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The Education (Additional Support for Learning) (Scotland) Acts 2004 & 2009: Consultation on Changes to the Secondary Legislation and Supporting Children's Learning Code of Practice

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Consultation Paper No 3

EDUCATION (ADDITIONAL SUPPORT FOR LEARNING) (SCOTLAND) ACT 2009

The Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005

CONSULTATION PAPER NO 3.

1. INTRODUCTION AND OVERVIEW

The Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act) places duties on education authorities to make adequate and efficient provision for the additional support needs of every child and young person for whose school education they are responsible and who requires additional support for learning. Education authorities must identify, support and review the needs of all children with additional support needs.

Dispute resolution is the process for a formal review of an individual case by an independent third party, external to the local authority, who considers the disagreement, forms their own view, and makes a written report with recommendations to the education authority on how they think the dispute should be resolved.

The Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005 detail the matters that can be referred to dispute resolution and the dispute resolution process and time limits.

2. LEGISLATIVE FRAMEWORK

The 2004 Act

Section 16 of the 2004 Act enables the Scottish Ministers, by regulations, to require education authorities to put in place arrangements to resolve disputes between the authority and any parents or young people in the local authority area. These arrangements must be free of charge. Regulations may prescribe which disputes relating to particular functions of the authority under the Act will be subject to dispute resolution. Parents, and young people, will not be compelled to use any dispute resolution procedure put in place, nor will their entitlement to make a referral to a Tribunal be affected.

The Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005 (the Regulations) set out the list of specified matters referred to in section 16 of the 2004 Act which are subject to dispute resolution procedures. The Regulations also detail the dispute resolution process and time limits.

Currently, under section 8 the 2004 Act, a parent or young person can only request a specific assessment when an authority is proposing to establish whether a child or young person has additional support needs or requires a co-ordinated support plan, or when the authority propose to review an existing co-ordinated support plan.

The 2009 Act

The 2009 Act inserts new section 8A into the 2004 Act to extend the rights of parents and young people to enable them to request a specific assessment, such as an educational, psychological or medical assessment, at any time.

The 2009 Act amends section 16 of the 2004 Act by removing the requirement for the child or young person to belong to the authority's area and provides that where a parent or young person makes an application for dispute resolution, the Scottish Ministers may by regulation, provide that the application must be made to Scottish Ministers.

The 2009 Act also amends section 18 of the 2004 Act by extending the circumstances in which parents and young persons can make references to the Tribunal to include 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.

4. PROPOSED CHANGES TO THE REGULATIONS

Refusing an assessment request

Paragraph 1 of the specified matters schedule in the Regulations should be amended to extend the rights of parents and young people to enable them to refer to dispute resolution an authority's refusal of a request for a specific assessment under new section 8A, such as an educational, psychological or medical assessment, at any time.

Sending referrals to the Scottish Ministers

Currently, applications for dispute resolution are made by the parent or young person directly to the authority. However, thoughts are sought on whether the Regulations should be amended to provide that applications should be sent to Scottish Ministers as opposed to the education authority.

Should this amendment to the Regulations be supported, it is proposed that Scottish Ministers would, within 5 working days of receipt of the referral, refer the application to the relevant local authority for consideration under regulation 4 which makes provision about the preliminary arrangements to be made by the authority on receipt of an application.

It is important to note that while this change will add 5 days to the process at the very outset, it will not change the statutory 60 day dispute resolution timescale as this timescale only commences once an authority have confirmed acceptance of an application

Regulation 4 stipulates that within a period of 10 working days from the date of receipt of such an application, the authority must either accept the application and write to Scottish Ministers for nomination by them of an individual to act as an independent adjudicator or send the applicant notice of their decision not to proceed with the application and their reasons for that decision.

