Subordinate Legislation
Additional Support for Learning (Appropriate Agencies) (Scotland) Amendment Order 2010 (SSI 2010/143)
Additional Support for Learning Dispute Resolution (Scotland) Amendment Regulations 2010 (SSI 2010/144)
Additional Support for Learning (Sources of Information) (Scotland) Order 2010 (SSI 2010/145)
Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2010 (SSI 2010/149)
Additional Support Needs Tribunals for Scotland (Practice and Procedure) Amendment Rules 2010 (SSI 2010/152)
We resume with a reminder that everyone should switch off their mobile phones and BlackBerrys, not switch them to silent. They are interfering with the sound system in the committee room.
Agenda item 7 is consideration of subordinate legislation in relation to the Education (Additional Support for Learning) (Scotland) Acts 2004 and 2009. For this item and the next, we are joined by Scottish Government officials, and I am pleased to welcome to the meeting Rachel Sunderland, team leader, Ian Glover, policy officer at the support for learning branch, and Robert Marr, solicitor in the children, education, enterprise and pensions division.
I understand that Ms Sunderland wishes to make an opening statement.
Rachel Sunderland (Scottish Government Learning Directorate)
I thought that it might be helpful to provide a very short overview of the process to date, how we have got here and what we are seeking to achieve with these changes. The aim of the Education (Additional Support for Learning) (Scotland) Act 2009, which, as the committee is well aware, was passed by the Scottish Parliament on 20 May 2009 and received royal assent on 25 June 2009, was to strengthen and clarify the Education (Additional Support for Learning) (Scotland) Act 2004. Although the 2009 act did not represent a step change from the 2004 act, it very much built on that legislation. As a result of the passing of the 2009 act, we need to make changes to secondary legislation, which is the purpose behind the regulations that we have brought to the committee this morning.
Before I talk about the individual changes, I will say a little about the process involved. Between 5 October 2009 and 8 January 2010, the Scottish Government held a consultation exercise that set out, and sought comments on, the proposed changes to secondary legislation as well as changes to the code of practice that we will discuss in a moment. Letters inviting comments were sent to more than 4,400 stakeholders including all local authority education and social work departments, health boards, all Scottish schools, colleges and universities, community councils and relevant voluntary organisations. In addition, we commissioned Children in Scotland to host five consultation and information events across the country. We received 237 responses from a broad range of consultees and have produced an analysis of those responses that I understand has been provided to the committee.
In addition to its consultation process, the Scottish Government established an additional support for learning implementation group, comprising key stakeholders such as the president of the Additional Support Needs Tribunal for Scotland; representatives from parents groups such as the for Scotland’s disabled children liaison project; the national parental involvement co-ordinator; voluntary sector organisations such as Children in Scotland; Govan Law Centre, which has direct experience of representing parents in tribunal hearings; and local authorities and the Convention of Scottish Local Authorities. It might be worth mentioning that Govan Law Centre brought together a group of voluntary sector organisations and co-ordinated their responses to the consultation and their representation on the implementation group. The secondary legislation that is before the committee was informed by that consultation and the implementation group.
I will now pick out and comment on each of the regulations.
The Additional Support for Learning (Appropriate Agencies) (Scotland) Amendment Order 2010 amends the list of appropriate agencies under the 2004 act to include Skills Development Scotland and to remove references to Highlands and Islands Enterprise and Scottish Enterprise. The order was not part of the detailed consultation process that I set out, because it did not necessarily flow from policy changes. We made the change to reflect the changed landscape since 2004, notably the establishment of Skills Development Scotland.
The Additional Support for Learning Dispute Resolution (Scotland) Amendment Regulations 2010 were subject to full consultation and discussion at the ASL implementation group. Currently, applications for dispute resolution are sent directly to local authorities. Under the regulations, such proposals will come to ministers. The Scottish Government will log the applications and direct them to the appropriate local authority. There will be no change to the overall deadlines for parents, young people or local authorities. The regulations will allow the Scottish Government to monitor and to log applications for dispute resolution. I am happy to comment further on the matter, because it was subject to some discussion. The regulations also cover the refusal of a request for specific assessment of additional support needs and exclude from dispute resolution a failure to provide the support that is contained in a co-ordinated support plan. Previously, there were two routes of appeal. It was felt that that was confusing, so the regulations clarify the situation by providing for one route—the tribunal.
The 2009 act enables Scottish ministers to make an order specifying certain persons from whom parents and young people can obtain advice, information and support, and places education authorities under a duty to publish information. The Additional Support for Learning (Sources of Information) (Scotland) Order 2010 adds Enquire and the Scottish Independent Advocacy Alliance to that list. When we originally consulted, we planned also to include the name of the organisation that will deliver the independent advocacy service. I am happy to say more about that later, if that would be helpful, but we are not quite in a position to know the name of the organisation that will deliver the service. For that reason, the regulations refer solely to Enquire and the Scottish Independent Advocacy Alliance. The change was supported by 85 per cent of those who responded to the public consultation.
