CONSULTATION ON DRAFT EDUCATION
(ADDITIONAL SUPPORT FOR LEARNING)
(SCOTLAND) BILL
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Draft Education (Additional Support for Learning) (Scotland) Bill
The Scottish Executive would welcome comments on this draft
legislation. All comments on the draft legislation will be considered carefully
and will assist the Scottish Executive in preparing the Bill for introduction
to the Scottish Parliament.
Comments should be sent by Friday 28 March 2003 to:
Elaine Lane
Additional Support for Learning Bill Team
Scottish Executive Education Department
Area 3B(N)
Victoria Quay
Edinburgh
EH6 6QQ
Telephone 0131 244 7139 or 1622
Email ASLBill@scotland.gsi.gov.uk
Please note that copies of responses received will, as is normal
practice, be made available to others, on request, unless respondents indicate
that all or part of their response is confidential. In the latter case, the
confidentiality of the response will be strictly respected.
This document is also available on the Scottish Executive website
at http://www.scotland.gov.uk.
If you require this document in an alternative form please
contact the Bill Team at the above address or by email or by telephone.
Education (Additional
Support for Learning) (Scotland) Bill (Consultation Draft) (pdf file 52k)
Consultation on draft Education (Additional Support for
Learning) (Scotland) Bill
Background
- The draft Bill arises from concerns expressed
by many people that the existing assessment and recording system for children
with special educational needs is outdated and overly bureaucratic. Comments
on the need to review the current system also came from the Riddell Advisory
Committee in a review of provision for children with severe low incidence
disabilities (1999); and from the Parliament’s Education, Culture and
Sport Committee in its Inquiry into Special Educational Needs (2001).
- When ‘Assessing Our Children’s Educational Needs: The Way Forward?’
was published in May 2001, the Scottish Executive began a review of the assessment
and recording system for children and young people with special educational
needs. The Scottish Executive received 148 written responses. The vast majority
of responses suggested that the Record of Needs procedure requires amendment
and improvement. The Scottish Executive’s response and outline proposals
for change were published in February 2002.
- Developing these proposals further has been informed by service users and
providers. There were 3 seminar events which were attended by over 300 delegates,
including parents, professionals and representatives from voluntary organisations.
In addition 4 focus groups were held and the Executive commissioned Children
in Scotland to carry out consultation with 6 groups of children and young
people. The Scottish Executive is grateful to Children in Scotland and to
all the parents, children, young people and professionals who contributed
to the process and who have helped inform development of this draft Bill.
- The following sections of this document explain what the draft Bill is
aiming to achieve. The draft Bill follows thereafter.
- However, legislation alone will not deliver all the changes required for
a new Additional Support Needs framework. That is why the Executive, in conjunction
with the Special Educational Needs Forum, a forum of professionals, parents
and officials, is also publishing the framework document Moving Forward!
Additional Support for Learning for meeting the needs of children who
require additional support for learning.
- There will also be a considerable need for guidance (some of which will
be statutory) and Regulations to support implementation of the new arrangements.
In addition, consideration must be given to the transitional arrangements
for those children and young people who will be moving from the current system
to the proposed system to ensure that their needs are still met.
- Please note that wherever we refer to parents, we mean this to include anyone
who has parental responsibility for a child, including carers/guardians, foster
parents and social work services. References to young persons mean those aged
16 and over who are still receiving school education. Parents and young persons
have the same rights in this draft Bill. Where the draft Bill refers to young
persons being ‘incapable’ this relates to the Adults with Incapacity
(Scotland) Act 2000.
Introduction
- The Scottish Executive recognises that at some time or other, many children
will experience greater difficulties in learning and progressing than their
peers, and this may be for a number of reasons. A child may have special educational
needs, may have a disability or may have other particular life or personal
circumstances which could give rise to barriers to learning. Services and
agencies need to take account of these if the child is to make the progress
expected of him/her.
- The aim of the draft Bill, and the new framework document, Moving Forward!
Additional Support for Learning, is to provide an overarching framework
that encompasses all children who may have a difficulty in accessing and benefiting
from learning, whatever the reason or cause may be for that difficulty. It
is not about labelling children or assuming that certain circumstances will
always give rise to difficulties in learning. Each child is an individual.
Some additional support needs will be temporary while others will present
long-term barriers to learning.
- These children already exist and are already being supported in their learning.
But we need to make sure we have systems in place that ensure no child falls
through the net and their learning needs are undiscovered, ignored or unmet
simply because the label does not suit.
