Chapter 8 Resolving Disagreements
1. Use of the good practice guidance in Chapter 7 can help to avoid disagreements or prevent them from escalating into more serious disputes. This chapter considers provisions under the Act for resolving disputes where these do arise. The Act makes provision both for mediation services and arrangements for external independent adjudication (dispute resolution) to resolve disputes. It also provides parents and young people with rights to refer particular matters to the Additional Support Needs Tribunals for Scotland ("the Tribunal").
2. It is expected that most disagreements will be resolved at school and education authority level with only a small number going to formal review procedures. Education authorities and schools should have clear staged disagreement resolution procedures in place with named contacts at each stage. The diagram following paragraph 53 outlines how the Act's provisions sit within an overall framework for avoiding and resolving disagreements.
3. The following paragraphs consider each of the three approaches: mediation, dispute resolution and the Tribunal. Previous chapters of the code have discussed these approaches in some detail and reference will be made to these earlier discussions, where appropriate, to avoid repetition here. This purpose of this chapter is to draw together the various approaches for resolving disagreements and illustrate their similarities, differences and links.
Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services for the purposes of seeking to avoid or resolve disagreements between the authority and-
(a) the parents of any children,
(b) any young persons, or
(c) in relation to any young persons who lack capacity to express a view or make a decision for those purposes, their parents,
concerning the exercise by the authority of any of their functions under this Act in relation to the children or young persons.
Aims and benefits
4. The Act, as amended, requires every education authority to have mediation services in place for resolving disagreements relating to matters concerning the exercise of any of the authority's functions under the Act in relation to children and young people. Those accessing the mediation services may belong to the area of the authority but they need not. Under the circumstances described in paragraph 15 below parents and young people are able to access the mediation services of an education authority other than the one to which they belong.
5. Mediation provides an option for avoiding, resolving or narrowing the area of disagreement between the authority and parents or young people. It allows disputing parties to seek to resolve their differences with the assistance of a mediator acting as an impartial third party.
6. Mediation services can help families and authorities to build or rebuild a positive relationship, leading to co-operation in making arrangements for the child or young person. They can help avoid conflicts that arise out of misunderstandings or lack of shared information by helping parents, teachers, authority officials and others involved to communicate directly with one another. The overriding principle is that the disputing parties come to a shared agreement on how to resolve their disagreement themselves.
7. Mediation can be used at any time in the life of a disagreement between an authority and parents or a young person. The process can be used more than once as it can be useful for resolving parts of a disagreement, as well as the whole of a disagreement. It can improve strained relationships among individuals who have experienced conflict in the past and prevent the escalation of disagreements.
8. Mediation may not be appropriate in all cases. For example, the parents or young person may not wish to engage in mediation. In addition, the provision of mediation under the Act is not the appropriate route for parents who have disagreements with the school about issues other than additional support needs. In such situations parents should follow normal school and authority complaints procedures.
9. Parents and young people must be informed that taking a disagreement to mediation in no way affects their entitlement to refer any competent matter to other appropriate formal or statutory review routes. For example, the parents or young person may wish to make a reference to the Tribunal in respect of relevant matters concerning a co-ordinated support plan.
10. The education authority's mediation services must be available, free of charge, to parents or young people. If the young person lacks the capacity to express a view or make a decision, then parents can pursue mediation on behalf of the young person.
Mediation services are independent… if the person providing the services has no involvement in the exercise by or on behalf of the authority of their functions relating to education or any of their other functions (apart from this section).
11. The Act, as amended, requires education authorities to provide mediation services which are completely independent of the local authority. That is, the local authority cannot choose to offer as mediators local authority employees or anyone else involved in conducting any other work on behalf of the authority. It is most likely that the authority may choose to employ a freelance mediator on a case-by-case basis or to contract with a mediator or a mediation provider using a service level agreement. They may also choose to collaborate with another authority to provide mediation on a reciprocal basis. When giving thought to engaging an independent mediation service provider, further information and guidance is available for Scottish Mediation Network www.scottishmediation.org.uk
12. Objectivity and impartiality are key principles for whichever option is chosen. All parties concerned need to be satisfied that the mediator is truly independent. All parties should be assured that mediators are appropriately trained, engaged in continuing professional development and operate to recognised standards. Appropriate disclosure checks should be carried out on all mediators.
