St Mary's Music School (Aided Places) (Scotland) Amendment Regulations 2005 (SSI 2005/269)<br />Education (Assisted Places) (Scotland) Amendment Regulations 2005 <br />(SSI 2005/270)
Good morning. I welcome people to this meeting of the Education Committee and ask them to ensure that they have switched off their pagers and mobile phones.
As you set out, the amendment of these regulations is an annual occurrence. The instruments raise the thresholds for parental contributions for the aided places scheme, the assisted places scheme and some associated allowances. As in previous years, the rise has been set based on the retail prices index—at October 2004, that meant 2.1 per cent.
I notice that at the end of the second instrument there is a list of independent schools that participate in the scheme. Obviously, it includes only some independent schools. Is there any reason why some independent schools participate and others do not?
When the assisted places scheme was phased out in 1997 it was decided that pupils who held assisted places at the start of the 1997 school session would receive assistance until the end of the school session in which their primary or secondary education was completed. The schools on the list are those that are left in that situation.
Is that different from the regulations with regard to St Mary's?
Yes. Those are separate regulations. When the assisted places scheme was introduced, for various reasons, St Mary's did not fit within it, so the aided places scheme was established as a separate scheme for St Mary's.
What I meant was, will the St Mary's scheme continue?
Yes. The St Mary's scheme will continue. There are no plans to end that scheme.
I will ask a general question. How many pupils or what percentage of pupils stand to gain from the regulations?
Five pupils are on the assisted places scheme. There will be 51 pupils on the aided places scheme.
Thank you.
We must be coming to the end of the assisted places scheme for pupils in both primary and secondary schools. At what point does it cease? Will there be a date at which we will not receive the regulations in future?
The current pupils on the scheme should finish in 2007.
Thank you very much.
Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005 (SSI 2005/264)<br />Additional Support for Learning (Changes in School Education) (Scotland) Regulations 2005 (SSI 2005/265)
Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Regulations 2005 (SSI 2005/266)<br />Additional Support for Learning (Publication of Information) (Scotland) Regulations 2005 (SSI 2005/267)
Item 2 is consideration of four sets of regulations under the Education (Additional Support for Learning) (Scotland) Act 2004, which is a piece of legislation that the committee considered last year.
I will take the Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005 first.
That is an unusual thing to do. Will it not get a bit confusing if a regulation is followed by an amendment? Is that a satisfactory and transparent way of handling the problem?
The Subordinate Legislation Committee was quite content with that procedure.
Okay. We might come back to that later.
Last, but by no means least, we have the Additional Support for Learning (Publication of Information) (Scotland) Regulations 2005. The 2004 act specifies that education authorities must publish information about the range of matters that are specified in the act at section 26(2).
For clarity, we will now deal with the regulations separately, starting with the Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005. Regulation 3 concerns exceptions and paragraph (1)(a)(i) talks about a situation in which a process of assessment "cannot take place". That seems quite stark and I wonder whether there is any definition of what "cannot" means in those circumstances.
There are a number of reasons why an assessment could not take place. For example, the parents of the child might not turn up for the interview—that would be the principal reason. Alternatively, the agency might not have received information that it has requested from another agency.
I think that the principal reason is covered by regulation 3(1)(b). I share the convener's concern about regulation 3(1)(a)(i). I suspect that in effect what it means is that if an assessment by a health professional was needed but could not be provided because of staff shortages, for example, the request period could be extended. One of parents' key concerns is that any delay will be due not necessarily to the request for help and support but because they have to get an assessment from another authority. There are shortages all over the place so, regardless of everything in the act, if professional support was needed, that one line in regulation 3(1)(a)(i) could provide a get-out from providing a co-ordinated support plan.
That said, regulation 3(2)(a) says:
I take the point about the 16 weeks, but that is quite a long time. The practical issue is whether the regulation will be used to provide an automatic exemption. I am conscious of what often happens in court procedures, in which exemptions can become the norm rather than the exception. I cannot remember whether there is anything in the guidance or elsewhere about a push towards 10 weeks, not 16 weeks, being the norm.
The code of practice makes it clear that there is an expectation that education authorities and other appropriate agencies will meet requests for help or assessment—or whatever the request is—within the 10-week timescale. However, it is recognised that there will be situations in which that is not possible. Perhaps an assessment cannot take place because a therapist is not available, possibly due to staff shortages. However, as soon as the appropriate agency becomes aware that the 10-week timescale cannot be complied with—for whatever reason—it must notify the education authority of that, with the reasons, then set a new date. As Robin McKendrick said, the regulations make it clear that that new date cannot extend beyond a further six weeks.