- We want to encourage a more holistic system in education that identifies
the educational needs of all children whenever they occur, supports those
needs, and promotes a culture that welcomes diversity. It is about equality
of opportunity for all – and that starts with helping and supporting
children to make the most of the learning opportunities their school years
offer.
Additional Support Needs
- The draft Bill introduces a new duty on education authorities to identify
and address additional support needs of pupils and therefore goes much wider
than the current SEN framework. Additional support needs in this context means
needs for support that are additional to those which other children normally
receive, in order to help a child benefit from education and so make the educational
progress which is expected of him/her. It was made clear to us at the earlier
consultation seminars that the concept of additional support needs should
go much further than the definition that we originally proposed in the response
on Assessing Our Children’s Educational Needs: The Way Forward?,
and should include all types of support needs that all children may at some
time experience.
- Education authorities will not have to assess formally every child to establish
whether they have any additional support needs, but they will be expected
to take steps to ensure that the reasons for a child’s lack of progress
are identified and appropriate action is taken. That is not to say that formal
assessment of a child’s difficulties or disabilities is not important.
It is, but only as one means to help identify the support needs of that individual
child.
- The duty will apply to those children (or young persons) for whom education
authorities provide or are likely to provide, education, either directly or
indirectly. This means pupils at local authority schools and nurseries, independent
special schools where the education authority is meeting the fees, and independent
nurseries that are in partnership with the education authority, or places
other than schools where the authority is providing school education. Parents
will be able to formally request the education authority to establish whether
their child has additional support needs.
- For children not in the public sector system, legislation already provides
safeguards to ensure they are provided with suitable education appropriate
to their age, ability and aptitude, either by their parents at home or at
an independent school. However, to ensure that these children are not excluded
from all education authority services, the draft Bill introduces a power
for education authorities to assist in the identification and support of their
needs, where they come to their attention. This power also extends to those
under age 3 or not yet in nursery or school.
- We have also recognised that, in some cases, identifying and addressing
additional needs for learning will require input from other agencies. This
already happens but we want to make it more consistent and promote integrated
working in supporting the needs of children. There were many comments from
our earlier consultations on the difficulties encountered when services are
provided by different agencies and we want to reinforce the role other agencies
have in supporting children’s education.
- The draft Bill therefore introduces a duty on other agencies, particularly
health authorities and social work services, to help education authorities
in supporting the education of children with additional support needs when
requested to do so. It recognises the statutory or other obligations these
organisations have in relation to children. This new duty will support a comprehensive
approach to identifying and meeting all types of educational needs and promote
a more integrated, efficient and effective provision for children with additional
support needs.
Assessment and Intervention
- There should be a simple, transparent and systematic framework for the identification,
assessment and support of the learning needs of a wide range of pupils, arising
from factors relating to social, cognitive, linguistic, disability, family/care
circumstances. The framework needs to include diverse interventions to meet
all types of support needs and should accommodate rather than duplicate other
assessment and intervention systems (for example those for Looked After Children).
- Comments from the earlier consultation favoured uniform procedures across
Scotland. Although a single system throughout Scotland may be attractive,
realistically this would be difficult to achieve. There are differing local
arrangements and structures and progress on integrated working in children’s
services varies. What is important is that parents know and understand what
the process is for identifying their child’s additional support needs
and what services are available to address these needs. Parents need to be
given more information.
- The draft Bill therefore introduces a duty on education authorities to publish
local policies, arrangements and provision for children and young people with
additional support needs and explain parents’ role, responsibilities
and rights. This could be as part of other local authority publications on
services available to citizens in the area, or as part of Children’s
Services Plans or education Improvement Plans or Statements. It should cover,
at least, all education authority schools and early year settings (including
those in partnership with private sector). We will set a standard for minimum
information that education authorities should publish.
- To support a level of consistency across Scotland, guidance will be used
to promote good practice and will set minimum standards for identifying and
meeting the needs of pupils with additional support needs. An overall framework
for intervention will also be developed to replace EPSEN (the HMIE report
Effective Provision for Special Educational Needs) and the Level of
Needs Matrix and incorporate other intervention systems.
- The draft Bill removes the compulsory nature of educational, medical
and psychological observation and assessments as part of the consideration
by the education authority of a child’s needs. We want the process to
identify a child’s additional support needs (and for consideration for
a Co-ordinated Support Plan) to be as non-intrusive as possible, with other
agencies and disciplines only being involved where necessary. Careful consideration
should be given to the real need to conduct similar and often stressful and
disruptive assessments by different professionals and these should especially
not be repeated just because a child has moved between local authority areas
or into Scotland. The effect on the child, and the added value any such formal
assessments will contribute to the identification of a child’s needs,
must be considered first.
