Finance Committee, 02 Dec 2003

Meeting date: Tuesday, December 2, 2003

Official Report 289KB pdf

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

Good morning and welcome to the 16th meeting of the Finance Committee in this session. I welcome members of the press and public. I remind members that, as usual, they should turn off all pagers and mobile phones and I ask members of the public and witnesses to do the same. We have received no apologies for today's meeting.

Agenda item 1 is further consideration of the Education (Additional Support for Learning) (Scotland) Bill. I welcome to the committee officials from the Scottish Executive. Members will note from the agenda that Wendy Wilkinson, who is the bill team leader, was due to be with us, but she is unwell. Mike Gibson, who is head of the additional support needs division, is with us instead. He is joined by Donna Bell from the Finance and Central Services Department, Naseef Huda from the research, economic and corporate strategy unit and Jillian Boyle, who represents performance management and finance in the Health Department.

Members have a copy of the Executive officials' submission, which was issued yesterday. Members also have a letter from the Education Committee and a letter from the Minister for Education and Young People to that committee. Although those papers are of interest to us, we received them rather late in the day and members might not have had sufficient time to look at them in as much depth as they would have liked.

We also have a copy of the submission from the Scottish Legal Aid Board and a follow-up submission from the Convention of Scottish Local Authorities. As the officials have provided the committee with a submission, I understand that they do not want to make an opening statement, so we will proceed to questions.

What are the Executive's views on reconvening the financial memorandum working group to re-examine and monitor expenditure? That was one of the suggestions from COSLA.

We are happy to discuss issues that relate to the costings of the bill's provisions, but it would be unusual to reconvene the original group. We need to see what happens to the bill once it has gone through Parliament before we look at costings. We will have discussions with all the stakeholders when it comes to looking at the implementation of the bill.

We carried out the full consultation process with COSLA and other interested parties. We also discussed the implementation process, which, depending on the way in which the bill is implemented, is where the projected costs could differ, and the consultation process that will take place during implementation to ensure that the costs are kept within the figures in the financial memorandum.

The evidence from COSLA was that three or four meetings of the financial memorandum working group took place. From what you, COSLA and other agencies are saying, it is clear to us that there are significant discrepancies between the different parties' interpretation of the anticipated costs. Given the different interpretations, do you think that the work of the financial memorandum working group was successful?

We have seen some of the COSLA submission and there are aspects of its figures that we would like to discuss further with the organisation, because there are areas of disagreement. One of the letters that you received—the letter that was sent to the convener of the Education Committee—set out one of COSLA's misinterpretations of the bill that was introduced in Parliament in October. It is a technical point, but we feel that COSLA misinterpreted the meaning of the legislation. Perhaps that influenced its conclusions about how many youngsters will receive a co-ordinated support plan.

My point is straightforward: the purpose of the financial memorandum working group was to look at the technical aspects of the bill and to reach an agreed interpretation of them through analysis of the costings. Judging by the evidence that we have received, that process has not worked. The fact that it has not worked makes our lives difficult when it comes to interpreting the costs properly. If one group says one thing and another group says something fundamentally different, that makes the Finance Committee's job difficult.

I understand how difficult it is for the committee if you receive conflicting information. We went through the full consultation process with all the stakeholders. We also went through all the questions about costs and the risks associated with those costs that were asked in the financial memorandum. We had three meetings, but a fair amount of correspondence went back and forth between those meetings and clarification continued to be provided throughout that period.

At the end of the process, we set out a final draft and asked for agreement, or some sort of sign-off, from COSLA and other stakeholders. The draft was passed through without any further comment, so we were surprised by the further submissions from some stakeholders.

It is not for us to allocate blame to any agency. The issue for us is whether we believe you and your interpretation of what the costs will be, or whether we believe COSLA. COSLA has an advantage, in that, at one level, it is closer to the chalkface. You have a job to do to convince us that your interpretation is correct.

The information that we used was the information that we received from COSLA and the other stakeholders in the first place. That makes it difficult to see where COSLA's new figures come from.

To return to my original question, does that mean that the group should be reconvened so that you can reconcile the problems and we can get clarity? How do you anticipate proceeding with the situation?

