deadline in which to provide what parents have asked for.

2.3.7 What if the education authority does not reply? If the education authority does not reply by the end of the case statement period, it cannot take any further part in the proceedings. If parents do not withdraw their reference, it will be passed to a tribunal who will see whether it can decide the reference on the basis of the papers they have sent, or whether there needs to be a hearing at which parents would be present but not the education authority.

2.3.8 What happens to the case statements? Once the case statement period has finished the tribunal will send parents the education authority's statement and any other supporting information provided by the education authority. At the same time, the tribunal will send the parents' case statement and any other supporting information to the education authority.

2.3.9 Can either party comment on the other's case statement? Rather than have a further round of correspondence with each party commenting on the other's case statement, both parties will have the chance at the hearing to ask questions about the other's case statement or any other information provided.

2.3.10 Can any more documents be sent in after the case statement period? Both parties should try to send in all their documents with their case statement. If a party has information that was not available, and could not reasonably have been available at the end of the case statement period, it will normally be accepted if sent to the other party and the tribunal. The tribunal and the other party must receive it at least five working days before the hearing.

2.3.11 Can new information be brought to the hearing? The tribunal may allow additional written submissions or information at the hearing if it thinks fit. This may be where there are special circumstances for the late submission or if the particular information would be relevant to the matters being considered. If a party needs to make a request to present further information on the day of the hearing, they should bring five copies (one for each tribunal member, one for the education authority and one for the tribunal administration) with them, as well as a copy for themselves.

2.3.12 What will happen to their reference if parents move to live in another education authority area? Parents should write and tell the tribunal if they move to live in another area. The tribunal will write to the new education authority to tell it about the reference. The new education authority will be treated as having made the decision about which parents have made a reference. The tribunal will give the new education authority 30 working days to send the tribunal a case statement and evidence. The tribunal will give parents the same deadline to make or amend their case statement and send in any more evidence. The original education authority will take no further part in the reference. The original authority should, however, co-operate with the tribunal and the new authority in providing information and copies of papers about the reference. This will enable the new authority to consider the child's case and its position relative to the reference as quickly as possible.

2.4 Provisions applying to all references and responses

2.4.1 Can parents withdraw their reference? Parents can withdraw their reference by writing to the tribunal at any time before the hearing, or the tribunal can send them a withdrawal form to fill in instead. Whoever authenticated the original reference must authenticate the withdrawal form or letter. Parents can also withdraw their reference when they are at the hearing by telling the tribunal that they want to do so.

3. MANAGEMENT POWERS OF TRIBUNAL

3.1 Preparation for Hearing

3.1.1 What if parents find it difficult to get hold of a document that is important to their case? If parents write to tell the tribunal well before the hearing what the document is, the tribunal may be able to make the education authority release it. The tribunal will ask the education authority first if it has any objections to providing the document. If the education authority does, the tribunal will consider these when it decides whether or not to order the education authority to release the document.

3.1.2 What if the education authority considers the reference is not valid? The education authority may apply to have the reference dismissed if they consider it is not valid. If this happens, the tribunal will send parents a copy of the education authority's application so parents can comment on it. The tribunal will give parents the chance to explain at a hearing why they think their reference should continue.

3.1.3 What if the tribunal needs more information? If the tribunal need more documents or information to register the reference, the tribunal will normally give parents 10 working days to send the tribunal these. Similarly, if parents have not provided the tribunal with enough information to enable the education authority to respond to the reference, the tribunal will write to parents giving them 10 working days to provide these. If the tribunal can then register the reference, the tribunal will treat this information as part of the reference, and send a copy to the education authority with the other paperwork parents have provided.

3.1.4 What if the tribunal or either party requires more time to prepare for a hearing? The tribunal may decide either for its own purposes, or at the request of either party, to postpone a hearing. The tribunal is unlikely to grant an application for postponement once both parties have confirmed their availability for hearing dates. A request from either party would have to be for good reason, not simply because they had left making preparations until too late.

4. EVIDENCE

4.1 Evidence of Witnesses

4.1.1 Can the parties bring any witnesses to support their case? Parents and education authorities may bring up to two witnesses to the hearing. In exceptional circumstances, the President may authorise the presence of additional witnesses. The tribunal may refuse to allow a particular individual to be a witness if they believe it would adversely affect the hearing.

4.1.2 Why is there a limit on the number of witnesses? Limiting the number of witnesses is designed to keep hearings short and user-friendly. The evidence that parties want the tribunal to consider should have been submitted in the case statements. Witnesses enable the tribunal to explore further the issues raised in the case statements.

4.1.3 How formal will the tribunal be in dealing with witnesses? The intention is for the tribunal hearing to be conducted in as informal a manner as possible, consistent with the fundamental principles of fairness, openness and impartiality. Wherever possible, parties should avoid raising technical objections to witnesses and/or evidence and supporting information. The tribunal will seek to facilitate the participation of both parties fully and effectively but without causing the hearing to be unduly long.

