Education, Lifelong Learning and Culture Committee

Meeting date: Wednesday, May 12, 2010

Official Report 423KB pdf

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Education (Additional Support for Learning) (Scotland) Acts 2004 and 2009

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“Supporting Children’s Learning: Code of Practice (Revised Edition)”

We come to agenda item 8. We are pleased to take further evidence on the code of practice from the panel. Ms Sunderland will make an opening statement.

My statement is short. I set out earlier the consultation and engagement process that we undertook on the regulations and on the code of practice, but it might be worth noting that the ASL implementation group considered a full draft of the code of practice at its meeting on 6 April. Therefore, in addition to going through a detailed consultation process, we shared a final draft of the code with the group and took account of their comments.

The Education (Additional Support for Learning) (Scotland) Act 2004 places the Scottish ministers under a duty to publish a code of practice. Clearly, the code of practice needs to be updated to reflect both changes in legislation and our experience since the legislation was introduced in 2004. In addition, the revised code takes account of comments and feedback, such as the desire to have a code that is shorter, clearer and more user friendly.

During the passage of the Education (Additional Support for Learning) (Scotland) Bill, a number of issues were identified as areas that would be clarified through the code of practice. The Minister for Children and Early Years advised that the redrafted code would place the legislation in the context of current policies on getting it right for every child, the early years framework and the curriculum for excellence. The revised code picks up those issues at the beginning of chapter 3. Following responses that highlighted this point, the revised code now makes it clear that, although the code should be set within the wider policy framework, there is a difference between policy and statute.

The minister also made a commitment that the revised code would provide further clarification of the term “significant” in the phrase “significant additional support”, the need for which is one of the criteria for a co-ordinated support plan. That issue certainly prompted a lot of discussion and debate. The Scottish Government has provided further clarification and guidance on that, as well as a number of examples. As the question of what constitutes “significant additional support” has been considered by the courts, the revised code includes information on the Court of Session ruling on the matter. In taking that forward, the Scottish Government has sought to provide clarification without introducing a restrictive or limiting understanding of the term “significant”. We have sought to strike a balance between, on the one hand, providing clarification and, on the other, not producing a definition that is so precise that we unintentionally exclude some children and young people. The approach has been discussed and agreed with the implementation group.

Finally, the minister also agreed to clarify the process of making placing requests, which is now covered in chapter 4, “School attendance: rights, responsibilities and placing requests”.

I do not propose to go through the code chapter by chapter, but I wanted to pick up on those three issues, which were highlighted during the previous debates. I am very happy to provide further information or to deal with queries that might arise.

The thrust of this question was probably addressed earlier. How does the implementation group intend to address the inconsistency of the use and quality of the information in CSPs among and within local authorities? I have seen some stark examples of inconsistency in cases that I have been dealing with over the past few weeks.

There are probably two elements to that. First, the code of practice now provides quite a bit of information on precisely what should be included in a CSP. We hope that the code now sets out very clearly what the expectations are about content. At the back of the code of practice there are also now a number of examples of CSPs that we hope will prove helpful.

Secondly, we are working with Learning and Teaching Scotland to provide some continuous professional development and resources that will support the act, with regard to CSPs in particular. We are doing work that could help to guide people towards good examples of a CSP.

I will drill down into a particular issue about changes to a CSP. Section F of the notice is about seeking information, advice and input from parents, carers and other organisations. How can we arrive at a truly person-centred approach? I am dealing with a case that involves changes to the CSP of a wee boy with autistic spectrum disorder, and the lead-in time for the implementation of the changes is extremely short. I have a few similar cases and the matter arises consistently. The issue needs to be addressed.

Are you saying that the lead-in time is too short or that the parent and the child do not feel that they are appropriately included in the discussion?

Both.

The code sets out clearly what our expectations are, and says that there are timeframes that local authorities have to adhere to. There is a presumption that CSPs will need to be regularly reviewed and changed, but that that should be done in consultation and discussion with the child and their family, and that, if there are issues about understanding, efforts need to be made to ensure that young people are included in that process. Inevitably, there will be times when there are disagreements about the content or timing of a CSP, and, therefore, there are procedures in place by which such disputes can be resolved, including mediation, the tribunal, advocacy—once the new arrangements are in place—and, ultimately, the Scottish ministers. We hope that those factors strike an appropriate balance and enable us to address individual concerns.

We are targeting local authorities, because they are usually the caseholder in the sense that we are discussing at the moment. However, we often come across problems with CSPs that have a health element, such as specialist occupational therapy or speech therapy, and there are still issues around the duty that is placed on the health authority to provide that service and who is responsible for it. Have you got anywhere with resolving that issue?