Will that be monitored in some way?
That would be part of the HMIE review. If authorities are making requests for help and those requests are not being met within the timescale, that would have to be considered. Originally, as Robin McKendrick said in the introduction, the timescale was six weeks. You commented that 16 weeks is quite a long time. It was extended mainly because of concerns from the Health Department that it would find a six-week limit difficult to meet, partly because of shortages and so on. Where a child is already known to the service, it would be possible, but where a child was new to it, the department felt that longer would be needed, so the timescale was extended to 10 weeks, and then to 16 weeks, to take account of those more exceptional circumstances in which a child is coming new to a service and requires a more in-depth assessment, because information is not already there to help to draw conclusions.
I can perfectly understand the reasons for the extension, but I wonder why the timescale has been extended so much, from six weeks to 10, then from 10 to 16. The extension seems considerable. Might a lesser figure have been more appropriate?
Initially, the period was shorter, but we had to take account of the concerns that were raised in the consultation, not just from those in health but from those in social work, who felt that if the timescale could not be met, they would be led into unnecessary disputes.
But my question is why it is necessary to go so far beyond 10 weeks. Would not 12 or 14 have been enough?
The judgment was born of the results of our consultation. If a request cannot be met because of the reasons that have been pointed out, such as a staff shortage, would it be possible to address that problem in one, two or three weeks? The regulations state that it is reasonable for an agency to be able to carry out any review and respond to the education authority in 16 weeks. That is a final limit past which the process cannot go.
Obviously it is a question of balance and judgment but, if in the light of experience it is found that 16 weeks is longer than is strictly necessary, will you amend the regulations?
As the minister made clear when he spoke to the committee about the code of practice last week, nothing is written in tablets of stone. We will examine all aspects of the act and the code and, if we believe that we can safely develop anything that is in the regulations, we will certainly do that when we have sufficient information on which to base a judgment.
Under regulation 3(2), an agency that cannot carry out an assessment must make the education authority aware that the time limit has been broken. What provision has been made for the recording of the timescale and the delay in assessment? If HMIE is going to monitor that, it will have to have that information. What provision has been made to ensure that a record is made of the fact that a request was made at a certain time, that it was not complied with for whatever reason and that measures are being taken to ensure that it is complied with within the extended timescale?
The act and the regulations make it clear that any request that is made under the act must be made in a form that is capable of being used for subsequent reference. They do so without being specific about how the request should be made—for example, it could be made in writing, by e-mail or by video—but the fact that we say that the request must be capable of being used for subsequent reference means that it is a matter of fact that the communication took place on a certain date. Therefore, as I said in my introduction, the clock starts ticking on that date and, in any review of a specific case, HMIE would be able to refer to that date as the date on which an authority asked an appropriate agency to comply with a request that had been made under section 23(1) of the act.
For many children with additional support needs, the clock actually starts ticking when the parents ask the education authorities for an assessment, which could include an assessment by a health professional. The problem is that the legislation means that the official clock starts ticking only when the education authority makes the request. We have still to report on the code of practice, on which we took evidence last week, but some evidence that we have had on it suggests that the clock should start to tick when parents ask for the assessment. My concern is that an education authority could end up delaying making a request to a health authority until it knows that the request can be complied with. Perhaps, if we have concerns about the timescale and we want HMIE to track how long it takes for a request to be complied with but accept the timescales that are in the regulations, the code of practice needs to be amended to include reference to the point at which parents request the involvement of health professionals. That might be a more effective way of monitoring progress and reflecting the reality that, for the child, the clock often starts ticking not when the education authority asks for the health assessment, but when the family asks for it.
It is reasonable that the code of practice should make those matters absolutely clear.
We will leave those regulations for the moment and come back to what we want to do about them later.
The regulations set no relationship. I used a school's closure as an example of when the regulations would kick in. If a school were to close, an education authority would have to take action more than 12 months before that happened or as soon as possible if the closure were less than 12 months away. Nothing in the instrument contradicts or clashes with anything in other regulations.
The third instrument is the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Regulations 2005, which has a technical issue to which the Subordinate Legislation Committee adverted. When I interrupted you to ask my initial question, I was getting at the fact that the regulations are to be amended before they come into force. Why do you not just make further regulations that contain the amended aspect?