13. The Act gives parents and young people the right to have a supporter or advocate present at any discussions or meetings with the education authority. This should apply equally to mediation sessions although it is important that mediation remains as a joint problem-solving process rather than an adversarial forum. It is not envisaged that the parties would bring legal representation to mediation. All participants, including the child, need to feel confident that their views and concerns will receive equal respect. The purpose of mediation is to achieve a solution to a difference of views and it is not about apportioning blame.
14. Parents of children for whose school education an authority are not responsible have access to an education authority's mediation services. Young people have access in their own right. However, mediation is available only where the disagreement relates to the authority's exercise of their functions under the Act (see Chapter 4 paragraph 9 for an example). Parents would not be able to use the mediation services to resolve a disagreement which did not involve the education authority's functions under the Act, such as a disagreement with the school itself.
15. Following a successful out of area placing request, parents or a young person are able to access mediation from the host authority regarding that authority's functions under the Act. Also following the submission of an out of area placing request, a parent or young person is able to access mediation from the potential host authority regarding the placing request.
16. The Act requires education authorities to publish information on the independent mediation arrangements they have in place within their area. This information should be kept up to date and under review and be widely available for authority staff and parents and young people. There should also be administrative support for arranging mediation meetings at a neutral venue with all the relevant people. Arrangements should be made for recording outcomes and providing a copy of these to the parents or the young person.
17. The education authority should have clear procedures in place to evaluate and monitor arrangements for their mediation services. Further detail on the features of mediation services, performance issues and sources of information are referred to in Annex D and the resources section.
Mrs Campbell's son, Alex has had a succession of supply teachers this term and she is concerned that his work is suffering due to the lack of continuity. She spoke to the current supply teacher who was not able to reassure her. The school had already issued information on resolving disagreements to which she referred. Mrs Campbell met with the head teacher in the first instance who listened to her concerns. The head teacher provided Mrs Campbell with some examples of Alex's work which showed that he was making suitable progress with his learning. Mrs Campbell was happy with this outcome.
Mr & Mrs Jacks have a son Paul aged 14 who has been diagnosed with Asperger's Syndrome. The transition from his local mainstream primary school to secondary proved very difficult. Increasingly frustrated by what they saw as the school's inability to meet Paul's needs, his parents withdrew him from school and educated him themselves at home.
Although the home education programme was working out very well, his parents felt that Paul was socially isolated from his peers and would benefit from returning to school. Agreement with the home education authority over a suitable school proved difficult and over time the positions of both parties had become increasingly entrenched, with a lot of distrust and negative feelings building up. Both parties agreed to explore further discussions with the help of an independent mediator.
Following discussion, both parties agreed that Paul's home education programme would continue, and that an additional support needs teacher from Paul's local school with autism specific training would begin some outreach support work with a view to helping Paul work towards attending his local school. Initially this was on a part-time basis, until if, and when, Paul and his parents were comfortable with this step.
Lorna is 8 years old. She has significant physical disabilities and learning difficulties, and attends her local primary school with the support of an auxiliary. Her mother, Cathy, was generally pleased with the placement but became anxious about the increasing gap between Lorna's learning and that of her peers.
Cathy began speaking to the class teacher daily about Lorna's progress. The teacher found this difficult to manage. In an effort to support her staff, the head teacher asked Cathy to stop the daily meetings. Cathy took offence at this and complained about the head teacher's attitude to various people in the education authority including the Director of Education.
Both sides agreed to explore the issues in a mediation session. With help of the mediator they were able to reach an acceptable outcome. Cathy's need for communication about Lorna's progress would be met by the use of a daily home-school diary. The classroom auxiliary would take responsibility for this with guidance from the teacher. Cathy and the teacher would meet up once a month for one hour and if Cathy had any problems she wished to discuss she could telephone the head teacher. Everyone agreed that they would meet again to review these arrangements after 6 months.
Resolving disputes by independent adjudication
18. The Act, as amended, enables the Scottish Ministers to require education authorities to put in place procedures to resolve disputes which arise between the authority and any parents or young people regarding the authority's exercise of any of their functions under the Act, as prescribed in Regulations 18. The procedures must be free of charge. Parents, and young people, cannot be compelled to use any dispute resolution procedure put in place. Also the use of dispute resolution does not affect their entitlement to make a reference to the Tribunal, or any other statutory review system, where appropriate.
19. The Dispute Resolution Regulations prescribe which disputes relating to particular functions of the authority under the Act will be capable of reference to dispute resolution and timescales for the process.