There are obvious areas of disagreement between some of COSLA's figures and our figures. We saw the latest submission that COSLA made to the committee yesterday, in which it estimated that 15 per cent of youngsters—or 115,000 youngsters—would be eligible to receive co-ordinated support plans. Clearly, that is nowhere near the policy intention and, from that point of view, we feel that the figures that COSLA has produced are not accurate. I am unclear about the rationale for the paper that COSLA gave the committee yesterday. I am happy to discuss with COSLA how it arrived at the figures, but they did not seem to be subjected to any rigorous analysis.

There are issues of interpretation here, but one of the crucial points is that the policy intention of the bill does not make it absolutely clear what is included in the figures. It would be easier to accept a quantification that was nearer to 3 per cent of eligible children if you were absolutely clear about the circumstances under which somebody would qualify for a co-ordinated support plan. However, because the reasons for the choices that are being made are not explicit, we cannot make that judgment. You can say that your intention is for the policy to cover about 3 per cent of children but unless you designate in which areas the plans will apply and in which areas people will be disappointed because the plans will not apply to them, it becomes difficult for us to make judgments.

The financial memorandum gives an indication of the number of youngsters who are expected to have a co-ordinated support plan. We have given the figure that 50 per cent of those who have a record of needs are expected to have a co-ordinated support plan plus, above that, an additional proportion—0.3 to 0.6 per cent—of the school population. We are clear about our costings and the anticipated number of co-ordinated support plans. We are not suggesting that anything like 115,000 pupils—15 per cent of the school population—will have a co-ordinated support plan. There is a wide difference of opinion between us and COSLA.

The policy intent is clear and we feel that the way in which the bill is framed makes it clear that we do not intend 15 per cent of the school population to have co-ordinated support plans.

I accept that the intention of the legislation is not to create that situation. However, to be fair to COSLA, in its most recent submission to the committee it has attempted to put figures on the number of young people with particular types of difficulties who might or might not—but could—qualify for a co-ordinated support plan. The financial memorandum states that 50 per cent of those who have a record of needs will have a co-ordinated support plan, but none of us have a handle on how you arrived at that figure. We have never had an explanation of why you think that only half the pupils who have a record of needs will have a co-ordinated support plan. That makes it very difficult for us to assess whether the figure is correct.

I will ask Naseef Huda to pick up the second point, but first I will address the point about COSLA's most recent submission.

We have made it clear in all the policy papers that we do not see a clear link between putting a label on a child—whether autism or attention deficit hyperactivity disorder—and the need for a co-ordinated support plan. We have always said that it is necessary to look at the child as an individual and to determine whether they fit the criteria for a co-ordinated support plan. That is why we have some difficulties with COSLA's most recent submission. All that it does is give a list of conditions and attach percentages to them. There is no rationale about where the percentages come from or where they fit in with the criteria for a pupil having a co-ordinated support plan.

I ask Naseef Huda to explain how we arrived at our figures.

One of the questions that we asked local authorities to come back to us on as part of the consultation process was what percentage of existing records of needs they thought would result in co-ordinated support plans, given the policy intention that Mike Gibson has outlined.

We received a range of estimates from local authorities. Some local authorities gave us estimates that were desk-based exercises, while others—in particular, South Lanarkshire—asked head teachers for their opinion. We included those estimates in our figures as best we could. Some authorities stated that 100 per cent of records of needs would result in CSPs. However, on the basis that that is not the policy intention of the bill, we excluded what we felt were outliers, and 50 per cent seemed to be a reasonable figure based on the returns that we received from local authorities.

I know that the Executive does not accept that the change from an "and" to an "or" in section 2(1)(c)(i) means that the intention is different, but it certainly implies that to others.

I ask for clarification as to what is meant by section 2(1)(c)(i), which refers to:

"the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education".

Does "education authority" mean the council?

This is an important issue. The policy intent in the bill has not changed from the policy intent in the draft bill that was published for consultation. We still see one of the criteria for having a co-ordinated support plan being that a pupil requires a service from outwith the education authority.

Do you mean the local authority—the council?

I mean outwith the education authority, in terms of the education authority exercising its education functions. You are putting your finger on the reason why we changed the wording of the bill from that of the draft bill. One of the problems is that, legally, "education authority" and "local authority" have the same meaning under the Education (Scotland) Act 1980; they are both defined as a council constituted under section 2 of the Local Government etc (Scotland) Act 1994. In legal terms, education authority and local authority are the same entity.

