2nd Report, 2009 (Session 3)

Stage 1 Report on the Education (Additional Support for Learning) (Scotland) Bill

CONTENTS

REMIT AND MEMBERSHIP

REPORT
Executive Summary
Introduction

Background

Purpose of the Bill

Education (Additional Support for Learning) (Scotland) Act 2004
Changes proposed in the Bill
Scottish Government consultation

Consideration of the Bill

Informal Roundtable Discussion Session
Written Evidence
Oral Evidence

Issues Considered by the Committee

Scottish Government consultation
General principles of the Bill
Out of area placing requests
Additional Support Needs Tribunals rules and procedures
Other issues

Subordinate Legislation
Policy Memorandum
Financial Memorandum
Conclusion
Summary Of Conclusions And Recommendations

ANNEXE A: REPORT FROM THE SUBORDINATE LEGISLATION COMMITTEE

ANNEXE B: Letter from convener of finance committee to karen whitefield

ANNEXE C: EXTRACTS FROM MINUTES OF THE EDUCATION, LIFELONG LEARNING AND CULTURE COMMITTEE

23rd Meeting, 2008 (Session 3), Wednesday 1 October 2008
29th Meeting 2008 (Session 3), Wednesday 3 December 2008
30th Meeting, 2008 (Session 3), Wednesday 10 December 2008
31st Meeting, 2008 (Session 3), Wednesday 17 December 2008
1st Meeting, 2009 (Session 3), Wednesday 14 January 2009
2nd Meeting, 2009 (Session 3), Wednesday 21 January 2009
3rd Meeting, 2009 (Session 3), Wednesday 28 January 2009
4th Meeting, 2009 (Session 3), Wednesday 4 February 2009

ANNEXE D: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

ANNEXE E: LIST OF OTHER WRITTEN EVIDENCE

Remit and Membership

Remit:

To consider and report on (a) further and higher education, lifelong learning, schools, pre-school care, skills and other matters falling within the responsibility of the Cabinet Secretary for Education and Lifelong Learning; and (b) matters relating to culture and the arts falling within the responsibility of the Minister for Europe, External Affairs and Culture.

Membership:

Claire Baker
Aileen Campbell
Kenneth Gibson (Deputy Convener)
Kenneth Macintosh
Christina McKelvie
Elizabeth Smith
Margaret Smith
Karen Whitefield (Convener)

Committee Clerking Team:

Clerk to the Committee
Eugene Windsor

Senior Assistant Clerk
Nick Hawthorne

Assistant Clerk
Linda Smith

Stage 1 Report on the Education (Additional Support for Learning) (Scotland) Bill

The Committee reports to the Parliament as follows—

executive summary

1. The Committee recognises, that although experience of additional support needs (ASN) practice under the Education (Additional Support for Learning) (Scotland) Act 2004 has been relatively short, some revision of the Act is now required.

2. The Committee is broadly supportive of the amendments to the 2004 Act proposed in the Education (Additional Support for Learning) Bill. The Committee also welcomes the commitments given by the Minister for Children and Early Years to bring forward further proposals at Stage 2 in response to points raised during the Committee’s scrutiny of the Bill.

3. However, the Committee notes the extent of comment in evidence that it received that the 2004 Act requires further review beyond both the proposals in the Bill and those that the minister indicated would be brought forward at Stage 2.

4. The Committee therefore supports the general principles of the Bill and recommends to the Parliament that they be approved, but also recommends that the Scottish Government continues to keep the 2004 Act under close review and gives careful consideration to the points raised during its own consultation and during the scrutiny carried out by the Committee.

5. The Committee further recommends that the Scottish Government has regard to the views of stakeholders in its revision of the code of practice and any secondary legislation that results from the implementation of the Bill.

introduction

Background

6. The Education (Additional Support for Learning) (Scotland) Bill¹ (“the Bill”) was introduced in the Scottish Parliament on 6 October 2008 by the Cabinet Secretary for Education and Lifelong Learning, FionaHyslop MSP. The Bill was accompanied by Explanatory Notes², which include a Financial Memorandum and by a Policy Memorandum³, as required by the Parliament’s Standing Orders. The Bill was also accompanied by a Delegated Powers Memorandum⁴. On 7 October 2008, under Rule 9.6 of Standing Orders, the Parliamentary Bureau referred the Bill to the Education, Lifelong Learning and Culture Committee (“the Committee”) to consider and report on the general principles of the Bill.

7. The Bill contains provision for making subordinate legislation. A report from the Subordinate Legislation Committee is therefore attached at Annexe A. The Finance Committee’s correspondence on the Financial Memorandum is attached at Annexe B.

purpose of the bill

Education (Additional Support for Learning) (Scotland) Act 2004

8. The purpose of the Bill is to amend the Education (Additional Support for Learning) (Scotland) Act 2004⁵ (“the 2004 Act”), which came into force on 14November 2005. The Policy Memorandum that accompanies the Bill states that the policy intention of the Bill is—

“[…] to strengthen, as well as clarifying, the ability of the Education (Additional Support for Learning) (Scotland) Act 2004 to deliver its original policy intention, that intention being to provide for any need that requires additional support for the child or young person to learn.”⁶

9. The 2004 Act introduced a new system for the assessment of, and provision of support to, children and young people with additional support needs (ASN) in relation to their education.

10. The 2004 Act set out the duties placed on local authorities and other agencies and the rights of parents and young people. It provided for a statutory coordinated support plan (CSP), an appeals system and placing requests.

11. The 2004 Act also made provision for the establishment of a new independent organisation, to be known as the Additional Support Needs Tribunals for Scotland (“the tribunal”). The tribunal hears and decides appeals made by parents against the decisions by, or failures of, education authorities (“EAs”) in relation to a CSP. Reference to the tribunal may also be made, in certain circumstances, regarding the refusal of a placing request.

12. Her Majesty’s Inspectorate of Education (HMIE) conducted a two-year inspection programme examining how local authorities were implementing the 2004 Act. Its final report was published on 14 November 2007.⁷

13. There have also been a number of Court of Session judgements concerning the implementation of the 2004 Act.

14. The Explanatory Notes state that—

“This Bill amends the 2004 Act in light of the HMIE reports, recent Court of Session rulings, the annual report from the President of the Additional Support Needs Tribunals for Scotland and informed observations in light of practice.”⁸
Implementation of the 2004 Act

15. Evidence taken by the Committee highlighted issues relating to the implementation of the 2004 Act. Some witnesses believed that although local authorities had generally made provision for children with ASN under the terms of the 2004 Act, they had not always been seen to be in tune with what witnesses considered to be the spirit of the Act. The Committee also heard views that the policy effect of the 2004 Act had, to some extent, been compromised by a number of legal rulings. Finally, the Committee heard that different local authorities had taken different approaches leading some to believe that provision was not equitable across Scotland. As a result, in many circumstances parents and others expressed their concerns that the cost of meeting additional support needs remained a major factor influencing decisions on additional support.

16. The Committee notes these concerns and draws them to the attention of the Scottish Government.

Changes proposed in the Bill

17. The main proposal in the Bill is to allow parents of children with ASN, including those with CSPs, to make out of area placing requests. As a result of this proposal a number of related changes are proposed, such as placing on host authorities (i.e. the authority in which the child is being educated, rather than that in which they live) responsibility for providing mediation and dispute resolution services to parents who have made a successful out of area placing request.

18. The Bill also proposes minor amendments to the functions of the tribunal, such as amending the grounds on which appeals can be made to the tribunals, giving tribunals the power to review their own decisions and allowing a tribunal convener, sitting alone, to consider issues relating to missed deadlines.

19. In evidence to the Committee at its meeting on 21 January 2009, the Minister for Children and Early Years announced that the Scottish Government was considering bringing forward three further proposals at Stage 2. The additional proposals are that all appeals on out of area placing requests made to special schools should be heard by the tribunal, regardless of whether a CSP is involved; that parents be given the right to request an assessment at any time, regardless of whether a CSP is involved; and that the tribunal be given the power to specify when an out of area placing request should commence.

Scottish Government consultation

20. The Scottish Government published its consultation document Education (Additional Support for Learning) (Scotland) Act 2004 – Amendment Bill 2008⁹ on 9 May 2008. The document included a draft of the Bill. The consultation period ran from 9 May to 19 June 2008 and a total of 165 responses was received.¹⁰ The Scottish Government subsequently published its report on the consultation exercise.¹¹

21. In addition to this, the Scottish Government held nine consultation events throughout Scotland, which were attended by 428 professionals and parents. The Minister for Children and Early Years and Scottish Government officials also met stakeholders to discuss the proposed Bill on 14 and 20 May 2008 respectively.

consideration of the bill

Informal roundtable discussion session

22. The Committee agreed, as part of its scrutiny, to hold an informal roundtable discussion session with a group of voluntary sector representatives before it began formally to take evidence on the Bill.

23. This session was held on 26 November 2008. Those who attended were:

• Jonathan Sher, Director of Research, Policy and Practice Development, Children in Scotland
• John McDonald, Chief Executive, Scottish Society for Autism
• Dr Stuart Aitken, Principal Officer, Sense Scotland
• Chris Ratcliffe, Director, National Deaf Children’s Society Scotland
• Nicola Smith, Solicitor, Enable Scotland
• Maureen Fraser, Parliamentary Advisor, Barnardo’s Scotland
• Dr Pauline Padfield, Director, Scottish Traveller Education Programme
• Ann Auchterlonie, Policy Officer, Afasic Scotland
• Alison Gough, Policy Manager, Quarriers
• Faye Gatenby, Campaigns, Parliamentary and Policy Manager, Capability Scotland (part of For Scotland’s Disabled Children)
• Moira Thomson, South East Representative, Dyslexia Scotland
• Colin Young, Young People’s Information and Advocacy Worker, Special Needs Information Point.

24. A note of this session was subsequently made publicly available on the Committee’s webpage.¹²

Written evidence

25. At its meeting on 1 October 2008, the Committee agreed its approach to its Stage 1 scrutiny of the Bill. The Committee issued a call for written evidence¹³ on 15 October 2008 with the deadline for responses set for Thursday 20 November 2008. The Committee requested evidence from stakeholders and invited views from any other interested parties on the general principles of the Bill. In addition it asked:

• How helpful do you find the Policy Memorandum and Financial Memorandum accompanying the Bill?
• Do you have any comments on the consultation that the Scottish Government carried out prior to the introduction of the Bill?

26. The Committee received a total of 37 written submissions in response to its initial call for evidence. In addition, a number of people who gave oral evidence to the Committee provided additional written information to it on a number of issues. Details are provided in Annexes D and E.

27. At its meeting of 3 December 2008, the Committee noted its disappointment that only 12 out of 32 local authorities had responded to the call for evidence. The Committee agreed, given the extent to which the Bill could affect every authority, to write to the remaining 20 local authorities again to invite views, setting a deadline of 18December 2008 for responses.

28. As a result of this a further eight local authorities made written submissions, bringing the total number of written submissions to 45. A further two local authorities indicated that they had nothing to add to the submissions that they had made to the Scottish Government’s consultation.

29. Several main themes emerged in the written evidence. Many of these were also supported in oral evidence. These themes are explored below.

Oral evidence

30. The Committee took oral evidence on the Bill over the course of five meetings as follows:

3 December 2008

• Robin McKendrick, Support for Learning Division, Head of Branch and Bill Team Leader, Susan Gilroy, Support for Learning Division, Policy Officer and Bill Team Official, Louisa Walls, Principal Legal Officer, Branch 4 – Solicitors DELA Division, and Joanne Briggs, Economic Advisor, Analytical Services Unit - Schools, Scottish Government.

10 December 2008

• Jessica M Burns, President, and Lesley Maguire, Secretary, Additional Support Needs Tribunals for Scotland.

17 December 2008

• Lorraine Dilworth, Advocacy Manager, Independent Special Education Advice (ISEA) (Scotland); Iain Nisbet, Head of Education Law Unit, Govan Law Centre.

14 January 2009

• Dr Ted Jefferies, Principal Psychologist, Argyll and Bute Council; Martin Vallely, Service Manager Professional Services, City of Edinburgh Council; Margaret Doran, Executive Director for Children and Families, Glasgow City Council; Bryan Kirkaldy, Representative, Association of Directors of Education in Scotland (ADES).

21 January 2009

• Adam Ingram MSP, Minister for Children and Early Years, Robin McKendrick, Head of Branch 1, Support for Learning Division, Susan Gilroy, Policy Officer, Support for Learning Division, and Louisa Walls, Principal Legal Officer, Scottish Government.

31. Extracts from the minutes of all the meetings at which the Bill was considered are attached at Annexe C. Where written submissions were made in support of oral evidence, these are reproduced, together with the extracts of the Official Reportof the relevant meetings, at Annexe D. All other written submissions, including supplementary written evidence, are detailed at Annexe E.

32. The Committee would like to thank all individuals and organisations who provided written or oral evidence.

issues considered by the committee

Scottish Government consultation

33. In its call for evidence the Committee asked for views on the consultation conducted by the Scottish Government prior to the introduction of the Bill (detailed above).