- Education authorities will be obliged to seek advice and information from
other agencies, where they think it necessary and appropriate, to assist with
identifying additional support needs. The advice and information could well
involve a formal assessment or examination, but alternatively could be a report
based on existing knowledge and records of the child, where these are known
to be accurate and still current.
- In addition to seeking advice from other professionals, education authorities
will also be obliged to take into account the views of the parents and the
child and any information they may provide, for example, a privately obtained
assessment report.
Parent and Family Involvement and Support
- Under existing legislation parents have a duty to promote their child’s
development, to provide suitable education for their child, whether through
the public system for education or otherwise, and to provide direction and
guidance. Where parents elect to have their child educated in the public system,
they therefore have an important role to play in supporting their child’s
education and can provide valuable help with homework, development of skills,
etc. Good relations therefore need to be fostered between parents and authorities
and schools so they can all work together for the best interests of the child.
- The draft Bill therefore encourages education authorities to involve parents
of children with additional support needs and to acknowledge the parents’
role in supporting their child’s education. This should not inhibit schools’
reasonable exercise of professional judgement. It does not mean that they
have to involve parents in every decision taken, nor do we want to
try to force parents to be actively and continuously involved in their child’s
school education.
- In order to be an effective partner in supporting their child’s education,
parents need to be fully aware of the process for identifying and providing
for children’s needs in education, understand the planning mechanisms
and be familiar with the support services available in the school. The draft
Bill provides a duty on education authorities to publish their policies, arrangements
and provision for pupils with additional support needs and this will include
how they intend to offer parents the opportunity to be involved. This information
will be available to all parents in the area regardless of where their child
is educated. It should also be available in alternative forms to meet any
specific needs of parents.
- To ensure parents do not have to chase round different agencies or professionals
to obtain information about their child’s additional support needs arrangements,
the draft Bill requires education authorities to provide parents of children
with additional support needs (and young persons with additional support needs)
with a named contact person. This contact person will act on behalf of the
education authority in liaising with parents regarding the Additional Support
Needs process and should be whoever is most suitable in the individual circumstances.
It could be a member of school staff or it could be an official with the authority.
- Their role will involve providing parents with advice on the system, keeping
parents up to date with what is happening with their child, ensuring that
meeting arrangements and contact with parents is sympathetic to their needs
and providing them with information about other agencies’ services, where
relevant. It will be the contact person who liaises with professionals within
the school or authority and in other agencies about the provision being made
for the child and, where there is a Co-ordinated Support Plan, leads the co-ordination
and implementation of the process.
- Separate from these arrangements, parents will be able to be accompanied
by a ‘supporter’, if they wish, in all meetings or contact with
the education authority (and the school). We are separating out the existing
dual role of the Named Person. Earlier consultation made it clear that many
parents would welcome being able to involve anyone they choose as a supporter
to accompany them to any meetings, advise them of procedures and options and
to offer practical and emotional support, as necessary. Parents will therefore
be able to use different supporters for different meetings making it more
flexible than the existing Named Person arrangements. This supporter could
be a friend or relative, someone from a voluntary organisation or another
parent with experience of the system. It will not be the responsibility of
the education authority to provide parents with supporters, though they may
wish to advise parents of possible sources.
- Throughout all the earlier consultation, the importance of involving children
themselves in decision-making processes has been emphasised. The point has
been made that a child’s age or ability to communicate should not be
seen as a barrier to participation. Existing legislation obliges both education
authorities and parents to take into account the views of children. We want
to therefore ensure that wherever a child is willing to express views and
be involved, they should be able and enabled to do so. Guidance will be used
to promote the principles of involving children and young persons with additional
support needs, whatever the complexity and from a young age, in decision making
processes about their education.
- Much of the criticism of current practice on children’s involvement,
stems from meetings not being receptive to their needs, their views not being
listened to and options not being explained. The child will therefore be able
to have a supporter to accompany them to meetings, act as their ‘voice’
where this is preferred, and explain the decision-making process to them.
