Supporting Children's Learning - Code of Practice: statutory guidance - fourth edition

7. Resolving disagreements

What this chapter covers

1. Using good practice when working with families and children, as outlined in chapter 2 of this guidance, can help prevent disagreements or stop them from escalating into formal disputes.

2. When all other routes have been exhausted, this chapter provides a summary of how the three formal options for resolving disagreements under the 2004 Act work and how they differ. These are:

• Mediation^[117]
• Dispute resolution (independent adjudication)^[118]
• First-tier tribunal for Scotland (Additional Support Needs jurisdiction)^[119]

Early resolution

3. Under the Scottish Schools (Parental Involvement) Act 2006, education authorities must have a strategy for involving parents and a complaints process. This should link with their approach to supporting children and young people with additional support needs.

4. Most complaints and disagreements should be resolved locally, without the need for formal processes. Schools and authorities should have clear in-house procedures for resolving concerns, with named contacts at each stage.

Supporters and advocacy

5. Supporters and advocates can play a key role in helping a parent, eligible child, or young person express their views and ensure these are clearly understood and taken into account. This support is especially valuable when someone feels less confident or unable to represent themselves fully in discussions with the education authority.

6. Under the 2004 Act^[120], parents, eligible children, and young people have the right to bring:

• A supporter (e.g., a friend, family member, or voluntary sector worker) to help them express their views.
• An advocate who can speak on their behalf.

7. Education authorities should inform families of this right and explain how to access these services.

8. An education authority must allow a supporter or advocate unless it believes the request is unreasonable. This might apply, for example, if:

• The advocate or supporter is unable to represent the person appropriately.
• There is a conflict of interest.
• In such cases, the authority must explain its reasons clearly.

9. A supporter can be:

• A family member, friend, befriender, or volunteer.
• A professional known to the family (if there is no conflict of interest).

10. A supporter can help by:

• Preparing the parent or young person for the meeting.
• Taking notes so they can concentrate on the discussion.
• Prompting questions or clarifying points during the meeting.

11. An advocate may:

• Speak on behalf of the parent, young person, or eligible child in meetings or written communications.
• Be someone the individual trusts and appoints, including a previous supporter, someone with relevant knowledge of education or additional support needs, a voluntary organisation, even if not a formal advocacy group, or a trained advocate from a formal advocacy service.

12. The main role of an advocate is to:

• Represent the individual’s views.
• Speak on their behalf during discussions or meetings with the education authority.

13. It is important to note that education authorities do not have a duty to fund or provide an advocate or supporter. However, they should inform families of available services and how to access them.

Advocacy and the Tribunal

14. The 2004 Act requires the Scottish Ministers to provide a free advocacy service to support parents and young people during Tribunal proceedings^[121]. This service:

• Is available when someone is considering making a reference to the Tribunal.
• Supports individuals in preparing their application and having discussions with the education authority.
• Helps during the Tribunal hearing itself.

15. When an education authority becomes aware that someone may take a case to the Tribunal, they should:

• Inform the parent, young person, or eligible child about the free advocacy service.
• Include this information in their public information about additional support needs.

16. Information about to access this service is also available from:

• The Tribunal secretariat^[122].
• The Scottish Advice Service for Additional Support for Learning – Enquire^[123].

Advocacy for eligible children

17. Eligible children (those aged 12+ with capacity) have equal rights to advocacy and legal representation in Tribunal cases^[124].

18. To avoid any conflict of interest, these services are provided by separate organisations from those that support parents and young people.

19. Eligible children can also request independent advice and information about their rights and support options from Enquire.

Mediation

20. Mediation is a voluntary, confidential process where an independent mediator helps families and education authorities resolve disagreements relating to the functions of the authority under the 2004 Act.

21. Mediation is an effective, child-focused, legally recognised means of resolving disagreements in additional support for learning. Education authorities should proactively promote and facilitate mediation to ensure that children and young people receive the support they need in a collaborative and constructive manner.

22. Mediation offers a chance to resolve or narrow disagreements between families and the authority. It helps rebuild positive relationships and improves communication with the goal being for both parties to reach a mutually agreed solution.