20. In the context of the Act, the procedure for resolving disputes allows for a formal review of an individual case by an independent third party, external to the local authority, who considers the circumstances leading to the disagreement, and makes a report with recommendations for all parties.
What does it cover?
21. The service is for disagreements about the way the authority are exercising their functions under the Act, as prescribed in the Regulations, as these relate to the education of individual children or young people.
22. Disagreements may be about:
- whether or not the child or young person has additional support needs
- in the case of a child or young person with additional support needs, the accuracy of the description of these needs
- the refusal of the education authority to respond to a request from the parent or young person to establish whether a child or young person, for whose education they are responsible, has additional support needs
- the refusal of an education authority to respond to an assessment request from the parents or young person
- the person carrying out an assessment or examination or the method of carrying it out
- the failure of the authority to provide, or make arrangements for the provision of, the additional support required by the child or young person, whether educational provision or not
- the failure of the education authority to request help from an appropriate agency 19.
23. As with mediation services, under the Act, as amended, access to an education authority's dispute resolution arrangements are not restricted to parents of children or young people belonging to the area of the authority. In particular, following a successful out of area placing request, parents and a young person are able to access dispute resolution from the host authority in relation to the specified matters in the Regulations regarding the authority's exercise of their functions under the Act, as amended.
What does it not cover?
24. The Act, as amended, enables a reference to be made to the Tribunal where there is a failure to provide or make arrangements for the provision of the additional support identified in the co-ordinated support plan. However, it is also possible for a dispute about a failure to provide additional support set out in the co-ordinated support plan to go to dispute resolution. It is intended to consult on changing the Regulations on dispute resolution to prevent disputes about failures to provide additional support set out in the co-ordinated support plan going to dispute resolution. If this change is accepted then there would only be one formal route for considering such disputes, namely, the Tribunal (see paragraphs 34-52 below).
25. Dispute resolution also does not cover disagreements relating to the refusal of a placing request made under Schedule 2 of the Act. Such a disagreement can be taken to the education authority appeals committee and subsequently to a sheriff. Or, a reference could be made to the Tribunal if a co-ordinated support plan is involved, or where an authority has refused a placing request to a special school in Scotland (or to a similar type of school in England, Wales or Northern Ireland - see Chapter 4) or where the dispute concerns failures of the education authority regarding the provision made under the Act for a child or young person to transfer from school to post-school provision. Education authority appeal committees will continue to deal with issues concerning exclusions.
26. In addition, dispute resolution is not for issues relating to broader strategy or policy matters or about allegations of misconduct or, for example, school closures. It is also not intended to be for personal disputes between parents and any member of staff at the school or education authority. All such matters should continue to follow established local authority complaint procedures.
Information on dispute resolution
27. The Act, as amended, requires education authorities to publish information on their dispute resolution procedures and keep that information up to date and under review. This information should be readily available to parents and young people.
Process of independent adjudication
28. Currently, applications for dispute resolution are made by the parent or young person directly to the authority. However, the Act, as amended, enables Regulations to be made requiring all requests for dispute resolution by parents or young people to be made to the Scottish Ministers. It is intended to consult on whether the current Regulations should be amended to require references for dispute resolution to be made to the Scottish Ministers instead of the education authority. If the Regulations are supported then it is proposed that within 5 working days of receipt of the referral, Scottish Ministers will refer the application to the relevant education authority for consideration. Where the request relates to a matter covered by the Dispute Resolution Regulations, the Scottish Ministers will nominate an external adjudicator to consider the case and will advise the education authority and parent or young person accordingly. The statutory 60 day timescale for carrying out the process of dispute resolution will not change but the precise arrangements and accompanying timescales will be the subject of consultation.
29. The education authority should review the case with a view to establishing that all appropriate steps have been taken to resolve the disagreement. They should prepare all appropriate papers for forwarding to the adjudicator. In addition, they should inform parents about how they can present their case to the adjudicator and what support is available to help them do this.
30. The role of the external independent adjudicator is to review, objectively and independently, all the information relating to the case, and make recommendations for both parties on the best way forward to ensure that the child's learning is supported with reference to the terms of the Act. The adjudication process is a paper exercise. However, the independent adjudicator will be able to ask for further information or clarification if required. Exceptionally, the adjudicator may arrange to meet the parties, for example, if the adjudicator is concerned that one party, or both parties, may have been disadvantaged by the way the case has been presented.