34. Several responses indicated satisfaction with the Scottish Government’s consultation, with some welcoming many aspects of the way that the consultation had been conducted. In its response, Fife Council stated that—

“We begin by expressing appreciation for the quality of the consultation carried out by the Scottish Government prior to the introduction of the bill. It was extensive and thorough, it provided a good analysis and report of the responses and there was evidence that thoughtful consideration had been given to responses.”¹⁴

35. However, some concerns about the Scottish Government’s consultation were raised by a variety of submissions. These concerns included a view that the consultation was “rushed” (Stirling Council); that it was not sufficiently broad in scope to take account of the issues raised by the HMIE implementation report and that the analysis of the responses did not reflect comments made on such issues (Consumer Focus Scotland); that young people were involved late in the process (Learning and Teaching Scotland); that discussion time in consultation meetings was short and they were often dominated by one person or point of view (Learning and Teaching Scotland); and that parents, children and young people should have had more opportunities to contribute (Quarriers).

36. When questioned on 3 December 2008 about the Bill not taking account of the issues raised outside of the main topic of the consultation in 2008, Robin McKendrick, Bill team leader in the Scottish Government, told the Committee that—

“Various other issues were raised during the consultation process. Indeed, the consultation document sought comments on any issue that affected the implementation of the 2004 Act. Although those issues are regarded as relevant, it is considered to be more appropriate to address them in secondary legislation or, as I have explained, by amending the code of practice that supports the 2004 Act. I have said that we intend to consult on any changes that we propose to make to the code.”¹⁵

37. Some concern was also expressed by local authorities about the way that the consultation had been structured. Renfrewshire Council stated that—

“The design of the questions was such that debate is limited and respondents are directed into a response which left no room for discussion. This was an opportunity to review and clarify issues such as support for host authorities from external agencies to deliver a CSP; clarification of terms such as ‘significant’ in relation to needs; and the exclusion of young people with agreed additional needs. The opportunity was missed. Additionally, there was a tone which ran throughout the consultation document, which appears to be critical of local authorities. This criticism becomes explicit in the wording of questions 10 and 11 where the repeated use of the term ‘fails’ is completely unhelpful.”

38. This view was supported by West Dunbartonshire Council, which stated that—

“In relation to the consultation exercise itself, our view was that the questions were poorly framed and in some cases weighted in such a way as to push respondents to make a positive response.”¹⁶

39. The Committee believes that the Scottish Government’s consultation was satisfactory and is also content with the number of consultation events held.

40. The Committee notes the concerns raised in a number of written submissions and recommends that the Scottish Government takes account of these points when planning future consultation exercises.

General principles of the Bill

41. Giving evidence to the Committee on 3 December 2008, Robin McKendrick told the Committee that—

“[…] the Bill alters neither the ethos nor the fundamental building blocks of the Education (Additional Support for Learning) (Scotland) Act 2004, which is aimed at a broad group of children and young people with additional support needs. Instead, it aims to clarify operational aspects of the 2004 Act and, as members would expect, covers issues that can be addressed only by primary legislation rather than by secondary legislation, in guidance or through implementation of the act's provisions.”¹⁷

42. It was frequently stated in evidence received by the Committee that the first priority of the Bill should be what is in the best interests of the child concerned.

43. The general conclusion of the Committee’s informal roundtable discussion, with a range of charities and voluntary sector organisations on 26November 2008, was that the 2004 Act had been welcomed and that its intention had been widely supported. However, significant concern was expressed in terms of its implementation. The Bill was similarly broadly welcomed, but the view generally expressed was that it did not go far enough in amending the 2004 Act.

44. The Committee notes that the majority of evidence submitted, both to the Scottish Government’s consultation and to the Committee’s call for evidence, was broadly supportive of the general principles of the Bill. However, many issues were raised about the detail of the proposals and these are considered in more depth below.

45. A broad concern emerged in the evidence to the Committee ­­­­– also raised in responses to the Scottish Government’s consultation – that the Bill made an already complex Act even more complex and that every effort should be made to ensure that any revisions to the 2004 Act simplified the legislation. In its response to the Scottish Government’s consultation, the Govan Law Centre stated that—

“GLC has a general concern that the ASNTS [Additional Support Needs Tribunals for Scotland], associated procedure and applicable education law seems to be getting more and more complex. As an over-arching principle, we should strive to make the law as simple and accessible as possible at all times. This is fundamentally important if parents, pupils and educationalists are to be able to understand and apply the law. The level of detail and complexity in this field of law is in danger of becoming beyond the reach of most people.”¹⁸

46. In oral evidence on 14 January 2009, Dr Ted Jefferies from Argyll and Bute Council told members that—

“I subscribe to the view that the direction of travel should be towards a simpler, clearer and more parent-friendly, teacher-friendly and everybody-friendly system. Disputes will always arise—some parents will feel that their child should have something that the local authority feels is unnecessary—but that should not be built up into something that dominates the system. Achieving simpler system should be the direction of travel.”¹⁹

47. There were also many issues raised, in response both to the Scottish Government’s consultation and to the Committee’s call for evidence, which are not covered in the Bill, but which were considered as necessary amendments to the 2004 Act. These are set out in more detail below in the ‘other issues’ section.

48. The Committee agrees with witnesses and written submissions that stated that the fundamental principle underpinning the Bill, as it had been in the 2004 Act, should be that of serving the best interests of the child concerned. The Committee accepts that the 2004 Act, following rulings in the Court of Session and experience of its implementation, requires amendment in certain areas to ensure that its original intentions are realised and that children and young people with additional support needs and their parents are being properly served.

Out of area placing requests

Making requests
49. The main provision of the Bill is to allow parents of children with ASN, including those with a CSP, to make out of area placing requests. An out of area placing request would be made directly to whichever local authority operates the school in question, and not to the home authority to which the child belongs.

50. In giving evidence on 3 December 2008, the Scottish Government’s Bill team leader told the Committee that—

“[…] the first main thrust of the proposals is to provide parents of children with additional support needs, including those with co-ordinated support plans, with the same rights as others to make out-of-area placing requests for their children. That clarification of the original policy intention is required as a result of Lord Macphail's recent ruling in the Court of Session.”²⁰

51. The majority of evidence that the Committee received was supportive of this proposal and the principle that parents of children and young people with ASN, including those with a CSP, should have the same rights as other parents in this respect.

52. However, several local authorities noted potential issues that may arise as a result of out of area placing requests, including matters related to funding, delivery of services and inter-authority cooperation. These issues are set out in more detail below.

53. Giving evidence to the Committee at its meeting on 14 January 2009, the City of Edinburgh Council cautioned the Committee that this proposal had potential consequences that may not be immediately apparent—

“Although we support parents’ ability to make placing requests, the bill’s provisions contain a number of hidden problems. For a start, the bill focuses exclusively on the parent’s rights and does not take into account the authority’s wider duties and responsibilities not only to the child in question but to other children in its area.”²¹

54. In its written submission to the Committee, Glasgow City Council proposed that instead of allowing out of area placing requests, provision outwith the home authority should continue to be arranged between two local authorities, as is currently possible. City of Edinburgh Council proposed, in its submission, that, where there were significant additional support needs, the process should mirror that followed in respect of placing requests for independent special schools. That is, placing requests for out of area local authority schools should be made to the home authority, which can agree to the request or consider whether there are statutory grounds for refusal. The home authority would remain responsible for the costs of any placement.

55. In response to questions from the Committee on this issue on 21 January 2009, the Minister for Children and Early Years stated the proposal made by Glasgow City Council would not give parents of children and young people with ASN the same rights as other parents, which was a fundamental principle of the Bill—

“Glasgow City Council and, I think, the City of Edinburgh Council, describe scenarios in which a parent can make an out-of-area placing request by submitting a request to their home authority to place their child in a school, but that is not really a parental placing request as such. In effect, the parent is asking one authority to enter into arrangements with another authority to place the child in a host authority area. That is quite different from a parental placing request. Even before the 2004 act commenced, parents could approach their home authority to do just that. It seems that Glasgow seeks to reduce parental choice in this regard; on principle, we do not think that that should be upheld.”²²

56. The Committee notes that the majority of evidence submitted, both to the Scottish Government’s consultation and to the Committee’s call for evidence, supported the proposal to allow parents of children and young people with additional support needs to make out of area placing requests directly to another local authority. The Committee believes that this was the original intention of the 2004 Act and supports this proposal.

Appealing out of area placing requests
57. The Bill proposes allowing appeals on placing requests to go to the tribunal in cases where a CSP exists or is under development. It makes further provision than the 2004 Act for appeals to transfer between the Education Appeals Committee (EAC) or the Sheriff and the tribunal. The Bill clarifies that were a CSP issue to arise at any time during a placing request appeal, the case would be transferred to the tribunal. It if were then decided that a CSP was not required, the tribunal could decide whether to transfer the case back either to the EAC or the Sheriff.

58. This proposal responds to a ruling made in the Court of Session, in Gordon v. Argyll and Bute Council, [2007 CSOH 45], by Lady Dorrian, involving a case where a placing request had been refused, the local authority subsequently agreed to prepare a CSP and the case was referred to the tribunal. Lady Dorrian ruled that the case should not have been referred to the tribunal because the 2004 Act only allowed for referral in cases where, at the time the placing request was refused, a CSP was in place, there was an agreement to prepare a CSP or a CSP had been refused.

59. Robin McKendrick commented on this issue in his evidence on 3 December 2008—

“Our counsel argued that, although the 2004 Act did not specifically say so, when a CSP was on the agenda and there was a placing request, it should go to the tribunal—it was like the elephant in the corner, and everybody knew it. As Lady Dorrian said, if the Scottish Parliament intended that to be the case, it should have said so in the legislation. The fact is that the legislation does not say that. In the Bill, we are trying to make it clear that if, at any time, a co-ordinated support plan pops its head above the parapet before the sheriff court has made a final determination on a placing request, the matter should go to the additional support needs tribunal.”²³

60. Jessica Burns, President of the Additional Support Needs Tribunals for Scotland, told the Committee that the procedure could be further simplified by stating that the tribunal should automatically hear any out of area placing request made to a special school regardless of whether a CSP was involved. This position was supported by ISEA.

61. Iain Nisbet, head of the education law unit at the Govan Law Centre, told the Committee that the proposal on this issue would not remove the confusion that exists concerning the most appropriate forum for hearing out of area placing request appeals and expressed concern about using CSPs to make any such determination—

“Confusion will remain under the proposed system and the proposed amendments would serve only to make the system much more complex […] I do not see the rationale behind the suggested dividing line. It would serve parents, pupils and authorities better if there were a simpler dividing line. Either we should move all additional support needs placing requests to the tribunal, or we should come up with a simpler dividing line. The Administrative Justice and Tribunals Council and the president of the Additional Support Needs Tribunal have suggested that it would be simpler if, for example, all placing requests for special schools were heard by the tribunal and other placing requests were heard by the appeal committee. That would be easy to administer and it uses a sensible criterion that is based on consideration of the likelihood of cases requiring the expertise of the tribunal.”²⁴

62. Further concern was expressed by the City of Edinburgh Council when giving evidence on 14 January 2009—

“To my mind, the process has not been thought through properly, because it could lead to confusion, delays, legal wrangling and parents feeling that the system is unfair. The parents of children with additional support needs but no CSP request could feel that preferential treatment had been given to a child with a CSP request.”²⁵

63. At the Committee’s meeting on 21 January 2009, the Minister for Children and Early Years announced that the Scottish Government is giving consideration to bringing forward an amendment to the Bill at Stage 2 that would ensure that all out of area placing request appeals relating to special schools would be heard by the tribunal, regardless of whether a CSP is involved or not.

64. The Committee understands the rationale put forward by the Scottish Government in proposing a change to the 2004 Act to allow cases to go to the tribunal where a CSP is either in place or under development. The Committee also welcomes the additional proposal announced by the Minister for Children and Early Years that all out of area placing request appeals involving special schools would be heard by the tribunal. However, the Committee remains concerned that, despite these proposed improvements, the out of area placing request procedure and appeals mechanisms would remain complex and difficult to understand. Under the proposals as they stand, for example, appeals in respect of placing requests to special schools and to mainstream schools on behalf of children with a CSP either in place or under development would be heard by the tribunal, while appeals in respect of requests to mainstream schools on behalf of children who had ASN but no CSP would continue to be heard be the EAC or sheriff. The Committee agrees with many of the witnesses who gave evidence that it is important for parents of children and young people with additional support needs to have a clear understanding of which body will hear an appeal under what circumstances. The Committee therefore recommends that the minister gives further consideration to the following proposals that were raised in evidence to the Committee, that the:

• tribunal takes placing requests relating to special schools only;
• tribunal takes all placing requests where child has ASN;
• tribunal takes placing requests where the reason for the request is the child’s ASN.

Responsibility for reviewing CSPs
65. The Bill proposes, in cases where a successful out of area placing request had been made, that the host authority would take responsibility for reviewing any CSP involved and that this would happen as soon as was practicable after the date of transfer.

66. This proposal was supported in some submissions made both to the Scottish Government’s consultation and to the Committee’s call for evidence (e.g. Barnardos Scotland).

67. However, giving evidence to the Committee on 17 December 2008, Lorraine Dilworth from ISEA offered an example of potential difficulties in this area—

“I have a case in which a family has moved from one of the islands to a mainland town. The CSP was completed to the parents' satisfaction on the island and was very detailed. The receiving authority has, in the parents' opinion, ignored the CSP and is in the process of reviewing it—as is an authority's right because the child has come in. As I have said to the parents, the process will take a long time because none of the professionals knows the child and they need to get to know them. In the interim, the child is not receiving what is currently in the CSP. We have suggested to the authority and to the school that they should contact the professionals on the island who have worked with the child, but a barrier has gone up and they have said, "No. We'll do our own assessment."”²⁶

68. Lorraine Dilworth went on to suggest to the Committee that, rather than the Bill stating that a review should take place “as soon as is practicable”, it should be more specific—

“Time limits need to be placed in respect of by when reviews of CSPs should be done. It would be helpful to the children and the parents if the local authorities worked within such timescales.”²⁷

69. The Committee notes that the Explanatory Notes that accompany the Bill state that the time limits for the review would be specified in secondary legislation.