When the term education authority is used in education legislation, it is used in the context of the education authority carrying out its education functions. There is potential for some confusion when we use the term education authority. Does it mean education authority in terms of local authority, as you have suggested, or does it mean education authority in terms of the education authority carrying out its own functions? The change in the wording of the bill from that of the draft bill is an attempt—members might not think that it has been a successful one—to clarify the confusion and to make clear precisely what we mean.

I refer members to section 2(1)(c)(i), which sets out the leg of the test that states that to qualify for a co-ordinated support plan there must be involvement from someone outwith the education authority. Section 2(1)(c)(i) refers to:

"the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education".

That acknowledges that "education authority" could in this case be taken to mean social work authority. That is why that first leg is there.

The confusion on the part of COSLA and the Association of Directors of Education in Scotland arises when we came to the word "or" after that. Section 2 continues:

"or

(ii) by one or more appropriate agencies … as well as by the education authority themselves."

The "appropriate agencies" are defined in section 19(2) as agencies such as a health board. By "the education authority themselves", we mean the education authority as a local authority. That is where social work and education come in. I apologise that that is so complicated.

The intention in redrafting section 2(1)(c)(i) was to clarify what could have been a confusing situation. What has happened is that our colleagues from COSLA and, perhaps, those from ADES, have tried to reinterpret the primary legislation instead of going back and examining the policy intent. The policy intent would have illustrated to them that we do not intend any change in the criteria as to who should get a co-ordinated support plan.

The confusion was also caused by the document that was published after the consultation, because it implies that a wider spectrum of pupils will be involved. We should not concentrate only on the numbers, because the issue is not only about the cost of having a co-ordinated support plan. COSLA is also worried that if there is confusion in the legislation there could be a lot more appeals. If it is not clear who is entitled to have a CSP, the cost of mediation might increase.

Mike Gibson's comments have clarified the intent of the legislation, but I do not think that they address the Finance Committee's dilemma, which is that we have different information from COSLA and the Executive about the financial implications of the legislation. I still do not think that the issue is clear, even after having heard how the Executive and COSLA arrived at their guesstimates. It is very difficult for the Finance Committee to make a decision on the matter without having some clarity. As the convener suggested in his first question, perhaps it would be helpful for people to get round the table and discuss the matter again.

I have seen COSLA's most recent submission only today, but I know from my constituency experience that the majority of pupils in my local authority who have conditions such as attention deficit disorder, ADHD or autistic spectrum disorders do not currently have records of needs. I suggest that quite a few of them would qualify for co-ordinated support plans. From my experience, nothing leads me to believe that fewer rather than more pupils will be covered by CSPs than are covered by records of needs. I think that perhaps more pupils will have a co-ordinated support plan than have a record of needs. Therefore, the financial memorandum does not stand up. That is only an opinion—I do not think that I have enough evidence to make an informed decision on the matter.

I appreciate the point that you are making. It has always been our intention that the code of practice will, in a sense, unpick the legislation. It is difficult to write primary legislation that gives extremely clear definitions, especially in the area of special educational needs. It is the intention of the code of practice to clarify who should get co-ordinated support plans.

The committee will perhaps be aware that, in the existing legislation on records of needs, the legal definition of who should get a record of needs is somebody who has

"pronounced, specific or complex special educational needs which require continuing review".

I am sure that, if we were discussing that definition, members would be making similar points that the definition is unclear or that it might apply to 15 or 20 per cent of the school population. In reality, we know that that definition applies to 2 per cent of the school population, and I submit that the definition that I have just given is actually wider than the definition of those who would get a co-ordinated support plan.

The record-of-needs definition is applied to a smaller population simply because of the advice and the circulars that have been put out to clarify and explain who should get a record of needs, and the same would apply to the co-ordinated support plan. We would put out advice in the code of practice and explain in detail who should get a co-ordinated support plan. I can appreciate your difficulties with that, but to get precise definitions in primary legislation is extremely difficult.

We are no different from other countries in the western world. In Europe, the percentage of pupils who have special needs ranges from something like 0.9 per cent in Greece to 18 per cent in Finland. That does not mean that the incidence of special needs has that range, because it does not; it means that there are difficulties in interpreting who has special needs.

The point that I am trying to make is that there is no point in the legislation unless the resources are there to ensure that it works. If the legislation is to be driven by finances that have been underestimated, it will not achieve what it is meant to achieve.