It is recognised that the Scottish Ministers could nominate an independent adjudicator as soon as they receive the application from the parent or young person. However, due to the fact that Ministers will be unable to determine whether the application is competent and that some cases may be resolved as soon as the authority receives the application for dispute resolution, it is considered more appropriate for the Scottish Ministers to nominate an independent adjudicator once the referral has been deemed competent by the authority. As previously stated, this approach will not impact upon the duration of the statutory dispute resolution timescale (60 days). The authority must ask the Scottish Ministers to nominate an Independent Adjudicator at the same time as sending the applicant confirmation of acceptance. By the time the authority are in a position to send the application, their response and any further observations to the Independent Adjudicator (within 25 working days), the Scottish Ministers will already have notified the authority of the nominated Independent Adjudicator's details.

Failure to provide the additional support identified in a co-ordinated support plan

Currently, a failure by the education authority to provide, or make arrangements for the provision of, the additional support contained in a co-ordinated support plan is referable to dispute resolution and/or Scottish Ministers in the form of a section 70 complaint. However, the 2009 Act also enables these cases to be referred to the Tribunal.

It is recognised that this could overcomplicate the dispute resolution process by providing a dual appeal route for the same matter. Therefore, it is proposed to amend paragraph 2 of the specified matters Schedule to the Regulations to exclude referrals to dispute resolution where the education authority have failed to provide, or make arrangements for the provision of, the additional support contained in a co-ordinated support plan.

5. MONITORING APPLICATIONS FOR DISPUTE RESOLUTION

It is envisaged that the Scottish Ministers will keep a record of all applications for dispute resolution and contact an authority directly if, after 10 working days, the Scottish Ministers have not received a request from the authority for the nomination of an independent adjudicator. However, we do not intend to amend the Regulations to reflect these simple steps in the process. It is considered proportionate for the Scottish Ministers to contact the authority to establish whether the application is competent and the authority is in breach of the statutory 10 working day timescale, or the application is not competent and the authority has written to the parent to advise them of this . This monitoring process will be outlined in the revised supporting children's learning code of practice.

6. CHANGES TO THE FEE FOR INDEPENDENT ADJUDICATION

Regulation 6 requires the education authority to appoint the individuals nominated by the Scottish Ministers from the panel established under regulation 5 and to pay such fee, expenses or charge as may be directed by the Scottish Ministers or, where there is no such direction, as the authority considers appropriate.

In November 2005, the Scottish Ministers issued a direction (Circular 6/2005) in line with the provisions of the Regulations, and under the powers conferred on them by section 27 of the 2004 Act, setting the rate that authorities must pay for Independent Adjudication at £355 per case (excluding expenses for travel).

While the fee for Independent Adjudication has not increased since November 2005, on a comparative scale, the Scottish Government Public Sector Pay Policy Guidance for senior appointments, fees for Chairs & Members have increased as follows:

2006-07 - 1.75%

2007-08 - 1.40%

2008-09 - 2.00%

2009-10 - 1.50%

We therefore proposed to bring the fee for Independent Adjudication in line with the overall increase in fees for Chairs & Members. This will increase the rate that authorities must pay for Independent Adjudication to £380 per case (excluding expenses for travel and subsistence).

Q1. Do you agree that parents and young people should be able to refer an authority's refusal of a request for a specific assessment under new section 8A to dispute resolution?

Q2. If you disagree with Q1, please provide your reasons.

Q3. Are you content with the proposal that parents and young people should send referrals for dispute resolution directly to Scottish Ministers?

Q4. If you are not content with the proposal outlined in Q3, please state your reasons why.

Q5. If you do agree with the proposal in Q3, do you think that the proposed time limit of 5 working days for Scottish Ministers to send the referral to the authority is a realistic timescale?

Q6. If your answer to Q5 is no, what timescale do you think would be more appropriate?

Q7. Are you content with the proposed monitoring approach for dispute resolution applications?

Q8. If you are not content with Q7, please state your reasons why.

Q9. Do you agree that where the authority have failed to provide the support contained in a co-ordinated support plan the only route of appeal should be to the Tribunal?

Q10. If you do not agree with Q9, please provide your reasons

Q11. Should the rate that authorities pay for Independent Adjudication be increased to £380 per case (excluding expenses for travel and subsistence)?

Q12. If your answer to Q11 is no, what rate do you think is appropriate?

Q13. Do you have any other comments which are relevant to the dispute resolution procedure?