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GUIDANCE FOR EDUCATION AUTHORITIES

AIM OF GUIDANCE

1. This guidance has been written to help education authorities meet their requirements under Section 16 of the Education (Additional Support for Learning) (Scotland) Act 2004 (referred to here as 'the 2004 Act') and the associated Dispute Resolution (Scotland) Regulations 2005. It is intended to supplement the statutory code of practice published in accordance with section 27 of the Act. This non-statutory guidance provides further detail on the key processes involved in dispute resolution and the timescales for these processes.

LEGISLATIVE CONTEXT

2. Section 16 of the 2004 Act enables the Scottish Ministers to make regulations requiring education authorities to put in place procedures to resolve disputes between an education authority and any parents or young people in the local authority's area, as may be specified in the Additional Support for Learning (Dispute Resolution) (Scotland) Regulations 2005. These can be obtained from the website : http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050501.htm

3. Parents, and young people, cannot be compelled to use any dispute resolution procedure put in place, nor can they be required to pay any fee or charge for using the procedure.

4. The Schedule to the Regulations prescribe the disputes that can be referred to dispute resolution. The Schedule is attached in Annex A.

POLICY CONTEXT

5. Dispute resolution is a generic term and covers a range of processes for dealing with disagreements. Within the context of the 2004 Act, dispute resolution is the process for formally reviewing an individual case by an independent third party, external to the local authority, who considers the disagreement, forms his/her own view, and makes a written report with recommendations to the education authority on how he/she thinks the dispute should be resolved.

6. Broadly, the specified matters which parents on behalf of their child, or the young person, can ask the education authority to refer for dispute resolution concern matters outwith the jurisdiction of the Additional Support Needs Tribunal for Scotland set up under section 17 of the 2004 Act and of an appeal committee under the Education (Scotland) Act 1980 which deals with school exclusions and placing requests.

7. It is expected that the application of the good practice as set out in the code of practice will help resolve concerns at an early stage and avoid the need for the more formal dispute resolution procedures described here. Authorities should endeavour to engage with parents and young people to avoid the need for disputes to go to adjudication so that referral for dispute resolution is a last resort to resolve concerns. Prior to submitting an application to refer a case to dispute resolution, parents or young people should have had discussions/meetings with the school and authority to seek to resolve their concerns. The authority should also have offered mediation (if appropriate) and should have provided it if parents or young people have agreed to it or requested it.

8. In addition, the authority should have advised parents and young people of the options for taking their concerns forward and about other sources of support which may be of assistance to them. These could include sources outwith the education authority such as local voluntary groups. If parents or young people wish to proceed to external adjudication, it is expected that the authority would offer them help to complete their application and also advise them of the potential support offered by voluntary groups and other advisory agencies.

9. Even once the formal process of dispute resolution has commenced education authorities and parents should, where possible, continue to work together to try and resolve the dispute.

MATTERS THAT CAN BE REFERRED TO DISPUTE RESOLUTION

10. The dispute resolution procedure is for disagreements concerning the exercise by the authority of any of their functions under the 2004 Act, as prescribed in Regulations, as these relate to the education of individual children or young people. The Schedule to the Regulations prescribes the disputes that can be referred to dispute resolution. The Schedule, attached at Annex A, refers to specified matters concerning a decision, or failure by, the education authority.

11. Disagreements may be about the assessment of additional support needs; or the level of provision required or being provided to meet assessed needs, such as auxiliary support; or the support from another agency required to enable the authority to discharge their functions under the 2004 Act. The dispute resolution arrangements can also be used to consider disputes about an authority's failure to provide, or make arrangements for, the additional support required. This could include a failure to implement the requirements of a co-ordinated support plan.

12. 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 2004 Act.

MATTERS THAT CANNOT BE REFERRED TO DISPUTE RESOLUTION

13. Dispute resolution is not intended to be available for matters which can be taken through other statutory review routes such as Additional Support Needs Tribunals for Scotland under section 18 of the 2004 Act or through an appeal committee of the education authority under Schedule 2 of the 2004 Act or more generally under the Education (Scotland) Act 1980. In addition, dispute resolution is not appropriate for issues relating to broader local authority strategic or policy matters or about allegations of misconduct or, for example, school closures. It is also not intended to be used to resolve personal disputes between parents and any member of staff at the school or education authority. All such matters should continue to follow established procedures including local authority complaint procedures.

14. There will also 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 education authority providing the school education is referred to as the host education authority and the latter is referred to as 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 not obliged to do so, a host education authority should consider making their arrangements for dispute resolution available to parents of a child or young person who request it, for example, where the child or young person is receiving school education in that host authority as a result of a placing request.

PROCESS OF DISPUTE RESOLUTION

15 . The key processes and actions required of all participants to these arrangements are detailed below and an illustrative flowchart is provided at Annex B.

