Official Report 325KB pdf
Good morning and welcome to this meeting of the Education Committee. I ask everyone to ensure that pagers and mobile phones are turned off. We have received apologies from Adam Ingram, who is not very well, so he will not be among us today.
I will make a brief statement—I will not cover the details in the written submissions. I am the policy manager with Children in Scotland, which is a national umbrella organisation for more than 300 voluntary and statutory agencies throughout Scotland. Our response is based on speaking to parents, children and young people and professionals. We welcome the bill in principle; nevertheless—and probably not uncommonly—we have concerns about particular aspects of it. We are more than happy to discuss those aspects with the committee.
I am the policy and education officer with the Scottish Child Law Centre, which is a charity that is funded partly by the Scottish Executive and which has been on the go for about 15 years. We deal only with matters that concern child law in Scotland. Child law is the law for people up to the age of 18. We have a telephone helpline, carry out consultation and produce leaflets and other publications on children's rights.
I will start off by asking about the support for the bill's general principles, which involve the move from the record of needs to the co-ordinated support plan and related additional needs provision. Leaving aside the details, do you support the broad direction of the bill or do you have significant qualms about the principles?
We broadly welcome the bill because it is concerned more with targets for children to meet than with listing their disabilities and what they cannot do. The bill is forward looking.
I concur with most of what Katy Macfarlane has said. We certainly welcome the broad principles of the bill. Much of what the bill sets out to do is aspirational. As for broadening the scope to additional support needs and moving away from special educational needs, I agree that changing the way in which we consider those issues and focusing on what children can do, rather than what they cannot do, are important. We have concerns about children's rights, but I am sure that we will talk about them. Generally, we welcome the bill, but it has gaps that need to be filled.
We have had evidence from different sources, and I am sure that we will hear evidence along similar lines this morning, that the bill is inherently discriminatory, because it makes a division between co-ordinated support plan children, additional needs children and the rest. As with rearranging the deckchairs on the Titanic, the suggestion is that the bill will not make a difference to the way in which the assessment of need is dealt with. It is also said that the issues concern resources rather than the rights of children. In broad terms, that is the proposition that some people put. What are your views on that?
The bill casts its net widely to bring in all children with additional support needs. That could pose problems, because the wider the scope, the less the focus is on children who need specific support in the education system. That poses a bit of a problem for us.
I support that. On broadening the scope to additional support needs and discrimination, I think that at times we must be careful about what we do. If the law changes and we start using the term "additional support needs", sure as heaven, people will say that that is discriminatory. The main focus should be on supporting children to reach their full potential in education. That is the aspiration. How we go about achieving that is the issue.
If I understand you correctly, you are saying that the linkage between the CSP and needs outside the education sector is variable among different authorities, because they do different things, and is addressing the issue almost by way of a by-blow, rather than concentrating on needs.
Yes. I can understand to a certain extent the tension between resource and need, which has been well documented, but children should have their needs met and we must consider the process of how we do that. We have heard anecdotal evidence of one authority that is talking about employing its own occupational therapists. Peripatetic support, support for learning and educational psychology can be provided from within an education authority. How do we co-ordinate support if the peripatetic support is provided from a building in one part of town and a support for learning teacher comes in from another part of town? If we are going to co-ordinate support, where will we do it? It should be done in the co-ordinated support plan.
I back up what Eddie Follan is saying. There seems to be a ludicrous assumption that because support comes from within an education authority, it will already be co-ordinated and so the child will not need a co-ordinated support plan to bring together services from outside. From calls that I have taken in the Scottish Child Law Centre, I know that that simply is not the case within educational authorities. It is a fallacy to suggest that because one education authority is seeing to all the services that a child needs, the support is necessarily co-ordinated. That is a basic problem with the bill.
I ask Katy Macfarlane to say something about our discussion the other day about where education authorities are and whether people see themselves as being employed by the local authority or by the education authority.
I am on the SEN forum in Edinburgh and Eddie Follan and I had a huge discussion about the bill. I was confused, because I had been on the phone to the Scottish Executive asking whether it saw occupational therapy and speech and language therapy as being within the education authority's remit or as services outwith the education authority. A child with additional support needs who needed OT and speech and language therapy would not get a co-ordinated support plan if the services that they were getting were within the education authority. The Scottish Executive assured me that the education authority could buy in OT and speech and language therapy, which could therefore be seen as education authority services. When I took that information along to the SEN forum, I was completely done down and told that that was not the case.
That is an important seam of interest that we will want to follow up with the minister at a later point.
My colleagues might want to clarify that point. Section 2(1)(c) illuminates the situation. The bill says that a child or young person requires a plan for the provision of additional support if
The legislation itself needs to be co-ordinated slightly better.
I take the point that is being made. I might be going off down the wrong track, but I read the words
I agree that further clarification is required. However, I think that we can be fairly confident that, in the circumstances that were described, a child would qualify for a CSP. We will doubtless return to the question of definition.
That is a huge area. The "Moving Forward! Additional Support for Learning" document, which was published by Cathy Jamieson a long time ago, when this area was first being examined, says:
I do not want to interrupt, but what you are arguing is a strong case for the general approach that you want the bill to take. May I bring you back to the way in which the bill differs from the current situation? Rather than describe what we might aspire to, will you tell us what the current situation is? Can parents ask a local authority for identification of their child's needs?
Under the 1980 act—
There is a duty on the local authority to identify a child's needs and there is a right for parents to ask the authority to assess their child. Will you be a bit more specific about that right?