The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2010 relate to the timescales and transfer of co-ordinated support plans and arrangements for sharing information about such plans and placing requests, when those cross local authority boundaries. The changes were subject to full consultation, discussion and agreement with the additional support for learning implementation group. I am happy to comment further on the regulations, if necessary.
The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Amendment Rules 2010 make a number of changes to the tribunal’s rules and procedure. I do not propose to go through those changes in detail, but they were subject to full consultation and discussion at the ASL implementation group.
It is important to note that, following the report process, we did not take forward some of the proposals that we initially set out in the consultation, as it was clear following the consultation and discussion at the implementation group that there were concerns about them. I will give a couple of examples. First, we originally suggested that the tribunal should be able to review its decision if new evidence came to light. Secondly, we originally sought comments on the suggestion that someone who had appeared as a supporter at a tribunal could not subsequently be called as a witness. Because of the feedback that we received from the consultation exercise and discussion at the implementation group, we decided not to pursue the proposals. I give those examples to emphasise that there was a genuine process not just of consultation, but of engagement. We changed the proposals to reflect the comments that we heard.
The other area of change that prompted some discussion but which was, ultimately, agreed related to clarification of the case statement period. I am happy to say more about that, if that would be helpful.
Thank you for your opening comments, Ms Sunderland.
I hope that I will not stray into things to do with the code of practice that you are not able to answer at this point. One of the issues that I and colleagues highlighted during the passage of the legislation was the provision of information, particularly to parents. At the time, there was a certain amount of concern that we were asking for something that was disproportionate to the benefit to parents. In fact, we had heard a lot of evidence that a lot of parents felt that there was a need for the information. We are told:
“The code suggests”
that the information
“can be provided as a handbook or as a USB pen drive.”
Can you give us a bit more information about the provision of information?
We recognise the importance of ensuring that all parents and young people have information about what they can expect and what the routes of appeal are. It is important that local authorities and schools make that information widely available in accessible formats, and it is important for the local authority to think about what works best to address the needs of those parents to whom it has a responsibility to provide information.
Linked to that, we have just completed the just ask campaign, which was a television and radio information campaign that was designed specifically to raise awareness of what is meant by additional support and which groups of young people might fall into that category. The campaign aimed to inform parents that there are sources of support out there and to encourage them to ask about that support.
I am not sure whether that answers your question.
We all did a great deal of work on additional support, and there was real concern at the time based on what we had heard about access to information. The local authority side was concerned that we were asking for something that would be far too costly and onerous. However, from what we are now being told, it seems that the proposals that we put forward—for a handbook and so on—are being progressed. That suggests that what we asked for has been found to be neither too costly nor too onerous, but is regarded as a fairly sensible suggestion from the committee. Is that the case? A yes or no would do.
I am sorry if I appear to be hesitating, but that is partly because I was not in post then and was not privy to a lot of the discussions around that. I have been in post for only a couple of months.
One of the reasons for establishing an implementation group is that we want to look not just at the regulations and the code, but at some of the practical issues around how we can ensure that the act is implemented. The legislation having been passed, it is now incumbent on us to find ways to deliver it. As part of that, the code sets out clearly the expectations on local authorities, and local authorities are expected to deliver on their statutory duties.
There are a couple of other things that I would like to pick up on, in which I am particularly interested. I echo what you just said about the implementation group—that is essential.
On the collection of data, the code of practice states:
“Further details about the arrangements for collecting this data ... will be made available in due course.”
Do we have any idea when that might be?
11:45
The 2009 act places duties on us to collect data on numbers, factors and cost. There are practical issues about how to do that in a way that does not place an onerous burden on local authorities and which produces data that are useful, meaningful and helpful—and, essentially, which meet the duties that the act places upon us.
We have established a sub-group of the implementation group, which includes people with policy responsibility in the Government, our statistical colleagues, who are experts at gathering statistics, and representatives of parental organisations in the for Scotland’s disabled children liaison group. We are considering how to secure a suitable mechanism. We have held one meeting, and we are due to hold a further meeting later this month. We do not have an answer as yet, but we are considering how we might proceed in the context of the aspirations that I set out earlier.
It is to be welcomed that there is an input from a parental point of view, from for Scotland’s disabled children. It is good that that input comes from beyond Government. If my memory serves me correctly, I recall that there was an amendment to the bill that was generated from concern on the part of such organisations.
There is a further issue that is dear to the heart of all members of the committee: the position with respect to looked-after children. The new provision in the act effectively says that all looked-after children should be presumed to have ASN. There was some discussion about the different types of plans, about ensuring that there was no duplication, and about trying to streamline the process.