The code sets out clearly that local authorities have a duty to co-ordinate the services and to deliver the elements of a CSP for which they are responsible. They also have a duty to co-ordinate and seek to deliver the services and support that are provided by other agencies, in so far as they are able.

Ultimately, the local authority cannot deliver services that are the responsibility of someone else, but it has a responsibility to seek to ensure that delivery. Part of the agreement, and the purpose of having a co-ordinated support plan, is to have a named individual who parents can go to if there are problems and who is responsible for that co-ordination.

Local authorities have a responsibility to meet the needs of children with additional support needs in their area so, if it is clear that the relationship with the health board and other authorities has broken down, the local authority would have to reflect on whether it was meeting the needs of that child and, therefore, meeting its statutory responsibilities.

12:15

I will continue with questions on consultation before I move on to advocacy.

Did you change the draft code of practice following consultation?

Yes.

Can you think of any examples of changes that you made? I am thinking in particular of changes that reflected parental concerns.

The code of practice was changed significantly—an awful lot of changes were made to it. I cannot think of specific examples.

An example of what I am thinking of relates to the definition of the term “significant”. You said that the code of practice now refers to the judgment of the courts in that regard. Have you also addressed parental concerns fully?

Many of the parental concerns that came out of the consultation, particularly from the Children in Scotland-led events but also from informal consultation, reflected a desire to get further clarification of the definition of “significant”. We have definitely sought to do that—that whole section of the code of practice has been significantly reworked. It is probably the main section of the code that has been reworked, to pick up on that extremely important point. I would certainly say that the concerns of parents have been reflected in our thinking and in the changes that we have sought to make.

The Scottish Parliament information centre researchers have drawn it to our attention that the case studies that are listed in annex C of the code are perhaps too clear cut and do not relate to difficult situations. In other words, they are not that useful in the sense that, in those cases, the local authority would be able to make a decision very easily. Trickier examples where more help would be needed in making a judgment would be beneficial.

Are you thinking of revisiting the annex even at this stage? Could you do that?

That concern was raised about the draft code that went out for consultation. As a result of that, we added a number of examples of situations that are a bit more nebulous and less clear cut. One example that springs to mind is the case study that involves a child whose provision is not delivered directly by specialists because he lives in an extremely rural location but is delivered by teachers who have been given support and training to do that. We took on board the comment that was made during the consultation phase. The fact that we have responded to it is reflected in the amended version of the code. We have included a number of new examples, in which the decision is less clear cut, which we hope will provide the additional guidance that people are looking for.

An issue that came up during the passage of the Education (Additional Support for Learning) (Scotland) Bill was that section 70 of the Education (Scotland) Act 1980 was another avenue that parents had recourse to in the context of referrals, but from the SPICe briefing, my understanding is that the text of the code of practice has not changed from the text of the previous code to reflect that. Is that the case? Have you flagged up section 70 of the 1980 act as an avenue that is open to parents to pursue?

I will respond to that in two ways. First, I am not sure precisely how much the language has changed around section 70 of the 1980 act. We could check that.

Secondly, it is important to say that we would not necessarily see the code as being the primary vehicle for parents to find out about the different routes that are open to them.

Enquire will produce a short leaflet on the code that will be directed at parents. It will give them a lot of the information in a condensed format so that they do not have to read the whole code and it will highlight the elements that are of most interest to them. A key element will be the different routes of appeal available to parents. We must ensure that local authorities place in their various correspondence information about those routes of appeal because that is probably where parents will get most of their information. That will be crucial in raising awareness about routes of appeal.

During the passage of the bill, ministers mentioned section 70 complaints as another avenue open to parents, but it was also said that nobody had ever successfully pursued such a complaint.

That has changed. A number of section 70 complaints are sitting with us. In the past few weeks, we have ruled successfully on at least two where we found in favour of the issues raised by the parents.

That is encouraging. In the past, although that route existed, people were not necessarily aware of it.

I have a final question about advocacy. It has taken some time to establish the service. Is the service from Independent Special Education Advice (Scotland) still being funded in the interim?

Yes. We are committed to ensuring that there should be no disadvantage to parents, so we have agreed to continue to fund ISEA. We also recognise that we cannot make assumptions about who will win the tendering competition to provide the new service. Certain organisations might need a little time to get up to speed on recruiting staff so we have given the commitment that, if it takes time to get the new service up and running, we will continue to fund ISEA. We are committed to providing an advocacy service and we will do it.

As there are no further questions on the code of conduct, that concludes our evidence session. I thank the witnesses for their attendance at committee.