Application for referral to dispute resolution (Regulation 3)

16. The applicant must send a written application to the education authority and this must include as required under Regulation 3(2) :

Preliminary arrangements: Consideration of application by education authority (Regulation 4)

17. The education authority will consider an application, and if it is satisfied that it relates to a specified matter and all the supporting material required under Regulation 3 has been provided, then within 10 working days of receipt of such application, the education authority must send the applicant confirmation of acceptance of the application. The date on this correspondence is the start of the statutory process of dispute resolution.

18. Where an education authority consider an application does not relate to a specified matter or is not accompanied by all of the supporting information required under Regulation 3 (2), or is otherwise unreasonable, then the authority must within 10 working days of the receipt of such an application send to the applicant notice of their decision not to proceed with the application and reasons for that decision.

19. Where an applicant later provides further information or supporting material relevant to the application and in consequence of such provision the authority decide to accept it as a valid application and proceed with it, then the authority will send confirmation of acceptance to the applicant within 10 working days of the receipt of such information. The first working day after the date on this letter, notifying acceptance of a previously rejected application, becomes the start of the statutory process for dispute resolution.

Working Days

20. In Regulations, a working day means any day which is not -a Saturday; a Sunday; a day from 27 to 31 December inclusive; a day in July; or a bank holiday in Scotland in or by virtue of the Banking and Financial Dealings Act 1971(Regulation 2 (1)).

Nomination and appointment of Independent Adjudicator (Regulations 4 (2), 5 and 6)

21. At the same time as sending the applicant confirmation of acceptance, the education authority must send a request to the Scottish Executive to nominate an individual to act as an independent adjudicator from a panel of suitably experienced individuals, established and maintained by the Scottish Executive, on behalf of Scottish Ministers.

22. The education authority will send the application and any necessary supporting material to the Scottish Executive to enable them to nominate the independent adjudicator. The Scottish Executive will then supply the education authority with the name and contact details of the independent adjudicator. The Scottish Executive will aim to do this within 10 days of receiving such a request. In providing the independent adjudicator, the Scottish Executive will seek to ensure that there is no conflict of interest regarding the application. The Regulations provide that the nominee must not be or have been a councillor or official of an education authority with an interest in the dispute in the period of 5 years up to the appointment. All information relating to the circumstances of the dispute will be treated in confidence by the independent adjudicator.

23. The education authority must appoint the person nominated by the Scottish Executive as the independent adjudicator to consider the application and must pay that adjudicator a standard fee which will be fixed by the Scottish Ministers under their powers of direction in section 27 of the 2004 Act. This fee will be on a per case basis.

Education authority response to the application (Regulation 7)

24. The education authority must, within a period of 10 working days beginning on the first working day after the sending the applicant confirmation of acceptance, provide the applicant, and where appropriate, the child or young person with a copy of the documentation as specified in Regulation 7(a)-(d). That is:

25. In providing this information, the education authority may wish to involve an officer with no previous active involvement in the case (although he/she may have knowledge of the case). That officer can review the case with a fresh eye and consider whether all appropriate steps have been taken, from the authority's perspective, to resolve disagreements and can confirm, or otherwise, that the case should proceed to independent adjudication.

Copying of application and response to independent adjudicator (Regulation 8)

26. The applicant and the authority then have a further 10 working days to provide each other with any further observations on the application or the authority's response. Any further observations submitted by the parent or authority as a result of this process will also be included in the papers sent to the independent adjudicator.

27. It is the education authority's responsibility to provide copies of all the case papers and materials to the independent adjudicator. The documentation that must be provided to the independent adjudicator must include:

28. The education authority should ensure that all relevant paper work is dated and that the authors of documents are clearly indicated. The documentation should be presented to the independent adjudicator in a clear chronological order with a covering content list. The education authority need to be satisfied that that all necessary information and evidence from both parties are available for the adjudicator to consider and to make his/her report and recommendation. Education authorities may also need to consult with their legal advisers to resolve any matters of law arising in relation to the application for dispute resolution.

29. The process is based on each party having a complete set of papers submitted by the other and observations on the case being presented by the other. Education authorities should ensure that all papers and supplementary information being provided to the adjudicator have been made available to the applicant. The independent adjudicator should also check that this exchange of submissions is comprehensive and complete. Annex C provides some suggestions aimed at ensuring effective communication between the independent adjudicator and the education authority.

30. Although the name of the independent adjudicator should be provided to the parent, authorities should not provide the parents with personal contact details for the independent adjudicator such as home address or telephone number. It is envisaged that all papers which the parents wish to send the independent adjudicator should be sent via the education authority.

31. Overall timescale - The education authority have a total of 25 working days, beginning on the first working day after sending the applicant confirmation of acceptance of the application for dispute resolution, to send all the case papers to the independent adjudicator.