70. In their joint written submission to the Committee, ADES and ADSW noted that—

“[…] it is proposed that secondary legislation will set time limits for the new host authority to review the CSP following acceptance of an out of area placing request. We would wish to see such limits correspond to the timescales that apply to the duty of appropriate agencies to respond. As we indicated when the original Act was prepared, if the local authority is to be held to account for achieving a process that depends on the contributions of several agencies, then it must be able to exercise powers in order to successfully fulfil such responsibility.”²⁸

71. These concerns were shared by West Lothian Council—

“In the instance of placing requests for children with Co-ordinated Support Plans (CSPs), there will be a requirement on the host authority to review the CSP as soon as practicable, but there is currently no corresponding obligation on the home authority to provide the CSP and necessary information to enable the host authority to do that. In this respect a timescale is required within the legislation.”²⁹

72. The Committee understands the potential advantages in a host authority taking responsibility for reviewing the CSP of any child who is being educated in its area. The Committee also notes the concerns raised by ISEA and recommends that the Scottish Government considers this issue carefully before drafting the proposed secondary legislation. Finally, the Committee recommends that the points raised by ADES/ADSW and West Lothian Council are taken into account by the Scottish Government when making any revisions to the code of practice or bringing forward any secondary legislation.

Mediation and dispute resolution
73. The Bill proposes that mediation and dispute resolution in relation to an out of area placing request would be the responsibility of the host authority. The host authority would not be able to reclaim resulting costs from the home authority.

74. Support for this proposal was expressed both in written and oral evidence to the Committee, including by ISEA and the Govan Law Centre. However, concern was also expressed in several submissions, and in oral evidence, that parents were not sufficiently aware of their rights in respect of mediation and dispute resolution and that more needed to be done to ensure that awareness was raised. In its written evidence, ISEA referred to a survey of parents that it had carried out, which showed that 75% of respondents were unaware that they could request mediation and that 80% had poor or no information on the right to request dispute resolution.

75. The Committee also heard, both in its informal roundtable session with stakeholders on 26 November 2008 and in written and oral evidence, concerns that certain groups in society could be particularly at risk in terms of not being sufficiently aware of their rights. Low income families, looked after and accommodated children, Gypsy/Travellers and children with parents in the armed forces were identified as groups who required specific efforts to ensure they received sufficient and appropriate information. There was also a concern that, in cases of looked after children where local authorities act as corporate parents, there could be a conflict of interest.

76. When questioned on this specific issue on 21 January 2009, the Minister for Children and Early Years outlined to the Committee the work that was currently underway with regard to Gypsy/Travellers—

“On Traveller children, we have the Scottish Traveller education programme. There are clearly issues with interrupted learning and assessing where Traveller children are in terms of their education when they arrive at a school. There is the same sort of issue with the children of service personnel, so we are pulling together a forum, or seminar, of local authorities to discuss the issues. The Scottish Traveller education programme has come up with a series of recommendations for addressing the issues that relate to Traveller children.”³⁰

77. Speaking about the general issues of parents understanding their rights under the 2004 Act, the Scottish Government’s Bill team told the Committee that—

“The Scottish Government funds the national advice line, which is called Enquire. […] although we are satisfied with the work that it does in providing advice to those who phone, we think that more could be done to seek out parents and engage actively with them. It is not enough to send information leaflets to all general practitioner surgeries and early years centres; it is important to ensure that the leaflets are received and put on display. We acknowledge and do not underestimate the challenge of getting the message over to parents.”³¹

78. The Minister for Children and Early Years noted his concern on this issue when giving evidence to the Committee at its meeting on 21 January 2009—

“I am still astonished at people's lack of awareness about their rights—despite all the statutory duties that are placed on local authorities and others to inform people of their rights, whether through the Scottish Schools (Parental Involvement) Act 2006 or whatever. We have tried several different ways of marketing—if you like—that area, but we have not cracked it yet. We will look again at the support for learning code of practice and try to address the issue through strengthening the obligation on authorities to provide information. Let us consider the correspondence that goes backwards and forwards, especially in the dispute resolution process. For example, when the tribunal writes to parents with its decisions—especially if it is upholding the parents' case—it should point out that, if the local authority does not comply, they have rights under section 70 of the Education (Scotland) Act 1980 to pursue the matter by complaint. I understand that that does not necessarily happen at the moment. We must try to get consistency throughout the country in the methodology for informing parents, especially in the mediation and dispute resolution process. Some local authorities are better than others at providing the information.”³²

79. The Committee supports the proposal to place on host authorities responsibility for mediation and dispute resolution in relation to out of area placing requests. The Committee is concerned at the apparent lack of awareness amongst parents of their rights in this area and recommends that the Scottish Government addresses this as a matter of urgency. In addressing this issue, the Committee recommends that the Scottish Government pays particular attention to low income families, looked after and accommodated children, Gypsy/Travellers and parents who serve in the armed forces.

Home authority responsibility for inter-authority placements
80. The Bill proposes clarifying that where a placement were to be made by a home authority for a child to attend a school in another authority, the home authority would remain responsible for the child’s education. In contrast, where there was an out of area placing request, all the responsibility for providing education would transfer to the host authority.

81. Concern was expressed by ISEA that this could lead to a two-tier system, where children placed in another authority via an arrangement between authorities would be the responsibility of the home authority, whereas children placed as a result of an out of area placing request would be the responsibility of the host authority.

82. The Committee heard evidence from three local authorities and ADES on this issue at its meeting on 14 January 2009. Some concern was expressed that such a two-tier system could further complicate an already complex area. It was argued that the home authority should retain responsibility in all cases, regardless of how the child came to be placed in a school in a host authority. Cameron Munro from Glasgow City Council said that—

“Ultimately, our concern is that, if a child receives support from one part of the council and the health board in their residential area but is schooled in another area, co-ordination difficulties will arise. More important, what if a child’s change in circumstances concerns the break-up of a marriage, the end of a tenancy or another problem that means that they are decanted? A range of relevant matters might be in the remit and gift of only the residential authority while the responsibility for the child’s school education rests elsewhere. The bill does not get to the nub of that confusion.”³³

83. The Committee notes the level of concern expressed on this issue, particularly by local authorities, at its meeting on 14 January 2009. The Committee is concerned about the potential for confusion over the question of which local authority is responsible for providing which service and the complexities involved in inter-authority coordination. The Committee recommends that the Scottish Government provides clarification on this issue, either at Stage 2 or in the revised code of practice.

Cost responsibility
84. The Committee heard a great deal of evidence concerning the potential impact of either the home or host authority having financial responsibility for provision of certain services. Much of this centred on concern that placing on host authorities the financial responsibility for provision of mediation services and reviewing CSPs, where a successful out of area placing request had been made, would affect the decision of any such host authority whether to accept an out of area placing request.

85. In oral evidence to the Committee, the Bill team provided information on cost responsibility following an out of area placing request. The local government settlement in respect of education is based on school census data, so where a pupil was being educated in a host authority this would be accounted for in calculations. Under Section 23 of the Education (Scotland) Act 1980, a host authority may claim additional costs back from the home authority in relation to children with ASN. The Bill team also noted that an authority can refuse a placing request, for example if accepting the request would mean that the school in question would require an extra teacher or if there would be unreasonable costs. The Bill team later stated that this matter could be clarified in the code of practice.

86. The Committee notes the evidence it heard that although Section 23 of the Education (Scotland) Act 1980 provides that host authorities may reclaim costs from the home authority, in practice it can be difficult to do so. The Committee also notes that there is no statutory provision to ensure that the home authority meets the costs, other than appeal to the Scottish Ministers under Section 70 of the 1980 Act. The Committee recommends that the Scottish Government considers bringing forward, at Stage 2, proposals for a statutory right for host authorities to reclaim costs from home authorities in appropriate circumstances.

Additional Support Needs Tribunals rules and procedures

New grounds for referral
87. The Bill proposes two new grounds for taking a case to tribunal. These are that:

• the local authority fails to say whether or not it will comply with a request that it establishes whether a CSP is required; and
• the local authority fails to prepare a CSP within the required timescale.

88. The Govan Law Centre expressed concern, in its response to the Scottish Government’s consultation, that the second of these new grounds would be likely only to result the imposition of a new deadline, which could also then fail to be met. In the same consultation, some local authorities questioned whether the tribunal was the most appropriate body to consider matters raised under the proposed new grounds. Glasgow City Council asked, “is the ASNT really the most efficient, cost effective and best means of addressing such issues?”. Stirling Council felt that such issues should be dealt with through local authorities’ complaints procedures.

89. At the Committee meeting on 10 December 2008, the Tribunal President told members that a benefit of introducing these new grounds would be that they would allow details of local authorities’ performance in relation to the new grounds to be included in the President’s annual report. However, she expressed concern about the ability of the tribunal to enforce any decisions—

“Even if a tribunal decides that the authority has not met the timescale and should carry out an assessment or issue a co-ordinated support plan, we have no teeth to ensure that that is done within the timescale. We do not have any way of monitoring compliance with the directions that are given by tribunals.”³⁴

90. In evidence to the Committee at its meeting on 14 January 2009, ADES noted that the new ground would only apply to local authorities and not to partner agencies—

“The ADES view is that it is reasonable that local authorities should be held to account for the timescales that are applied. However, the legislation applies only to the council and not to the partner agencies that contribute to the council meeting the timescale. For example, if Fife Council is opening a CSP for a youngster, it will often depend on national health service speech and language therapists and perhaps colleagues in other agencies to make that commitment happen. Therefore, there is a dislocation of power and responsibility. If a local authority is accountable for achieving an outcome that is dependent on the NHS, there is a dislocation that will be difficult to manage. The solution is to apply the duty equally to the NHS and other agencies.”³⁵

91. The Committee is content with the proposed new grounds for taking cases to a tribunal. However, the Committee notes the concern expressed by the Tribunal President and Secretary about the ability of the tribunal to monitor or enforce any decisions. The Committee recommends that the Scottish Government considers this matter when revising the rules and procedures of the tribunals through secondary legislation with a view to enabling the tribunal to monitor outcomes of any such decisions.

Ability to review its own decisions

92. The Bill proposes that the tribunal be allowed to review its own decisions. Some concerns were raised, during the Committee’s informal roundtable discussion session on 26 November 2008, about the ability of the tribunal to remain impartial in reviewing its own decisions.

93. Further concerns were raised in written evidence to the Committee, for example from East Ayrshire Council and the Govan Law Centre. The concerns were that such a power could lead to a conflict of interest and that local authorities might gain an advantage over parents because they had access to more resources to commission new reports or present fresh evidence to challenge a decision.

94. The Bill team told the Committee that being able to review decisions in this way is common practice for such organisations. The Bill team also stated that the detail of what could be reviewed under such circumstances would be the subject of secondary legislation and would be consulted upon and subject to parliamentary scrutiny.

95. The Tribunal President, Jessica Burns, supported this, telling the Committee that such a power would be useful when a decision requires clarity. She also noted that the equivalent body in England, the Special Educational Needs and Disability Tribunal (SENDIST), has this power. Whilst SENDIST rarely uses the power, where it has been used, the resultant process has been quick, inexpensive and user-friendly.

96. The Committee notes the concerns raised about giving the tribunal the power to review its own decisions. However, the Committee accepts that such powers exist in comparable organisations and could bring to the tribunal system the benefits experienced by SENDIST, the equivalent body in England. The Committee believes that it is important that giving the tribunal such a power does not lead to significant inequalities between local authorities and parents. The Committee notes that the detail of this power would be the subject of secondary legislation and therefore subject to parliamentary scrutiny.

Adversarial process
97. The Committee was told, both in written and oral evidence, that the tribunal process was becoming increasingly adversarial and that there was an inequality between the legal representation resources available to local authorities and to parents of children and young people with ASN. This was also a main theme of the informal roundtable discussion session the Committee held with voluntary organisations and charities.

98. Lorraine Dilworth from ISEA told the Committee, on 17 December 2008, that—

“The code of practice said that parents and local authorities would be discouraged from bringing solicitors and advocates. That part of the code is obviously not working. I think that I have attended more tribunals in Scotland than anybody else and I see a trend of authorities using solicitors and advocates more than officials. I believe that as officials make the decision, they should come and state their case. That would make the playing field more level.”³⁶

99. The Tribunal President, Jessica Burns, told the Committee that in the majority of cases parents did have representation and there had been only two oral hearings in the last year in which the parents had represented themselves. She also indicated that local authorities had legal representation in fewer than half of the cases in the last year. However, she also noted that in 10 cases, local authorities had instructed counsel to represent them and it was in such circumstances that parents could be disadvantaged. She proposed a solution to this problem—

“I have suggested that the tribunal should have the power, in limited circumstances, to indicate that legal representation for the parent is appropriate, particularly when a case involves issues of statutory interpretation. Of the cases that we have dealt with, there have been two or three that could have come into that category and in which a parent should perhaps have had legal representation.”³⁷

100. The minister stated, when giving evidence to the Committee on 21January2009, that he did not want to make the tribunal system more adversarial, but rather sought to neutralise the effect of the use of solicitors—

“A lot of witnesses suggested that there is an imbalance between local authorities and parents in the power of argument that can be brought to a tribunal with legal representation: local authorities are obviously better able to afford legal representation. How do we level the playing field? I do not want to make the process more adversarial and bring more lawyers into it. I want to neutralise the effect of local authorities employing solicitors … I want to make lawyers redundant in the tribunal situation, which we can do through the rules and procedures of the tribunal. We have three members on the tribunal who could be more interrogative of both sides and could limit the opportunities for legal representatives to advocate their side of the argument. The tribunal members could ask all the questions and we might not allow cross-examination by someone else's representative.”³⁸

101. The minister also commented on the Scottish Government’s intentions in relation to advocacy—

“I am pleased to announce that we intend to develop proposals to take forward representative advocacy support for parents. I want to ensure that parents have access to advocacy at a tribunal.”³⁹

102. The Committee notes the concerns expressed about the perceived increasingly adversarial nature of the tribunal process and understands that such procedures could be daunting for parents. The Committee has heard no evidence to suggest that ‘arming’ parents with their own legal representation or making legal aid available to parents at tribunals would have any beneficial effect. Indeed, it would be likely to make tribunals even more adversarial.