I know that virtually every single school in Dundee has children who are being medicated for ADHD. A lot of them do not have records of needs although, in future, they might have a support plan. Against the evidence that I have, the COSLA figures seem to stand up better than your figures do. What concerns me is that the whole thing will be driven by cost, and the very children whom we are trying to help through the legislation will not be helped, because the resources will not be there to help them.

One would have to go back to individual cases and start to apply the test. ADHD is an example that you have used, and you are absolutely right to say that a lot of children with ADHD do not have a record of needs. A lot of children with ADHD may not require a co-ordinated support plan, because they may fail at the first hurdle of having complex or multiple factors that interfere with their learning. That is not to say that they do not have additional support needs, but many of them would not pass the severity test for a co-ordinated support plan. They may also not pass the second test of requiring significant support from other agencies. The fact that they need medication or some health support would be accepted, but I suspect that they would not pass the severity test in terms of the level of support that they require.

The problem is that you have not really said where the severity test is actually going to cut. That is our difficulty.

I am talking about pupils who spend most of their time excluded from school because of their disability, if I can call it a disability.

As I said, the code of practice will address many of those issues, but we cannot write the code of practice until the primary legislation is in place. All that I can say is that our policy intent is clear: we do not anticipate that the number of youngsters with co-ordinated support plans will reach COSLA's estimate of 115,000. That is certainly not the policy intent, and we believe that the code of practice can be written in such a way as to ensure that that number is not arrived at.

I am tempted to come back on that point, but I shall let Ted Brocklebank ask a question.

I seek clarification. When last we had witnesses here from COSLA, they mentioned that there might be special cultural needs in certain groups. Additional support for aspects of Gaelic education might be regarded as a special need, as might support for other minority languages, for all that one knows. Would not there be huge financial implications if those aspects were incorporated?

The youngsters whom we are talking about exist already, and co-ordinated support plans would be unlikely to apply to them in the numbers that we are talking about. Youngsters who require additional support for language already exist, and if they need that support they should be getting it. In a sense, the bill should not impact on them.

Do you believe that there might well be demands placed on the system, given the fact that many people believe that those needs have not been addressed adequately until now?

I do not anticipate that that would be an issue.

You do not believe that it should be?

No.

I will move on. Are there any other changes between the draft bill and the bill as introduced that may not have been reflected in the financial memorandum? COSLA believes that the introduction of dispute resolution is not reflected in the financial memorandum.

Dispute resolution is in the financial memorandum.

But is it fully reflected?

We have included a figure of up to £1.5 million for dispute resolution, but there are difficulties in estimating costs because the exact nature of the dispute resolution mechanism has not yet been fully developed.

Could I ask about mediation and the tribunal costs? COSLA said that it believes that there is a substantial underestimation of the costs of mediation, and we had some fairly frightening figures from COSLA last week about the cost to it of the legal processes associated with dealing with tribunals, which it pitched at about twice the cost of educating a child in mainstream education. Could you comment on those concerns?

We arrived at our costings for the tribunal by looking at the system in England and Wales and taking a proportion—roughly a tenth—of those costings. From that, we arrived at an estimate of the number of appeals that we thought that there might be to a tribunal.

I am not sure that I fully understand your point about COSLA. Are you talking about officer time?

Yes, and perhaps also any legal representation that officers might require.

We are clear that we are not encouraging legal representation. The idea behind the tribunal is that it should be family friendly and should not involve lawyers. From memory, the figure for authorities down south bringing lawyers in is quite small, so we do not see the need for COSLA to say that it would want legal representation. The tribunal should be an informal setting. There will be a lawyer in charge of the tribunal to ensure that the legal procedures are followed, and there will also be experts on additional support needs. It is not a matter of people making cases and of the outcome depending on how well a case is presented. The tribunal should have enough expert knowledge to make a judgment.

COSLA's concern is that individual authorities will be in a position of having to convene and co-ordinate tribunals and provide representation.

No. The tribunals would be funded centrally. That would be a cost to the Scottish Administration, and there would be no expectation that COSLA would run the tribunals. The Executive would do that. COSLA would have to provide officer support and, if a case comes before a tribunal, those officers would have to appear. However, that happens a lot anyway, as some authorities already have dispute resolution and mediation and are already making an input into such arrangements.

COSLA estimated a cost of £2 million for mediation. Our best estimate was £1.85 million, but our range for the cost of mediation goes from £1.2 million to £2.5 million, so that covers COSLA's estimate. We included in the financial memorandum the costs of legal aid if families require that to prepare for tribunals or if any points of law go on appeal to the Court of Session or to judicial review.