Under section 61 of the Education (Scotland) Act 1980, the local authority, the parent and a young person can ask for the three assessments—medical, psychological and educational—to be done, with a view to opening a record of needs. That is the current situation.
So parents can ask for a record of needs to be opened?
Yes. The results of the three assessments will determine whether or not a record of needs is opened.
That mechanism encourages people to open a record of needs. It is arguable that many parents resort to a record of needs as a device to assert their rights, rather than—
It is more as a device to get their child's needs met.
Indeed, yes. Under the bill, parents will have rights whether or not they open a CSP; they will have rights simply because their child has additional needs. Is that not an improvement?
At the moment, a parent can ask for a child to be assessed, not necessarily with a view to opening a record of needs. For example, if a child has attention deficit hyperactivity disorder, which in many instances is not recognised as significant enough to open a record of needs, the parent can still ask for an assessment. There is no bar to a parent saying that they think that their child has a certain level of needs and asking for an assessment. Parents have that open-ended right.
Are we getting a bit mixed up between parent's rights and children's rights?
Children do not have the rights. They did not have them in the 1980 act and they do not have them in the bill.
That is not what I thought you said earlier. Let us be clear about this. We are talking about parents' rights at the moment. Your position is that there are no children's rights to request records of needs at the moment.
Yes. I am consistent in saying that. There are no children's rights under the Education (Scotland) Act 1980 and they have not appeared in the bill. Children simply do not have the right to ask for their needs to be identified—as I think the term is.
Let us consider the key area of contention. Many parents feel that the record of needs gives them certain statutory rights, and the record of needs is certainly used as a lever for resources. Does the record of needs actually give parents such rights? Let us face it: we think that many parents might lose the record of needs for their children and not qualify for a CSP. Many new rights are established under the bill, for example the right to a placing request at a special school, but does that meet the existing gap in the current rights? Are there rights that are currently enjoyed under the record of needs that will not be replicated under the bill?
The legal rights of the parents of the many children who currently have a record of needs, but who will not qualify for a CSP, will be lost.
That is exactly the point that I am getting at. What are those rights?
Only if a child has a CSP will their parent have access to the tribunal if they wish to contest whether or not the CSP should have been opened in the first place. However, if the CSP is not opened, that leaves the parent without any legal redress, as they will not have access to the tribunal. A huge number of parents whose children currently have records of needs, but who will not qualify for a CSP, will lose their legal right. Their only form of redress, other than simply challenging the class teacher about IEP targets or personal learning plans, will be under section 70 of the 1980 act. Parents could go along and discuss the matter with a teacher but, if the teacher refuses to do anything about it, there will be nothing that parents can do. An IEP is only as good as the teacher who prepares it.
Currently, there is no tribunal, so a right is being created under the bill. There might be discrimination—to which we can return—between those who go to tribunals and those who do not. If a child has a record of needs, what rights do the parents currently enjoy that will—
Parents can challenge certain bits of the record of needs. I welcome the bill because there are certain bits of the record of needs with which I do not agree. One of parents' major complaints is that they cannot appeal against part 5 of the record of needs, which is the bit that says what measures the local authority will take to address the child's needs. That is the one part that parents are desperate to challenge, but which may not be challenged.
Indeed, but a new right is being introduced, so that is an improvement. However—
Yes. I am not denying that there are some improvements. I am not saying that the whole thing is absolutely terrible.
No, no—I am sure that you are not saying that. I am sorry. It is difficult in this atmosphere, here in the chamber, where we are almost having to shout across at each other. We are just trying to establish what the issues are.
That is a difficult question, and it is difficult to pinpoint what the implications are. As Katy Macfarlane was saying, parents whose children have a record of needs can appeal particular parts of it, apart from part 5, which is to do with provision.
I am sorry to interrupt, Eddie. I do not—
I am not pinning your question down, am I?
We will return to tribunals and mediation shortly, so we will want to explore that matter in depth, but I want to finish off this point. I am sorry to pin you down on this matter, and it may be that there is no answer. Currently, parents can appeal certain sections of the record of needs. That seems to be the only legal right that is available to them now, which they might lose under the bill. This is a difficult question, but what will they actually lose? They have other rights that will be replaced, not just for children with CSPs, but for all children with additional support needs. Is there anything that parents can appeal under the record of needs now that they will no longer have the right to appeal?
I would like parents to be able to challenge what will be the equivalent of part 5 of the record of needs. That is not addressed in legislation. The right of appeal to the tribunal is limited in what parents can appeal. The question whether or not to open or review a record of needs—
With respect, that is not quite the question that Ken Macintosh is asking.
I understand what he is asking. The current legislation does not address the level of appeal that I would like parents to have.
We take that point, but I ask you—I am sorry to press you—to deal with Ken Macintosh's point, which I ask him to rephrase.
I am not trying to put you on the spot. We have had plenty evidence that parents feel that the record of needs gives them rights, so we do not need to be convinced of that; nor do we need to be convinced that parents—particularly those whose child might qualify for a record of needs and not get a CSP—are worried that they will lose rights. However, we are obliged to find out exactly what rights they will lose and that is quite ambiguous at the moment. There is a feeling that parents will lose rights, but I have not heard a clear definition of what rights they will lose, which is what I am trying to pin down.
I do not think that they will lose rights, because the level of rights that they had before was not that significant, and what they will have under the bill is no better than what they have under the current system. Parents will not lose rights, but they will not get any more rights. Does that answer the question?
Yes.