4.1.4 When do the parties need to say who their witnesses are? Both parties must provide details on the attendance form. If it is impossible to notify the tribunal before the hearing, the parties can ask the tribunal at the start of the hearing but permission may be denied.

4.1.5 The tribunal will write to both parties around 10 working days before the hearing, to confirm the date, time and place of the hearing, and let both parties know who will be coming from the other party.

4.1.6 What if a witness refuses to come to the hearing? If someone asked by a party to be a witness is unhappy about coming, the party can write to the tribunal explaining why they feel it is important that the person is at the hearing. The party should write as soon as possible if they want to ask for a witness summons. The tribunal will need at least eight working days before the hearing to handle the request. If the tribunal agrees, it will send a witness summons to the prospective witness. That person must then come as a witness; it is an offence under the 2004 Act not to attend.

5. HEARINGS AND DECISIONS

5.1 Hearings

5.1.1 How much notice will be given of the hearing? When the tribunal write to tell parents that the tribunal has accepted their reference, the tribunal will ask both parties to tell the tribunal the dates when they would be available for a hearing. They should speak to their witnesses and any representative to make sure they are free on the dates they give. The tribunal will then fix a date, usually giving at least 10 working days notice. If the tribunal do not hear from one or both parties, the tribunal will go ahead and fix a date.

5.1.2 Where will the hearing be held? The tribunal will hold hearings throughout Scotland and the tribunal will try to arrange to hold the hearing as close as possible to where parents live. The tribunal will aim to limit parents' travel to the hearing to no more than two hours where hearings are heard in central Scotland and to no more than one and a half hours for hearings held elsewhere.

5.1.3 What time will the hearing start? The tribunal will usually hold hearings within normal working hours. The tribunal will fix the hearing for a specific time and will normally schedule it to last half a day. Most hearings will start at either 10 am or 2 pm. The tribunal will do the its best to make sure that the hearing starts on time but there may sometimes be delays.

5.1.4 Who will hear the reference? A tribunal made up of three people will hear the case. One person on the tribunal, the convener, is a lawyer who will chair the hearing. The other two members will have knowledge and experience of children or young people with additional support needs.

5.1.5 Will the hearing be in private? Hearings are normally in private but parents can ask (on the attendance form the tribunal send them to fill in) for their reference to be heard in public and say why it should be.

5.1.6 Do parents have to come to the hearing? It is important that parents come to the hearing but they do not have to. The tribunal will want to hear anything that they have to say and may want to ask them questions if something in the documents they have sent is not clear. Parents may want to ask questions themselves.

5.1.7 If parents decide not to come to the hearing, or decide to send a representative, they should tell the tribunal on the attendance form. In this case, they can send a letter to support their reference but the tribunal must receive it at least five working days before the hearing.

5.1.8 Can parties have a representative at the hearing? Either party can send someone to the hearing to represent them whether or not they come themselves. If they do, they must put their representative's name and address on the attendance form the tribunal send them. If parents have had someone helping them with their reference, they do not need to have that person represent them at the hearing. If either party decide to send a representative after they have returned the attendance form, they should write separately to tell the tribunal so as soon as possible.

5.1.9 Can a representative be a solicitor? Both parties can have a solicitor as a representative. However, hearings are designed to be as informal as possible so that both parties can participate fully without the need for legal representation. Parents will not get public funding for using legal representation, though they may be eligible for legal advice and assistance in preparing their case (see paragraph 2.1.10). Parties intending to use a legal representative will need to tell the tribunal on their attendance form.

5.1.10 Do parties have to answer questions at the hearing? Even if they bring a representative to speak for them, the tribunal may still want to ask both parties some questions. (For example, they may want to ask parents about their child's needs at home.) Neither party has to answer these questions if they do not want to.

5.1.11 Can both parents go to the hearing? Yes. Anyone who has parental responsibility for the child concerned may go to the hearing. If a parent who has not sent the tribunal the reference comes to the hearing, the tribunal may allow him or her to give their view at the hearing.

5.1.12 Can a child go to the hearing? A child can go to the hearing and give evidence. However, parents should not assume that their child will stay for the whole hearing. Some of the discussion might need to take place in the absence of the child, for example because the issue might distress the child. Parents should arrange for a friend, relative or other carer to come as well as the tribunal will not be able to look after their child.

5.1.13 Can parties bring a supporter? Parents can bring one person to support them at the hearing. This person will not be able to speak during the hearing. An education authority officer may bring a colleague. Again, that person will not be able to speak during the hearing.

