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").
Resolving disagreements through the school and local authority
2. Under the Scottish Schools (Parental Involvement) Act 2006 all education authorities are required to have a strategy setting out their policies for parental involvement. They should consider how that strategy links with policies relating to meeting children's and young people's additional support needs. 62 They must have a complaints procedure in place to deal with complaints relating to how the education authority carry out their functions under the 2006 Act. As the guidance to the 2006 Act makes clear it is expected that most complaints will be handled at a local level without recourse to formal procedures. The same position holds for disagreements about how the education authority are discharging their functions under the Act, as amended. 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 in-house procedures in place for resolving disagreements under the Act and with named contacts at each stage. The diagram following paragraph 54 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.
s15(1) 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 independent 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, education authority officials and others involved to communicate directly with one another. The overriding principle is that the disputing parties come to a shared agreement themselves on how to resolve their disagreement.
7. Mediation can be used at any time in the life of a disagreement between an education 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 it can prevent the escalation of disagreements.
8. Mediation may not be appropriate in all cases. For example, mediation is voluntary and the parents or young person may not wish to engage in it. 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. The education authority should it make it clear to parents and young people 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 and their ability to do this is not affected by whether or not they have engaged in mediation.
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.
s15(2) 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 contract with a mediator or a mediation provider using a service level agreement or to employ a freelance mediator on a case-by-case basis. When giving thought to engaging an independent mediation service provider, relevant information and guidance is available from the Scottish Mediation Network. 63
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 such as are in accordance with the Additional Support Needs ( ASN) Scottish mediation service providers quality standards, which are available from the Scottish Mediation Network. 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. This applies to, for example, parents who are educating their child at home or who have placed their child in an independent school. 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 8 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 independent school itself over the provision to meet additional support needs.
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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 school 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.
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 64 . 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 65 .
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 an alleged failure to provide or make arrangements for the provision of the additional support identified in the co-ordinated support plan.
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 education authority have 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 (for example, such as an education authority's overall policy for allocating support for learning staff to schools) 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 dispute resolution
28. All requests for dispute resolution by parents or young people are to be made to the Scottish Ministers. An advocate, supporter or member of a voluntary organisation may help the parent or young person to complete the application. Within 5 working days of receipt of the referral, Scottish Ministers will refer the application to the relevant education authority for consideration. Within a period of 10 working days 66 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. 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. There is a statutory 60 day timescale for carrying out the process of dispute resolution, as in paragraph 32 below..
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 and the applicant 67 . 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 or young person'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. Where recommendations are not accepted parents, or the young person, may refer the matter to the Scottish Ministers under section 70 of
the 1980 Education Act if they believe that the education authority have failed to carry out a statutory duty imposed on them by education legislation (see paragraph 53 below).
32. The process of dispute resolution must not normally take more than 60 working days from the time an education authority have confirmed acceptance of an application to the parent receiving the independent adjudicator's report and the education authority's decision. A working day means any day which is not a Saturday, Sunday, a day from 27 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 party's case and their comments on the other party's proposals to resolve the areas of disagreement.
Processing the application for dispute resolution
33. The Scottish Ministers will keep a record of all applications for dispute resolution and will contact an education 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, it is not intended 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, in their view, the application is competent and the authority, therefore, is in breach of the statutory 10 working day timescale, or the application is, in the education authority's view, not competent and the authority have written to the parent to advise them of this.
Mr and Mrs Smith had been in a long running and acrimonious dispute with their education authority on the education of their son, Mark, aged 13 years. As a result of the suggestion of an education officer, Mr and Mrs Smith made an application for dispute resolution. The education officer explained to the parents how the process of dispute resolution worked and helped them to express their concerns in terms of the Dispute Resolution Regulations. The parents, in their application, specified that, in their view, the education authority were failing "to provide, or make arrangements for the provision of, the additional support" required by Mark.
In order to present their arguments and evidence to the independent adjudicator, each of the parties had to clarify their views of Mark's additional support needs and how well they were being met. Each, also, had to consider how they thought the dispute should be resolved. Mark gave his own views through an intermediary. While he reported enjoying practical subjects and debating in school, he covered up his difficulties in comprehension, writing and spelling by misbehaving and sometimes truanting.
In reviewing the evidence, Marion, the independent adjudicator, established that, while both parties agreed that Mark had a form of dyslexia, they did not agree on the nature and impact of his learning difficulties. There was no detailed up-to-date assessment evidence specifying the precise nature of Mark's learning difficulties, and the targets set in his personal learning plan were not sufficiently comprehensive or precise. Marion noted that Mark was anxious about the way in which the dispute was drawing attention to him.
In Marion's report, she reviewed the cases presented. Her recommendations as to how the dispute should be resolved included that:
The education authority accepted the recommendations and appointed John, an educational psychologist who had not previously been involved in the dispute, to co-ordinate the implementation of the recommendations. Through John's intervention Mr and Mrs Smith and staff in the school began to work together to Mark's benefit.
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
- appeals concerning refusals of placing requests (only in relation to special schools and/or where co-ordinated support plans are involved)
- 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 national and local government. 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 facilitate an appropriate opportunity for parties to be heard on the issues where no agreement has been reached
- to try to ensure that the only hearings which proceed are those where parties are otherwise unable to agree a solution to the matter in dispute
- 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.
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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/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 (in relation to special schools and/or where co-ordinated support plans are involved) or school to post-school transitions. The President may comment on the implementation of decisions and on this power in the Annual Report presented to the Scottish Ministers.
s27(9)(10) and (11)
39. The Act also provides the President with the power to refer the matter to the Scottish Ministers where the President 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 education authority have 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, regarding:
- 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 his/her 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 32 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 36.
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 make 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 such as, for example, that which accompanies a co-ordinated support plan. The education authority should also make it clear to parents that they may bring a supporter or advocate to the Tribunal hearing as well as to 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 37-39).
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 68 . The code of practice does not address these aspects.
Tribunals and dispute resolution
48. The Act and Regulations relating to dispute resolution broadly cover matters which are outside the Tribunal's remit. These are principally cases in which the child or young person 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.
49. However, 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 or young person'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 unless otherwise agreed. However, the outcome of previous dispute resolution may be relevant to the Tribunal and 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. Discussions held as part of mediation should be treated in confidence unless otherwise agreed. This means they are not to be disclosed by education authorities 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 Additional Support Needs Tribunals for Scotland (Appointment of President, Conveners and Members and Disqualification) Regulations 2005. 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. The President's Annual Report to the Scottish Ministers provides information about the performance of the Tribunal during that particular year.
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
54. Education authorities should record the number of cases referred to mediation, dispute resolution and the Tribunal. They should note their outcomes for monitoring purposes. Further information is available in the Scottish Executive procedural guidance on provision for resolving disputes.
FRAMEWORK FOR RESOLVING DISAGREEMENTS