23. Mediation’s aim is collaborative problem-solving and should not become an adversarial process.

Mediation benefits

• Builds mutual understanding and cooperation by creating a safe space for everyone to be heard.
• Prevents conflict from escalating by resolving issues early and constructively.
• Reduces misunderstandings and misinformation through open communication and clarity.
• Encourages respectful, solution-focused dialogue that supports ongoing relationships.
• Empowers families and professionals to work together and find shared solutions that put the child or young person’s needs at the centre.
• Saves time and stress by offering a flexible, informal alternative to formal complaints or legal processes.

24. Mediation can take place at any stage of a disagreement and may be used more than once if needed.

When mediation may not be suitable

25. Mediation is voluntary; parents or young people can choose not to use it.

26. The provision under the 2004 Act does not apply to general complaints unrelated to additional support for learning.

27. It is not suitable for disagreements with independent schools (unless it relates to the education authority's responsibilities under the 2004 Act).

Who can access mediation

28. Parents, including parents of children not in local authority schools (e.g., home-educated or in independent schools) who can still access mediation if the issue relates to the education authority’s functions under the 2004 Act.

29. Young people can access mediation independently.

30. In certain circumstances, the service is available even if the person accessing it does not live in that authority’s area. After a successful out-of-area placing request, parents or young people can use the host authority’s mediation service. Mediation can also be used before a decision is made on a placing request.

31. Eligible children cannot request mediation directly, but their views must still be taken into account.

Independent services

32. Under section 15 of the 2004 Act, all education authorities must provide access to independent mediation services, free of charge, for parents and young people. If a young person lacks capacity to make decisions for themselves, parents can act on their behalf.

33. Mediators must be completely independent of the local authority. They cannot be employees or contractors of the authority involved in other work.

• Authorities typically engage services through contracts or service level agreements.
• Refer to the Scottish Mediation Network^[125] for support in selecting mediation providers.
• Mediators must be trained, undergo professional development, and meet quality standards (e.g., Scottish Mediation Practice Standards).
• All mediators must have the appropriate disclosure checks in place.

Information and monitoring

34. Education authorities must publish clear information about their mediation services and make it widely available to families, professionals, and staff.

35. They must also provide support for organising neutral venues, recording outcomes, and sharing them with the parent or young person.

36. It is important that education authorities have procedures in place to monitor and evaluate their mediation services to ensure they remain effective, fair and responsive to the needs of children, young people, and their families.

37. It should be clear that using mediation does not affect parents and young people’s rights linked to other appropriate formal routes. Parents and young people still retain their right to use dispute resolution or go to the Tribunal (for relevant matters), whether or not they’ve participated in mediation.

Dispute resolution

38. Under the 2004 Act, the Scottish Ministers require all education authorities to provide dispute resolution procedures, free of charge. These procedures help resolve disagreements between the education authority, and parents, eligible children, or young people regarding how the authority carries out specific functions.

39. Dispute resolution under the 2004 Act refers to what is commonly known as independent adjudication.

40. Dispute resolution involves an independent third party, known as an independent adjudicator, reviewing the facts of a disagreement and making recommendations to both sides.

41. Use of dispute resolution is voluntary and choosing it does not affect a person's right to make a reference to the Additional Support Needs Tribunal or use another statutory complaint or appeal route.

42. The Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005^[126] set out the functions of the education authority that can be addressed through dispute resolution and the timelines for the process.

What types of disagreements can be considered (specified matters^[127])

43. Disagreements must relate to the education of an individual child or young person and may be about:

• Whether a child or young person has additional support needs.
• Disagreement about the description of their needs.
• Refusal of the education authority to:
  • Consider if a child has additional support needs.
  • Carry out an assessment.
• Disputes about:
  • The person or method used to carry out an assessment.
  • A failure to provide, or make arrangements for the provision of, the additional support required (whether relating to education or not).
  • A failure to seek help from an appropriate agency.

What is not covered

44. Dispute resolution does not cover:

• Disagreements that can be referred to the Tribunal, such as:
• Failing to provide support outlined in a co-ordinated support plan.
• Refusing a placing request involving a special school.
• Transition from school to post-school provision.
• Refusals of mainstream school placing requests – these are handled by:
• The education authority appeal committee, and subsequently
• the Sheriff court.
• Strategic or policy issues, such as staffing policies or school closures.
• Personal disputes between families and staff.