5.1.14 Who will be at the hearing? The following people may be there:

• The parent who made the reference, and possibly the child.
• Any other parent of the child who wants to go.
• An officer from the education authority, who will respond to the case.
• One representative for each party, if they have one.
• Up to two witnesses for each party, if they have them.
• A supporter for the parents and a colleague for the education authority officer, who will not be taking part in the hearing.
• The convener and two members of the tribunal.
• A member of the tribunal administration, who will show both parties where to go, explain briefly what will happen, and give any help they may need.
• Any interpreters or signers, if these are necessary.

5.1.15 There may also be someone there to watch how the tribunal is run (e.g. from the Scottish Committee of the Council on Tribunals), or someone who is being trained by the tribunal. The tribunal will pay travel expenses for some participants, this is explained at section 5.4.

5.1.16 What happens on arrival at the hearing? The tribunal administrator will explain what will happen, where things are and will answer any questions they have. The tribunal administrator will tell both parties where to wait and if there is going to be any delay to the start of the hearing.

5.1.17 What happens during the hearing? The tribunal administrator will take the parties into the hearing room. In most cases, all those taking part will sit around a table. The convener will speak first and explain the procedure to everyone before the hearing begins. The members of the tribunal will want to find out the following from parents and the education authority:

• What they think the relevant facts are.
• What conclusions they think the tribunal should come to.
• What they think should now be done for the child.

5.1.18 The convener will try to make the procedure as straightforward as possible so everyone can give their point of view. The tribunal will ask questions without using legal or educational jargon. The convener will suggest that different parts of the case are dealt with one at a time so neither party will have to make a single statement about the whole of the case.

5.1.19 Will parties, representatives or witnesses have to take an oath? The intention is that proceeding should be as informal and non-technical as possible, while still consistent with good decision-making in the overall best interests of the child. Although the 2004 Act provides for a tribunal being able to take evidence from a person under oath, it is envisaged that it will rarely, if ever, be necessary for such formality.

5.1.20 How will the witnesses give evidence? Witnesses will be able to give evidence on each point. Both parents and the education authority will be able to ask them questions. Witnesses will normally stay for the whole hearing.

5.1.21 Will parties be able to ask their own questions? The discussion at the tribunal hearing is not limited to the points the convener or other members may raise. Both parties will have the chance to add anything they feel is important but has not been mentioned. At the end of the hearing, the convener will tell them that they will receive the tribunal's decision by post. Parties will usually get the tribunal's decision within 10 working days of the hearing.

5.1.22 How long will the hearing last? The hearing will normally last up to three hours, but there will usually be a short break. There may be rare cases when the hearing lasts longer than this. Very occasionally, the tribunal may need more evidence. If this is the case, the convener will explain what the tribunal needs and will ask both parties to come back another day. If possible, before the parties leave the room where the hearing is taking place, the tribunal will try to fix a date for the adjourned hearing to reconvene. Where this is not possible, the tribunal will notify parties of the date and place for the continued hearing.

5.2 Decisions

5.2.1 How will the tribunal come to a decision? The tribunal make its decision by considering all the evidence. This includes the documents which parents and the education authority send before the hearing and also what is said at the hearing.

5.2.2 When will the tribunal inform both parties of their decision? The tribunal will aim to post its decision and the reasons for that decision to parents and to the education authority within 10 working days of the hearing. Some cases will need a little more time before the tribunal can send out the decision. The tribunal cannot tell parents or the education authority its decision over the phone.

5.2.3 Does the decision have to be in English? If English is not their first language, parents may ask for the tribunal's decision to be translated, or parents can ask for the decision in any other appropriate form. If parents make a request for the decision to be translated, this is likely to delay the issue of the decision.

5.3 Appeals to the Court of Session

5.3.1 Can parties appeal against the decision to the courts? Section 21 of the 2004 Act provides that both parties can appeal to the Court of Session against the tribunal's decision but only on points of law. If parents need advice about this, a solicitor or a voluntary organisation will be able to help them.

5.3.2 How long does the education authority have to put in place the tribunal's decision? When the tribunal has decided the reference, unless there is an appeal to the Court of Session, the education authority must implement (give effect to) the decision within the period fixed by the tribunal, using its powers under section 19 of the 2004 Act. The President may use the powers in Schedule 1, paragraphs 8(3) and 12 to set general time limits for particular classes of action. For example, the President might direct that education authorities have five weeks to make the necessary changes to a co-ordinated support plan following a tribunal decision. Whatever timescales apply, will also apply when the education authority tells the tribunal that it does not oppose the reference (see paragraph 2.3.4 and following).

5.3.3 What if the education authority doesn't carry out the tribunal's decision? By law, the education authority must carry out the tribunal's decision. If it fails to do so, parents could:

refer the matter under arrangements for dispute resolution to external independent adjudication (established under section 16 of the 2004 Act) to find out why the services specified in the co-ordinated support plan are not being delivered;

• make a complaint to the Scottish Ministers under section 70 of the Education (Scotland) Act 1980;
• make a complaint to the Scottish Public Services Ombudsman;
• ask for Judicial Review; or
• initiate proceedings in the civil courts in accordance with the general law on the enforcement of tribunal decisions.