103. The Committee also notes the suggestions of the Tribunal President that making more legal resources available to the tribunal would be likely to be helpful in that it would provide the tribunal with an alternative legal opinion to any presented by the local authority without necessarily making the process any more adversarial. The Committee asks the minister to reflect on this suggestion before Stage 2.

104. Finally, the Committee considers that, in support to parents within the tribunal system, the emphasis should be on advocacy, mediation and dispute resolution rather than on legal support. The Committee therefore welcomes the measures announced by the minister to widen the availability of these services and to raise awareness of their existence.

Placement commencement and implementation of decisions
105. The Tribunal President, in both written and oral evidence to the Committee, proposed that the tribunal be given a power to state when a placement would start. The Committee heard similar views expressed at its informal roundtable discussion session on 26 November 2008.

106. When questioned on this issue on 3 December 2008, Robin McKendrick explained the reasons why this proposal had not been included in the Bill—

“[…] the 2004 act does not specify that any decision of the tribunal should be acted on by an authority within a specified period of time. That was considered when the original bill was being drafted. I think I am right in saying that the thinking at the time was that an authority would be under a duty to deal with quite complex issues and to put arrangements in place, which might take some time, and that it was difficult to specify how that might apply in a rural authority, as opposed to a city authority.”⁴⁰

107. However, when giving evidence to the Committee at its meeting on 21January 2009, the Minister for Children and Early Years stated that the Scottish Government was now giving consideration to bringing forward an amendment at Stage 2 whose effect would be to allow tribunals to be able to specify when a placement should commence.

108. The Tribunal President also proposed allowing a parent to refer a case back to the tribunal if the local authority concerned had not implemented a decision.

109. When questioned on this issue on 3 December 2008, Robin McKendrick explained the reasons why this proposal had not been included in the Bill—

“[…] when an education authority fails to take the action that is specified by the tribunal, although the legislation does not permit people to go back to the tribunal to complain about the issue, there is certainly the opportunity to complain through dispute resolution—although that might not be so relevant in such cases—or under section 70 of the Education (Scotland) Act 1980, or by seeking from Scottish ministers an order under section 27 of the 2004 Act. If the tribunal has said that something should happen, but it has not happened, would a further decision of the tribunal make it happen, or would it be better to bring the matter to the Scottish ministers, which can be done under section 70 of the 1980 Act, as a failure of an authority to make provision for the additional support needs of a child?”⁴¹

110. In giving evidence to the Committee at its meeting on 21 January 2009, the Minister for Children and Early Years stated that one reason that few cases are referred to Scottish Ministers under section 70 of the Education (Scotland) Act 1980 was that the potential use of section 70 in this regard was not widely known, adding—

“When we get section 70 complaints, we need to pursue them vigorously. We should take them up on behalf of complainants in a way that encourages local authorities to respond. I have had a meeting with officials to that effect.”⁴²

111. The Committee notes both the proposals made by the Tribunal President on the issues of placement commencement and implementation of decisions and the response of the Scottish Government to those proposals. The Committee notes that the Scottish Government intends to bring forward an amendment at Stage 2 to allow tribunals to specify when a placement would start. The Committee broadly welcomes this proposal. However, the Committee believes that some flexibility is likely to be required in this to take account of factors such as the coordination of services, needs of the individual child and characteristics of the local authority and area involved.

112. The Committee also understands that it is important for there to be a clearly understood process should a local authority fail to implement a decision taken by the tribunal. The Committee is satisfied that such procedures are in place and recommends that the Scottish Government ensures that the procedures are clearly understood by the tribunal and all those working with parents on such matters. The Committee welcomes the comments made by the Minister for Children and Early Years with regard to ‘vigorously pursuing’ any section 70 referrals made to the Scottish Government.

Other issues

113. Other issues, which did not relate to the specific proposals in the Bill but which did propose possible changes to the 2004 Act, were raised in written and oral evidence. These issues followed a theme that emerged in much of the evidence given to the Committee that the Bill did not sufficiently amend the 2004 Act to achieve the improvements that the witnesses considered were required.

Code of practice
114. In giving evidence to the Committee on 3 December 2008, Scottish Government officials acknowledged that issues outwith those specifically detailed in the Bill had been raised, both in the Scottish Government consultation and in responses to the Committee. They indicated that such issues would be looked at, but suggested that the Bill was not necessarily the most appropriate mechanism by which to examine them. Officials considered that revising the code of practice and introducing secondary legislation would be more appropriate. Issues relating to secondary legislation are detailed below. With regard to the code of practice, Robin McKendrick told the Committee—

“We have had two and a half years of working with the code of practice. At the risk of being put up against a wall and shot, I say that we recognise that there are areas where it might be improved, for example in the language that is used. We did not have two and a half years of experience when we wrote the code of practice. We can make it better than it is, not only by explaining parents' rights and the duties on education authorities but by making it clear what the procedures are for placing requests, and what happens when someone requests a co-ordinated support plan and makes a placing request at the same time. That process has been introduced as a result of the legislation. There are issues that go from primary legislation to secondary legislation and through to the code of practice. I cannot predict what else stakeholders will say when we discuss with them the tribunal rules and procedures, and whether they will say, "You should be changing this. You should be changing that." There will be a consultation on that.”⁴³

115. In giving evidence to the Committee on 14 January 2009, Cameron Munro, Senior Solicitor (Education) at Glasgow City Council, expressed concern at the possible extent of the revision to the code of practice—

“I would be concerned if the Government’s solution were to shift all the issues that have been mentioned into a code of practice. That would be disastrous, as it would clarify nothing and would simply add more confusion.”⁴⁴

116. The Committee recommends that the Scottish Government consults widely before revising the code of practice that accompanies the 2004 Act. The Committee notes that the 2004 Act requires ministers to lay the code of practice before the Scottish Parliament, to allow 40 days for scrutiny and to take account of the views of the Parliament before publishing the code.

Definition of ‘significant’
117. The 2004 Act uses the term ‘significant’ when describing the degree of ASN in certain circumstances. However, the 2004 Act does not define the term. Some written submissions to the Committee argued that it was important that any legislation amending the 2004 Act should include a definition of ‘significant’. In its written submission to the Committee, West Lothian Council stated that—

“It is noted that there is no attempt to set out a workable definition of what constitutes significant in terms of additional support needs. It is considered essential that this is done. The current dubiety and uncertainty is counter productive and in some situations can inhibit consideration of the child’s needs.”⁴⁵

118. This view was also expressed at the Committee informal roundtable discussion session on 26 November 2008 by Colin Young, Young People’s Information and Advocacy Worker, Special Needs Information Point.

119. When questioned on this issue on 3 December 2008, Robin McKendrick told the Committee—

“We will seek in the code of practice to develop understanding of the term "significant". The matter has been taken to the Court of Session and the inner house—not just the outer house—has ruled on the definition of the term. From their lordships' ruling, which builds on what already appears in the code of practice, we can develop a better understanding of the issue.”⁴⁶

120. In evidence to the Committee on 21 January 2009, the Minister for Children and Early Years stated that a working group has been established to examine CSPs, including the issue of definitions of terms such as ‘significant’. The minister stated that it was the intention for the working group to conclude during the Bill’s passage through the Parliament, in order that its findings could inform the Bill and the revision of the code of practice.

121. The Committee notes both the comments raised in evidence on the issue of the definition of terms such as ‘significant’, ‘temporary’ and ‘permanent’ and the response given by the Scottish Government. The Committee notes the establishment of a working group that will consider, amongst other matters, the issue of definitions and welcomes the indication given by the minister that the working group will report during the Bill’s passage through the Parliament, in order that it can inform the legislative process.

122. The Committee reserves its position, for the meantime, on whether the most appropriate place to clarify the definition of such terms is in the code practice or on the face of the Bill.

Looked after and accommodated children, children and young people with mental health issues and young carers

123. During the informal roundtable discussion session on 26 November 2008, a view was expressed that looked after and accommodated children and young carers were not being served as well as they should be by the 2004 Act. It was further suggested that the Bill does not address this issue and that specific reference to looked after children should be on the face of the Bill.

124. Written evidence from the Additional Support Needs Tribunals for Scotland argued that the Bill should be amended to—

“Provide for a statutory review to determine if there should be an assessment for any child who is accommodated or looked after for any period in excess of six months within the following three month period to identify whether or not the criteria for a coordinated support plan are satisfied”.⁴⁷

125. This view was supported in a joint submission led by the Govan Law Centre and signed by 13 other organisations, which stated that—

“HMIE’s report has identified provision under the Act for looked after children and young carers as one of the key areas for improvement for authorities. “Although planning to meet the needs of looked after and accommodated children was improving, practice across authorities varied considerably. Few authorities had effective provision for children and young people with mental health issues and those who were young carers.””⁴⁸

126. The Scottish Government was questioned on this when officials gave evidence to the Committee on 3 December 2008. The Scottish Government subsequently wrote to the Committee to provide further information on this issue. That letter stated that—

“[…] regarding the work currently being undertaken in relation to looked after children, a number of products were launched in September aimed at improving outcomes for looked after children, young people and care leavers. These were: These are Our Bairns - a guide for community planning partnerships on being a good corporate parent; The We Can and Must Do Better training materials for professionals involved in the lives of looked after children and young people; Core Tasks for designated managers in educational and residential child care establishments in Scotland; and research into the ways educational attainment of looked after children and young people can be improved. Additionally, the Scottish Government is currently consulting on revised Looked After Children (Scotland) Regulations. The revised regulations more accurately reflect the requirements for all looked after children, whatever their care setting, through the looked after system.” ⁴⁹

127. The minister gave further evidence on this point on 21 January 2009—

“I notice that the president of the Additional Support Needs Tribunals for Scotland suggested that there should be some sort of six-monthly review to determine whether looked-after children ought to have co-ordinated support plans. I do not favour that approach, which would be overly bureaucratic and burdensome, but I am keen that every looked-after child should have a care plan from the outset of their becoming looked after. We are developing policy on that all the time: we have launched "These Are Our Bairns: A guide for community planning partnerships on being a good corporate parent", and we are developing our regulations on looked-after children, which will come through this summer. We have also designated managers within residential care establishments and education establishments to focus on looked-after children. That is the way to deal with those issues: at the source of the problem, rather than trying to build in some sort of remedial action through the tribunal process, which would be cumbersome and ineffective.”⁵⁰

128. The Committee notes the concerns raised in relation to the issue of looked after and accommodated children and young carers. The Committee further notes the information provided by the Scottish Government and will pay close attention to the revised Looked After Children (Scotland) Regulations when they come before it. The Committee recommends that the Scottish Government gives specific consideration to the issue of looked after and accommodated children, children and young people with mental health issues and young carers, when revising the code of practice and drafting any secondary legislation that results from the Bill.

Issues relating to transition
129. A view was expressed at the Committee’s informal roundtable discussion session on 26 November 2008 that the Bill should address issues involved in transition between pre-school and primary school, primary and secondary school, and the period after school education. This issue was also raised in written submissions to the Committee. In particular, it was considered that duties contained in the 2004 Act were not being properly carried out in all cases. In written evidence, Afasic Scotland told the Committee that—

“Members continue to report transition from pre-school to primary where concerns about support remain. Transition from school to college also remains problematic, particularly where there are additional support needs but no CSP.”⁵¹

130. This issue was addressed by Scottish Government officials when giving evidence to the Committee on 3 December 2008. They stated that—

“We will give symmetry to the early years strategy and will reflect that in the code of practice. On the transition to post-school, we recognise that more needs to be done to spread the message. During the consultation, a few people lamented the passing of the future needs assessment as if it were the only lighthouse—the only planning mechanism for children and young people moving on to post-school life. We had to explain to them that the 2004 Act put that on a completely different level. No longer will there be one planning meeting in the last year of the child's education. Planning should start as early as second or third year and should be concluded before the young person or child enters the final year of their school experience. There is a link between additional support for learning and the children and young people on whom the more choices, more chances strategy is focused. With colleagues who are involved in that initiative, we will interview this Friday for a development officer position that will be funded by the schools and lifelong learning directorates. The officer will work not only with schools but with stakeholders in further and higher education, Careers Scotland and other agencies that are involved in transitions. They will be based in LTS and will try to build up exemplars of good practice in transitions to post-school provision.”⁵²

131. In a joint written submission to the Committee, 13 organisations proposed that a failure of a local authority to meet its duties on transition should be a ground for appeal to the tribunal.