- Children will be allowed to choose a supporter they feel most comfortable
with whether that is a teacher or other member of staff, or someone else known
to them such as their social worker, someone from a voluntary organisation,
a friend or a relation. Authorities and schools should attempt to accommodate
the child’s choice of supporter unless they consider the child’s
interests to be at risk and can substantiate this. There should be a sensible
balance between the freedom of the child to select their own supporter, and
the need to avoid a situation that would be contrary to the interests of the
child. It should not be the responsibility of the education authority to provide
a supporter, but where the child elects to have a member of staff as a supporter
then this should be facilitated.
- Parents or children may also need an interpreter or signer to help them
communicate and participate fully in meetings. Sometimes this person may also
act as a supporter if the parents, or child, have someone they know with them.
However, the education authority should always be able to provide signers
or interpreters for meetings where necessary and should not expect the parents’
or child’s supporter to fulfil this role.
Mediation
- Mediation is a process in which a mediator, who is an impartial third party,
facilitates the resolution of disputes by promoting the participants’
voluntary agreement to a solution. The mediator assists communication, encourages
understanding and focuses the participants on their individual and common
interests. He or she works with the participants to explore options, make
decisions and reach their own agreements. The mediator does not impose his
or her views on the participants or take sides, but facilitates discussion.
There is no obligation on participants to reach an agreement if one of the
parties does not want to.
- Our aim in introducing provision for mediation is to ease the resolution
of disputes, avoiding the breakdown of the relationship between parents and
the school or education authority. Mediation services will be equally available
to parents and to education authorities/schools. In other words, either party
will be able to request the service. Mediation is quite distinct from conciliation
or arbitration.
[In conciliation, the conciliator brings together the
parties in a dispute with the aim of moving forward to a settlement acceptable
to all sides. The conciliator will be knowledgeable about the subject under
dispute and will contribute his or her views in the progress towards a settlement.
Arbitration is where the parties who have a dispute present their case to
a neutral person (the arbiter), who decides the outcome of the dispute. The
arbiter’s decision may well be binding in law.]
- We do not intend to be prescriptive about what sort of mediation should
be offered. The duty on education authorities to provide a mediation service
offers flexibility for authorities to purchase the service from national or
UK organisations or local voluntary sector organisations or to provide the
service directly. It also offers flexibility to fit in with existing services
and allows possible future development of the service beyond education, for
example to include all children’s services, or even all local authority
services in an area. If the authority employs a mediator(s) it will be important
that mediators are autonomous from decision-making structures in the education
authority and are independent from those involved in the identification or
provision for those with additional support needs. We will set out minimum
standards that will also ensure consistency across Scotland.
- We expect informal approaches at school or education authority level always
to be tried first, with the authority or school aiming to resolve disputes
at an early stage through meetings or discussions with parents. If informal
efforts fail, formal mediation will be available, at the request of either
party. Participation will be voluntary for both parties and neither party
should be obliged in the mediation process to reach an agreement or accept
a compromise they are not happy with. The use of mediation will be encouraged
and we would expect parents to have tried this avenue before resorting to
any appeals process. However, whether parents have tried mediation, or not,
should not affect their right to appeal, nor should it influence the outcome
of that appeal.
- Education authorities will need to publicise mediation services so that
parents know what is available and when they could use the service. Mediation
will be for all parents within the area who have a dispute with the education
authority on any function by the authority under this draft Bill. This is
to ensure that those who access, for example, the educational psychological
service, but who are being home educated or are at an independent school,
will still be able to have any dispute with the education authority resolved
through mediation. The education authority will be under no obligation to
provide mediation service to an independent school or any other organisation
– it will be for parents (and young persons) only and should only be
about a dispute about their child. Where the child is at a pre-school centre
run in partnership with the authority, or is placed in an independent special
school, mediation would be available between the parents and the education
authority (though in practice it is likely that someone from the school would
attend).
Transitions and future needs
- It was clear from the earlier consultations that all transitions
need to be improved for those pupils with additional needs. By their nature,
having additional support needs can mean that transition is a particularly
difficult episode for children and young people. The key to successful transition,
whether it be from one level of school to another or across the same level,
is preparation and planning. As part of the general duty, therefore, to address
additional support needs, education authorities must also pay particular attention
to transitions, especially for those pupils where the additional support needs
are significant and they expect the additional support needs to continue.
By transitions, we expect this to mean from pre-school to primary, from primary
to secondary, from one school to another (for example when a family moves
house), or in or out of school from or to other arrangements, as well as leaving
school once aged 16 or over.