45. These issues should follow the education authority’s complaints procedures.

Who can access dispute resolution

46. Parents, eligible children, and young people.

47. This is not restricted to those living in the area if the disagreement involves the authority’s functions under the 2004 Act. For example, after a successful out-of-area placing request, the host authority is responsible for providing dispute resolution.

How to access dispute resolution

48. Requests must be made to the Scottish Ministers.

49. An advocate, supporter, or voluntary organisation can help complete the application.

50. Within 5 working days, the Scottish Ministers will refer the request to the relevant education authority.

51. The authority has 10 working days^[128] to:

• Accept the application and request an independent adjudicator from Ministers,
• or refuse and explain their reasons to the applicant.

52. If accepted, the Ministers will appoint an independent adjudicator and notify all parties.

53. If no response is received from the education authority within 10 working days, Ministers will follow up to establish:

• whether the application, in the education authority’s view is competent and the authority is in breach of the statutory timescale or
• the application is not competent, in the education authority’s view and the authority have written to the applicant to advise them of their decision.

54. Education authorities must inform the applicant of:

• How to present their case.
• What support is available.
• Their final decision and next steps.

The process

55. The independent adjudicator:

• Will conduct an independent, paper-based review.
• May request more information or, in rare cases, meet the parties (if for example they are concerned that one, or both parties, may have been disadvantaged by the way the case has been presented).
• Will issue a report with recommendations.

56. Dispute resolution should take no more than 60 working days from when the application is accepted to when the final report is issued and a decision is shared.

57. The adjudicator encourages both sides to meet deadlines for submitting and responding to information.

58. Following the report, there is an expectation that education authorities will accept and implement the recommendations in all but exceptional circumstances. Although, they are not legally obliged to do so it is expected that they will unless the recommendations are incompatible with their statutory duties.

59. If an authority rejects the recommendations, they must provide the reasons.

60. If parents, young people, or eligible children believe a duty has not been fulfilled, they may refer the matter to Scottish Ministers under section 70 of the Education (Scotland) Act 1980.

Information and monitoring

61. Information on the process should be readily available to parents, young people and eligible children.

62. The Scottish Ministers keep a record of all applications for dispute resolution under the 2004 Act.

Health and Education Chamber (First-tier Tribunal for Scotland)

63. The Additional Support Needs jurisdiction of the Health and Education Chamber of the First-tier Tribunal for Scotland (the Tribunal)^[129] hears references (appeals) against decisions of education authorities regarding the provision of educational support under the 2004 Act.

64. The Equality Act 2010 provides the right to make a claim (appeal) to the Tribunal in respect of disability discrimination relating to pupils in school education.

65. The Tribunal operates under the Tribunals (Scotland) Act 2014^[130] and separate Rules of Procedure. The qualifications for Tribunal members are set out in the Scottish Tribunals (Eligibility for Appointment) Regulations 2015^[131], as amended by subsequent regulations in 2017, 2018 and 2021.

Types of references

66. Section 18 of the 2004 Act sets out the types of references that may be made. These include:

• co-ordinated support plans related matters,
• refusals of placing requests to special schools (or where a CSP is involved),
• school to post school transitions,
• disputes about a child’s capacity or wellbeing (where there's disagreement with the education authority's assessment).

67. Co-ordinated support plans related matters that may be referred include:

• The decision to prepare or not to prepare a CSP,
• the decision to continue or discontinue a CSP after a review,
• a failure to meet statutory timescales for preparing or reviewing a CSP,
• a refusal to consider a request to assess whether a CSP is needed,
• disagreement with the content of the CSP,
• a failure to review the CSP by its due date (12 months after it was prepared),
• a refusal to review the CSP on request,
• a failure to provide the support detailed in the CSP,
• no response to a request to determine if a CSP is needed,
• missing statutory deadlines for responding to such a request.

68. Specific matters relating to co-ordinated support plans are also addressed in Chapter 4.

69. Tribunal references related to placing requests (e.g. for special schools or when CSPs are involved) and schools to post schools transitions have been covered in chapters 5 and 6.

Who can make a reference

70. Parents and young people (16+).

71. Children aged between 12 and 15 years who have capacity to make a reference (and where their wellbeing will not be adversely affected) can also make two types of references:

• a reference in relation to a co-ordinated support plan (CSP),
• a reference appealing against the education authority’s assessment of the child’s capacity or wellbeing.

