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Section 4: Proposed legislative changes
Placing requests - Timing
42. As detailed in paragraph 36 above, references relating to refusal of a placing request can be made to an ASNTS if, at the time the request was refused, a CSP has been prepared for the child or young person concerned, or a plan is about to be prepared or if a reference has been made to an ASNTS over the decision that a plan is not required.
43. Schedule 2 to the ASL Act makes provision for the transfer from the appeal committee (or sheriff on appeal) to an ASNTS only in respect of the intervention of one set of circumstances; namely, where the education authority has decided that no CSP is required and that decision has been referred to an ASNTS.
44. Issue: Lady Dorrian's Court of Session ruling states that Schedule 2, as currently constructed, does not make provision for placing request appeals made prior to the authority establishing that a CSP should be prepared, to be transferred from either the appeal committee or the sheriff to an ASNTS. Moreover, Lady Dorrian's ruling states clearly that 'at the time' means one single point in time, namely the actual date of the refusal of the placing request.
45. Action: Amend the legislation to allow an ASNTS to have jurisdiction to consider any placing request appeal where a CSP is involved or being considered, whether directed to the home or host authority, at any time before final determination by the appeal committee or sheriff, for example where the education authority is in the process of established whether a CSP is required.
Q1. Should the legislation relating to an ASNTS's jurisdiction regarding placing requests be amended to allow an ASNTS to consider any placing request appeal where a CSP is involved or is being considered, at any time before the final determination by the appeal committee or sheriff?
Q2. Can you foresee any problems with amending the legislation as suggested in Q1 above? If so, what are they?
Placing Requests - Home & Host Authority
46. The policy intention of the ASL Act is that all pupils with ASN (regardless of whether or not they have a CSP) would be in the same position as others in relation to placing requests not only to their "home" authority but also out of area.
47. Issue: A request was made on behalf of a child with ASN and with a CSP in preparation who lived in Dunbartonshire to attend a school under Glasgow City Council's management. Glasgow refused the placing request on the grounds of complying with the Standards in Scotland's Schools etc. Act 2000 which provides for the presumption of mainstreaming.
48. The parent of the child then submitted a reference to an ASNTS appealing Glasgow's decision. The ASNTS's decision was that it had no jurisdiction to consider an appeal against Glasgow City Council's refusal to grant an out of area placing request. The case was subsequently referred to the Court of Session where Lord Macphail held that the ASL Act did not make, and should not be construed as making, any provision in respect of a child with additional support needs who required a CSP, for the making of a placing request to any education authority who were not responsible for the child's education, or for a reference to an ASNTS of a refusal by such an authority of such a request.
49. Action: Amend the legislation to allow young people with ASN and parents of children with ASN (including those with a CSP) to make out of area placing requests and for those with CSPs to make subsequent references to an ASNTS on refusal of such requests.
Home & Host Authority: Resolving Disagreement Processes
Q3. Do you agree that the parents of children, with ASN, with or without CSPs, should have the same rights in respect of making out of area placing requests as parents of children without ASN?
Q4. If you do not agree with Q3 above, why not?
Q5. Are you content that in instances where a CSP is involved or is being considered, an appeal against a decision to refuse an out of area placing request should be referred to an ASNTS?
Mediation and dispute resolution
50. Section 15 and 16 of the ASL Act place a duty on education authorities to arrange for independent mediation and enable regulations making provision for dispute resolution services to be provided, free of charge, to parents of children or young people belonging to the area of the authority. Mediation services will seek to avoid or resolve disagreements between the authority and parents or young people concerning functions under the ASL Act. Dispute resolution is carried out by an independent third party who considers the facts of the case and makes recommendations to the education authority.
51. Section 23(2) of the Education Scotland Act 1980 provides that where a child is educated outwith their home authority, the educating authority (host) may recover from the home authority contributions in respect of provision of the child's school education and other services. Scottish Ministers may determine the level of contribution to be made by a home authority.
52. Issue: Where an out of authority placing request has been granted in relation to a child or young person, the home authority would be required to provide mediation or dispute resolution between the parent and the host authority at the home authority's expense. Therefore, the costs of these services would be provided by an authority which at that point is not responsible for the child's school education.
53. Action: Amend sections 15 and 16 of the Act to require the host authority to provide access to mediation and dispute resolution in circumstances where the host authority has accepted an out of area placing request and is, therefore, responsible for the education of the child.
54. Section 23(2) of the Education Scotland Act 1980 will also be amended to reflect the fact that the cost of providing any mediation or dispute resolution services will not be recoverable from the home authority. The reason for this is that the parents or young person would request mediation or dispute resolution in relation to the provision provided by, or a decision of, the host authority.
Q6. Do you agree that in instances where a child or young person is attending a school outwith his/her home authority area, as a result of a placing request, responsibility for providing mediation and dispute resolution should rest with the host authority?
Q7. In the situation described in Q6 above, do you agree that a contribution in respect of a host authority's provision to parents or young people of mediation or dispute resolution services should not be recoverable from the home authority under section 23(2) of the Education Scotland Act 1980?
Home & Host Authority: Reviewing a CSP
55. Section 10(1) of the ASL Act states that every education authority must keep under consideration the adequacy of any CSP prepared (and not discontinued) for any children or young persons belonging to their area. Therefore, under the current legislation, where a child or young person has been granted an out of authority placing request and has a CSP, the home authority would be responsible for reviewing the CSP, even though at that stage, the home authority would have no responsibility for that child's school education.
56. When reviewing the CSP, the home authority could decide to discontinue the CSP because the child no longer satisfied the criteria for a CSP.