Nothing has improved: the bill is not a way forward, because things will stay constant. Under the CSP, parents will be able to challenge the same things that they can challenge under the record of needs. There is nothing more, but there is nothing less.
We will move to a question from Dr Elaine Murray. I know that Rosemary Byrne also wants to ask a question on the matter, but first we will see whether it is covered by Elaine Murray's questioning.
I seek clarification on what you said about children's rights to ask for a record of needs. From the statement that Katy Macfarlane made, I got the impression that a child with capacity had that right. That is what it sounded like.
No, absolutely not.
So the child has no right to request a record of needs.
Under the 1980 act, young people, parents—
That is fine. I only wanted to clarify, because I perhaps misheard what you were saying—it sounded as though a young person might be losing rights.
For a start, that is inconsistent with other legislation. There is a view that the issue is too complex for a child over 12 with capacity to appeal, even though a child of that age can appeal a school exclusion, which seems to me to be fairly complex. Children in Scotland's view is that the bill should be consistent with not only the United Nations Convention on the Rights of the Child, but the Children (Scotland) Act 1995 and the Disability Discrimination Act 1995, under which children over 12 with capacity can appeal on fairly complex grounds—the Disability Rights Commission is examining how it works with young people because of that provision. If the legislation that we make in Scotland is to be consistent, there seems to be no clear reason why, under the bill, children should not be able to appeal.
Is that a matter on which the bill should be amended to ensure that it is aligned with legislation such as the Children (Scotland) Act 1995?
I would certainly like it to be amended. Another issue, on which Katy Macfarlane touched, is that some parents—not all parents, for goodness' sake—do not have the get-up-and-go that the young person might have to get something changed. We mentioned parents' gatekeeper role, but parents should not always be the gatekeeper for the young person, even if that applies to only a small number; if the young person is able to make a decision and wants something that there is a way to get, they should be allowed to go down that road.
Is there any potential conflict within the legislation? An example might be the parent's right to make a placing request to a special school as opposed to the child's right to inclusion—or vice versa, if the child wished to be placed in a special school and the parent did not wish that.
A lot of laws run in tandem, and there does not have to be conflict.
I am asking whether there is a conflict of interest within the proposed legislation, not between the proposed legislation and existing legislation. For example, under the bill, the parent has the right to make a placing request to a special school. Does that in any way conflict with the child's right to inclusion?
On the surface, there would appear to be conflict if the parent wanted a placement for the child in a special school and the child wanted to insist on the right to inclusion, or vice versa. However, if there were sufficient services and support for a child in an inclusive placement in a state school, would the parent ask for a placement outwith that? I presume that parents ask for a placement for their child in a special school because they feel that the service and support that their child would get in the main stream would not be sufficient. If mainstream support were sufficient, there would be no necessity for the parent to ask for a placement.
So there is no potential area of conflict between the bill and the Standards in Scotland's Schools etc Act 2000?
If a case went to a court or tribunal, the basis of the court or tribunal's decision would be what was in the child's best interests. The reasoning behind the decision would not be whether the parent's or the child's rights were superior. The issue of who brought the case does not have anything to do with it. The child's education rights and the level of support that the child receives would be the paramount considerations.
To sum up, you feel that that issue could be resolved by the tribunal and that it is not an area of contention.
Absolutely, as long as the tribunal's focus was the welfare of the child and the educational benefits to the child.
We support that. If we are talking about children being able to appeal, obviously there could be a conflict if the parent wanted one thing and the child wanted another. We agree that the tribunal would have an arbitration role in such circumstances.
I want to be clear about definitional terms. When you say that you want children to have rights, I presume that you mean that they should have the right to apply for various things under the bill. How do we define a child in this context?
Legally, a child is someone from zero to 16. A child with capacity is someone who has been assessed as having the capacity to make decisions. The law presumes that, at 12 and over, a child who has the capacity to make decisions is of a sufficient level of maturity to throw their view into the pot with everyone else's views.
So what you seek is for the bill to provide rights for children from 12 to 16?
Yes, we seek rights for children with capacity.
Plus involvement for other children?
Absolutely. There should be involvement even for a child who does not have capacity. Even if the involvement is at the low end of the scale, there is a level of involvement in which even children with the most severe needs can participate.
So you would make a distinction between the right to apply for various things and how that right should be dealt with once those things have been applied for, if you follow my point.
Yes.
That is perhaps the underlying point.
I am not trying to sell this, but Children in Scotland did a children's rights audit of Executive and parliamentary activity in 2000-01. The audit showed that children's rights was a growing issue during the passage of various pieces of legislation and that the Parliament was increasingly recognising the issue. As Dr Murray mentioned, we would seek an amendment to bring the bill into line with other legislation and with the kind of change that has taken place in the way that children are viewed and in the way that their views are taken into account. We could get something quite positive by doing that.
Does Rosemary Byrne still have a question on this?
I want to pick up on Katy Macfarlane's points. Currently, with the record of needs, there is a review process and, in many areas, good practice means that the young person is highly involved and is given training on how the review process works and how to handle it. Do you feel that the bill will not cover that? Are you saying that instead of bedding in that practice, we have done the opposite?
Children's rights have to be entrenched and enshrined in the legislation. It is difficult enough where children have rights to ensure that they are exercised and observed. Unless the rights are enshrined in the legislation, children simply will not have them because, let us face it, it is much easier to take decisions about children—especially children with additional support needs—without their input. It is much easier, more efficient, and much less time-consuming. That is what happens now.
I wanted to move on to that. It is not only children with co-ordinated support plans who should have a say; those with additional support needs should also have a say.