Review by Independent Adjudicator (Regulation 9)

32. The independent adjudicator will have 15 working days, beginning with the first working day following receipt of the complete set of case papers, to review the case, and provide a written report to the education authority with recommendations as to how the dispute should be resolved.

33. The adjudication process will normally be a paper based exercise. It is expected that cases will take the equivalent of one to one and a half days to complete. However, where necessary to carry out the review, the independent adjudicator can ask for further observations, information or advice on any matters relating to the dispute as he/she considers appropriate. This could be from the authority, applicant or any other person/agency such as Health Boards. Exceptionally, an independent adjudicator may consider it necessary to meet with the applicant and/or with officials/professionals.

34. Following the review the independent adjudicator has to report in writing to the authority on his/her considerations of the dispute with his/her recommendations as to how the dispute should be resolved.

35. At the same time as reporting to the authority, the independent adjudicator must send to the applicant and any other persons as he/she considers appropriate, notice of the date of the report and the date by which the authority is required under Regulation 10 to give their decision.

36. Where the independent adjudicator becomes aware that the time limit for undertaking his/her review of the dispute cannot be complied with, because it is impractical to do so, the independent adjudicator must explain in writing to the education authority and applicant, and must set a new date for completion of the process (but note overall timeframe for dispute resolution at paragraph 41 below).

Outcome of review ( Regulation 10)

37. The education authority must within 10 working days of the receipt of the independent adjudicator's report and recommendations, give notice of their decision in writing to the applicant and any other persons including independent adjudicator and any relevant appropriate agency as the authority consider appropriate. This is the statutory finish date for dispute resolution.

38. In their note of the decision the education authority must set out:

39. At the same time as providing their written decision on the outcome of the review, the Regulations require the education authority to provide the applicant (and such other persons as the authority consider appropriate) with a copy of the independent adjudicator's report and recommendations (Regulation 10 (2)).

40. The expectation is that both parties will accept the outcome of the process. It is expected that the authority will do so, provided this is compatible with their statutory or other duties or would not unduly prejudice the discharge by the education authority of any of their functions. Recommendations, therefore, should be accepted in all but exceptional circumstances. Where the education authority do not accept the recommendations then, in addition to providing the statutory written notification, it is considered good practice to meet with the applicant to explain their decision and offer other avenues for recourse and support.

Timeframe for dispute resolution

41. On becoming aware that the 10 working day time limits cannot be complied with, because it is impractical to do so, the education authority must explain to the applicant the reason for this and must set a new date for completion of the process. The date established must not exceed the time limit by longer than is necessary in the circumstances.

42. In any event, the whole process of dispute resolution must not be more than 60 working days beginning with the day the authority send the applicant confirmation of acceptance (under Regulation 4 (1) or (4 )) to them sending their decision to the applicant.

Finality of Review and Costs

43. Regulation 11 provides that the education authority's decision on the outcome of the review by the independent adjudicator completes the dispute resolution procedure. This also completes the independent adjudicator's involvement in that dispute. The education authority and the applicant are each responsible for their own costs in taking the dispute through external dispute resolution procedures. This is subject to the education authority's responsibility for paying the independent adjudicator under Regulation 6.

Repeat Applications (Regulation 12)

44. Where an application for a decision or failure of a specified matter has been referred to an independent adjudicator, a further application in respect of the same decision or failure is not competent during the period of 12 months beginning with the day on which the authority sent notice of its decision on the last such application in accordance with Regulations 4(3) or 10.

Training and support for independent adjudicators

45. All independent adjudicators will receive initial training before they undertake review of any cases under independent adjudication. In addition, there will be a senior adjudicator to act as mentor, provide support to the other adjudicators, to help with the decision making process and to promote uniformity and consistency of approach. The costs and associated expenses of such support and training will be met by the Executive.

Monitoring

46. Education service managers should monitor the use of dispute resolution. Authorities will want to know about the effectiveness of the dispute resolution arrangements. Statistics recorded should include: the numbers of applications for dispute resolution; the numbers referred to independent adjudication; in brief terms, the nature of reports and recommendations made by the independent adjudicator; the education authority's response to the independent adjudicator's review; costs to the education authority; and timescales for the various key stages and for the full process from application through to notification of the education authority's decision on the independent adjudicator's report and recommendations.

Further recourse

47. The education authority's decision on the application is final under these regulations (Regulation 11). However, exceptionally, there may be a few cases where parents or young people may seek recourse elsewhere in certain circumstances. This includes the right to refer to Scottish Ministers under section 70 of the Education (Scotland) Act 1980 alleged failings of the education authority to carry out a statutory education duty. Parents or young people may also 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.

If any queries, please contact: Sandra Manning 0131/244/0090
Email sandra.manning@scotland.gsi.gov.uk

Additional Support Needs Division
Scottish Executive
14 November 2005

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