The Scottish Government

1. Use of the good practice guidance in chapter 6 can help to avoid disagreements or prevent them from escalating into more serious disputes. This chapter looks at provisions under the Act for resolving disputes where these do arise. The Act makes provision both for mediation services and arrangements for independent adjudication to resolve disputes. It also provides parents and young people with rights to refer particular matters to the Additional Support Needs Tribunals for Scotland ("the tribunal").

2. It is expected that most disagreements will be resolved at school and education authority level with only a small number going to formal review procedures. Education authorities and schools should have clear staged disagreement and resolution procedures in place, with named contacts at each stage. The diagram on page 102 outlines how the Act's provisions sit within an overall framework for avoiding and resolving disagreements. The following paragraphs look at each of the three new mechanisms: mediation, dispute resolution and the tribunal.

Mediation

s15(1)

Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services for the purposes of seeking to avoid or resolve disagreements between the authority and -

(a) parents of children belonging to the area of the authority,
(b) young persons belonging to that area, or
(c) in relation to any such young persons who lack capacity to express a view or make a decision for those purposes, their parents,

concerning the exercise by the authority of their functions under this Act in relation to such children or young persons.

Aims and benefits

3. An education authority must have mediation services in place for disagreements relating to matters concerning the exercise of the authority's functions under the Act in relation to children and young people belonging to their area. Mediation provides an option for avoiding, resolving or narrowing the area of disagreement between the authority and parents or young people belonging to the area of the authority. It allows disputing parties to seek to resolve their differences with the assistance of a mediator acting as an impartial third party.

4. 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. The overriding principle is that the disputing parties come to a shared agreement on how to resolve their disagreement themselves.

5. 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 can be 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.

6. Mediation may not be appropriate in all cases. For example, the parents or young person may not wish to engage in mediation. In addition, the provision of mediation under the Act 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.

7. Parents and young people must be informed that taking a disagreement to mediation in no way affects their entitlement to refer any competent matter to other appropriate formal or statutory review routes. For example, the parents or young person may wish to make a reference to the tribunal, in respect of relevant matters concerning a co-ordinated support plan.

8. The education authority's mediation services must be available, free of charge, to parents or 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.

Independent services

s15(2)

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 this Act (apart from this section).

9. An authority may choose to offer as mediators, staff members not directly involved in the particular case or school or 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.

10. Objectivity 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, engaged in continuing professional development and operate to recognised standards. Appropriate checks should be carried out on all mediators. There should be policies in place to ensure confidentiality and appropriate safeguards for personal information.

11. 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. This should apply equally to mediation sessions, although it is important that mediation remains as a joint problem-solving process rather than an adversarial forum. Therefore, it is not envisaged that the parties would bring legal representation to mediation. 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 and is not about apportioning blame.

s7(2)(a)(i)

12. Parents of children for whose school education the authority are not responsible but who belong to the education authority's area have access to an education authority's mediation services. Mediation is to be available where the disagreement relates to the authority's exercise of its functions under the Act. For example, a parent of a child at an independent or grant-aided school, for whose school education the authority are not responsible, may wish to use the mediation services because the authority have refused to respond to a request from the parents to establish whether the child has additional support needs. However, the parent would not be able to use the mediation services to resolve a disagreement which did not involve the education authority's functions under the Act, such as a disagreement with the school itself.

s26(2)(e)

13. There will be circumstances where, as a result of a placing request, a child or young person is receiving school education in an education authority other than the education authority for the area to which the child or young person belongs. As discussed in chapter 4, paragraphs 6, 7 and 8, the former education authority are referred to as the host education authority, the latter the home education authority. The home education authority have a duty to provide mediation services to the parents of children or young people belonging to their area. Although they are not obliged to do so, a host education authority should consider making their mediation service available to parents of a child or young person who request it.

Other issues

14. The Act requires education authorities to publish information on the independent 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 and providing a copy of these to the parents or the young person.

15. The education authority should have clear procedures in place to evaluate and monitor arrangements for their mediation services. Further detail on the features of mediation services, performance issues and sources of information are referred to in Annex C and the resources section.

Mrs Campbell's son, Alex has had a succession of supply teachers this term and she is concerned that his work is suffering due to the lack of continuity. She spoke to the current supply teacher who was not able to reassure her. The school had already issued information on resolving disagreements to which she referred. Mrs Campbell met with the head teacher in the first instance who listened to her concerns. The head teacher provided Mrs Campbell with some examples of Alex's work which showed that he was making suitable progress with his learning. Mrs Campbell was happy with this outcome.