72. A reference to the Tribunal can only be made if the education authority is responsible for the child’s or young person’s education. If a child is placed in an independent school by their parents and the local authority has no responsibilities, a Tribunal reference cannot be made.

Judicial independence

73. The Tribunal is independent of both local and national government. This helps protect individual rights, uphold the rule of law, and maintain public confidence in the legal system.

74. The Tribunal aims to:

• Provide expert and impartial decision-making.
• Be user-friendly, accessible, and offer flexible proceedings.
• Allow each party a fair chance to present their views.
• Hear only cases where a solution hasn’t been reached.
• Make decisions that reflect best practice in meeting additional support needs.

75. When hearing a case, the Tribunal must consider the statutory Code of Practice. It will look at whether the education authority (and other agencies) followed the code and take it into account when deciding what action should be taken and by when.

76. If the Tribunal orders an education authority to take action, the Chamber President of the Tribunal can:

• Request updates on how the decision is being implemented.
• Comment on how well decisions are followed in their Annual Report presented to the Scottish Ministers.
• Refer failures of education authorities to comply with the decision to Scottish Ministers, who can issue a legal direction (e.g., requiring a CSP to be amended).

Information and monitoring

77. Education authorities must:

• Make information on the process and the right to make a Tribunal reference readily available to parents, young people and eligible children.
• Include this in relevant documents (like CSP letters).
• Explain that supporters and advocates can attend Tribunal hearings and inform them about the free advocacy service provided by the Scottish Ministers (refer to the “Supporters and Advocacy” section earlier in this chapter).
• Keep records of cases using mediation, dispute resolution applications, Tribunal references, outcomes of these.

78. Detailed guidance on how to make a reference for families and professionals is available on the Tribunal website^[132].

Tribunal, mediation and dispute resolution

79. Parents and young people can access mediation before, during, or after a Tribunal process^[133].

80. Mediation is confidential, and discussions cannot be used in Tribunal hearings unless everyone involved agrees to.

81. Dispute resolution is usually for cases outside the Tribunal’s remit, where a CSP isn’t required. These processes complement, but don’t overlap.

82. Using dispute resolution does not affect the right to go to the Tribunal if the child’s or young person’s circumstances later fall within its remit^[134]. Previous discussions held as part of the process of dispute resolution cannot be used in Tribunal hearings unless everyone involved agrees to.

Section 70 Education (Scotland) Act 1980

83. Application of good practice and the arrangements described above should be sufficient to resolve, or determine, all cases of disagreement between parents, eligible children, young people and education authorities.

84. In exceptional circumstances, an interested person may seek recourse elsewhere. This includes the right to refer alleged failures to carry out a statutory education duty to Scottish Ministers under section 70 of the Education (Scotland) Act 1980.

85. 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.

86. In considering any complaint under section 70 Scottish Ministers will take into account whether alternative local avenues for resolving the disagreement have been tried.

87. Confidential discussions which have taken place in mediation or dispute resolution procedures cannot be used in considering a complaint under section 70 of the 1980 Act unless, everyone involved agrees otherwise.

88. A matter which can be referred to the Additional Support Needs Tribunal cannot be referred to Scottish Ministers under section 70 of the 1980 Act.

Resolving disagreements summary table

Pathway

Informal Local Resolution (everyone)

Nature

Voluntary, Informal

Covers

Any disagreement under the 2004 Act

Outcome

Flexible resolution

Pathway

Mediation (parents, young people)

Nature

Voluntary, Informal

Covers

Duties under the 2004 Act

Outcome

Mutually agreed solution (non-binding)

Pathway

Dispute Resolution (parents, young people, eligible children)

Nature

Formal, Independent

Covers

Specific matters under the 2004 Act (not CSPs or placing requests)

Outcome

Recommendations (non-binding)

Pathway

Tribunal (parents, young people, eligible children)

Nature

Legal, Binding

Covers

CSPs, transitions, placing requests

Outcome

Legally binding decisions

Pathway

Section 70 Complaint (any person)

Nature

Legal, Ministerial

Covers

Failure to discharge a statutory duty related to education

Outcome

Direction by Scottish Ministers (legally binding)