Implementation of The Education (Additional Support for Learning) (Scotland) Act 2004: report to Parliament 2013

Relationships and resolving concerns

Rights under the Act

The Act makes provisions for the resolution of disputes between education authorities and the parents of children and young people concerning the exercise by education authorities of any of their functions under the Act.

Young People (aged 16 and over and still in school), the parents/carers of children and the parents/carer's of young people who do not have capacity to act on their own behalf have rights to access dispute resolution mechanisms under the legislation to resolve disputes.

Information for parents

Education authorities are required to publish and provide information on their policy and arrangements for additional support for learning and for the involvement of young people and parents.

Authorities must also publish information on the officers of the authority from whom information is required. Authorities must also provide a summary of this information from learning establishments, school handbooks and on school or authority websites.

The Scottish Government provides funding to Children in Scotland to provide the Enquire service. Enquire is the national advice and information service for additional support for learning.

The service is provided directly to parents through a telephone helpline and through online services and published advice and information. The service provides valuable information to parents on services, provision and their rights.

• Right to access Independent Mediation
• Right to make a referral to Independent Adjudication
• Right to access Advocacy services

Right to make a reference to the Tribunal in relation to:

• 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 plans following a review
• The length of time it is taking to decide whether a co-ordinated support plan is needed, to prepare the plan or review the plan. An appeal can be made if the education authority fails to review the co-ordinated support plan after 12 months
• A decision to refuse a parent's request to find out if a child needs a co-ordinated support plans, or a request to have an early review of the plan
• Some of the information in the co-ordinated support plan
• The failure to provide the additional support included in the plan
• A decision to refuse a placing request where a plan exists, or is required but not yet prepared, or if an appeal against a refusal of a placing request has not yet been considered
• Failures over post-school transition

Where there is no co-ordinated support plan the Tribunal will hear appeals on:

• The refusal of a placing request to a special school
• Failures over post-school transition duties.

Enquire

In 2012-13 Enquire received 1,060 enquiries relating to Additional Support for Learning from 851 people of which 79% identified themselves as parents or carers.

Enquiry topics included:

• Provision support for learning
• ASL Act
• Mediation
• Identification / Assessment of ASN
• Placing Request
• Choosing a school
• Co-ordinated support plan
• Individualised educational programme
• Transition
• School attendance

A user-friendly guide to navigating the dispute resolution mechanisms, which can be accessed under the Act and beyond, is available from Enquire: http://enquire.org.uk/20100622/wpcontent/uploads/2011/06/steps-to-resolving-disagreements.pdf

Mediation

Mediation services are provided by a small range of independent services across Scotland through contracts with Local Authorities.

Resolve: ASL Mediation service provided by Children in Scotland and Common Ground Mediation provide mediation services to 23 local authorities in Scotland. The function of Independent Mediation in the Act is to support the resolution of concerns or disagreements at as early a point as possible and to re-establish relationships and communication which may be threatened or broken between services and families to be restored if possible. In the 2012-13 period there were a total of 86 mediation related enquiries made by parents to these two services relating to a range of issues.

Independent Adjudication

Independent Adjudication supports the resolution of disagreements and concerns through a formal review of the case by someone who is independent of the education authority and the family and has expertise in dealing with children and young people with additional support needs. The adjudicator will consider the circumstances of the case and reach a decision, making recommendations to everyone involved. Although the decision is not legally binding there is an expectation that they will be accepted and followed. From November 2012 until November 2013 there have been 3 referrals to independent adjudication, all of these related to the provision of services.

Section 70 Complaints

In addition, interested parties including parents, carers and young people can make a complaint to Scottish Ministers under Section 70 of the Education (Scotland) Act 1980 where it is believed that there has been a failure to fulfil a statutory duty.

From November 2012 until November 2013 there has been 1 Section 70 complaint received by Scottish Ministers about additional support for learning.

The Additional Support Needs Tribunals for Scotland ( ASNTS)

The Additional Support Needs Tribunals for Scotland consider a range of references related to additional support for learning legislation. From 1 November 2012 - 30 November 2013 the Tribunal received 46 referrals. Due to early resolution work carried out by the Tribunal conveners and members, only 3 of the references were eventually considered at a hearing.

Following an extension to their remit in 2010, cases of alleged disability discrimination in schools. From April 2012 - March 2013 the Tribunal received 17 disability discrimination cases, a significant increase on the 6 received last year.

The President of the Tribunals, Dr Joe Morrow, produces an annual report which provides further details on the Tribunal system.

http://www.asntscotland.gov.uk/asnts/files/483488_v5_20130719%20-%20final.pdf

Provider of the National Advocacy Service 2014 - 2017

Following an independent application process carried out in November 2013, The Minister for Learning, Science and Scotland's Languages appointed Govan Law Centre and Kindred Advocacy to provide the independent advocacy and representation service to children and young people with additional support needs from 1 April 2014.

Independent Advocacy Service

Amendments made by the Education (Additional Support for Learning) (Scotland) Act 2009 placed a legal duty on the Scottish Government to provide free lay and legal advice to families and young people who appeal to the Additional Support Needs Tribunal against an education authority's decisions regarding the provision of educational support.

The contract to provide this service was awarded to a partnership comprising Barnardo's and the Scottish Child Law Centre. The partnership, called Take Note, commenced providing the service on 14 November 2010.

An "Advocacy Service" as defined in the Education (Additional Support for Learning) (Scotland) Act 2009 "means a service whereby another person conducts discussions with or makes representations to the Tribunal".

From November 2012 - November 2013 Take Note received 43 referrals of which 4 were referred to the Tribunal and 29 which were resolved prior to Tribunal proceedings due to Take Note's input. 1 case progressed to Tribunal without any support from Take Note with 9 of the referrals currently ongoing. These cases related to issues in transition, dispute of information in co-ordinated support plans and placing requests.

Strategic Partnership Funding for Community Organisations

On 21 May 2013 Minister for Children and Young People, Aileen Campbell, announced a £10 million funding boost to third sector organisations across Scotland to ensure better support services for families.

As part of this, the Scottish Government fund Partners in Advocacy to provide independent advocacy support in Dundee, Glasgow and Edinburgh to children with additional support needs.

Since May 2013 Partners in Advocacy have received 20 referrals, 13 of which were referred onto a more appropriate organisation. The remaining 7 were referred due to various issues involving school education. Partners in Advocacy will work closely with the families and schools to try to resolve these issues at as local a level as possible.

Overall Picture

There are noticeable differences apparent in the information relating to dispute resolution since the inaugural report to Parliament on additional support for learning in 2011. An increase in local level resolution is notable with enquiries to mediation services having increased. Complementing this trend, applications to both independent adjudication and section 70 have decreased. This attitude to attempting to resolve disputes at as local a level as possible is encouraging and is further embodied in the information relating to the national advocacy service for additional support for learning and the Additional Support Needs Tribunals for Scotland. Cases resolved prior to Tribunal proceedings have increased, implying a desire from both complainants and education authorities to resolve disputes prior to Tribunal proceedings. This approach results in the most appropriate cases only being heard by the Additional Support Needs Tribunals for Scotland, preventing unnecessary emotional distress and delay to the child or young person's learning.