The amendment will make the regulations clearer. One of the Subordinate Legislation Committee's comments was that regulation 5 made five cross-references to the parent act. We have taken on board that drafting point. The committee's other point was about making absolutely clear, when regulation 5(a) refers to
So it is a matter of distributing the regulations to people, even though they will not come into force yet.
Absolutely. The Subordinate Legislation Committee made helpful points on the drafting.
When we discussed the code, a point was made about the form of the document in the schedule and the interrelation with individualised educational programmes. We were told that, rather than bureaucracy being created by a requirement for the same information to be conveyed in two formats, the relevant sections of a CSP might say, "See IEP". Will that happen? If so, should there be a reference to that in the form, which will be a working document for teachers and other education professionals?
We can consider the schedule in conjunction with the template in the code of practice. The way in which the regulations and the schedule are drafted is quite bald. The template in the code of practice gives more information about the content of sections of the plan. The IEP question probably relates to the profile, which provides the possibility of including information about other plans that a child or young person may have. That will be made clear in the code and in the guidance that is to be produced on completing co-ordinated support plans and the information that will be held in plans.
As people fill in plans, they would read the code and other guidance rather than the schedule to the regulations.
Yes. That is in response to the consultation, in which people said that they needed separate guidance.
How does SSI 2005/266 interact with SSI 2005/264? An education authority has 16 weeks to produce a CSP and 12 weeks for a review. If, while doing that, an education authority must ask an agency for information or advice, that agency may have up to 16 weeks' grace in which to reply. If SSI 2005/264 gives agencies as long as that to reply, could that not create considerable pressure in relation to the preparation of a CSP?
One of the exceptions in the CSP timescale would apply if another agency that had been asked for help was unable to comply within the required timescale. If the other agency required an extension to its timescale, that might have a knock-on effect on the education authority, which might need to extend its timescale as well.
So the overall timescale could, I think, be up to 24 weeks.
The code is clear about the interrelation between the time at which an authority asks for help and the timescale for those requests. As the authority must be mindful of that timescale, the sooner that the requests are made, the better. The code recommends that, when the authority gives notice of its intention to perform an assessment, it should notify the parents which agencies it will contact and it should contact those agencies at that point. The sooner that the authority does that, the better, because the clock will start ticking from the minute that that intention is made known.
I presume that HMIE will monitor the timescales. Will its findings be published? Will that information be made public? For example, will HMIE say how many authorities have exceeded the 16-week limit?
There will also be monitoring through the tribunal, to which parents will have a right to appeal if the authority does not comply within the 16-week timescale and if no reasonable exceptions apply. Therefore, there will be dual monitoring, I suppose.
How will the co-ordinated support plan work with the individualised educational programme? Many IEPs give more information than will be given under the proposed format for the CSP, because many IEPs include both the young person's profile and the different agencies that will work with him or her. Could the IEP format be used for a CSP? I am concerned about the paper chase that is developing, which we talked about last week. Some teachers will look at the CSP form and think, "I have more information on the IEP, so why do I need to fill out this form as well?" What is the position on that? Must there be a piece of paper for the co-ordinated support plan to which the child is entitled?
As a result of that discussion last week, the code of practice will make it absolutely clear to professionals, including teachers, what the relationship is between an individualised educational programme and a co-ordinated support plan. Whereas an IEP has educational targets for a school term, the CSP is about the broader context of how health, social work and so on will contribute towards educational objectives on a slightly longer scale. IEPs have individual objectives on a weekly or monthly basis for a school term, but CSPs will deal with a longer, more sustained period. Given the risk of confusion, the code will make clear the precise relationship between the IEP and CSP. The last thing that we want is a paper chase.
Rosemary Byrne asked whether the CSP must be a document. I think that there will need to be a document to comply with the regulations.
The CSP will be a statutory document.
If the child has an IEP, can the CSP refer to the IEP so that it is not necessary for all the details to be written out again?
Yes, indeed.
My point is that many IEPs already set out the co-ordination of the different agencies, so the CSP could simply repeat what is already documented. Will the format of the CSP be piloted to see whether it works before it is pushed out to all schools? Will we be able to review the format of the CSP? I think that there will be difficulties with it.
As I said in response to Lord James Douglas-Hamilton, nothing is set in tablets of stone. Obviously, we will want to review things in the light of our experience of implementing the act. However, the CSP template has not been arrived at as a result of bureaucratic decisions within Victoria Quay. The development officers who worked with the Scottish Executive met front-line professionals and they piloted the proposal in schools. As a result, we feel confident that the regulations provide a reasonable first stab at a co-ordinated support plan. The code will make clear the relationship between the IEP and the CSP and we will take things from there.