31. The expectation is that both parties will accept the outcome of the process. Education authorities do not have a legal duty to implement the recommendations of the adjudicator. However, it is expected that generally the authority will do so provided these recommendations are not incompatible with their statutory or other duties or would unduly prejudice the discharge by the education authority of any of its functions. Recommendations, therefore, should be accepted in all but exceptional circumstances. The education authority should give reasons for their decision to accept or reject the adjudicator's recommendations.
32. The process of independent adjudication should not normally take more than 60 working days from the time an authority have confirmed acceptance of an application to the parent receiving the independent adjudicator's report and the authority's decision. A working day means any day which is not a Saturday, Sunday, a day from 27 th December to 31 December inclusive, a day in July, or a day specified as a bank holiday in Scotland. The independent adjudicator will encourage the parties to meet the timescales in the Regulations for the exchange of information about each parties' case and their comments on the other party's proposals to resolve the areas of disagreement. As noted in paragraph 28 above it is intended to consult on amending the Regulations and any implications for the timings of the various stages of dispute resolution within the overall 60 day time limit.
33. Education authorities should record the number of cases referred to mediation or dispute resolution and their outcomes for monitoring purposes. Further information is available in the Scottish Executive procedural guidance on provision for resolving disputes.
Additional Support Needs Tribunals
34. The Act, as amended, enables the Tribunal to hear references from parents and young people on matters relating to:
- co-ordinated support plans
- placing requests
- school to post-school transitions.
35. A reference can only be made in relation to a child or young person for whom an education authority are responsible. So, for example, parents who have placed their child in an independent school, and where an education authority have no responsibilities for the child's education, are not able to make a reference to a Tribunal.
36. The Tribunal's statutory functions, decisions and dealings with its users and the public are independent of government, national and local. The aims of the Tribunal are:
- to provide independent and expert adjudication, operating impartially, efficiently and effectively, in accordance with the Act
- to be user-friendly through informal and flexible proceedings and being accessible to users
- to discourage formal, litigious encounters between parents and education authorities by providing a forum for constructive dialogue
- to make decisions which, within the framework of the Act, reflect best practice in relation to providing for additional support needs.
37. In exercising its powers in relation to a reference made to it, the Tribunal must take account of the code of practice. When considering the facts of a case, the Tribunal will take account of the extent to which the education authority (and other bodies) have had regard to the code prior to the hearing. When determining the content of a decision, the Tribunal will be informed by the code. The Tribunal decision may require an education authority to take action within a timescale set by the Tribunal.
38. The Act, as amended, provides the President of the Tribunal with the power to monitor the implementation of Tribunal decisions. Following a decision of a Tribunal that requires an education authority to do anything, the President of the Tribunal may require the authority to provide him or her with information about the authority's implementation of the Tribunal decision. This includes information about any decisions relating to co-ordinated support plans, placing requests or school to post-school transitions.
s27(9) (10) and (11)
39. The Act also provides the President with the power to refer the matter to the Scottish Ministers where he or she is satisfied that the authority are not complying with the Tribunal decision. The Scottish Ministers, in turn, have the power to direct an education authority (or authorities) regarding the exercise of their functions under the Act. Authorities must comply with such a direction. For example, if an authority has failed to amend a co-ordinated support plan following the decision of a Tribunal then it can be directed to do so by the Scottish Ministers
Co-ordinated support plan
40. The Act and associated procedural rules make provision for parents and young people to make references to the Tribunal in the following circumstances. Any parent or young person, or where the young person lacks capacity, the parent, may refer to the Tribunal the following decisions or failures of an education authority including:
- a decision to prepare a co-ordinated support plan
- a decision not to prepare a co-ordinated support plan
- a decision to continue a co-ordinated support plan following a review
- a decision to discontinue a co-ordinated support plan following a review
- a failure to meet the timescales for preparing the co-ordinated support plan.
- a decision not to comply with a request to establish whether a child or young person has additional support needs requiring a co-ordinated support plan.
41. In addition, they may make a reference to the Tribunal, where a co-ordinated support plan exists, on:
- the information contained in the co-ordinated support plan by virtue of section 9(2)(a) of the Act
- the failure of the authority to review the co-ordinated support plan by the expiry date (ie 12 months from the date it was prepared) or within the timescale set by regulations
- the decision of the authority to refuse a request from a parent or young person to review the co-ordinated support plan
- the failure by the education authority to provide, or make arrangements for the provision of, the additional support contained in a co-ordinated support plan which is necessary for the child or young person to achieve their educational objectives
42. On the last point above, the Act, as amended, gives the Tribunal the power to require the education authority to rectify its failure to provide, or make arrangements for the provision of, the additional support contained in a co-ordinated support plan which is necessary for the child or young person to achieve their educational objectives. It also enables the Tribunal to specify a timescale within which such action must be taken.