- Where such a transition can be foreseen, which will be in the vast majority
of cases, the education authority must consider the impact the change is likely
to have on the pupil and take appropriate action to lessen any potentially
adverse effects or reactions. This should form part of their on-going consideration
of additional support needs. They must also identify who will be responsible,
or play a key role, in supporting the pupil in his/her new environment, involve
them at an early stage in the planning and preparation work and ensure sufficient
information is provided to allow a continuum of support. Parents and the child
should be fully involved in the planning and preparation for the change.
- The transition from school education to adulthood is invariably the most
important of all the transitions.
- Earlier consultation showed that people do not want a formal, bureaucratic
process that is cumbersome to operate and has limited value once the pupil
leaves school education. Planning and preparing the pupil for post-school
life must be geared towards the young person’s individual needs and ambitions,
and like other transitions, should be aimed at ensuring a continuum of support
where it is required. Additional support needs, as defined, relate to barriers
to learning. Post-school, the needs of the young person could be much broader,
for example support to live independently from parents. These are outwith
the remit of any education authority, even to identify, and it also has to
be recognised that the formal responsibilities of the education authority
end the day the young person leaves school education. But this should not
mean that the young person falls into a void as support ends.
- The emphasis for the education authority needs to be on preparing
the pupil for ‘life after school’. To do this they need to discuss
with the pupil (and parents) what his/her ambitions are and what options there
are. A young person’s views should be given precedence over those of
the parents. The authority then needs to identify who will be involved in
supporting the young person towards realising their ambitions in the future,
where the additional support needs are such that the education authority considers
that the pupil is likely to have difficulties with the transition and will
need extra support beyond school. This may be an agency with statutory responsibility,
such as adult social work services or a Further Education College, or it could
be a key worker under specific support initiatives or a voluntary organisation
or even the parents or young person themselves.
- The education authority needs to work with this agency or person to identify
future needs for support (not just learning-related), based on the direction
the young person wants to take. This is broadly the same process as for all
other transitions, but the main difference is the change in the type of support
needs that there may be. The aim is still to ensure a continuum of support
for the young person to assist them to fulfil their potential.
- The education authority must, formally, notify relevant agencies, about
such a pupil undergoing a transition and do so a minimum of 6 months prior
to that transition (or as soon as possible once they are made aware of a transition
if this is within 6 months). Information provided would be with the permission
of the parents or young person.
- Guidance will detail the minimum requirements for preparing and planning
transitions, particularly for the leaving school transition. For example,
we would expect preparations for leaving school to begin soon after a pupil
reaches age 14.
- At this stage, we do not consider it necessary to have separate statutory
reports of the planning and preparation arrangements, or any formal record
of agreed future needs. In practice this will form part of other planning
mechanisms, such as Personal Learning Plans, Individualised Educational Programmes
and Co-ordinated Support Plans, and the planning mechanisms of future lead
agencies, such as FE Colleges.
- The planning and preparation for all transitions will equally apply to those
who are excluded or are "out of school" for any other reason, or who are receiving
education provision from the education authority but in a non-education authority
school.
Co-ordinated Support Plan (CSP)
- The draft Bill introduces a statutory Co-ordinated Support Plan (CSP). The
aim of the CSP is to plan long term and strategically for the achievement
of learning outcomes and to foster co-ordination across the range of services
(multi-agency and multi-disciplinary) required to support this. CSPs will
be for those children who face complex or multiple barriers
to learning which significantly, and adversely, affect (or could reasonably
be expected to affect) their educational development over the long term; and
who require frequent access to a diversity of services outwith services
from the school and education authority. These external services could be
therapy services provided by NHS or respite care from social work services,
for example.
- The basis for needing a CSP is that the child requires support from a range
of service providers and this needs to be co-ordinated. Where support is provided
entirely by the school (or from within the education authority) then this
should be easily managed or co-ordinated by the school and there should be
no need for any extra plan to facilitate this.
- As well as the duty on education authorities to identify additional support
needs, the draft Bill also introduces a duty to consider whether a child or
young person with additional support needs requires a CSP.
- Parents will have a right to request the education authority to consider
their child for a CSP. Independent schools and grant-aided schools will also
be able to make such a request (except for any pupil who attends the school
under arrangements made by an education authority). This will allow them to
seek help from the education authority where they perhaps feel the needs of
a pupil are moving beyond what they can provide for. The education authority
will be able to refuse a request if they consider it to be unreasonable. They
would have to have grounds for doing so and would need to provide these to
the parent or school making the request.