Mr & Mrs Jacks have a son Paul aged 14 who has been diagnosed with Asperger's Syndrome. The transition from his local mainstream primary school to secondary proved very difficult. Increasingly frustrated by what they saw as the school's inability to meet Paul's needs, his parents withdrew him from school and educated him themselves at home.

Although the home education programme was working out very well, his parents felt that Paul was socially isolated from his peers and would benefit from returning to school. Agreement with the home education authority over a suitable school proved difficult and over time the positions of both parties had become increasingly entrenched, with a lot of distrust and negative feelings building up. Both parties agreed to explore further discussions with the help of an independent mediator.

Following discussion, both parties agreed that Paul's home education programme would continue, and that an additional support needs teacher from Paul's local school with autism specific training would begin some outreach support work with a view to helping Paul work towards attending his local school. Initially this was on a part-time basis, until if, and when, Paul and his parents were comfortable with this step.

Lorna is 8 years old. She has significant physical disabilities and moderate learning difficulties, and attends her local primary school with the support of an auxiliary. Her mum, Cathy, was generally pleased with the placement, but became anxious about the increasing gap between Lorna's learning abilities and those of her peers.

Cathy began speaking to the class teacher daily about Lorna's progress. The teacher found this difficult to manage. In an effort to support her staff, the head teacher asked Cathy to stop the daily meetings. Cathy took offence at this and complained about the head teacher's attitude to various people in the education authority including the Director of Education.

Both sides agreed to explore the issues in a mediation session. With help of the mediator they were able to reach an acceptable outcome. Cathy's need for communication about Lorna's progress would be met by the use of a daily home-school diary. The classroom auxiliary would take responsibility for this, with guidance from the teacher. Cathy and the teacher would meet up once a month for one hour, and if Cathy had any problems she wished to discuss she could telephone the head teacher. Everyone agreed that they would meet again to review these arrangements after 6 months.

Resolving disputes by independent adjudication

s16

16. The Act enables Scottish Ministers, to require education authorities to put in place procedures to resolve disputes, regarding the exercise by the education authority of any of their functions under the Act, as prescribed in Regulations, which arise between the authority and any parents or young people belonging to the local authority's area. The procedures must be free of charge. Parents, and young people, cannot be compelled to use any dispute resolution procedure put in place. Also, the use of dispute resolution does not affect their entitlement to make a referral to the tribunal, or any other statutory review mechanism, where appropriate.

17. The Dispute Resolution Regulations prescribe which disputes relating to particular functions of the authority under the Act will be subject to dispute resolution by independent adjudication and timescales for the process.

18. In the context of the Act, the procedure for resolving disputes allows for a formal review of an individual case by an independent third party, external to the local authority, who considers the circumstances leading to the disagreement and makes a report with recommendations for all parties.

What does it cover?

19. The service is for disagreements about the way the authority are exercising their functions under the Act, as prescribed in Regulations, as these relate to the education of individual children or young people, and where such functions are not covered by formal review routes. In broad terms, it covers the concerns of children and young people with additional support needs where the tribunal does not have jurisdiction to accept a referral of the case.

20. 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 support; or support from another agency required to enable the authority to discharge their functions under the Act. It can also include cases where the authority fails to implement the requirements of a co-ordinated support plan.

21. As with mediation services, access to an education authority's dispute resolution arrangements is for parents of children or young people belonging to the area of the authority, irrespective of whether the authority are responsible for a particular child's or young person's school education. However, the matter in dispute must be related to the authority's exercise of its functions under the Act.

What does it not cover?

22. Dispute resolution does not cover matters which can be taken through statutory review routes, such as to the tribunal ( see paragraphs 31-43 below). It also does not cover disagreements relating to the refusal of a placing request made under Schedule 2 of the Act. Such a disagreement can be taken to the education authority appeals committee and subsequently to a Sheriff, or the tribunal if a co-ordinated support plan is involved. Education authority appeals committees will continue to deal with issues concerning exclusions.

23. There will be circumstances where, as a result of a placing request, a child or young person is receiving school education in an education authority other than the education authority for the area to which the child or young person belongs. The former education authority are referred to as the host education authority, the latter the home education authority. The home education authority have a duty to provide dispute resolution to the parents of children or young people belonging to their area. Although they are not obliged to do so, a host education authority should consider making their arrangements for dispute resolution services available to parents of a child or young person who request it. This could include disputes where the child or young person is receiving school education in that host authority as a result of a placing request.

