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CHILDREN AND YOUNG PERSONS WITH SPECIAL EDUCATIONAL NEEDS

RESOLVING DISAGREEMENTS

Informal Resolution of Disputes

168. The process of assessment and recording includes many opportunities for parents and young persons to discuss their concerns with the education authority. Paragraphs 56-60, 65 and 66 describe arrangements that should help to avoid misunderstanding and ensure that parents' and, as appropriate, the young person's views and feelings can be taken fully into account when decisions are made. Part VII of the Record allows parents' and, as appropriate, the young person's views to be recorded formally and to be reconsidered at the next review of the Record.

169. Where, nevertheless, significant disagreements remain it is clearly desirable that they should be resolved informally and at local level where possible. In such cases the education authority should consider inviting the parents or, as appropriate, the young person to agree to involving an impartial third party, in whom all concerned have confidence, in further discussions aimed at finding a mutually acceptable solution.

170. Efforts to resolve disputes informally do not relieve education authorities of their duties to advise and remind parents and, as appropriate, young persons of their statutory rights of appeal against certain decisions about Records of Needs. However, there is no reason why discussions aimed at resolving a dispute should not continue after an appeal has been lodged.

Formal Appeals

171. Formal appeals are made by parents or, as appropriate, young persons to an Education Authority Appeal Committee, set up under section 28D of the 1980 Act. Parents and young persons have the rights of appeal (set out in 1980 Act) in the following circumstances:

(a) if they disagree with the education authority's decision not to open a Record of Needs or, following review, to discontinue a Record (section 63(l)(aa));
(b) if they disagree with the education authority's decision to open a Record of Needs, or, following review, to continue a Record (section 63(l)(a)). (This does not apply to young persons because their consent (or, as appropriate, that of their parents) is required before a Record may be opened or continued - sections 60(5) and 65C(3));
(c) if, upon the opening of the Record or following review, they disagree with the terms of the summary of the child's, or young person's, impairments in Part IIIB of the Record, or the terms of the statement of special educational needs arising from those impairments in Part IV (section 63(l)(b));
(d) if, following the opening of a Record or a review, they disagree with the nomination, in Part VI of the Record, of the school to be attended (NB- before such an appeal can be considered a valid placing request for an alternative school must first have been made.) (section 63(l)(c));
(e) where a -decision is made refusing a placing request in respect of a child or young person. (section 63(l)(d))

There is no statutory right of appeal to an Education Authority Appeal Committee against the contents of Part HIA (the assessment profile) or the contents of Part V (measures proposed by the education authority to meet the special educational needs of the child or young person) of a Record of Needs.

Time Limit on Appeal Against Refusal of a Placing Request

172. Appeals should be lodged with an Appeal Committee within 28 days of the receipt by the parent or, as appropriate, the young person of notification of the education authority's decision, but the authority has discretion to accept appeals submitted after that time. Appeals against nomination of a school in the Record, or the refusal of a placing request, may not be made if a similar appeal has already been made within the previous 12 months.

Appointment to Appeal Committees of Persons with Relevant Experience in Special Educational Needs

173. Membership of Appeal Committees is covered by Schedule Al to the 1980 Act. An education authority must appoint a pool of persons from whom membership of Appeal Committees on any particular occasion must be drawn. This larger pool must include persons who, in the opinion of the authority, have experience in education or are acquainted with the educational conditions in the area of the authority. It is recommended that in appointing the larger pool an education authority should aim to include one or more persons who have knowledge of, or expertise in, special educational needs. This will enable such a person to be included in the membership of a particular Appeal Committee which hears an appeal concerning a recorded child or young person.

Appeals Referred to the Secretary of State

174. Although all appeals by parents or young persons must, in the first instance, be lodged with an education authority Appeal Committee, section 64 of the 1980 Act provides for certain types of appeals to be referred by Appeal Committees for determination by the Secretary of State. These are appeals against an education authority's decision whether or not it should open or continue to keep open a Record of Needs and against the terms of Part IIIB (summary of impairments) and Part IV (statement of special educational needs arising from those impairments) of a Record. Where an Appeal Committee believes that, before considering an appeal concerning the nomination of a school in a Record of Needs, it needs first to know the Secretary of States views about an issue which if appealed against would have been referred for decision to him, namely, whether or not the child or young person should have a Record of Needs, or the terms of Part IIIB or Part IV of the Record, it must refer that issue to him for his consideration. The Appeal Committee must not then reach a decision on the appeal before it receives the Secretary of State's decision on the matter referred to him (section 64(9)).

175. In making reference to the Secretary of State for decision, the Appeal Committee should inform the parents and education authority of their intention to do so and should submit to the Secretary of State all papers relevant to the issues to be decided, including a copy of the Record of Needs itself and supporting papers.

The Secretary of State's Decision

176. The Secretary of State will confirm, refuse to confirm or may modify a decision of the education authority and he may direct the authority to open a Record, discontinue a Record or modify it. The 1980 Act (section 64(7)) requires the Secretary of State to obtain and take into consideration the views of the parent or young person who lodged the appeal. His decision will be notified concurrently to the Appeal Committee, the person who lodged the appeal, and the education authority. The decision of the Secretary of State is binding, and there is no further statutory right of appeal against it, for parents, for young persons, or for education authorities.

Appeals to the Sheriff

177. Appeals against nomination of a school in a Record of Needs or against refusal of a placing request for a recorded child or young person are not referred to the Secretary of State for decision. They fall to be decided by the Appeal Committee. Section 65 of the 1980 Act gives parents and, as appropriate, young persons who are dissatisfied with the decision of the Appeal Committee the right to appeal to the Sheriff against its decision. Appeal to the Sheriff must be made within 28 days of receipt by the parent or young person of the Committee's decision, though the Sheriff has some discretion to hear an appeal that is lodged late (section 28F(3) and (4)). The education authority, but not the Appeal Committee, may be party to the appeal.

178. The Sheriff may, in the same way as described in paragraph 174 in relation to an Appeal Committee, refer certain specified matters for the decision of the Secretary of State, unless the Appeal Committee has already done so, but unlike the Committee, he can do so only where a motion to that effect has been made by one of the parties to the appeal (section 65(3) and (5)).

Decisions of the Sheriff

179. In making a decision, the Sheriff may confirm an education authority's decision as to nomination of a school in a Record of Needs or refusing a placing request only if he is satisfied that one or more of the statutory grounds for refusal of the placing request exists and that in all the circumstances it is appropriate for him to confirm the decision. Otherwise he must refuse to confirm the decision and must then require the education-authority to place the child or young person in the school the parents or young person have sought and to amend any nomination of a school in the Record accordingly (section 65(6)).

180. Where the Sheriff refuses to confirm the authority's decision as to the nomination of a school or refusing a placing request and the school sought is an independent or grant-aided school, the Sheriff must require the education authority to meet the fees and other necessary costs of the child's or young person's attendance at the school at which he or she is to be placed (section 65(7)). The Sheriffs judgement is final and there is no further recourse to appeal. The Sheriff may make orders as to expenses (sections 28F(8) and (9) and 65(2)).

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