- Others will be able to draw to the attention of the education authority
the need for a child to be considered, for example, head teachers or other
school staff in education authority schools, health professionals, social
workers. It will only be a child or young person who is educated within the
public sector who will be eligible to have a CSP opened, in other words those
who are being provided with school education either directly or indirectly
by an education authority. The education authority in other circumstances
will be able to offer advice.
- The education authority will need to inform the child’s parents (and
school) of their intention to consider a child for a CSP and will need to
carry out the appraisal within a set time period. The authority will then
need to inform the parents (and school) of the outcome of the appraisal and
whether a CSP is appropriate or not for the child’s circumstances.
- If the answer is yes, then the education authority will arrange for a CSP
to be drawn up, again within a set time period. This should only be done for
those pupils who are in receipt (or are likely to be in receipt in the near
future) of education provision from the education authority either directly
or indirectly. By this we mean all pupils at local authority schools, early
years settings and special schools, pupils placed in independent schools by
the authority and those being educated away from school by the authority (for
example, in hospital, at home, on gypsy or traveller sites). Drawing up the
CSP will involve the school, other agencies and also the parents and child
or young person.
- For those pupils placed at independent schools by their parents, or who
are being educated at home by their parents, then the education authority
is not required to open a CSP for the child even if the outcome of
the appraisal is affirmative. However, the education authority will be expected
to provide information and advice to the parents about their child’s
additional support needs. In opting out of public provision for the education
of their child, the responsibility rests with the parents to ensure that the
child is provided with education appropriate to their ‘age, ability and
aptitude’ (section 30 of the Education (Scotland) Act 1980).
- We consider that it would not be appropriate for an education authority
to be held responsible for a CSP where they play no part in providing for
the child’s education (either directly or indirectly). We have also concluded
that current legislative provision is sufficient to ensure that parents act
on the findings of the education authority and that the authority has power
to take action if they do not. The provision in this draft Bill will not prevent
informal (non-statutory) CSPs, or other planning mechanisms, being operated
for these children or young people if the education authority is willing,
based on the power to assist in addressing the additional support needs of
children brought to their attention. This will also apply to those under age
3 where provision of such assistance will be encouraged.
- Details of the format of the CSP will be set out in Regulations. It is expected
to contain biographical information about the child, name the people involved
in the CSP (various professions and others (and their agency), parents, child),
a named contact person responsible for co-ordinating the CSP, parents’
views and child’s views, details of the authority's conclusions regarding
the additional support needs, the learning outcomes (both short term and long
term) and the services to be provided, the nominated school and the proposed
date of next review.
- We will produce guidance which will outline how the CSP will build on other
educational plans already in place as well as linking with plans in health
and social work services, if applicable. The CSP will detail the long and
short term learning outcomes for the child or young person. Long term target
outcomes are expected to be for a minimum of 12 months and ideally for 2 to
3 years (or longer) where practicable and realistic. In practice, the CSP
will include information that would otherwise be found in an Individualised
Educational Programme and Personal Learning Plan. The aim is to have a streamlined
system that avoids duplication or repetition of basic information about the
child or young person.
- Most importantly, the CSP will be a ‘working’ document that records
target outcomes, provision of support and facilitates practice. Parents or
the young person (and the child if appropriate) will receive a copy of the
CSP (and subsequent copies each time it is amended or updated). All those
involved in providing the necessary support to the child and monitoring their
progress will also be provided with the information they require from the
plan.
- Once the CSP has been finalised, after discussions with the parents or young
person, the child, appropriate school staff and those from other agencies,
then the education authority will be responsible for implementing the Plan.
The education authority will also have to ensure that the CSP is maintained
for as long as it is necessary and that the content is up to date and relevant.
To achieve this, the short term targets of the CSP and the provision needed
should be updated as required throughout the year. To facilitate this, the
CSP will have an annex (Progress Report), the content of which cannot be appealed.
This will record any minor changes in circumstances or diagnosis, progress
towards the agreed short term outcomes and any new outcomes set or changes
to the provision. It should be referred to in conjunction with the main body
of the CSP. All members of the team (professionals, parents, child/young person)
should add to the annex as appropriate and have an amended version for reference.
- The CSP will be reviewed at least annually. The frequency of reviews more
often than annually will depend on the child’s individual support needs
and progress towards planned outcomes. The review will ensure that the information
contained in the CSP about the child’s or young person’s additional
support needs is still relevant and that the educational outcomes and provision
being specified are still appropriate. Reference should be made to the information
in the Progress Report which will have built throughout the year and should
therefore provide the basis for discussion at the review.