It is implied that the system will not be significantly more expensive than the current system.

Mike Gibson indicated disagreement.

So the new system will be significantly more expensive and identifiable costs are associated with it.

Mike Gibson indicated agreement.

Some of those costs relate to the running of tribunals and some of them may be unacknowledged costs to local authorities, for example for providing psychologists, head teachers and others to represent their views.

We have included the cost of about £220,000 for local authorities to prepare for and appear at tribunals.

Naseef Huda mentioned the inclusion of legal aid costs. Many witnesses to the Education Committee have had the impression that parents will not be entitled to legal aid.

That is correct. The cost will arise from legal aid for going to the Court of Session, not for support at a tribunal. Legal aid might be available for discussions before a tribunal or to deal with an appeal to the Court of Session.

Our job is to assess how much the bill will cost. The problem is that many of us feel that the bill will cost considerably more than your estimate. Does Mr Gibson accept that he has admitted that there is a discrepancy between the aims and definitions in the policy memorandum and other documents that have been provided to us and the provisions of the bill?

I do not think that I have said that. I am not sure what point you are making.

Okay—you do not accept what I said.

I ask you to look at your submission, which we received just yesterday. The third paragraph on page 3—I think that it is page 3, but the pages are not numbered—is headed "Criteria for a Co-ordinated Support Plan".

Is that paragraph 12?

Neither the pages nor the paragraphs are numbered in the document that we received yesterday, which does not make the situation easier.

That paragraph says:

"The Executive remains clear that the policy intention is for CSPs to be for those with most complex or multiple needs who require significant services from outwith education, either through other functions of a local authority or through functions of other organisations, to support their learning."

I will park the merits of the argument and consider purely the implications of the wording for finances. You say that the Executive plans, intends, and has always intended, that CSPs should be for people with "most"—that is the superlative out of the words "some", "more" and "most"—complex or most multiple needs. Where does the word "most" appear in the bill?

The word does not appear, but the submission from which you quote is a policy document that explains the policy intent. The submission does not quote directly from the bill. The bill says that a youngster will have a co-ordinated support plan if a complex factor is likely to have a significant adverse effect on their school education. We do not use the word "most" in the bill, but we speak about complex or multiple factors that

"are likely to continue for more than a year".

The issue is a matter of strict interpretation and the point is significant. As Dr Murray said, the bill contains a definition of co-ordinated support plans. Section 2, which provides the definitions, refers to

"one or more complex factors, or … multiple factors".

The word "most" is not there.

That is true.

Many people will have complex factors and many people will have multiple factors but, just yesterday, you said that we should consider not the people who are defined in the bill, but only the people who have the "most complex" needs. You must accept the ordinary meaning of the English language. You refuse a working group and your colleague Donna Bell says that the costs will be determined once the bill is implemented. The courts will consider the wording in the bill, not the wording in the policy memorandum or any other documents. If your colleague's admonitions are borne in mind, are you saying that you forgot to put the word "most" in section 2 and that you will go away and put it in now?

No.

How will you reconcile the confusion? Carers Scotland says that one in five children and young people in Scotland could—rightly—qualify as having additional support needs. They might include young people who have a sight or hearing impairment, who are bullied at school, who have autism, dyspraxia or any of the other needs that COSLA was right to identify and who, in the wider sense, have "a barrier to learning", as paragraph 2 of the Executive's policy memorandum says.

Paragraphs 4 and 16 of the policy memorandum make it clear that the Executive wants to extend the legislative framework to encompass more children. Everybody agrees that that aim is desirable, but the problem for parents of children who will now be recognised as having needs that require to be addressed is the cost of the system that the bill will establish. The system is complex—it involves a new tribunal, a new bureaucracy and, under section 10, the possibility that an education authority will have to request information for every parent, or child who is not of nonage, who makes an application. A large volume of new applications with a new range of costs is possible. To a greater or lesser extent, we are all concerned about that.

The simple problem is the discrepancy between the definitions in the bill and what you have said on your second or third attempt: that the intention is that those with most complex needs—not some needs, or more complex needs—should receive CSPs. Surely the bill is defective and the Executive should rethink it. I hope that Mr Gibson will respond to my general point.