I will come to you in due course on other issues. If your point arises from this point, however, that is fine.
It arises from the previous discussion on assessment and identification. The points that were made by Katy Macfarlane and Eddie Follan are relevant.
The bill aspires not to miss any support needs that a child may have—for example, we talked about children who have English as a second language. We welcome the idea that we will be looking at a broad spectrum. I have read that people have said that children with social, emotional and behavioural difficulties will be covered more by the bill, and that provision for them should be improved. We welcome that.
Is it appropriate for me to talk about assessments just now?
Yes.
I welcome the fact that the bill casts the net widely and that all children's needs will be identified. However, I would have hoped that that was happening with the existing legislation on records of needs, so I do not see that there will be a great deal of improvement, other than that it will be enshrined in legislation that all children with a huge range of additional support needs will need to be identified. That goes without saying.
What is best practice in schools? Is that the key point? We are getting into definitional issues about assessment, yet the central issue is whether young people's needs are being identified adequately and competently by best practice, whatever that is, in the school that they attend. If that is not happening, in those exceptional cases, we need to ask what the parents' rights are to trigger a formal arrangement. Is not that the nub of the issue?
Having spoken to health visitors, I understand that a lot of the pre-three and pre-four identification of needs is done by parents. I am sure that you would not disagree with the fact that parents have more knowledge than anyone else about their child. Once the child gets to nursery or school, they have to find that there is a level of competence in their teachers. I am not suggesting for one second that all teachers should be medically trained, or trained in child psychiatry or psychology, but they should be able to pick up on a child's obvious ailments or needs. I believe that that would be a kind of assessment. After that, the child's case would have to be taken further.
Right. I think that we have your evidence on that one.
My understanding is that the bill gives parents rights to ask for assessments, as you are proposing. I can see that both of you are nodding when I say that. I understand that the bill also provides for individuals outwith the education field who work with young people to ask for assessments. Do you agree that that should also be in the bill?
I agree with that. However, at what point can a parent ask for an assessment? Is it once the needs have been identified and the child is not getting the support that they need? Do the parents then ask themselves whether the next stage is to ask for an assessment, or do they do that when they realise that their child's needs have not been accurately or substantially identified? At what point does the right kick in?
You should ask that question of the Executive. We are a committee of the Parliament and we are seeking your views.
The bill is very woolly on that subject. Parents simply want to know what they can do. They want to know what the first step is and once they have done that, they want to know what the second step is. They should not have to wonder whether they can exercise their rights.
Can I move on a bit?
Yes, sure.
I want to cover the situations in which young children in particular are not covered by mainstream education. I will start with the age at which duties and responsibilities start. At the moment, it seems that a two-year-old can have access to a record of needs, whereas the bill seems to assume that the new system will apply from the age of three upwards. That is probably because a view has been taken that health practitioners are responsible pre-three and education practitioners are responsible post-three. Should that be changed?
When children have substantial needs, it should not matter whether they are two or three. I agree that health practitioners tend to have much more input pre-three; that is why many needs that begin to show in a young child are identified by health visitors. Health visitors have the primary input with the mother and the family. From the age of three onwards, because of the compulsory nature of nursery or pre-school education, it is probably appropriate that education practitioners should become involved.
Does the legislation need to be changed?
Yes. I am not sure whether Eddie Follan thinks the same way.
The legislation gives the education authority the power to get involved with the under-threes, to ensure that needs are met. However, transition is also an issue, which could be dealt with in the code of practice. We have to be clear about how to co-ordinate support, even for two-year-olds who are heading towards pre-school education and then school education. We have to start as we mean to go on. In the code of practice, at least, I would like to see a range of fairly firm structures for the transition period between the ages of two and three. If we do not get that right, the systems could fall down.
There are concerns that the bill may not currently cover that.
I do not think that it covers it. However, it could be covered in the code of practice.
Some things are in a grey area between the bill and the code of practice.
There should be a duty to liaise. When health practitioners have identified need that will affect the child for more than a year—perhaps for all its life—there should be a duty to liaise so that, before the child goes to nursery, services and support are in place. That will allow the child to be accepted into the education part of their life, from three onwards.
What are your views on children who are educated at home—either permanently or temporarily if, for example, the parent is in dispute with the local authority? Does the bill cover their rights adequately? Should the duties of local authorities be extended to cover such children?
If parents opt out of state education, I do not see it that they have opted out of everything. We are focusing on the parents' right to opt out and not on the child's right to have his or her needs met.
That is what I am trying to get at. Does the bill protect the rights of such children?
There are some non-mandatory duties on education authorities to take a role in the education of a child who is being educated in the independent sector. However, there does not seem to be a mandatory duty on the education authority to put in place the same level of services that it would put in place for a child in the state sector.
I do not want to debate the point; I just want to obtain a view on whether the bill is sufficient in those areas.
On home education, there are some concerns—among organisations that work in the field and which support parents who educate their children at home—that the duties do not go far enough. I just wanted to add that for the record.
I am talking about rights to make requests for assessments.
If a foster parent is looking after the child from day to day and is familiar with their needs—I imagine that they would be working closely with the authority anyway, through the social work department—we would certainly say that the foster parent should have the right to make requests and should be supported in that process by the local authority.
What about nursery education for three and four-year-olds?
That is a more difficult issue. We have not considered private nurseries specifically. If there is a child in a private nursery who has been excluded from a state nursery because of lack of provision, of course the authority should have a duty to provide for them and to support the child at that nursery. Is that what you are asking?