57. Issue: A decision to discontinue a CSP is subject to appeal to an ASNTS. However, the ASL Act stipulates that it is the authority with responsibility for the child's education that would be the subject of any such appeal to an ASNTS. Therefore, it would appear that the parent would have no recourse to an ASNTS with regard to the home authority's decision on any matter relating to the review of the CSP as they would not be responsible for the child's school education.
58. Action: Amend the legislation to provide that, following the granting of an out of area placing request, the host authority assumes responsibility for the child's education, including duties in relation to reviewing the CSP, and that such a review should be conducted immediately by the host authority. The host authority will therefore assume all responsibility for the child's education and its CSP decisions, failures etc can be referred to an ASNTS. It is intended that this transfer of responsibility will take place at the time the child starts at the school in the host authority.
Q8. Do you think that the CSP process would be streamlined by amending the legislation to provide that, following the acceptance of an out of area placing request for a child/young person who has a CSP, the host authority assumes responsibility for reviewing the CSP, and that such a review should be conducted immediately?
Q9. Do you agree that the best time for the transfer of education authority responsibility to take place is at the time the child starts at the new school?
CSP Timescales - References to an ASNTS
59. Where a parent or young person requests the education authority to establish whether a CSP is required, the code of practice states that the authority should notify the person making the request of its decision as quickly as possible but certainly no later than 4 weeks from when the request was received.
60. Where an education authority has issued its proposal to establish whether a CSP is required, the code of practice states that it is expected that an education authority will have reached a decision and notified the parent or young person no later than 4 weeks after informing the parent or young person of the proposal, unless it would be impracticable to do so.
61. Issue: The ASL Act does not currently allow for:
- Cases to be sent to an ASNTS where the parent or young person requests the authority to establish whether a CSP is required and the education authority fails to acknowledge his/her request.
- Cases to be sent to an ASNTS where the education authority has issued a proposal to establish whether a CSP is required but has not taken a decision either way.
62. Action: Amend the Act to allow the situations described in paragraph 61 above to be referred to an ASNTS: where the education authority, having received a request to establish whether a CSP is required, has failed to respond to the parent's or young person's request; and where the education authority, having indicated their intention to do so, have failed to establish whether a CSP is required.
Q10. Should the ASL Act legislation be amended to allow references to the ASNTS regarding the following education authority failures?
- A parent or young person requests the education authority to establish whether a CSP is required and the education authority simply fails to acknowledge his/her request.
- The education authority has issued its proposal to establish whether a child or young person requires, or would require, a CSP but fails to decide either way.
63. A reference can be made to an ASNTS where it has been determined that a child or young person requires a CSP but the education authority has failed to prepare one within the appropriate timescales.
64. Issue: Experience has shown that these references have not, so far, been opposed or subject to any dispute whatsoever on the facts. It may therefore be inappropriate that they follow the same procedure as other types of reference where careful fact finding may be necessary. It is in the interests of parties that a decision is made quickly to ensure that the local authority does not wait until just before the notified date of a hearing to indicate that its opposition has been withdrawn incurring wasteful expenses in the interim.
65. Action: To expedite references - introduce a documents only ASNTS procedure for references in which authorities fail to meet statutory timescales.
Q11. Should a new ASNTS document based process be introduced to expedite those references in which an education authority has failed to meet a relevant timescales?
ASNTS - reviewing decisions
66. It is intend that an ASNTS should be given the power to review its decisions, and revoke and vary its orders and awards, in such circumstances as may be determined in accordance with the regulations. It is considered appropriate for provision to be made for an ASNTS which made a particular decision to consider whether or not it should be reviewed. It is also considered that review may be appropriate (a) on account of an error, (b) in the event of either party being unable to be present or represented at the hearing, (c) new evidence becoming available or (d) if otherwise the interests of justice require.
67. Issue: The ASL Act does not currently allow for an ASNTS to review its decisions.
68. Action: Amend the legislation to allow an ASNTS to review its decisions
Q12. Are you content for an ASNTS to be given the power to review its decisions?
Enforcement of a restricted reporting order and an award of expenses
69. Paragraphs 11(2)(n) and 11(2)(s) of Schedule 1 respectively enable rules of procedure providing for an ASNTS to impose reporting restrictions in relation to all or part of ASNTS proceedings and to make an award of expenses. Rules 35 of the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 ('the rules') makes provision for restricted reporting orders limiting or prohibiting the publishing of any specified matter including the identity of a child or other person. Rule 39 provides that, while an ASNTS shall not normally make an order as to expenses, it may do so in certain circumstances including where either party has acted frivolously or vexatiously or wholly unreasonable. However, there are no provisions for enforcement in either of these situations.
70. Issue: There would appear to be a gap in the legislation in that there is no corresponding provision in relation to the enforcement of a restricted reporting order or an award of expenses.
71. Action: Amend the legislation to:
- introduce a criminal offence punishable by a fine not exceeding level 5 on the standard scale (currently £5,000) for anyone in breach of a restricted reporting order
- enable enforcement of an award of expenses as if it were an extract registered decree arbitral bearing a warrant for execution issued by a sheriff court i.e. treated as if it were a warrant issued by a sheriff.
Q13. Do you agree that the legislation should be amended to:
- introduce a criminal offence punishable by a fine for anyone in breach of a restricted reporting order under Rule 35 of the Rules?
- enable enforcement of an award of expenses under Rule 39 of the Rules as if it were an extract registered decree arbitral bearing a warrant for execution issued by a sheriff court?
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