Incidentally, I hope that the Executive will produce the definitions that relate to section 7(4), as that would let us know what a co-ordinated support plan is supposed to contain. At the moment, it is a blank sheet of paper. Will the Executive go back to the drawing board, re-instigate the working group, redraft the bill and tell us what section 7(4) and the other blank pages to which the bill refers are about?

Some of the comments that have been made are unfair. I explained that much of the detail about co-ordinated support plans will be in the code of practice and in regulations. That detail will be developed in conjunction with stakeholders, including the people who will implement the plans.

We are making too much of the phrase "most complex" in the 12th paragraph of our submission in comparison with the policy intention in all the other documents and in the bill. The policy documentation that accompanies the bill and the financial memorandum are clear about the number whom we expect to have co-ordinated support plans.

The problem is that the bill establishes a loose enabling framework that will allow the bar to be set at several different levels. Where the bar will be set is not clear to the committee. The implications for local authorities will depend on where the bar is set, so we are in a difficult situation.

As I said, writing precise prescriptive details about the subject in primary legislation would be impossible. To set the bar, as the convener put it, we have suggested in the financial memorandum our thoughts about co-ordinated support plans.

The original policy intent and the reason for there being a CSP in the first place resulted from our consultations on the earlier draft. A record of needs was for children with pronounced specific or complex needs that required to be continually reviewed. During the consultations, some parents were concerned and still wanted a statutory plan. Currently, records of needs apply to around 2 per cent of the school population—it was never intended that CSPs would cover anything like 15 per cent of that population, which COSLA has suggested. The intention was to ensure that a plan would be in place for children with complex or multiple factors, which takes us to the criteria in the bill. That was where CSPs came from and why the policy intent sets the bar—as the convener put it—where the financial memorandum states that it should be set.

The onus is on the Executive to argue for changes in the law and to explain what the changes will do. Currently, most or many children who have special educational needs have a record of needs, but under the new system, a far greater number of children and young people will have additional needs—I think that that has been admitted. However, only a proportion of those children and young people will have a CSP. That is your assumption. Perhaps slightly more children will have a CSP than have a record of needs, but the figures are roughly the same—the annual figure is given as £7.3 million, as opposed to £6.7 million, according to the financial memorandum. A new category of children with additional needs will be created. Under section 10, they or their parents will be able to say to the education authority that the child "has additional support needs" or

"requires, or would require, a co-ordinated support plan".

If the application is made, all that the child or parent has to do is to ask for advice and information and the authority's duty will be to seek and obtain all sorts of advice and information. That will be a complicated process in itself, as it will have to be done professionally; it will involve obtaining complex reports and it will have considerable costs.

In short, the result of the bill will be that a far wider group of children will, quite rightly, be recognised as having additional needs. In turn, it seems that that will generate a market and appetite for those children's needs to be further recognised through a CSP. That is why I suggested when we discussed the bill at a previous committee meeting, Mr Gibson, that the problem with the bill is that the costs involved might be many times greater than you have estimated them to be. You mentioned a figure of 2 per cent, but Carers Scotland and COSLA talked about 20 per cent and 15 per cent. The multiple could be 10 times as much. As I pointed out at that meeting, that is exactly the same multiple by which the actual costs of the Holyrood building have so far exceeded the notional estimated costs of some years ago.

We do not recognise those figures. Did you say that 20 per cent was mentioned in a Careers Scotland paper?

I mentioned a Carers Scotland paper.

I have not seen a paper from Carers Scotland—I thought that there was a paper from Careers Scotland.

I am sorry—the committee had a paper from Careers Scotland, which suggested that 20 per cent of children and young persons may have additional special needs. COSLA's supplementary paper said that 15 per cent could require a CSP. There is, therefore, a huge discrepancy between your figures and their figures. Not only have you not answered the question, but you have refused to recognise that there are any problems at all with the bill. As far as you are aware, there are no discrepancies. You will not reconvene the working group. You think that things will be all right on the night once the Parliament passes the bill and that we will just hit and hope. That seems to be the situation.

I do not think that Mr Gibson said that he would not reconvene the working group.

Fergus Ewing has made many points. I saw the Careers Scotland paper only yesterday, but I think that it mentioned that 20 per cent of young people have special educational needs and that it arrived at a cost of around £10 million for careers support. That was the first time that we had seen those figures. I am not sure where Careers Scotland got the figure of 20 per cent from. Many years ago, a statement that was circulated from the Warnock report suggested that, at any one time, 20 per cent of pupils in the system might have special educational needs. However, many of those needs are very mild and transitory and will not need any significant support.