132. The Committee recognises that periods of transition, whether in the early years, from primary to secondary school, or on leaving school, are very important and require specific attention. The Committee notes the comments made by the Scottish Government on this issue and its commitment to deal with early years issues in the revised code of practice and appoint a development officer to consider post-school provision. The Committee recommends that the minister gives consideration to making failure of a local authority to meet its duties on transition grounds for referral to the tribunal.

Issues relating to age
133. In its written evidence to the Committee, the Additional Support Needs Tribunals for Scotland stated that the Bill should—

“Provide for the jurisdiction of the tribunal to be extended to cover all persons undergoing school education (including where this is provided within a FE college under school-college partnership arrangements) whether or not they have attained 18 years in view of the duties under the Act in respect of school leavers and transitions […]”⁵³

134. The Committee recommends that the Scottish Government considers the issue raised by the Additional Support Needs Tribunals for Scotland that jurisdiction of the tribunal be extended to cover all persons undergoing school education whether or not they have reached 18 years of age.

Coordinated support plans
135. The Committee heard, at its roundtable discussion session, that there were a variety of concerns regarding CSPs, such as that they were often overly complex and confusing; there was a very low number of CSPs; there was a lack of consistency across local authorities in establishing CSPs; children who did not have a CSP were being lost in the system; CSPs could be difficult to establish at all; and that CSPs were used as a determination in access to various services.

136. Some of the written evidence received by the Committee also expressed concern regarding CSPs, such as the submission made by Quarriers, which stated that CSPs were “not being utilised in the way intended by the Act“⁵⁴, and the National Deaf Children’s Society, which said that “HMIE has identified huge variation in the criteria which local authorities use when issuing CSPs […]”.⁵⁵

137. In giving evidence to the Committee, the Bill team leader told the Committee that—

“We are determined to ensure that every child who requests a co-ordinated support plan has their request considered seriously by the education authority, and if the conditions are met, a plan should be put in place. The plan gives them rights, including the right to an annual review, and it also gives the parents rights. That is not to say that parents of children who do not have co-ordinated support plans do not have any rights.”⁵⁶

138. The minister told the Committee at its meeting on 21 January 2008 that he had “recently set up a working group on co-ordinated support plans, not least because of the low number of such plans.”⁵⁷

139. The minister also stated that—

“I have tasked the short-term CSP working group to examine such issues and find out the precise number of co-ordinated support plans and what we need to do to ensure that, if there is a shortfall, it is dealt with.”⁵⁸

140. The Committee notes the wide variety of concerns raised in evidence concerning coordinated support plans and recommends that the Scottish Government takes account of all of these points in relation to the considerations of the short term working group on coordinated support plans announced by the minister.

Educational support
141. In evidence received by the Committee, some concern was expressed about the 2004 Act and the Bill being interpreted as making provision only in relation to a child’s additional support needs in the direct context of education, with the result that other types of need might not be taken into account.

142. The joint submission led by the Govan Law Centre states that—

“The consultation document on the draft Bill stated that the Scottish Government did not intend to change the “thrust or ethos” of the 2004 Act. However, the decision of Lord Wheatley in the case of SC v. City of Edinburgh Council [2008] CSOH 60 did just that, striking at the central feature of the Act – the definition of “additional support needs”. In paragraph 29 of his decision he stated: “The whole burden of the test of what constitutes additional support needs clearly refers to educational support, and further to education support offered in a teaching environment. This in turn must refer to the educational needs of the child, and not to anything else. It cannot refer to the social and environmental needs of the appellant herself, or indeed of the child.” The idea that “additional support” is restricted to “education support offered in a teaching environment” runs directly contrary to the Code of Practice.”⁵⁹

143. The joint submission goes on to suggest how the Bill could be amended to deal with this issue—

“In Section 1 of the 2004 Act, delete the word “educational” where it occurs in both s.1(3)(a) & 1(3)(b) and/or insert the words “(whether relating to education or not)” which are already used in the Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005. This amendment would underline the fact that, while the purpose of additional support is to enable the child or young person to benefit from school education, that support need not itself be educational – and is in line with the Code of Practice.”⁶⁰

144. When questioned on the points raised in the joint submission the minister said that—

“The intention behind the 2004 act was clear. The purpose of additional support is to allow children and young people to benefit from school education. That support should not be limited to support that is offered in a teaching environment; it can involve not only education services, but other agencies, such as health and social work services. Lord Wheatley's decision casts doubt on the interpretation of the 2004 act. The Government's policy officials and solicitors are still considering the implications of his ruling. We intend to make the bill as clear as possible, to meet the policy intention that I described. We think that the issue is for the code of practice, but we will continue to reflect on that and we will tell the committee our further thoughts.”⁶¹

145. When questioned specifically on whether the minister supported the joint submission’s proposal of removing the word “educational” in light of the Wheatley ruling, the minister replied that—

“The Wheatley judgment is definitely an issue. However, as the focus of the original legislation was additional support for education, removing references to education does all kinds of things to the potential scope of the bill, so I am not in favour of such a move. That said, we need to address the Govan Law Centre's particular question whether additional support applies only to the teaching environment. That is not the case; as the original legislation intended, such support goes much wider than that. We need to restore that intention if it has, indeed, been brought into doubt.”⁶²

146. The Committee notes the concerns raised in the joint submission led by the Govan Law Centre relating to provision of additional support needs support outwith educational support. The Committee also notes the response by the minister that he is still reflecting on this issue. The Committee recommends that the minister clarifies his position on this issue before Stage 2 of the Bill commences.

subordinate legislation

147. The Bill contains delegated powers provisions. The Scottish Government, therefore, provided the Parliament with a memorandum on the delegated powers provisions within the Bill. The proposed powers were considered by the Subordinate Legislation Committee (SLC).

148. The SLC subsequently reported to the Committee. A copy of its report can be found at Annexe A. The SLC had no comment to make on the delegated powers provisions and approved sections 7(a), 7(b), 8 and 10.

149. Giving evidence on 3 December 2008, RobinMcKendrick told the Committee that—

“Various other issues were raised during the consultation process. Indeed, the consultation document sought comments on any issue that affected the implementation of the 2004 Act. Although those issues are regarded as relevant, it is considered to be more appropriate to address them in secondary legislation […]”⁶³

150. Mr McKendrick also stated that the rules and procedures of the Additional Support Needs Tribunals for Scotland would be revised and amended through secondary legislation and that any secondary legislation required by the Bill would be “fully consulted on”.⁶⁴ He also stated that “[…] we have not yet started to draft the secondary legislation that will flow from the bill.”⁶⁵

151. When questioned about the detail of such secondary legislation, MrMcKendrick stated that—

“[…] primary legislation has a certain function, and secondary legislation is more detailed, so it will give the detail stipulated by the bill. Specifically, the bill will require the co-ordinated support plan regulations and the tribunal rules and procedures to be amended to clarify, for example, what is meant by the tribunal reviewing its own decision. The regulations will specify what the circumstances would be for that. It is not proper for an act to reflect that; it needs to be reflected in secondary legislation.”⁶⁶

152. The Committee notes the Subordinate Legislation Committee’s report. The Committee further notes the comments made by the Scottish Government regarding the secondary legislation that will follow in due course should the Bill be passed. The Committee recommends that the Scottish Government consults as widely as possible on any forthcoming secondary legislation.

policy memorandum

153. In its call for evidence, the Committee asked for views on the Policy Memorandum that accompanied the Bill. The majority of submissions that commented on this indicated satisfaction with the Policy Memorandum, noting that it helpfully explained what some found to be a detailed and complex piece of proposed legislation.

154. Stirling Council stated that—

“We appreciated the plain English contained within the Policy Memorandum; it provides a clear and concise summary with all salient points suitably detailed.”⁶⁷

155. Consumer Focus Scotland expressed disappointment that whilst the Policy Memorandum noted the issues raised outwith the limits of the consultation, it did not explain why these issues were not being taken forward in the Bill.

156. The Committee notes the comments on the Policy Memorandum made in submissions it received and the comments made by the Scottish Government.

financial memorandum

157. The Finance Committee adopted its level one scrutiny when considering the Bill’s Financial Memorandum. This means that the Finance Committee did not take any oral evidence on the Financial Memorandum and did not report to the Committee. It did, however, seek written evidence from a range of affected organisations and wrote to the Committee. A copy of the letter received from the Finance Committee, together with the written evidence it received, is attached at Annexe B.

158. During evidence to the Committee on 21 January 2009, the Minister for Children and Early Years announced the intention of the Scottish Government to consider bringing forward an amendment to the Bill at Stage 2 which would allow any appeal relating to a placing request at a special school to be heard by the tribunal, regardless of whether a CSP is involved or not. The minister also provided some information on the financial impact of this amendment, should it be agreed to—

“There is significant demand, but there is also a natural ceiling on demand for places in special schools, so I do not anticipate a large increase, although we have factored in additional costs that will need to be taken into consideration in the financial memorandum to accommodate extra provision in special schools. The placing requests figures for 2006-07 show that 14 special school placing requests were referred to education appeal committees and none was referred to the sheriff. When we transfer cases to the tribunal, the cost is £2,000 per case, so we need to make available an additional sum—the total would come to something like £40,000.”⁶⁸

159. The Finance Committee noted that—

“Most of those who submitted evidence are broadly content with the Financial Memorandum, although local authorities appear to have a range of views on the financial implications of the Bill.”⁶⁹

160. In addition to the evidence submitted to the Finance Committee, many of the submissions made directly to the Education, Lifelong Learning and Culture Committee commented on the Financial Memorandum.

161. Some submissions found the Financial Memorandum to be helpful in giving an indication of projected costs.

162. However, a number of submissions (mostly from local authorities) raised concerns regarding the Financial Memorandum. A primary concern was that the Financial Memorandum’s projected costs did not have a sufficiently robust evidence base and therefore the estimations given were not sufficiently indicative, reliable or accurate.

163. The Financial Memorandum states that—

“It is important to note that given both the very small number of cases involved and the large variability in cost due to the individual nature of cases, it is not possible to asses precisely either the number of cases or the cost involved. Both number and cost are likely to vary from year to year.”⁷⁰

164. West Dunbartonshire Council commented that—

“With regard to the Financial Memorandum which accompanied the Bill, it was difficult to understand or accept the assumptions which have clearly been made in order to come up with the figures presented.”⁷¹

165. Some submissions highlighted concerns whilst acknowledging that the Scottish Government was correct in attempting to project costs. School Leaders Scotland commented that—

“We read the Financial Memorandum with some interest but with some scepticism in relation to the figures on display. There is a degree of confident extrapolation in this memorandum which we did not share: the legislation is still bedding in and is not still widely known or applied by parents who might well have a legitimate claim to make on an authority. The projections are decidedly conjectural but we concede that it was the correct thing to attempt.”⁷²

166. Concern was also expressed on how the figures had been determined. ISEA stated that—

“The Financial Memorandum accompanying the Bill is, in our opinion, fundamentally flawed in that the figures presented are based on current figures of children/young people with Coordinated Support Plans (CSPs) – that being 1881. However, as alluded to in paragraph 41 of the Explanatory Notes, “it was expected there will be around 11,200 to 13,700 CSPs at any one time”. This figure has not been realised and this, in our opinion, is due to the reluctance of education authorities to open CSPs as was the case with Records of Needs.”⁷³

167. The Committee notes the comments made by the Finance Committee in its letter to the Committee. The Committee believes it was appropriate for the Scottish Government to give an indication of likely costs associated with the Bill, including those with regard to local authorities, in the Financial Memorandum. The Committee notes the concerns raised in submissions made to it and recommends that the Scottish Government takes account of these concerns in its further discussion with local authorities and other organisations should the Bill be passed.

Conclusion

168. The Committee recognises, that although experience of ASN practice under the Education (Additional Support for Learning) (Scotland) Act 2004 has been relatively short, some revision of the Act is now required.

169. The Committee is broadly supportive of the amendments to the 2004 Act proposed in the Bill. The Committee also welcomes the commitments given by the Minister for Children and Early Years to bring forward further proposals at Stage 2 in response to points raised during the Committee’s scrutiny of the Bill.

170. However, the Committee notes the extent of comment in evidence that it received that the 2004 Act requires further review beyond both the proposals in the Bill and those that the minister indicated would be brought forward at Stage 2.

171. The Committee therefore supports the general principles of the Bill and recommends to the Parliament that they be approved, but also recommends that the Scottish Government continues to keep the 2004 Act under close review and gives careful consideration to the points raised during its own consultation and during the scrutiny carried out by the Committee.

172. The Committee further recommends that the Scottish Government has regard to the views of stakeholders in its revision of the code of practice and any secondary legislation that results from the implementation of the Bill.

summary of conclusions and recommendations

Implementation of the 2004 Act
173. Some witnesses believed that although local authorities had generally made provision for children with ASN under the terms of the 2004 Act, they had not always been seen to be in tune with what witnesses considered to be the spirit of the Act. The Committee also heard views that the policy effect of the 2004 Act had, to some extent, been compromised by a number of legal rulings. Finally, the Committee heard that different local authorities had taken approaches leading some to believe that provision was not equitable across Scotland. As a result, in many circumstances parents and others expressed their concerns that the cost of meeting additional support needs remained a major factor influencing decisions on additional support. The Committee notes these concerns and draws them to the attention of the Scottish Government. (see paragraphs 15-16)

Scottish Government consultation
174. The Committee believes that the Scottish Government’s consultation was satisfactory and is also content with the number of consultation events held.