The bill is not clear on that. We have had differing opinions from directors of education, the Convention of Scottish Local Authorities and other witnesses about the status of three and four-year-olds in that situation.
The position on that might be a bit woolly; I am sorry that I cannot shed any more light on that. We would certainly say that, if a child who was entitled to a place in a state nursery was in a private nursery because of lack of provision in the state nursery, the authority should have a duty in that regard.
You might want to follow that up, after you have given the issue closer consideration.
Yes.
I want to take up what Fiona Hyslop said about foster parents' rights under the bill. I am a bit unclear about that. I am looking up the interpretation section to see whether the bill's definition of "parent" follows the definition in the Children (Scotland) Act 1995, in which a parent is someone with parental responsibilities and rights, or the definition in the Education (Scotland) Act 1980, which is much wider. If the bill follows the rights and responsibilities definition, there needs to be clarification on what a parent is, because it is a parent who is able to ask for such services.
Can we stick to the principle of the issue? I think that we agree that the principle is that foster parents should have a right in the context of the bill.
Yes, but I think that that needs to be clarified, because the interpretation section does not contain a definition of the word "parent". It needs to include such a definition and I think that the definition should follow the wider 1980 definition rather than the narrower Children (Scotland) Act 1995 definition.
Thank you.
That is helpful. We move on to other matters. Rosemary Byrne will follow Rhona Brankin.
I want to ask about mediation, tribunals and resolution of disputes. There is a new duty on education authorities to make provision for independent mediation services. What are your views on that?
Our view has always been that if mediation is to be independent, it should be separate from the authority. The issue is about perception and culture. We accept that the Executive is trying to change the culture of provision for special educational needs, but we also have to accept the nature of the system. The Executive recognises that to make the system run smoothly, we need to put in place systems such as dispute resolution, mediation and tribunal systems. We would all love to live in a world where people get on and there is no conflict between parents and schools, but the perception, and for some people the reality, is that parents cannot agree with authorities. If the system of mediation that is introduced is provided by the authority, it will not have the parents' full confidence.
I agree with Eddie Follan. Mediation absolutely has to be independent from the education authority. Without that, parents' trust will be quickly lost. Parents go along to mediation thinking that the mediator is on the side of the education authority. It is only when they get there and find that the mediator is apparently a disinterested party that they start to relax and realise that they can say things.
So, you welcome it, but the issue is the extent to which it is independent. The Executive says that mediators cannot be involved in any way in providing education services or in decisions that relate to education provision. That is a step towards ensuring independence, and I assume that you welcome that. Are you saying that, despite that provision being built in, it is not independent enough?
We think that the Executive should go one step further and that mediation should be independent of the authority. To return to the issue of culture, if a parent asks a mediator who they work for, the answer is, "Well, I work for the local authority". That can undermine the relationship, particularly for people who have fought hard to get to where they are.
What are your views on the proposed independent additional support needs tribunals and their jurisdiction?
We welcome the tribunals for parents and, I hope, children to go to. We have two concerns about the tribunals, which are related to legal aid and jurisdiction. I will talk about jurisdiction first.
I understand that where a tribunal has directed an education authority to amend the content of a co-ordinated support plan, other agencies will have a duty to assist the education authority in implementing the plan.
I will look at the bill again, but I think that local authorities must have regard to other agencies but have no legal duty to involve them. I will come back to you on that if I am wrong.
That is an important point. We need to be absolutely clear about the situation.
Okay. We will check that out.
Is your preference to legalise the tribunal system and have a panoply of lawyers on both sides, or to avoid that situation so that the educational issues can be emphasised?
I understand the Scottish Executive's point about wanting tribunals to be family friendly and as open and relaxed as possible. However, as I said, people will have been through a fairly lengthy process before their cases reach a tribunal. The presence of an advocate, who would work on behalf of the person—or the parent—who lodged the appeal, will ease the change in the culture, but that will take time and I remain to be convinced that the system can be as family friendly as people would like it to be.
I agree with that. The tribunal system will certainly not be family friendly. Yesterday, a solicitor who works for a local authority told me that he is the guy who turns up at appeals against, for example, exclusions, so a solicitor is present at such appeals. I am keen that disputes that get as far as a tribunal should not, at that stage, be at a level at which solicitors are required to represent clients. There is room for that to happen when a dispute reaches the Court of Session, where an advocate will represent the client.
I understand that legal aid will be available before and after a tribunal hearing for those who qualify. However, the issue is whether it should be available during the tribunal. Presumably, we have to try to keep things family friendly and create an environment in which people are not directly opposed. As you say, we must keep things balanced in that respect.
That is right. After all, such an approach softens the blow a bit. Legal aid is available before and after an appeal, but for parents the terror sets in during the appeal itself when they are faced with the president and two panel members of a tribunal asking questions and questioning experts. The parent then has to cross-examine those experts. Such a system is not going to work fairly and something needs to be put in place to alleviate the situation.
Since the draft bill was published, a new dispute resolution service has been added to the mediation service. Do you welcome such a move?
We have yet to see the details of the dispute resolution service. Certainly, anything that will help to change the current culture will be good.
We are concerned about the legal standing of these services. For example, there is no legal basis to mediation. It is a voluntary forum and no one has to comply with the end result. The same applies to the dispute resolution service. No one will be legally bound to comply with any resolution, which poses a few problems for parents.
I think that the proposal will raise a few issues for us to examine.
I see that the word "parent" is also included in section 24(2), which means that it will have the wider definition. I had not appreciated that.