There is a new label in respect of additional support needs, but we are not creating a new group of children. Children with additional support needs are out there and are being provided for. The bill intends to pull in under one piece of legislation much of the provision that is already being made for youngsters who have ADHD, for example, which was mentioned. Those youngsters might not be seen as having special needs if they do not have a record of needs. The bill clarifies matters in an innovative way and applies a label and terminology to a host of youngsters who are already in the system and being supported; it also gives some coherence to how people should make decisions about how those youngsters require provision.

The bill establishes a framework. From a local authority's standpoint, the difficulty is that that framework will give a series of rights to parents and a system through which they can work.

That is right.

The issue for local authorities is whether they have the resources to deliver what the framework will require them to produce. Further issues are what the impact will be on the education of other children who do not come under the rubric in question as a result of any resource implications from the implementation of the bill and whether it is known with sufficient clarity to whom the bill will apply. In particular, that final issue is a big problem for us. As you have not defined to whom the bill will apply and how it will be applied—where the bar will be set, to use my earlier expression—we cannot judge properly what the financial implications will be.

I want to go back to the definitions in the bill. I have explained that it is near-nigh impossible to give a precise and prescriptive definition of additional support needs, for example. The purpose was that an element of interpretation would be required by the professionals who work with children—that was fully intended from a policy point of view. The greatest discrepancies in our discussions so far seem to lie in the number of youngsters who will get a CSP. There are two sets of figures. The committee has a figure of 15 per cent from COSLA, and our proposed figure, which is much smaller. All that I can do is refer members back to the financial memorandum and to the policy intent about what we mean by a CSP and who should get one. Youngsters in the latest document from COSLA, for example, are certainly not covered. If a child is looked after by a local authority, that does not mean that they will require a CSP.

I appreciate the committee's difficulty. We are saying that the final interpretation of the bill will, in a sense, depend on the code of practice. However, I have indicated where the policy intent lies in respect of the number of those who should get a CSP. We are not creating new groups of youngsters—the youngsters are out there and are being provided for.

With respect, that is not the point. The issue is that the framework that will be established will ultimately be determined by the courts or other agencies. That is the problem. If a framework were introduced that the local authority could manage, I presume that it might have some leverage on the costs, but a framework that is driven by parental claims for support services with a legal mechanism that will allow them to enforce those claims—that is the framework that you have adopted—is different.

I do not necessarily disagree with the framework that you have adopted—I am simply saying that there are certain logical consequences, one of which is that costs cannot be controlled unless one defines clearly to whom the framework will apply, which has not been done in the bill. We are in a catch-22 situation. As Fergus Ewing pointed out, there is a gulf between the policy intent and the mechanisms that exist for exercising financial control over its application.

What I am about to say will probably not answer that point directly, but I want to clarify that we asked local authorities specifically what percentage of the school population would eventually receive a CSP. None of them said that it would be as much as 3 per cent—all nine authorities that responded said that it would be less than that. None of them gave the figure of 15 per cent. Based on the returns that we received from local authorities, I do not recognise the figures that COSLA is providing.

That is like putting your finger in the air to see which direction the wind is coming from. You have not piloted the system, so you do not have a firm view.

How do you plan to reconcile COSLA's and Careers Scotland's interpretation of the bill's resource implications with yours? How do you plan to satisfy COSLA's call for more detail about the criteria, without reframing the bill?

This is about unpicking the definition that is contained in the primary legislation and giving detailed advice. We have set up an additional support needs advisory group, which is chaired by a senior civil servant and involves COSLA and other stakeholders, to examine the issues that Jim Mather raises. We are considering what a co-ordinated support plan might look like, what advice might sit alongside a CSP and how a CSP should be drawn up. We are already examining the criteria for CSPs.

Those are preliminary steps. To give us an idea of what will happen, we are holding discussions with the people who will implement the bill. We have already started the process. Once the bill is passed and we enter the implementation phase, the intention will be to involve people fully in drawing up all the advice and guidance that will be required to implement the legislation. We are discussing with people what a co-ordinated support plan might look like and we have started to consider to which children a CSP might apply.

We have a number of other questions, but it may be better for us to pass them to you in writing.

That is fine.

Members do not want to ask any further questions today, so we will proceed in the way that I have outlined. We will need a response from you by about this time next week, if possible. Thank you for your evidence.