175. The Committee notes the concerns raised in a number of written submissions and recommends that the Scottish Government takes account of these points when planning future consultation exercises. (see paragraphs 20-21 and 33-40)

General principles of the Bill
176. The Committee agrees with witnesses and written submissions that stated that the fundamental principle underpinning the Bill, as it had been in the 2004 Act, should be that of serving the best interests of the child concerned. The Committee accepts that the 2004 Act, following rulings in the Court of Session and experience of its implementation, requires amendment in certain areas to ensure that its original intentions are realised and that children and young people with additional support needs and their parents are being properly served. (see paragraphs 41-48)

Making requests
177. The Committee notes that the majority of evidence submitted, both to the Scottish Government’s consultation and to the Committee’s call for evidence, supported the proposal to allow parents of children and young people with additional support needs to make out of area placing requests directly to another local authority. The Committee believes that this was the original intention of the 2004 Act and supports this proposal. (see paragraphs 49-56)

Appealing out of area placing requests
178. The Committee understands the rationale put forward by the Scottish Government in proposing a change to the 2004 Act to allow cases to go to the tribunal where a CSP is either in place or under development. The Committee also welcomes the additional proposal announced by the Minister for Children and Early Years that all out of area placing request appeals involving special schools would be heard by the tribunal. However, the Committee remains concerned that, despite these proposed improvements, the out of area placing request procedure and appeals mechanisms would remain complex and difficult to understand. Under the proposals as they stand, for example, appeals in respect of placing requests to special schools and to mainstream schools on behalf of children with a CSP either in place or under development would be heard by the tribunal, while appeals in respect of requests to mainstream schools on behalf of children who has ASN but no CSP would continue to be heard be the EAS or sheriff. The Committee agrees with many of the witnesses who gave evidence that it is important for parents of children and young people with additional support needs to have a clear understanding of which body will hear an appeal under what circumstances. The Committee therefore recommends that the minister gives further consideration to the following proposals that were raised in evidence to the Committee, that the:

• tribunal takes placing requests relating to special schools only;
• tribunal takes all placing requests where child has ASN;
• tribunal takes placing requests where the reason for the request is the child’s ASN. (see paragraphs 57-64)

Responsibility for reviewing CSPs
179. The Committee understands the potential advantages in a host authority taking responsibility for reviewing the CSP of any child who is being educated in its area. The Committee also notes the concerns raised by ISEA and recommends that the Scottish Government considers this issue carefully before drafting the proposed secondary legislation. Finally, the Committee recommends that the points raised by ADES/ADSW and West Lothian Council are taken into account by the Scottish Government when making any revisions to the code of practice or bringing forward any secondary legislation. (see paragraphs 65-72)

Mediation and dispute resolution
180. The Committee supports the proposal to place on host authorities responsibility for mediation and dispute resolution in relation to out of area placing requests. The Committee is concerned at the apparent lack of awareness amongst parents of their rights in this area and recommends that the Scottish Government addresses this as a matter of urgency. In addressing this issue, the Committee recommends that the Scottish Government pays particular attention to low income families, looked after and accommodated children, Gypsy/Travellers and parents who serve in the armed forces. (see paragraphs 73-79)

Home authority responsibility for inter-authority placements
181. The Committee notes the level of concern expressed on this issue, particularly by local authorities, at its meeting on 14 January 2009. The Committee is concerned about the potential for confusion over the question of which local authority is responsible for providing which service and the complexities involved in inter-authority coordination. The Committee recommends that the Scottish Government provides clarification on this issue, either at Stage 2 or in the revised code of practice. (see paragraphs 80-83)

Cost responsibility
182. The Committee notes the evidence it heard that although Section 23 of the Education (Scotland) Act 1980 provides that host authorities may reclaim costs from the home authority, in practice it can be difficult to do so. The Committee also notes that there is no statutory provision to ensure that the home authority meets the costs, other than appeal to the Scottish Ministers under Section 70 of the 1980 Act. The Committee recommends that the Scottish Government considers bringing forward, at Stage 2, proposals for a statutory right for host authorities to reclaim costs from home authorities in appropriate circumstances. (see paragraphs 84-86)

Additional Support Needs Tribunals: new grounds for referral
183. The Committee is content with the proposed new grounds for taking cases to a tribunal. However, the Committee notes the concern expressed by the Tribunal President and Secretary about the ability of the tribunal to monitor or enforce any decisions. The Committee recommends that the Scottish Government considers this matter when revising the rules and procedures of the tribunals through secondary legislation with a view to enabling the tribunal to monitor outcomes of any such decisions. (see paragraphs 87-91)

Additional Support Needs Tribunals: ability to review its own decisions
184. The Committee notes the concerns raised about giving the tribunal the power to review its own decisions. However, the Committee accepts that such powers exist in comparable organisations and could bring to the tribunal system the benefits experienced by SENDIST, the equivalent body in England. The Committee believes that it is important that giving the tribunal such a power does not lead to significant inequalities between local authorities and parents. The Committee notes that the detail of this power would be the subject of secondary legislation and therefore subject to parliamentary scrutiny. (see paragraphs 92-96)

Additional Support Needs Tribunals: adversarial process
185. The Committee notes the concerns expressed about the perceived increasingly adversarial nature of the tribunal process and understands that such procedures could be daunting for parents. The Committee has heard no evidence to suggest that ‘arming’ parents with their own legal representation or making legal aid available to parents at tribunals would have any beneficial effect. Indeed, it would be likely to make tribunals even more adversarial.

186. The Committee also notes the suggestions of the Tribunal President that making more legal resources available to the tribunal would be likely to be helpful in that it would provide the tribunal with an alternative legal opinion to any presented by the local authority without necessarily making the process any more adversarial. The Committee asks the minister to reflect on this suggestion before Stage 2.

187. Finally, the Committee considers that, in support to parents within the tribunal system, the emphasis should be on advocacy, mediation and dispute resolution rather than on legal support. The Committee therefore welcomes the measures announced by the minister to widen the availability of these services and to raise awareness of their existence. (see paragraphs 97-104)

Placement commencement and implementation of decisions
188. The Committee notes both the proposals made by the Tribunal President on the issues of placement commencement and implementation of decisions and the response of the Scottish Government to those proposals. The Committee notes that the Scottish Government intends to bring forward an amendment at Stage 2 to allow tribunals to specify when a placement would start. The Committee broadly welcomes this proposal. However, the Committee believes that some flexibility is likely to be required in this to take account of factors such as the coordination of services, needs of the individual child and characteristics of the local authority and area involved.

189. The Committee also understands that it is important for there to be a clearly understood process should a local authority fail to implement a decision taken by the tribunal. The Committee is satisfied that such procedures are in place and recommends that the Scottish Government ensures that the procedures are clearly understood by the tribunal and all those working with parents on such matters. The Committee welcomes the comments made by the Minister for Children and Early Years with regard to ‘vigorously pursuing’ any section 70 referrals made to the Scottish Government. (see paragraphs 105-112)

Code of practice
190. The Committee recommends that the Scottish Government consults widely before revising the code of practice that accompanies the 2004 Act. The Committee notes that the 2004 Act requires ministers to lay the code of practice before the Scottish Parliament, to allow 40 days for scrutiny and to take account of the views of the Parliament before publishing the code. (see paragraphs 114-116)

Definition of ‘significant’
191. The Committee notes both the comments raised in evidence on the issue of the definition of terms such as ‘significant’, ‘temporary’ and ‘permanent’ and the response given by the Scottish Government. The Committee notes the establishment of a working group that will consider, amongst other matters, the issue of definitions and welcomes the indication given by the minister that the working group will report during the Bill’s passage through the Parliament, in order that it can inform the legislative process.

192. The Committee reserves its position, for the meantime, on whether the most appropriate place to clarify the definition of such terms is in the code practice or on the face of the Bill. (see paragraphs 117-122)

Looked after and accommodated children, children and young people with mental health issues and young carers
193. The Committee notes the concerns raised in relation to the issue of looked after and accommodated children and young carers. The Committee further notes the information provided by the Scottish Government and will pay close attention to the revised Looked After Children (Scotland) Regulations when they come before it. The Committee recommends that the Scottish Government gives specific consideration to the issue of looked after and accommodated children, children and young people with mental health issues and young carers, when revising the code of practice and drafting any secondary legislation that results from the Bill. (see paragraphs 123-128)

Issues relating to transition
194. The Committee recognises that periods of transition, whether in the early years, from primary to secondary school, or on leaving school, are very important and require specific attention. The Committee notes the comments made by the Scottish Government on this issue and its commitment to deal with early years issues in the revised code of practice and appoint a development officer to consider post-school provision. The Committee recommends that the minister gives consideration to making failure of a local authority to meets its duties on transition a ground for referral to the tribunal. (see paragraphs 129-132)

Issues relating to age
195. The Committee recommends that the Scottish Government considers the issue raised by the Additional Support Needs Tribunals for Scotland that jurisdiction of the tribunal be extended to cover all persons undergoing school education whether or not they have reached 18 years of age. (see paragraphs 133-134)

Coordinated support plans
196. The Committee notes the wide variety of concerns raised in evidence concerning coordinated support plans and recommends that the Scottish Government takes account of all of these points in relation to the considerations of the short term working group on coordinated support plans announced by the minister. (see paragraphs 135-140)

Educational support
197. The Committee notes the concerns raised in the joint submission led by the Govan Law Centre relating to provision of additional support needs support outwith educational support. The Committee also notes the response by the minister that he is still reflecting on this issue. The Committee recommends that the minister clarifies his position on this issue before Stage 2 of the Bill commences. (see paragraphs 141-146)

Subordinate legislation
198. The Committee notes the Subordinate Legislation Committee’s report. The Committee further notes the comments made by the Scottish Government regarding the secondary legislation that will follow in due course should the Bill be passed. The Committee recommends that the Scottish Government consults as widely as possible on any forthcoming secondary legislation. (see paragraphs 147-152)

Policy Memorandum
199. The Committee notes the comments on the Policy Memorandum made in submissions it received and the comments made by the Scottish Government. (see paragraphs 153-156)

Financial Memorandum
200. The Committee notes the comments made by the Finance Committee in its letter to the Committee. The Committee believes it was appropriate for the Scottish Government to give an indication of likely costs associated with the Bill, including those with regard to local authorities, in the Financial Memorandum. The Committee notes the concerns raised in submissions made to it and recommends that the Scottish Government takes account of these concerns in its further discussion with local authorities and other organisations should the Bill be passed. (see paragraphs 157-167)

Annexe A: REPORT FROM THE SUBORDINATE LEGISLATION COMMITTEE

Report on Education (Additional Support for Learning) (Scotland) Bill at Stage 1

The Committee reports to the lead committee as follows—

1. At its meeting on 4 November 2008, the Subordinate Legislation Committee considered the delegated powers provisions in the Education (Additional Support for Learning) (Scotland) Bill at Stage 1. The Committee submits this report to the Education, Lifelong Learning and Culture Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

2. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill.⁷⁴

Delegated Powers Provisions

3. The Committee considered each of the delegated powers provisions in the Bill. The Committee approves without further comment: sections 7(a), 7(b), 8 and 10.

Annexe B: Letter from convener of finance committee to karen whitefield

Education (Additional Support for Learning) (Scotland) Bill – Financial Memorandum

As you are aware, the Finance Committee examines the financial implications of all legislation, through the scrutiny of Financial Memoranda. At its meeting on 28 October 2008, the Committee agreed to adopt level one scrutiny in relation to the Education (Additional Support for Learning) (Scotland) Bill. Applying this level of scrutiny means that the Committee does not take oral evidence or produce a report, but it does seek written evidence from affected organisations.

The Committee received submissions from—

• Aberdeen City Council;
• The Association of Directors of Education;
• The Additional Support Needs Tribunal for Scotland;
• Clackmannanshire Council;
• COSLA;
• Dumfries and Galloway Council;
• Inverclyde Council;
• East Renfrewshire Council; and
• The Scottish Court Service.

All submissions received are attached to this letter. Most of those who submitted evidence are broadly content with the Financial Memorandum, although local authorities appear to have a range of views on the financial implications of the Bill. Some submissions also make comment on the policy aspects of the Bill, and those comments are properly addressed to the lead committee.

If you have any questions about the Committee’s consideration of the Financial Memorandum, please contact Allan Campbell, Assistant Clerk to the Committee, on 0131 348 5451, or email:
allan.campbell@scottish.parliament.uk.

Yours sincerely

Andrew Welsh MSP
Convener

Finance Committee

Scrutiny of Financial Memorandum – Education (Additional Support for Learning) (Scotland) Bill

Submissions received

SUBMISSION FROM ABERDEEN CITY COUNCIL

As you will appreciate the implications and financial impact of the original Act and this new bill are not necessarily easy to identify. However, this Council does wish to respond to your invitation and we welcome the opportunity. I will address the questions set out in your letter of the 11th November 2008 in the order they appear:

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

This Council did take part in the original consultation (copy attached as an Annex for convenience). However, the consultation did not specifically ask for comments on any financial assumptions being made and therefore we did not offer any views at that time, so welcome the opportunity to do so now.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Please see comments above at question 1.

3. Did you have sufficient time to contribute to the consultation exercise?

Whilst I was not in post at the time, I have consulted with those colleagues who were involved with the consultation exercise. Their view is that it did feel a little rushed.