24. In addition, dispute resolution is not for issues relating to broader strategy or policy matters 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 complaint procedures.

Information on dispute resolution

25. The education authority should publish information on their dispute resolution procedures and keep that information up to date. This information should be readily available to parents and young people. These procedures should be kept under review.

Process of external independent adjudication

26. Education authorities should acknowledge all requests from parents for disagreements to be referred to dispute resolution by independent adjudication. Where a request relates to a matter covered by the Dispute Resolution Regulations the education authority will ask Scottish Ministers to nominate an adjudicator to consider the case. The Scottish Executive will provide the name of an adjudicator from the panel set up by them. The education authority should review the case with a view to establishing that all appropriate steps have been taken to resolve the disagreement. They should prepare all appropriate papers for forwarding to the adjudicator. In addition, they should inform parents of how they can present their case to the adjudicator and what support is available to help them do this. Further detailed guidance will be issued.

27. The role of the adjudicator is to review, objectively and independently, all the information relating to the case, and make recommendations for both parties on the best way forward to ensure that the child's learning is supported with reference to the terms of the Act. The adjudication process is a paper exercise. However, the adjudicator will be able to ask the parties for further information or clarification if required. Exceptionally, the adjudicator may arrange to meet the parties, for example, if the adjudicator is concerned that one party, or both parties, may have been disadvantaged by the way the case has been presented.

28. The expectation is that both parties will accept the outcome of the process. Education authorities do not have a legal duty to implement the conclusions of the adjudication. However, it is generally expected that the authority will do so provided these are not incompatible with their statutory or other duties or would not unduly prejudice the discharge by the education authority of any of its functions. Any recommendations made by the adjudicator, therefore, should be accepted in all but exceptional circumstances. The education authority should give reasons for their decision to accept or reject the adjudicator's recommendations.

Timescales

29. The process of independent adjudication should not normally take more than 8 weeks from the time the education authority confirms that they are making arrangements for the parents' request for their case to be referred to dispute resolution to a report with recommendations being made by the adjudicator. In exceptional cases it may take longer, for example, where a request for dispute resolution is made close to or during school holiday periods. Both parties to the dispute should endeavour within this timescale to exchange information about each parties' case and their comments on the other parties' proposals to resolve the areas of disagreement.

Monitoring

30. Education authorities should record the number of cases which have been referred to dispute resolution and their outcomes for monitoring purposes. Further information will be available in the Scottish Executive's procedural guidance on provision for resolving disputes.

s18

31. The tribunal will hear references from parents and young people on matters relating to co-ordinated support plans. The tribunal's statutory functions, decisions and dealings with its users and the public are independent of government, national and local.

32. The aims of the tribunal are:

• to provide independent and expert adjudication, operating impartially, efficiently and effectively, in accordance with the Act
• to be user-friendly through informal and flexible proceedings and being accessible to users
• to discourage formal, litigious encounters between parents and education authorities by providing a forum for constructive dialogue, and
• to make decisions which reflect best practice in relation to additional support needs.

s19(7)

33. In exercising its powers in relation to a reference made to it, the tribunal must take account of the code of practice. 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 prior to the hearing. When determining the content of a decision, the tribunal will be informed by the code. The tribunal decision may require an education authority to take action on a time frame set by the tribunal.

s18

34. The Act and associated procedural rules make provision for parents and young people 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 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
• regarding the timescales for the co-ordinated support plan, or
• not to comply with a request to establish whether a child or young person a co-ordinated support plan.

35. 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 by virtue of section 9(2)(a) of the act.
• failure of the authority to review the co-ordinated support plan by the expiry date (ie 12 months from the date it was prepared) or within the timescale set by regulations, or
• the decision of the authority to refuse a request from a parent or young person to review the co-ordinated support plan.

36. Reference to the tribunal may also be made regarding the refusal of a placing request in certain circumstances. These are where a co-ordinated support plan exists or where a co-ordinated support plan is required but is not yet prepared. A reference may also be made where a co-ordinated support plan has been refused and that decision has been referred to the tribunal and the reference has not yet been determined by the tribunal.