Is any feedback available on the pilot that has been done? That information would be helpful to the committee.
Two of the development officers visited schools and authorities throughout the country and spoke to teachers and officers. I am not sure whether a report was drawn up on that, but if you would like that information to be shared, I can certainly find out. If there is no report, we could draw some conclusions from that work.
That would be helpful.
Presumably, you incorporated the results of that work into the format of the CSP.
Absolutely. I am not aware whether a formal report was drawn up on the pilot, but the results were fed into the development of the co-ordinated support plan and they form part of the CSP as we see it now.
Initially, we considered that the IEP could be incorporated into the CSP, but during the development we found that that would not be practical. As Robin McKendrick said, the CSP is a strategic document. The CSP includes educational objectives for a year, whereas the IEP drills down further, with termly targets. We envisage that the IEP will be used in conjunction with the CSP. The CSP informs the IEP and vice versa. As Robin McKendrick said, we are looking into the CSP being an electronic document, which will make the transfer of information from the IEP to the CSP much easier. That will reduce the burden that teachers might feel they are under in the record-keeping process.
I do not want to labour the point, but I have a final comment on the matter. A school may well choose not to continue to develop a child's IEP because of the CSP. At the moment, many young people have reviews every three months or even more frequently, but that good practice might be set back by the yearly reviews. I am concerned that schools will not continue to give young people the opportunity of more frequent reviews. If those issues are taken on board by HMIE and the situation is monitored and recorded so that there is evidence and we can look at the matter again, I will be reassured. However, there are issues of concern and we need to ensure that we consider them carefully.
Are there any questions on the Additional Support for Learning (Publication of Information) (Scotland) Regulations 2005?
No.
We move on to discuss what we want to do with the regulations. On the first instrument—the Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005—there was concern about timescales. Although we would not want to make recommendations about that, given the assurances that the regulations are under review, would it be appropriate for us to note in our report to the Parliament that we have concerns? That might reflect the committee's view. Would that be possible?
Yes.
That would not annul the instrument or interfere with the legalities of it, but it would indicate that the committee attaches importance to the timescales and thinks that some attempt should be made to keep on top of them. Is that acceptable?
Yes, but our report should also refer to the code of practice and we should state that we would like a record to be made about the initial date for assessment from parents.
Yes. We can include that. Is the committee agreed that it does not want to make any recommendation on the Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005 in its report to the Parliament, other than as noted?
I do not think that there were any particular issues on the Additional Support for Learning (Changes in School Education) (Scotland) Regulations 2005. Is the committee agreed that it does not want to make any recommendation to the Parliament on the regulations?
On the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Regulations 2005, the only remaining issue concerns the amendment of the regulations. We have received an explanation of what will happen in that regard. Are members broadly prepared to go along with the instrument?
I find this a bizarre way in which to proceed. Bearing in mind that the instrument was laid only on 19 May and that it does not come into force until 14 November, would it not be better if it were redrafted, submitted and approved instead of it having to come back to the Parliament? I understand and respect the explanation that has been given, but I find the process a bit odd. The convener might want to advise the Subordinate Legislation Committee of our concern that this should not become a common occurrence.
I am given to understand that the Subordinate Legislation Committee is satisfied with the explanation. We have not seen its report formally, but that is the advice that we have.
We do not have the report.
The Subordinate Legislation Committee is the expert committee on these procedures. However, in the light of the complexities that were referred to when we first saw the instrument, the transparency of the legal process is helped if regulations are introduced in one document and not in several. Given the undertakings that the officials have given today and the Subordinate Legislation Committee's view, I am inclined to stick with what we have and not to get into other procedures. To require the instrument to go before the Parliament in another shape or form is probably disproportionate to the issue. I am sure that the officials will take on board what has been said.
It can be confusing for parents if a later draft, about which they may not be aware, comes through and is approved. I ask the officials to note that, in terms of transparency and of parents knowing what is going on, this is not an example of good practice.
I would be surprised if any parents were to read the documents. There is a limit to how far we can take the point.
I meant the charity that represents the best interests of parents.
Are we agreed that we do not want to make any recommendation in our report to the Parliament on the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Regulations 2005?
Finally, are we agreed likewise on the Additional Support for Learning (Publication of Information) (Scotland) Regulations 2005?
I thank the committee and officials.