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

Having examined the Financial Memorandum, it makes clear that COSLA and six Local Authorities participated in a survey about the potential costs of implementing the Bill. It seems that, given that the six Authorities do represent an appropriate cross section of all Authorities, we would have a reasonable degree of confidence in the outcome of the survey and, therefore, in the financial implications for this Council.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

This Council has experienced three Tribunal cases to date but even so this small sample demonstrates the difficulty, at this stage, of anticipating and quantifying costs. We note that the Financial Memorandum estimates costs to be in the region of £55K. The cost figures quoted in the Memorandum in relation to different aspects and procedures seem to be appropriate. Although, as intimated, it is problematic for us to be able to conduct a detailed cost analysis at this stage. If costs do escalate or the assumptions contained within the Memorandum transpire to be less robust than appears at the moment, then it would be helpful for consideration to be given to the possibility of additional funding.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Following on from Question 5, it is acknowledged by this Council that it is difficult to predict costs associated with the Bill because it is not possible to quatify in advance how many cases will arise on any particular Additional Support for Learning matter. For example, it is possible to envisage a number of Placing Requests from parents of children with a Co-ordinated Support Plan in any given year and for that number to be a rise on a previous year. This scenario would obviously lead to additional costs to those planned for. On-the-other-hand, it is entirely feasible that in any given year there may be no such cases.

Another scenario would involve an increase in cases with complicated features, which could require that a hearing lasts for a longer duration that anticipated. Thus, leading to a rise in costs.

Overall, the Council is satisfied that the Financial Memorandum reflects the difficulties associated with qualifying the costs connected with the Bill and as illustrated by the above scenarios.

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

In this Council, the implementation of and the consequences of the Bill is part of our wider Inclusion approaches and strategies. Overall it would seem that any associated costs are reasonably accurately reflected in the Financial Memorandum. Additional costs associated with Placing Requests, particularly transport costs, may need better quantifying but this can only come with experience and even then be a problematic exercise to do accurately as part of forward planning of budgets.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

It seems reasonable to assume that there may well be future costs associated with the Bill if further duties are placed upon Authorities by secondary legislation or as any Scottish Government guidance becomes more developed. Obviously it is not possible to quantify any such costs at this stage. However, in the short term following enactment, it is very likely that there will be increased costs resulting from Authorities needing to provide and/or amend documentation, training materials, information packs for parents, schools, young people etc.

I trust the above information and response will be of assistance to you in your work with the Finance Committee. Please do not hesitate to contact me should you require any further information and/or clarification

Sohail Faruqi
Strategist (Support for Children & Young People)

SUBMISSION FROM THE ASSOCIATION OF DIRECTORS OF EDUCATION

This written evidence is provided by ADES to the Scottish Parliament in relation to the financial memorandum of the Education (Additional Support for Learning) (Scotland) Bill. It follows the general evidence provided jointly by ADES and ADSW in relation to the Bill. This submission will expand upon points made in relation to costs in that general evidence.

These points relate to compliance rather than to administrative costs. We consider the estimate given in the Financial Memorandum (s.40) to be reasonable in relation to administrative costs. However, ADES would certainly anticipate that compliance costs will arise from the Bill as stated. We believe that the assumptions made in the Financial Memorandum do not account for such compliance costs.

There are significant cost implications for local authorities associated with section 1 of the Bill. In particular, where an authority is a net importer of placing requests, specific financial provision will require to be made to account for costs of additional support.

The pattern of placing requests between local authorities for pupils who have additional support needs is uneven and the per capita costs associated with specialised provision are very high. If the host authority is made financially responsible for making provision, as is proposed, this will distribute the burden of cost inequitably between authorities. Incidentally, it will create a perverse dis-incentive to building inclusive authorities. Authorities become inclusive by building local capacity, in particular by taking steps to meet previously unmet need and ensuring parental satisfaction with local provision. Placing requests to provision made by other local authorities, as proposed, allow a ‘no cost‘ alternative to building such capacity.

In addition, ADES would expect that the principal reform proposed in the Bill, to strengthen parents’ rights to make, and pursue appeal of placing requests, will further stimulate placing requests for independent fee paying schools and will lead to an increase in the rate of placements in such schools.

We would anticipate that this will add a progressive burden to the budget for additional support within each authority as parents exercise such rights and as the independent school market responds by developing further provision.

Account requires to be taken of such costs in the context of finite and limited budgets within local authorities, to ensure that the disproportionate per capita spend associated with such placements does not disadvantage pupils supported by local school provision within the authority.

We would estimate the cost of this compliance to be £200,000 per annum for an authority of 50,000 pupils. Such costs may well rise and should be subject to regular review between ADES, COSLA and Scottish Government.

Bryan Kirkaldy
Senior Manager
Fife Council (on behalf of ADES)

SUBMISSION FROM THE ADDITIONAL SUPPORT NEEDS TRIBUNAL FOR SCOTLAND

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

I did not submit a response to the initial consultation exercise for the Bill but the President of ASNTS did submit a response. I did work with the President in preparation of a response to the call for written evidence from the Education, Lifelong Learning and Culture Committee on the proposals outlined in the draft bill.

Prior to the publication of the draft Bill, I prepared a paper for colleagues in the Scottish Government’s Support for Learning division on the financial implications of a documents-only expedited process in prescribed circumstances and provided a calculation of the cost of hearings relating to placing requests.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

My comments on the financial assumptions have been accurately applied on a ‘per unit’ basis. I would suggest the new activity for ASNTS arising from the amendment Bill is over-estimated. On this basis, the increased costs to the Tribunals may be less than set out in the financial memorandum.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

I would suggest the new activity for ASNTS arising from the amendment bill is over-estimated in the financial memorandum. The ‘per unit’ information which I supplied has been accurately applied but the overall increased costs to ASNTS may not be as high as predicted.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

We are monitoring our budget carefully as we expect an under-spend this financial year, due to a drop in hearings activity. Indications are that the level of under-spend for this year would be enough to cover the increased costs arising from these proposals and budget projections for next year should therefore be based on this year’s budget before the under-spend was returned.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

From our perspective the margins are generous and I would not foresee a difficulty if it was decided to proceed on basis set out in the financial memorandum. Again, I suspect an allocation based on our original budget for this year would be sufficient.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

N/A

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

It is very difficult to give an informed response to this question as other bodies may have suggested amendments which would have an impact on ASNTS, if the suggestions are taken forward. ASNTS has made a number of suggestions to the Enterprise, Lifelong Learning and Culture Committee which extend the scope of the Bill but our view is that if these changes are implemented, the activity generated for the Tribunals could be absorbed within our current budget. Again, whilst we can take an informed view of the impact of our suggestions on our business, we cannot have the same confidence about the financial ramifications for other bodies such as the education authorities.

Necessary changes to the subordinate legislation which governs the functions of the Tribunals should not precipitate further costs; the Tribunal will have an opportunity to contribute to the consultation relating to changes to the Tribunal Practice and Procedure Rules; these changes should either be financially neutral or should give rise to modest savings. The Tribunal will not have a direct input into more developed guidance through a revised Code of Practice as this is not within our ownership.

Lesley Maguire
Secretary
ASNTS
25 November 2008

SUBMISSION FROM CLACKMANANNSHIRE COUNCIL

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

Yes. We expressed general concerns.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

No. We think that the Memorandum is overly optimistic about the financial implications of the proposed legislation.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

No. We think that the Memorandum is overly optimistic in its assumptions. The central assumption is that the proposed legislation will have no significant impact on people's/organisations' behaviour. We think that the number of out-of-authority placing requests is likely to increase and that there will be, therefore, significant additional costs, both direct and opportunity costs, which will have to be borne by Councils and others.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

If behaviours are unaltered, then yes. But, see 4 above. We will bear the bureaucratic costs of the changes within existing budgets. This will give rise to significant opportunity costs. The Memorandum under-estimates the extent of these. Beyond this, we believe that it is essential that a pupils' 'home' authority continues to be responsible for the cost of a successful out-of-authority placing request to avoid such requests becoming a device for resolving disputes over provision by, effectively, 'exporting' a problematic provision to another authority.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

See 5 above.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

The Memorandum restricts itself to a small range of bureaucratic costs. It ought to tale a broader view of the possible cost implications of its provisions.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?
9.
See 5 above. It is difficult to quantify these with any real accuracy at this stage.

Jim Goodall
Head of Education and Community Services
Clackmannanshire Council

SUBMISSION FROM COSLA

Introduction

COSLA welcomes the chance to comment on the financial memorandum of the Education (Additional Support for Learning) (Scotland) Bill.

We have responded to the Committee’s questionnaire, and have made have additional comments as appropriate. We would be happy to provide further information if the Committee requires it.

Key Points

• COSLA believes that the memorandum is accurate and based on the best information that was available at the time. However, there are a range of factors which make quantifying the exact costs of the Bill difficult. For this reason we cannot guarantee that there will be no increased financial burden on councils, but at this time our best estimate is that additional costs should be minimal.
• The Committee will be aware that local authority budgets are under pressure generally. On its own this Bill should not have large financial implications for councils, but with little or no spare funding available to councils we need to be very careful that legislation does not have unintended consequences for local authorities.

Consultation
1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

COSLA did not provide a formal submission to the Scottish Government’s consultation. However, COSLA officials have attended formal meetings with other key stakeholders, hosted by the Scottish Government, and we have had informal discussions with Scottish Government officials which have been very helpful in clarifying both the need for and the intentions of the draft legislation.

COSLA hosted a meeting of the 6 councils whose inputs to the Scottish Government survey assisted with the cost calculations set out in the Financial Memorandum. This was very helpful in gauging the many factors and variables which might affect implementation of the draft legislation.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

For the most part. It is evident that there are already significant cost variations across council areas in implementation of the current legislation and that the number, complexity and length of individual cases are contributing factors to these variations.

For these reason we cannot guarantee that local authorities will be able to meet the costs of implementing the new legislation from existing budgets. As the Committee will be aware councils budgets are under pressure due to a range of factors stemming partly from the economic downturn. We are in discussions from Scottish Government to try and address these pressures, but now more than ever we have to be very careful that we do not place additional burdens on councils. Predicting the likely financial impact of the new legislation is an inexact science but we consider that the Financial Memorandum is founded on the best information available.

One of the main intentions of the draft legislation is to clarify the policy intentions governing the 2004 Act, particularly around out of council placing requests and the associated responsibilities for funding. Given that placing requests are being negotiated and funded already among local authorities as a matter of course, we do not foresee that implementing the new legislation will lead to a surge of new placing requests with serious additional cost burdens. However, if this was to happen – and there was increased demand for out of council placements from parents of children who have additional support as a result of the legislation - then this could place a burden on council budgets. It is not possible to quantify how much this could potentially cost councils as additional support for learning is a demand led service.

Our only point of issue with the financial memorandum is that we do not accept the statement in paragraph 41 that “education authorities have already received excess funding for their work in this area”. This contention seems to be based on a smaller number of Coordinated Support Plans than originally envisaged in the Financial Memorandum to the 2004 Act. We believe that it would be more appropriate to look at the wider costs of providing support for children who require additional support for learning, not just a comparison based on CSPs.

It is also worth pointing out that funding of additional support for learning – as with all local government funding – is not allocated for any one purpose. The Concordat and the spending review settlement provide local authorities with one budget which they have to work within to deliver a range of services. Our best estimate based on the information we have is that the legislation as currently drafted should not place additional burdens on councils. Nonetheless, all indications are that budgets are currently extremely tight and there is little or no spare funding to cover increased costs if they arise from the Bill. If costs did rise, for what ever reason, then this could have an impact of other council services.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes.

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

The Bill has no financial implications for COSLA directly. Our main concern is to represent the interests of our member councils who will be responsible for implementing the legislation.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

See answer to question 4.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

We believe so. As indicated in our response to question 2, the Financial Memorandum reflects that there are already cost variations and it describes the cost ranges identified in the survey. As previously detailed there are uncertainties in predicting the financial implications of implementing this legislation. However, we consider that these uncertainties are articulated appropriately in the Memorandum.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

We believe that the Bill should be seen as part of improving educational and other outcomes for children in Scotland and as a contribution to meeting several of the national outcomes in the National Performance Framework. It should also be seen alongside wider policy frameworks on the early years and tackling inequalities and more specific initiatives to improve the integration and quality of services aimed at meeting the needs of the individual child, particularly Getting It Right for Every Child.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

Possibly. For example, we understand that the intention is to produce a revised Code of Practice which may also address some of the other issues raised through the SG consultation. We look forward to continued working with the Scottish Government on this and we anticipate that any further cost factors will be covered in these discussions.

Jim Stephen
COSLA

SUBMISSION FROM DUMFRIES AND GALLOWAY COUNCIL

Consultation
1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

Dumfries & Galloway Council did take part in the consultation exercise, and yes did comment on the financial assumptions.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

On the whole, yes, however it is still early days for the Bill, hence costs may increase.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes

Costs
4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

Still early days, however on the whole, the published figures appear to be correct.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

Currently we have only had a couple of cases, so it is manageable. However, if this was to increase the burden would increase the current budget deficit.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Currently yes.

Wider Issues
7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

Again, currently yes, but I must reiterate that it is still early days.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

Yes – but as yet they are not quantifiable.

SUBMISSION FROM INVERCLYDE COUNCIL

1. Education Services took part in the consultation exercise for the draft Bill on behalf of Inverclyde Council. Comments were made where the question raised issues around possible costs eg (Q3, 6, 7). Comments on the financial memorandum were sent in to the Clerk to the Committee in late October. These are attached for ease of reference.