- The review will include a fundamental consideration of the child’s
or young person’s circumstances (for example a change in diagnosis or
becoming a Looked After Child), the long and short term outcomes and the setting
of new ones, the support required in light of these, as well as consideration
of the parents’ and child’s or young person’s views.
- The time taken to conduct the review and to amend the CSP will be set. The
existing CSP will stand during the review period and must continue to be implemented
accordingly. The education authority must send a copy of the revised CSP to
the parents or young person and again provide appropriate information to those
involved in providing support and monitoring progress of the child or young
person.
- The education authority or parents or young person will be able to request
a review sooner than annually when there has been a significant change in
circumstances including progress towards the learning outcomes. If the education
authority is unwilling to review then they should inform the parents (or young
person) of this giving their reasons. The parents (or young person) will then
have recourse to mediation and ultimately the new Tribunal. If parents or
the young person disagree to a review, then the authority will have no power
to force them (or the child) to participate, though this will not prevent
the review going ahead without them. The parents or young person will still
have recourse to mediation and appeal if they are not content with any aspect
of the resulting revised CSP.
- There are also key transition points at which special attention will be
needed. Transitions between schools should be planned and prepared for well
in advance, as should the transition to leaving school. The development outcomes
and provision in a CSP must take account of this.
- The draft Bill provides that all parts of the CSP, including provision,
will be eligible for appeal to a new Tribunal, as will decisions to draw up
or not to draw up a CSP, to discontinue it or not to review it. Parents will
also be able to appeal to the Tribunal if there is undue delay in drawing
up or reviewing a CSP.
- If as a result of a review, the education authority decides that the child
or young person no longer meets the criteria for a CSP, the parents or young
person should be notified in writing of this decision and advised of their
appeal rights. If there is no objection to this decision then the CSP will
be discontinued and preserved for a suitable length of time. Education authorities
should discontinue the CSP if directed to do so by the Tribunal. It should
also be discontinued once the young person is no longer receiving school education.
Appeals and the Tribunal
- The draft Bill provides for new, independent, expert Tribunals to be established.
At present the new Tribunal is referred to as the Additional Support Needs
Tribunal. The new Tribunal will fit in with the standard procedures for Tribunals,
as set out by the Council on Tribunals (who will monitor the work of the new
Tribunal) and will be headed by a President. The President will constitute
Tribunals as required and hearings will be expected to be held in locations
across Scotland.
- The provisions in the draft Bill cover the Tribunal’s constitution,
membership and power to impose decisions, together with powers for Scottish
Ministers to make Regulations to cover Tribunal practice and procedures.
- Each Tribunal will consist of three members: the Chair will be legally qualified
and the other two members will have knowledge or experience of working with
children with additional support needs. There may be value in the Tribunal
having access to specialist advice, depending on the nature or complexity
of the additional needs of the child or young person.
- There will be a panel of members from which the members of a Tribunal will
be drawn. Members will be appointed by Scottish Ministers for a period of
up to 5 years. The normal procedures for public appointments will be followed.
The legal member will be the chair at every hearing. Members will be expected
to have to divulge their interests (for example having worked for a local
authority) and will not be expected to be involved in a hearing of a case
where they have, or have had, an interest (for example, they know the family).
- Tribunal members will receive allowances for preparing for and attending
hearings and will be expected to participate in appropriate training and to
be objective in making their decisions.
- The draft Bill sets out the types of appeal that can be taken to the Tribunal.
Parents (or young persons) will be able to appeal against an education authority’s
decision on whether or not to prepare or review or discontinue a Co-ordinated
Support Plan for their child and against the Co-ordinated Support Plan’s
contents. This includes the educational outcomes which have been set for the
child and the provision (including the nominated school) proposed to meet
these outcomes. There will be no right of appeal against the contents of any
annexes to the CSP.
- A hearing will be attended by the education authority and by the parents
or young person. The child will also be able to attend the hearing if they
wish to do so, although it may not be appropriate for them to be in the hearing
room for the entire duration of the hearing. If the child, young person or
their parents have communication difficulties or require an interpreter, provision
should be made by the Tribunal as necessary to support them at the hearing.
- The Tribunal will be expected to have regard to all relevant education legislation,
for example sections 2 and 15 of the Standards in Scotland’s Schools,
etc. Act 2000. Although the interests of the child will be the primary concern,
the Tribunal will be expected to take account of the implications of any order
it makes for setting precedents and for public resources (and consequently
provision for other children). This means that the Tribunal should never make
a decision which would not be in the interests of the child.