Whether any of the above options are appropriate or competent in a particular case will depend on the specific nature of that case.

5.4 Costs and Expenses

5.4.1 Will parents or the education authority have to pay any costs if they lose the case? Parents and the education authority are expected to meet their own costs in preparing for, and presenting, their case to the tribunal. They will not normally have to pay each other's costs. In very rare circumstances, if the tribunal think that either party has acted unreasonably, or deliberately wasted the tribunal's time, it may make an order requiring the party to meet the other party's expenses.

5.4.2 What travel expenses will the tribunal pay? Paragraph 17 of Schedule 1 of the 2004 Act gives the tribunal the power to pay allowances and expenses to any person in respect of their attendance at hearings of the tribunal. We expect the President to restrict the payment of travel expenses to the following persons attending the tribunal only:

• either or both parents and the child who is the subject of the reference;
• a relative or friend who will look after the child;
• the parents' supporter; and
• the parents' witnesses.

No travel expenses will be payable in respect of any parental representative. No travel expenses will be paid to the education authority in respect of any person attending.

5.4.3 Anyone intending to claim travel expenses should use public transport wherever possible. The tribunal will only pay taxi fares if public transport is not available or if a person has particular needs. The tribunal will pay for bus, tram, standard-class rail travel or a fixed amount for mileage if it is necessary to travel by car.

5.4.4 What about witnesses' loss of earnings? It is expected that the President will exercise the powers under paragraph 17 of Schedule 1 of the 2004 Act to enable the tribunal to pay a fixed amount for witnesses' loss of earnings.

6. MISCELLANEOUS AND DEFINITIONS

Additional support needs

A child or young person has additional support needs if the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.

Annual review

The review of a co-ordinated support plan which the education authority must make within 12 months of making a co-ordinated support plan or, as the case may be, of the previous review.

Appeal

An appeal to the Court of Session. ("Reference" is used to describe going to the tribunal.)

Assessment

A detailed assessment of a child's additional support needs which will inform the decision as to whether or not a co-ordinated support plan is required to meet the additional support needs of the child or young person.

Authenticate

Where the information is written on paper, authenticate means providing a signature. Where information is given electronically, authenticate means an acceptable proof of identity.

Contact person

The person from the education authority who can provide parents with information in relation to all aspects of additional support needs. Education authorities must tell parents who the contact person is when the authority establishes that a child or young person has additional support needs.

Convener

The person from the tribunal who will be in charge of the hearing.

Co-ordinated support plan

Co-ordinated support plan: a document that sets out a child's needs and the additional support he or she requires to overcome barriers to learning.

Direction

An order by the President to which parents or the education authority must respond.

Documents

Letters or reports, including a co-ordinated support plan.

Education authority

The part of the local authority that is responsible for providing education, carrying out assessments and providing additional support to meet the needs of children and young people, including preparing and maintaining co-ordinated support plans.

External independent adjudication

The Scottish Ministers will use their powers under section 16 of the Act to make arrangements for external independent adjudicators to help parents resolve disputes with education authorities. External independent adjudicators can be used by parents in respect of disputes over additional support needs which lie outside the tribunal's remit (primarily matters not connected to co-ordinated support plans).

Hearing

The meeting at which the tribunal considers a reference.

Independent school

A school that is not funded by an education authority.

Mediation services

All education authorities must provide mediation services to help prevent or sort out disagreements between parents whose children have additional support needs and the education authority or school. They must act independently of the education authority. They are designed to bring together the different sides in an informal way to try to sort out the disagreement through discussion. Using these arrangements is voluntary and does not affect parents' right of reference to the tribunal.

Member

One of two people at the hearing from the tribunal with knowledge and experience of children or young people with additional support needs. They will help the convener come to a decision about the case.

Reference

Information provided to the tribunal by the parent in respect of a disputed decision, failure or information by the education authority responsible for the school education of the child.

Supporter or advocate

A person who all parents can talk to if they need to. The supporter must be someone who can support parents, for example, by advising them on how to work with schools on additional support needs issues, or by going to meetings with them. A supporter will often be someone from a voluntary organisation, an advocacy service, or another parent or a friend.

Tribunal

Tribunal is used in this document to mean both a particular Additional Support Needs Tribunal and also the tribunal administration more generally.

Tribunal administrator

A person provided by the tribunal to help both parties with arrangements at the hearing. This person will usually be the case officer who has dealt with the reference from the beginning.

Witness summons

A document that requires a witness to attend a hearing.

Scottish Executive Education Department
Additional Support Needs Division
May 2005