I want to follow on from questions about the tribunal system to ask about the number of disputes that might arise. It has been estimated that about 50 per cent of those who currently have a record of needs will not be transferred into the CSP system. What are your views on the transition period after the record-of-needs system stops altogether and the amount of dispute that that could lead to? Do you have views on an interim period or do you feel that existing records of needs should transfer? What view should we take of that point? When the bill is enacted, there could be many disputes. Do you see any possible resolution?
That is a big issue. An estimated 17,000 children overall will be affected, with 7,000 of those not having a CSP. I can only imagine the strength of feeling that there might be within that group. It remains to be seen what impact that will have on a fairly new tribunal system. We thought that through and several things could be done that the committee might want to consider.
I agree entirely. If a child has already been assessed as having complex, profound or specific needs, we have to consider those needs rather than consider where the services come from. The service should be needs based rather than resource led. As a result, children who currently have a record of needs would have a sufficient level of needs to have that record instantly translated into a CSP.
You call for a number of changes. Would you be prepared to submit amendments to the bill based on your recommendations? For example, the Scottish Child Law Centre seeks
We will certainly do that.
Yes.
Thank you. We have had a long and sometimes heated session on some important issues. We are grateful for your input and your participation. As Lord James has said, if you have other points to raise, whether they are general or by way of suggested amendments, we will be more than happy to hear from you.
Meeting suspended.
On resuming—
We resume after our well-earned break to welcome our second panel of witnesses on the Education (Additional Support for Learning) (Scotland) Bill. We are pleased to welcome Lorraine Dilworth from Record of Needs Alert, Eileen Prior from the Equity Group, Dorothy McDonald from Achievement Bute and Donna Martin from the Parents Awareness Forum Fife. As before, we invite each witness to make a brief opening statement.
I am a parent of three children with special educational needs, two of whom have records of needs. I have more knowledge than many parents have, because my children have been in independent specialist schools in England and in a unit that is attached to mainstream schools, so through personal experience, I have had a flavour of all the different types of provision for my three children.
The Equity Group is a Scotland-wide membership organisation that comprises parents of children with additional needs, adults with disabilities and education professionals. Our remit is concerned with inclusive education. We work with and support families and professionals to achieve excellent inclusive education. As a group, we have been enthusiastic about the work of the Parliament since its inception, until now. It is fair to say that the Equity Group believes that the bill is a disaster in the making for every child, every family and every local authority in the country, and, ultimately, for the Government.
That was fairly clear.
I am a parent of two children, one of whom has disabilities. I represent Achievement Bute, which is a voluntary organisation that a group of parents on the Isle of Bute established five years ago to support families of children with disabilities on the island. We have contributed to several consultations.
I have three children, one of whom has special educational needs. I am part of a small group that was established in Lochgelly by parents who all have children who are in mainstream education and who have experienced difficulties in the past few years with the level of support. Some of our children have records of needs and some have a Fife summary of intervention, but we are all concerned about what will happen when the bill comes into force.
Thank you very much. Incidentally, I should have welcomed Jeremy Purvis MSP to the meeting. He is not a member of the committee but he has an interest in the subject.
I agree that we need change, but I am very concerned about what will happen and about which children will get a co-ordinated support plan, which children will get a personal learning plan and where our children will fit into the system. When I went to a consultation meeting about the bill, I was the only parent among a lot of professionals and I sat and listened to them. They were undecided about what children were going to get and were arguing that there was not enough direction. I do not believe that that direction will come from the Scottish Executive, and I feel that children will suffer if there is not enough direction from the Executive.
So you are really looking for clarity about how the bill will work. Are you also concerned about standardisation across Scotland?
Yes. It is confusing for parents, who do not know what will be on offer or what their children will actually receive. I know that a lot of my fellow witnesses are well up on the subject, but parents who are just coming into the education system will find it very confusing indeed.
RONA has always maintained that the record-of-needs system was not the best system, but it was the only system that parents could use. I point out that the system was not set up just to get resources but to keep children under review and to monitor them. That important point seems to have been lost.
Is it your view that a lot would turn on documentation and the way in which it is used, on the standards that are used in schools and on the code of practice that is to be brought in? Do what you perceive as the bill's deficiencies turn to some extent on how it will work in practice, just as you say the 1980 act has not worked as it should have done in practice?
The 1980 act and circular 4/96 did not alleviate the situation or meet parents' aspirations about how their children's needs were going to be met. As I said at the outset, that act was not policed or enforced. The record of needs was meant to be a working document, but it was never used. Most schools have them locked away in a filing cabinet.
Is the bill, with the deficiencies that you perceive it to have, capable of being remedied in practice by the code of practice? Can the bill and the various other documentation work if they are used differently from how the record of needs was used?
No. To me, the code of practice will be another piece of documentation that will state—as circular 4/96 states—that it is not legally binding, so it will be necessary to go to judicial review. The matter will be about interpretation of the code of practice. Wording is very important and that is where problems lie in the 1980 act—authorities interpret it in one way and parents interpret it in another. Unless the code of practice is written in very specific terms and has some clout behind it, it will not be any good.
I attended Scottish Executive seminars on the bill—the seminars that were held during the consultation period and the recent seminar that explained the bill and the changes that have been made to the final draft. Every time I asked a question like, "Who do you envisage the co-ordinator of a co-ordinated support plan to be? Will it be a teacher or an educational psychologist? Could it be someone from an outside agency?" The people who drafted the bill did not have answers, but kept saying that that would be in the code of practice.