2. No. The current burden of costs around paying for placements outwith one’s own authority is not taken into account.

3. No, the ‘turnaround time’ was very tight.

4. No. Please see the points made in our previous section under the General Principles and Financial Memorandum.

5. No. ASL-related costs are no longer ring-fenced, are included in a general budget, still nominally labelled Inclusion in this authority. These monies are used to meet recent demands of the Act, such as mediation, auxiliary support, printing of information. The additional costs generated by the Bill will be difficult to meet with the current level of support.

6. No. The financial situations outlined are theoretical and take inadequate account of the uncertainties of variable demand in terms of placement and mediation costs.

7. See attached response relative to the call for evidence.

8. This is hard to determine with no experience behind us. The Bill ducks the issue of transport costs for example. Recent ASN related legislation seems to give parents/carers the upper hand in determining placements. The trend if continued would bring increased costs to authorities.

Colin Laird
Head of Lifelong Learning and Educational Support

Response to lead committee call for evidence

Thank you for giving us the opportunity to provide written evidence on the above Bill. Our context is that of Education Services, Inverclyde Council. Inverclyde has a pupil population of 10,800 including around 300 pupils with additional support needs who attend mainstream schools.

We have operated within the terms of the Act since 14 November 2005. Approximately 60 Coordinated Support Plans are either already opened or are in the process of being opened. Since 2005 we have had only one case involving mediation, no cases of dispute resolution and no referrals to Additional Support Needs Tribunals at the time of writing (7 November 2008).

Please find below our comments:

POLICY MEMORANDUM

The Policy Memorandum is entirely clear and provides an excellent summary of the Bill’s objectives in section 3. References to significant Court rulings are also extremely useful.

CONSULTATION

The consultation carried out was both appropriate and extensive. Inverclyde took its response to the Education and Lifelong Learning Committee for approval. The number of responses received is disappointingly low given the significance of this piece of legislation.

GENERAL PRINCIPLES

• The Bill makes no reference to young people older than 17 who may still be attending special schools.
• Permitting the parents of young people with additional support needs to make out of area placing requests is on the one hand a sensible move towards equality but also potentially the generator of some difficulties for authorities. At the present time budgets in authorities for external placements are under significant pressure. A high number of requests for additional places would increase the pressure still further.
• An interesting area of tension might arise in the following circumstances:
  A parent feels the local special schools would stigmatise her son/daughter and request a place in a neighbouring authority with transport and placing cost arising? How are both the home and host authority expected to deal with that issue? Is there a high risk of legal challenge? How does the request comply with Best Value requirements?
  By agreeing places from outwith an authority pressure will emerge on the receiving authority from within its own requirements. There are issues of prioritisation which authorities will have to address. These also present a risk of legal challenge.
• The early paragraphs on page 2 of the Policy Memorandum go a long way towards clarifying the relationships between and the responsibilities allocated to both the home and host authority.
• The early possible involvement of an ASN Tribunal as highlighted in paragraph 18 of the Policy Memorandum dilutes the role and significance of Education Appeal Committees.
• The Bill makes no mention of split placements and where and how placing requests could be used. Could placing requests be made to organisations contracted to authorities, such as Unity Enterprise, as well as to other education authorities?
• It is most appropriate that HMIe report back on the eventual operation of the Bill.
• It is important in the operation of the Bill that pupils have the appropriate Statutory documentation prepared for them in the style of the authority in which they are being educated, that access to this by the home authority is granted and that on transfer any documentation held is made available to the receiving authority.
• Requirements to carry out reviews of CSPs in receiving authorities are appropriate.

FINANCIAL MEMORANDUM

• In paragraph 36 it is worth noting that some authorities did not accept placing request to schools in the special sector.
• In paragraph 37 there is no definition of what constitutes a “good cross section of all authorities in Scotland”. How was that cross-section determined? Were factors, such as deprivation and previous levels of recording (RoN) used? Why are no authorities in west-central parts of the country included?
• In paragraphs 39 it should be emphasised that the costs are indicative only. In reality, in a difficult year, the costs could be considerably higher to authorities.
• In paragraph 40 how can account be taken of rising costs when erratic increases in placements costs are involved (Glasgow City – increase in visual impairment placements increased by 70% in August 2008).
• The additional cost since August to Inverclyde alone has been £72,000 per annum.
• Funding was provided to authorities to support the introduction and thereafter implementation/maintenance of the 2004 Act not specifically for the opening of Coordinated Support Plans.
• COSLA would not have been aware of the increased costs imposed by this year (paragraph 42)
• In paragraph 45 this figure could be subject to major fluctuation. It could also be argued that if the annual figure is very high, there is little point in referring these cases to ASN Tribunals.
• With some luck authorities may have no Tribunal- related costs whatsoever. By removing some of the legal involvement which is creeping increasingly into educational matters the costs could be reduced still further.
• In paragraph 47 it is unclear how EAC costs are being calculated.
• In paragraph 50 our experience puts costs at special schools in neighbouring authorities at around £20,000 per annum each. This is close to the charges to our neighbours where they buy places from us.
• In paragraph 51 cost neutrality ceases where additional support is needed e.g authority time.
• Paragraph 52 represents a best case scenario. Parents pursuing placements out of the area may be more inclined given new legislative backing to pursue cases to a Tribunal with some vigour.
• Paragraph 53 Authorities will need to budget for possible mediation or dispute resolution costs. A helpful solution might be to employ a service or consultant for a purpose and building mediation into the contract at no additional cost. Our experience suggests costs would be minimal.
• The costs indicated in paragraph 55 are likely to be accurate. The cost of dispute resolution is reasonable at £355.
• Paragraph 58 is helpful. Authorities may strike a deal not to charge each other. It is often labour intensive to recover relatively low costs.
• I would agree with the aspects listed in paragraph 59, 60 and 61. These are useful additions to Act related activity.
• The costs of the Tribunal operation annually are high – it is justifiable to increase their role. It represents better value to the public.
• It is helpful to reduce legal involvement in educational matters.
• Education should not become an area of intensive legislation. Paragraph 73 is also useful in this context.

SUBMISSION FROM EAST RENFREWSHIRE COUNCIL

Consultation
1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

Yes, East Renfrewshire Council took part. The following comments were made on the financial assumptions as follows:

It is still considered appropriate that the general costs of supplying additional support ie resources/equipment/staff etc should be borne by the authority to which the child belongs.

This alteration should not however negate the home authority’s responsibility to pay for services provided or assessed as required upon review. Support costs should still be paid by the home authority; any concerns such an authority may have regarding what they perceive as excessive provision could still be addressed under Section 23 arrangements.

The extent of “responsibility” needs to be defined or clarified. Is it responsibility to provide the necessary services in terms of the CSP or does it entail a wider responsibility to not only provide such services but also to ultimately bear the cost of the same? The question as it stands is ambiguous.

Assuming the question relates to practical responsibility for support provision then commencement at school appears the appropriate stage for transfer. Generally, this is already what happens. Costs remain with the home authority.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

NO.

3. Did you have sufficient time to contribute to the consultation exercise?

YES.

Costs
4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Wider Issues
7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

Response to Questions 4-8

The sample of six authorities used for the financial analysis does not reflect the experiences or current position of East Renfrewshire.

As a popular authority with a recognised high quality education provision, large numbers of placing requests are processed each year. With the changes outlined in the Bill it will be inevitable that tribunals will increase.

Projection of costs for a popular authority with a rising school population is problematic. Future plans to increase the school estate will inevitably increase the opportunity for more placing requests. With this comes the added costs of additional support needs. Timescales are difficult to define as ASN can become more significant over time.

It is our view that we will be unable to meet the financial costs associated with the Bill. We would, therefore, expect the Central Government Grant Allocation to reflect the needs of the pupils in East Renfrewshire schools.

There is currently a significant case progressing through the Court of Session, as we have incurred significant costs which remain unpaid by another authority.

We would like to see a reinforcement of Section 23. Clarification of “home” authority responsibilities is needed.

We urge that consideration be given to recalculation of Central Government Grants to take account of the “actual” pupil population, as at present the allocation does not follow the pupil.

SUBMISSION FROM THE SCOTTISH COURT SERVICE

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?
The Scottish Court Service did not take part in the formal consultation exercise for the Bill, but we were consulted separately by the Scottish Government, on how the proposed changes would impact upon the courts in Scotland.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?
We offered no comment on the financial assumptions made.

3. Did you have sufficient time to contribute to the consultation exercise?
Yes

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

We are satisfied that the financial implications for the Scottish Court Service are accurately reflected in the Financial Memorandum. The projected decrease in applications represents less than 0.01% of civil court business in both the the Court of Session and the Sheriff Court, and as such will have an insignificant impact upon the courts.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?
We do not anticipate that the proposals will generate any additional work for the courts

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?
We take no issue with the estimates contained within the Financial Memorandum.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?
We have no knowledge of this

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

We are unaware of any future costs

ANNEXE C: EXTRACTS FROM MINUTES OF THE EDUCATION, LIFELONG LEARNING AND CULTURE COMMITTEE

23rd Meeting, 2008 (Session 3), Wednesday 1 October 2008

1. Decision on taking business in private: The Committee agreed to take item 4 in private.

4. The proposed Education (Additional Support for Learning) (Scotland) Bill (in private): The Committee agreed its approach to the scrutiny of the proposed Bill at Stage 1.

29th Meeting 2008 (Session 3), Wednesday 3 December 2008

1. Decision on taking business in private: The Committee agreed to take item 7 in private.

6. Education (Additional Support for Learning) (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Robin McKendrick, Support for Learning Division, Head of Branch and Bill Team Leader, Susan Gilroy, Support for Learning Division, Policy Officer and Bill Team Official, Louisa Walls, Principal Legal Officer, Branch 4 – Solicitors DELA Division, and Joanne Briggs, Economic Advisor, Analytical Services Unit - Schools, Scottish Government.

7. Education (Additional Support for Learning) (Scotland) Bill (in private): The Committee considered written evidence received from local authorities and agreed to write to those local authorities that had not provided written evidence to invite them to do so. The Committee also agreed to invite a number of local authorities to give oral evidence.

30th Meeting, 2008 (Session 3), Wednesday 10 December 2008

Education (Additional Support for Learning) (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Jessica M Burns, President, and Lesley Maguire, Secretary, Additional Support Needs Tribunals for Scotland.

31st Meeting, 2008 (Session 3), Wednesday 17 December 2008

Education (Additional Support for Learning) (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Lorraine Dilworth, Advocacy Manager, ISEA (Scotland);

Iain Nisbet, Head of Education Law Unit, Govan Law Centre.

1st Meeting, 2009 (Session 3), Wednesday 14 January 2009

Education (Additional Support for Learning) (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Dr Ted Jefferies, Principal Psychologist, Argyll and Bute Council;

Martin Vallely, Service Manager Professional Services, City of Edinburgh Council;

Cameron Munro, Senior Solicitor (Education), Glasgow City Council;

Bryan Kirkaldy, Representative, ADES.

2nd Meeting, 2009 (Session 3), Wednesday 21 January 2009

Education (Additional Support for Learning) (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Adam Ingram MSP, Minister for Children and Early Years, Robin McKendrick, Head of Branch 1, Support for Learning Division, Susan Gilroy, Policy Officer, Support for Learning Division, and Louisa Walls, Principal Legal Officer, Scottish Government.

3rd Meeting, 2009 (Session 3), Wednesday 28 January 2009

1. Decision on taking business in private: The Committee agreed that its consideration of a draft report on the Education (Additional Support for Learning) (Scotland) Bill at this and future meetings would be taken in private.

3. Education (Additional Support for Learning) (Scotland) Bill: The Committee considered a draft Stage 1 Report and agreed to consider a further draft at its next meeting.

4th Meeting, 2009 (Session 3), Wednesday 4 February 2009

Education (Additional Support for Learning) (Scotland) Bill (in private): The committee considered a revised draft stage 1 report. Subject to a number of minor changes, the report was agreed to.

ANNEXE D: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

Official Report 2008-12-03
Official Report 2008-12-10
Official Report 2008-12-17
Official Report 2009-01-14
Official Report 2009-01-21

Annexe E: LIST OF OTHER WRITTEN EVIDENCE

Copies of all other written and supplementary evidence received by the Committee can be found on the Scottish Parliament website (www.scottish.parliament.uk) or can be provided, on request, by the Clerk to the Committee.

The following written evidence has been received by the Education, Lifelong Learning and Culture Committee:
Aberdeenshire Council
Additional Support Needs Tribunals for Scotland
ADES/ADSW
Afasic Scotland
Angus Council
Argyll and Bute Council
Association of Scotland's Colleges
Autism Rights
Barnardo's Scotland
Care Co-ordination Network UK Scotland
Children in Scotland
Clackmannanshire Council
Consumer Focus Scotland
East Ayrshire Council
East Dunbartonshire Council
East Lothian Council
East Renfrewshire Council
City of Edinburgh Council
The Educational Institute of Scotland
Fife Council
Glasgow City Council
Govan Law Centre's Education Law Unit
Joint submission led by the Govan Law Centre
HM Inspectorate of Education
Inverclyde Council
ISEA Scotland
Jardine, Colin
Learning and Teaching Scotland
Midlothian Council
The Moray Council
National Autistic Society
National Deaf Children's Society
Perth and Kinross Council
Quarriers
Renfrewshire Council
RNIB Scotland
SCAJTC (Scottish Committee of the Administrative Justice and Tribunals Council)
School Leaders Scotland
Scottish Borders Council
Sense Scotland
Shelter Scotland
Scottish Traveller Education Programme
Stirling Council Children's Services
West Dunbartonshire Council
West Lothian Council