- The Tribunal will be able to compel witnesses to attend to give evidence
or to produce any document. The Tribunal will be able to order the education
authority to open (prepare and maintain), discontinue, amend the contents
or review a CSP. Provision will also be required in Regulations for enforcement
of orders made by the Tribunal within specified timescales.
- The Tribunal will only have jurisdiction over education authorities. Where
any order of the Tribunal relates to provision of services or support from
another agency, then such an agency will have to consider its duties under
this draft Bill to help the education authority when requested to do so.
- Appeals against the decisions of the Tribunal will be to the Court of Session
but on a point of law only. Legal aid will be available to children and their
parents (if they qualify for it) for appeals to the Court of Session on the
same basis as for other appeals in civil proceedings.
- It is expected that the Tribunal will operate in a ‘user friendly’
manner and will aim to be less intimidating for parents and children than
a more traditional court setting. Tribunal members will be expected to use
clear, plain English. Under such a system, legal representation (for either
party) will not be encouraged. Although parents or young persons will be able
to have legal representation if they wish, they will not be entitled to legal
aid for this purpose (although they could clearly still get legal aid to consult
a solicitor in advance if they were eligible for this). Parents and young
persons will however be entitled to bring a representative to the hearing
as a supporter.
- Tribunal hearings are normally held in public, but rules of procedure will
make provision for hearings to be held in private and we would expect this
to be frequent practice since proceedings will relate to children. The President
will publish an Annual Report and this is expected to contain a variety of
data about appeals: what was being appealed, what the main difficulty in learning
was and whether each appeal was successful. The Report is also expected to
include a breakdown of appeal numbers by local authority, or groups of authorities
if small numbers mean confidentiality may be breached. This should protect
individuals from being identified, but will allow interested parties to see
what the most common areas of appeal were and how successful certain types
of appeal were.
Placing Requests
- The draft Bill extends to all parents of children with additional support
needs and to young people with additional support needs the right to make
placing requests to independent special schools. At present, only parents
of children with a Record of Needs can request a place at such a school. (The
definition of a special school, in the Education (Scotland) Act 1980, will
need to be amended to remove the reference to Records of Need.)
- The education authority will have to comply with a placing request to an
independent special school unless the child or young person does not have
the appropriate additional support needs for that school or the education
authority can make provision for those support needs in a school under its
own management or by other arrangements (taking account of legislation on
mainstreaming). Appeals against the decision of the education authority on
a placing request will continue to be to the Education Authority Appeals Committee
in the first instance, and then to Sheriff Court, unless the child or young
person has a Co-ordinated Support Plan.
- Where a child has a Co-ordinated Support Plan, education authorities will
have to consider the parents’ (or young person’s) views on their
preferred school as part of the process for drawing up or reviewing the Plan.
If, after discussion, the school nominated in the Plan by the education authority
is not the preferred school, the parents (or young person) will be able to
appeal to the Tribunal. This appeal would be on the contents of the Plan.
Appeals regarding the decision of the education authority on the nominated
school in the CSP will not be able to go to the Education Authority Appeals
Committee. For those in the process of obtaining a CSP or appealing to get
a CSP, provision needs to be developed. We need to avoid overlaps of the two
appeal routes.
Transitional Provisions
- Provisions in the draft Bill for arrangements on the transfer from the current
system to the new Additional Support Needs framework are being developed.
It is expected that those children or young people who currently have a Record
of Needs will be considered under the new framework whenever their Record
comes up for review. Consideration will need to be given to the most appropriate
planning arrangements for the individual child. It could be a Co-ordinated
Support Plan is required or that an Individualised Educational Programme or
even a Personal Learning Plan is more appropriate. Whatever planning arrangements
are thought appropriate, the child’s or young person’s support needs
should still be identified and addressed. In this way, the current provision
they receive to support their learning should remain, regardless of what planning
tool replaces their Record, assuming their needs remain the same.
- The new Tribunal would be set up as soon as is practical after the proposed
Bill has completed the whole Parliamentary process. It is expected that appeals
which are ongoing at that time, will be completed under present arrangements
and will not transfer to the Tribunal. However, no new Records of Needs will
be opened once the Co-ordinated Support Plan has started to be phased in.
Appeals to the Tribunal will not be allowed to be retrospective. They will
only be about CSPs.
Scottish Executive Education Department
January 2003
Education (Additional Support for Learning)
(Scotland) Bill (Consultation Draft) (pdf file 52k)
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