There are various arguments about that. In fairness to the Executive, its intention is to consult groups—yours and others—on the code of practice as the bill proceeds, but that suggestion has not been met with enthusiasm or the feeling that it is the right answer.
The parents were not consulted on the draft bill. We were left out in the cold and none of the questions that we have asked the bill team have ever been answered, although our children are the people whom the bill will directly affect. The committee must realise how frustrated many parents are and how dubious we are that this will be done in the best interests of our children.
Where the Equity Group is coming from is the belief that we in Scotland should be moving to a rights-based system. I have three children, two of whom need additional support to learn. According to what I read in the bill, one of the children is legally entitled to the support that he needs but the other child has no rights. Is that right in today's Scotland? I do not believe that it is right that one child has legal rights while another does not. In Scotland we need a system where all of our children have rights. Education is the only public service that does not have a robust system for complaints and for resolving disputes. Here we are, entering into yet another round of legislation and another phase of consultation and we have not addressed the fundamental issue.
The Equity Group's submission argues that we should have ripped up all the stuff about different sorts of plans and that there should be one central plan. Being realistic, is not there an issue about the bureaucratic resources that would be required to bring that about against the background of the personal learning plans and so on that are proposed? The aspiration that you express may well be one for the medium-term future but, in terms of what can be done effectively now, your proposal would divert resources from dealing with the problems that you rightly bring to the committee's attention.
I disagree absolutely with you. What is being created is a bureaucratic nightmare in which a two-tier or perhaps three-tier system will be introduced. Personal learning plans and co-ordinated support plans are being introduced. As far as the Equity Group is concerned, the personal learning plan has the potential to be a document that is held by every child in Scotland. Every child should have one and it could have three pages or 30 pages. The personal learning plan will get as much input as it needs; it is robust enough and it will be legally binding, so every child would have the same set of legal rights and the same document.
Our submission says that Achievement Bute thinks that a two-tier system would be created for children who have additional support needs. In fact, a three-tier system would be created, because there would be children who have additional support needs but who do not need co-ordinated support plans, children who have co-ordinated support plans and children who have no plan. In practice, good teachers already plan for every child in their schools whom they teach. Informal mechanisms already exist and every child in Scotland receives a report card.
Okay. Your general views on the bill are coming through reasonably clearly.
I want to ask about tribunals, mediation and dispute resolution. The bill proposes a new duty and a new power for parents to ask for independent mediation. What are your views on the bill's mediation proposals?
Mediation presupposes conflict. People do not need mediators when they get married—they need mediators when they get divorced. Why should we start on the basis that a system is being set up that presupposes that there will be conflict? Mediation can be useful where there is conflict, but at the beginning of the process, most young parents who are not sure whether their child has difficulties at school, or whether something is wrong, do not need mediation. They need information, advice and advocacy early on. If those are provided, they can discuss and resolve situations with class teachers, schools or local authorities. To start on the basis that mediation is needed is to ask the wrong question.
To a certain extent, I agree with Dorothy McDonald. I deal with quite a few parents and most say that professionals do not see them as equal partners—the white-coat syndrome. I have read Official Reports of the evidence that has been given and a lot of blame has been put on parents. My job involves enabling parents to become equal partners and giving them advice, support and information through which they can make informed decisions about their child's education in partnership with professionals. However, professionals tend to suffer from we-know-best syndrome.
On the additional support needs tribunal, the jurisdiction of tribunals is limited to education authorities. What are your views on independent tribunals?
I find it strange that the tribunals are called additional support needs tribunals because they are not available to every child who has additional support needs. It would be better if they were called co-ordinated support plan tribunals.
I appreciate that there was a wish to make tribunals family friendly and not to make people think that they are dealing with a huge issue. However, by the time a situation has reached tribunal, it will be a huge issue. Presumably, the mediation and dispute resolution work will have taken place before the case gets to the tribunal.
Finally, what are your views on the new powers to make provision for resolution of disputes when a co-ordinated support plan is not an issue? Do you welcome them?
I have not seen the paperwork, but I would say that, at the end of the day, it needs to be legally binding. We are to have mediation and tribunals, we have the existing appeals system—which is absolutely appalling—we will have exclusion appeals, we will have the Disability Rights Commission appeal system, and we are now bringing in dispute and resolution systems. How will parents, without any support, work their way through all those different systems and know to which appeal they should go?
Call me Mystic Meg if you wish, but I foresee a situation in which the system will become totally paralysed by parents who are articulate and determined to get the support that their children need. They will go through every single mechanism and, by God, there are enough of those. Our teachers and local authorities will not spend their time teaching children, but managing the paperwork that goes with that. In three, four or five years' time, there will be a report from Audit Scotland that says, "My God, this is costing us a fortune"—and it will.
I will make a point about the inequalities that will be created, particularly for parents who do not have the wherewithal, do not know what their rights are, or are unable to go so far on behalf of their children. As Eileen Prior said, parents who are able, willing and articulate will go to appeal and will go through the system. However, there are thousands and thousands of children whose parents are unable to do that and who will not get near the system. Those children's needs will not be met. The money that will be used to promulgate the system will all be focused on the dispute resolution side, whereas what we actually need is for the money to go into support at the early stages in schools.
I want to follow up what Eileen Prior said about the system's being snowed under with bureaucracy. At what point in the system will that happen?
The first point will be when parents and families whose children have a record of needs find that their children are no longer entitled to that or to a co-ordinated support plan. Those families will simply view the record of needs as the thing that has been their ticket to resources and support for their child. They will then launch into working their way through the system. That may involve an awful lot of effort, hard work and pain for those families, but having gone through it all once, they will go through it again. That will simply paralyse the system. The costing of the number of appeals has underestimated by a long way what will happen in reality.