We were concerned that, proportionally, an awful lot of looked-after children did not appear to have the care plans in place that some non-looked-after children had. At the same time, there was a general feeling that any of those children would probably have additional support needs. That was particularly apparent after looking at the educational statistics—at achievement levels and so on. That concerns us all. What stage are we at in implementing that element of the legislation?
I am not sure that I can say an awful lot more at this point. You have touched on some very important principles about integrating the various pieces of work that we are doing on additional support for learning, the getting it right for every child agenda and the child plan, particularly for looked-after young people, as we ensure that we keep the child or young person at the heart of what we are doing. We will be seeking to discuss that issue with the additional support for learning implementation group, which will take us not just up to but beyond the implementation of the 2009 act. The implementation group will provide a useful sounding board for us in considering any issues that arise once the act is implemented. We can then start to pick up on the matters that arise.
In the code of practice, we have clearly set out what the expectations are, what the guidance says and how the provisions should be implemented. The code has been informed by our discussions with the implementation group, which includes local authority representatives. We will be monitoring how the measures and processes bed down and whether any issues emerge. We are mindful about the need for and importance of linking the various strands of work in this area.
I hope that that was helpful.
Christina McKelvie (Central Scotland) (SNP)
One of the concerns that has arisen in the evidence that we have taken is the inconsistency of the use and quality of co-ordinated support plans across and within local authorities. Will you tell us about the code of practice and the implementation group’s approach to considering best practice to address that issue?
I ask that members restrict their questions to the regulations. We have a separate agenda item on the code of practice and Rachel Sunderland has a statement to make on it, so it might be better to return to that question when we get to agenda item 8.
That is fine.
Do you have any questions on the regulations?
No, I am looking for the detail.
How many of the responses to the consultation on the regulations came from parents or parents groups?
I am not sure about the detail of that. As I said, we had a response from the Govan Law Centre and the coalition that it represented. That did not include parents specifically, but the liaison committee of the for Scotland’s disabled children campaign represents parental views.
I am afraid that I am not aware of the breakdown of responses from individual parents. We could find that information and provide it to you, if that would be helpful.
It would. I am concerned that, although you circulated the consultation widely and held a number of events, there were only 46 responses—or possibly 42 or 48, depending.
There were 237 responses.
Were there? Perhaps it was on specifics that you got the lower response rate. There were two hundred and how many, did you say?
There were 237 responses from a broad range of consultees. It is fair to say that not every respondent responded to every question.
That explains it. I wondered why the figure was so low.
On the changes to the rules for the additional support needs tribunals, you had a little discussion of whether 20 days is a sufficient time to respond. I was a little concerned that the consultation was dominated by local authorities and others rather than parents. You say that, of the 46 responses on that issue, a huge majority was in favour of keeping the timescales short. However, I am not sure that parents would be convinced of that, so I wanted to know that you had heard parents’ views, as opposed to depending on the fact that all local authorities agree that it should be short.
Perhaps it would be helpful if I said a little bit more about that specific issue and the process that we have gone through with it. It is about clarifying that 20 days of the 30-day case statement period should be for the parents or young person to submit and the remaining 10 would be for the local authorities to respond. Although the majority of respondents were in favour of that, there were some dissenting voices. Therefore, it was one of the issues that we took to the ASL implementation group and asked for its views on it.
Some of the dissenting voices in the consultation were actually members of the implementation group, so we discussed the matter in a lot of detail and I think everybody was reassured by the fact that, when the president of the ASNTS looked back at the statistics, it did not seem that delays and problems in submitting information had been an issue previously. She noted that, if there were any difficulties in meeting timescales, the tribunal would always be happy to extend time limits but the desire was to limit the amount of papers that circulated for the tribunal, for local authorities and for parents and their representatives and to keep the process as streamlined as possible.
Given those commitments, all members of the ASL implementation group, including those who had expressed some reservation at the consultation stage, were content to agree with that recommendation. At every stage in the consultation process, we were mindful of looking at not just the overall numbers of people who had responded, but the breakdown—were the respondents just local authorities or were particular groups concerned with specific aspects? We were mindful of that and we tried to address issues through the implementation group to take forward the recommendation.
The response is reassuring, but I have one other concern. When the implementation group was first set up, it was staffed entirely by local authority members—directors of social work and so on. Who is on the group now? The membership was flagged up at the time, and I remember seeing the initial list.
I would be happy to read out the current list, although it is slightly lengthy so I would also be happy to provide a copy of it. We have Maggie Tierney, who heads up the support for learning division in the Scottish Government; Jenni Barr, who is principal educational psychologist at Stirling Council; Jessica Burns, who is the president of the tribunal; Allan Cowieson, who is an ASLO rep from North Ayrshire Council—
Sorry, what was that organisation?