43. The Act, as amended, also allows a reference to a Tribunal where there are certain procedural failures (described in paragraphs 30 and 31 of Chapter 5) of an authority:
- failure to respond to a request to establish whether a co-ordinated support is required
- where they have said they intend to establish that one is required but have failed to respond in the time specified in Regulations.
44. References to the Tribunal regarding placing requests are considered in detail in Chapter 4.
School to post-school transitions
45. The circumstances under which a reference can be made to the Tribunal concerning school to post-school transitions are considered in Chapter 6 paragraph 34.
Parental right to make a reference
46. The relevant education authority are responsible for informing parents of their right to make a reference to the Tribunal, whenever the authority makes a decision in relation to any of the matters listed above. Education authorities should explain this right to make a reference in any relevant documentation, e.g. accompanying a co-ordinated support plan. The education authority should also make clear to parents that they may bring a supporter or advocate to the Tribunal hearing as well as at other discussions with the authority (subject, to any restrictions in the Tribunal rules of procedure). They should also advise them of the requirements on the Scottish Ministers to provide a free advocacy service to support them at Tribunal proceedings ( Chapter 7 paragraphs 36-38).
47. The President of the Tribunal has produced detailed guidance for parents, education authorities and others on how to make a reference and on how the Tribunal operates. Details can be found on the Tribunal website 20. The code of practice does not address these aspects.
Tribunals and dispute resolution
48. The Act and Regulations provide for resolving disputes through external independent adjudication which broadly cover matters which are outside the Tribunal's remit. These are principally cases in which the child has additional support needs but does not require a co-ordinated support plan. Dispute resolution arrangements are not intended for matters which are within the jurisdiction of the Tribunal (although see paragraph 24 above).
49. The use of dispute resolution procedures does not in any way affect the parents' entitlement to take a matter to the Tribunal. Where a child's circumstances change such that they fall within the remit of the Tribunal, previous discussions held as part of the process of dispute resolution are to be treated in confidence by both sides unless otherwise agreed. However, the outcome of previous dispute resolution may be relevant to the Tribunal and, where both parties agree, may be brought to the attention of the Tribunal.
Tribunal and mediation
50. The use of mediation procedures does not in any way affect the parents' entitlement to take a matter to the Tribunal. Conversely, the making of a reference to the Tribunal does not in any way affect their entitlement to use mediation services. The education authority should make this clear to parents when the possibility of mediation is raised by parents or the authority.
51. The Tribunal may wish to ascertain whether the parents were aware of any mediation services available (for statistical reasons). However, discussions held as part of mediation are to be treated in confidence by both sides unless otherwise agreed. This means they are not to be disclosed by either side in the papers for or in the course of the Tribunal's proceedings.
Tribunal rules and regulations
52. The Act provides for the Tribunal to be governed by rules of procedure separate from the code of practice. The qualifications, training and experience required by the President, conveners or members of the Tribunal are set out in the Appointment of President, Conveners and Members and Disqualification Regulations. Procedural matters are detailed in the Tribunal rules of procedure. The President has powers under the Act to make directions about the practice and procedure to be followed by Tribunals in relation to any matter.
53. Application of good practice and the arrangements described above should be sufficient to resolve, or determine, almost all cases of disagreement between parents, young people and education authorities. Exceptionally, there may be a few cases where parents or young people will seek recourse elsewhere in certain circumstances. This includes the right to refer alleged failings to carry out a statutory education duty to Scottish Ministers under section 70 of the Education (Scotland) Act 1980. Section 70 gives a discretionary power for Scottish Ministers to intervene where they are satisfied that an education authority or others have failed to discharge any duty imposed on them by education legislation. In considering any complaint under section 70 Scottish Ministers will wish to consider whether other more local forms of resolving disagreement have been tried although the Ministers will not seek to intervene in relation to confidential discussions which take place in mediation or dispute resolution procedures under the Act or take account of such discussions in reaching any decision under section 70 of the 1980 Act except where all parties agree to this being made available to the Ministers.
Framework for Resolving Disagreements