Parental right to make a reference

37. The relevant education authority is responsible for informing parents of their right to make a reference to the tribunal, whenever the authority makes a decision in relation to any of the matters listed above. Education authorities should explain this right to make a reference in any relevant documentation, e.g. accompanying a co-ordinated support plan. The education authority should also make clear to parents that they may bring a supporter or advocate to the tribunal hearing as well as at other discussions with the authority (subject to any restrictions in the tribunal rules of procedure).

38. The President of the tribunal once appointed is expected to produce detailed guidance, primarily for parents, but also useful to education authorities and others on how to make a reference. The code of practice does not address this.

Tribunal and dispute resolution

39. The Act and Regulations provide for resolving disputes through independent adjudication which broadly cover matters which are outside the tribunal's remit. These are principally cases in which the child has additional support needs but does not require a co-ordinated support plan. Dispute resolution arrangements are not for matters which are within the jurisdiction of the tribunal.

40. The use of dispute resolution procedures does not in any way affect the parents' entitlement to take a matter to the tribunal. Where a child's circumstances change such that they fall within the remit of the tribunal, previous discussions held as part of the process 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 the tribunal and, where both parties agree, may be brought to the attention of the tribunal.

Tribunal and mediation

s15(3)(b)

41. The use of mediation procedures does not in any way affect the parents' entitlement to take a matter to the tribunal. Conversely, the making of a reference to the 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.

42. The tribunal may wish to ascertain whether the parents were aware of any mediation services available (for statistical 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 in the papers for, or in the course of, the tribunal's proceedings.

Tribunal rules and regulations

Sch1, para 12

43. The Act provides for the tribunal to be governed by rules of procedure and regulations separate from the code of practice. The qualifications, training and experience required to be the President, conveners or members of the tribunal are set out in the Appointment of President, Conveners and Members and Disqualification Regulations. Procedural matters will be in the tribunal rules of procedure. The President has powers under the Act to make directions about the practice and procedure to be followed by the tribunal in relation to any matter.

Further recourse

44. Application of good practice and the arrangements described above should be sufficient to resolve, or determine, almost all cases of disagreement. Exceptionally, there may be a few cases where parents or young people will seek recourse elsewhere. This includes the right to refer alleged failings to carry out a statutory education duty to Scottish Ministers under section 70 of the Education (Scotland) Act 1980. Section 70 gives a discretionary power for Scottish Ministers to intervene where they are satisfied that an education authority or others have failed to discharge any duty imposed on them by education legislation. In considering any complaint under section 70, Scottish Ministers will wish to consider whether other more local forms of resolving disagreement have been tried. However, Scottish Ministers will not seek to intervene in relation to confidential discussions which take place in mediation or dispute resolution procedures under the Act. Nor will they take account of such discussions in reaching any decision under section 70 of the 1980 Act except where all parties agree to this being made available to Scottish Ministers.

45. Parents or young people may refer issues of service failure or maladministration to the Scottish Public Services Ombudsman, or in appropriate cases, seek judicial review in the courts of the actions of an education authority.

Framework for resolving disagreements

Good Practice

46. This and the preceding chapter have highlighted how early dialogue with good support and advice can help prevent disputes arising in the first instance. The following good practice points have been identified by HMIE from their inspection work in schools and areas where good communication structures are in place and where parents reported positively.

Good practice points on preventing and resolving disagreements

• the provision of high quality information and advice to parents and education authorities through a variety of forums and groups in a range of formats and media. All education authority staff to be fully aware of such services provided by the authority
• parents are offered opportunities to engage with independent officers with a parental advocacy role and also have access to parents' forums/groups to discuss matters of concern
• effective support through strong links with the voluntary sector - services are offered to parents through which they are able to seek impartial information and advice on an authority's services
• involvement of parents and pupils in Joint Assessment Teams or School Liaison Groups. Such involvement results in improved communication and contributes to positive relationships between parents, pupils and staff
• good pupil support initiatives e.g. pupil council forums where pupils could raise complaints; circle time, use of class representatives to highlight issues; good relationships with pastoral care teachers; restorative practices, e.g. buddy/peer mentoring initiatives; advocacy schemes with the voluntary sector
• clearly stated tiered approach for dealing with disagreements from school through to the education authority, with defined timescales for responses
• training for staff and parents in communication, aspects of mediation and conflict resolution skills as part of an effective partnership strategy
• dedicated staff members trained to deal with disagreements, e.g. telephone hot lines for staff and parents; advice and conciliation services for parents and staff specialising in conflict resolution
• procedures for monitoring the effectiveness of arrangements for dealing with disagreements to inform quality assurance and future provision.