He is an additional support liaison officer, from North Ayrshire Council.
Perhaps I will just give the organisations that are represented. They include Skills Development Scotland, Orkney Islands Council, the Association of Directors of Education in Scotland and Dundee City Council. We have a couple of other people from the Scottish Government, a representative from the for Scotland’s disabled children liaison project, someone from Jewel and Esk College, and a representative from Scotland’s Commissioner for Children and Young People. There is also someone from Children in Scotland and the Govan Law Centre—I mentioned the Govan law coalition, and they represent that broader coalition. We also have a representative each from the Educational Institute of Scotland, COSLA and Her Majesty’s Inspectorate of Education. It is therefore a broad church, and we have actually just asked Unison Scotland whether it wants to nominate a member, too.
Perhaps I can give Rachel Sunderland a bit of the background. When the group was first set up during the passage of the first ASL bill, it was striking that there were no parental representatives on it. It was dominated by professionals, usually in the employ of local authorities, so it was a producer-dominated group. During the progress of the bill, I remember speaking to my colleague Margaret Smith, who I believe was able in discussions with the minister to secure an agreement to address that. I remember that Margaret Smith specifically asked the minister for parents to be represented on the group, because such representation was clearly missing, and it was secured.
I vaguely recall it.
I remember it quite distinctly.
As I said, Ms Sunderland, I was pleased by the tone of your response as you have clearly taken into account not just the number of representations but who they came from and the background of those people. However, it strikes me that the group is still dominated as before. We will see the list when you give it to us, but the people who tend to respond to consultations are the local authorities—parents and families never have the time and are sometimes totally unaware that such processes are on-going, so they do not respond. We must therefore go out of our way to ensure that we are addressing the real practical concerns. Having said that, it is clear from your tone that you are at least aware of the problem.
I want to mention, perhaps to give extra reassurance, the sessions that we asked Children in Scotland to run on our behalf as part of the consultation process. The aim of those sessions was to bring in parents and young people as part of the consultation, and not just for a written exercise. I am happy to provide further information about those sessions if that is helpful. We were mindful of how we would engage and involve parents.
12:00
If I may, I will make a suggestion. I note that Govan Law Centre is represented on the group, but if you are looking to expand it at all, there are other organisations—including the Princess Royal Trust for Carers, other carers organisations and parents organisations—who could be in a position to help and advise on the matter, and who have direct contact with parents.
Claire Baker (Mid Scotland and Fife) (Lab)
I note that the information on SSI 2010/145 refers to the free advocacy service that is to be provided. The notes state that we can expect another order to be laid, perhaps at the end of the year, but I seek an assurance that positive progress is being made on the issue.
We are going through a competitive tendering process to seek a preferred provider for that service. We will have a question-and-answer and information session with interested parties on Monday. There has been a significant level of interest to date, and the deadline is mid-June. We will be in a position to give details fairly soon, when we have a preferred provider. When we have that name, we will be able to make the relevant changes.
Local authorities have expressed concern that applications for dispute resolution, instead of going directly to them, will go to the Scottish ministers. They thought that that was nothing other than bureaucracy gone mad. How have you engaged with local authorities to reassure them that that is not the case and to demonstrate that there will be some independence in the consideration of matters related to dispute resolution?
Also, what will the Government do beyond just monitoring the number of applications? Will you actually publish and do something with that information?
The answer to your first question is that we discussed the issue with the ASL implementation group. When we looked at the breakdown of responses to the consultation, it was clear that a particular sector—local authorities—had a concern about the matter. We have a number of local authority representatives, including representatives of ADES and COSLA, on the implementation group.
There is an issue about ensuring that we do not needlessly add extra layers within a process, while also ensuring that someone has an overview of the number of applications that are coming in, how they are dealt with, and whether they are dealt with promptly. That is the balance that we are seeking to achieve through the change.
I am afraid that I am not sure whether we have specific plans to publish the information, but I do not see any difficulty in our providing it in due course. It is by no means secret information. I am just not sure whether publishing it is something that we specifically have in mind.
Robert Marr (Scottish Government Legal Directorate)
Convener, I see no impediment to later publication if that is thought desirable.
It just strikes me that, if the purpose is to have an overview, it is important that the overview does not rest internally with Scottish ministers, who might well act on it, but that those who have an interest in the area can see that there is a requirement for action or a problem with dispute resolution. Periodic publication of the information might therefore be worthy of consideration. I am not saying that it should be published all the time. Perhaps it could be published once a year.
We are happy to do that.
Mr Macintosh, did I see you indicate that you have an additional question on that?
No. My question is about the code of practice.
In that case, that concludes our consideration of agenda item 7.