Convener, is someone going to take up that point? I think that we need to bottom that one out. My understanding is that children have existing legal rights to an adequate education.
Does Wendy Alexander want to ask about that?
I want just to play back a little of what we have heard. I accept that there is a risk that the system could become snowed under because of the attempt to define needs more clearly. Obviously, the committee is trying to ensure that we redress the fundamental imbalance of power that people have mentioned without the system's becoming snowed under.
If resources are put in at square one when a child enters the system—I hate the phrase "enters the system" but that is, in effect, what happens to the child—and if there is a system of advocacy so that families are informed, and local authorities know that families have been informed and know that families and children have rights, the situation will be quickly resolved and people will receive the support that they need. We end up having disputes because of the imbalance of power. Often, disputes rumble on and on because families try mediation and other systems that they think might get them what they want but which do not. We know of families who have tried for four, five or six years to get the support that their children need—it can take that long. However, if things are done properly right from the start, people do not even reach the stage of tribunals or disputes. Things are sorted out on a level playing field right from the start.
That is always assuming that, in the first place, adequate resources exist at the same level throughout all local authorities. That is the $100 question.
In our evidence, we say that the bill is predicated on a definition in which children's additional support needs are based on what the local authority can provide. We know from experience that we cannot base a view on whether a child needs a co-ordinated support plan on what the local authority provides. In some local authorities, a child may not need a co-ordinated support plan but, in others, where services and support are at a lower level, he or she will.
Does anyone want to add to Wendy Alexander's original points on widening rights, bureaucracy and dispute procedures?
If a bill places a duty on all services, gives independence to mediation services and makes their decisions legally binding and allows for tribunals and legal representation, you will find that local authorities will not try parents as they do at the moment. At the moment, local authorities are quite happy to refuse a placing request for a child because they know that the appeals system, when matters reach that stage, will favour them. The appeals system is supposed to be independent, but the Scottish Committee of the Council on Tribunals wrote in a report in 2000 that the system was not independent and that people were badly trained.
Resources have to be made available to support children. That was one of the points that we made in our evidence. We welcome the idea of emphasising support, but the children have to receive it.
We will need to struggle with that issue. Lord James Douglas-Hamilton will move on to a slightly different area.
You represent a great many parents throughout Scotland. Have you and the grass roots been properly consulted on and involved in the drafting of the bill?
I used to be a member of the SEN advisory forum, which came to an end in March. At the time, I wrote to the Executive saying that it was important that, whatever was put in place, parents should be involved. I understand that a new advisory committee has been set up. I have never been asked to go on it and I have never been told how it was made up—I do not know how the people who are on it were chosen. I think that there is one parent on it, although I am not sure, because I do not know how the Executive went about setting the committee up.
So parents have had relatively little input into the drafting of the bill.
I have to agree with that. RONA took up the issue with Cathy Jamieson, the former Minister for Education and Young People, and members of the Education, Culture and Sport Committee. We were told that the measures went out to schools. RONA held a number of meetings throughout Scotland—in Perth, Falkirk and all over—to inform parents about the proposals. We wrote to all the parents whom I see and to parents who contacted RONA and they were appalled that such legislation was going through and that they had not been consulted.
In my book, consultation is not about going out with a draft bill to ask people what they think about it; it is about going out to ask parents and professionals involved in the support of children with additional needs, "What are the problems that we need to solve?" To be frank, if the record of needs is the problem, the bill is certainly not the answer. We were presented with a draft bill, so the Executive was confining what we were talking about. That is not the way in which to consult.
Is there a particular problem with the children of people who serve in the armed services? The children concerned will move around a lot with their families and may have to go abroad. Is that a problem that the bill does not cover?
I deal with a number of armed services families and I raise the issue at every meeting to which I go, because that group of children is always missed out. I was on the review of educational psychology at the Scottish Executive and I raised the issue there. The feedback that we get from such families is that, because they move about from country to country and might be in an area for only two years, the local authority services are slow to act. I can cite some cases of a local authority saying, "You'll be moving on in two years and we do not want to put that burden on another local authority." However, what about the child's potential and their needs at that time? There is a group of children who will not come under the bill but whom I would want to come under it, because there are problems, especially if the children have special educational needs.
What are your views on the rights of foster parents under the bill?
I had a meeting with the bill team, because I felt that foster parents could not specifically access a placing request or the right to a co-ordinated support plan. A minute was taken of that meeting. We have that minute and, although the bill team agreed with us on the issues that we raised, they said that the matter was not for the bill. We found that strange, as looked-after children come under the bill and foster parents will not have the same rights as parents to make placing requests or to ask for a co-ordinated support plan.
You have sent in important representations. Could you consider your recommendations on the bill and send us possible amendments? I am thinking of your recommendations on home-educated children, children under three, mediation, legal aid and transitional provisions. It would be invaluable to us if you could, in due course, send in draft amendments so that we could weigh each on its merits.
That would be no problem at all.
The children of people serving in the armed forces have been mentioned. My understanding is that the bill covers youngsters who are deemed to face a barrier to learning, which might be that they have had to change school time and again. Are you suggesting that the problem is that education authorities are reluctant to open records of needs under the existing system because the youngsters are in their areas for only a short while?
The problem is with opening records of needs and making placing requests. We need a fast-track system for such children, because their families may be in an area for only a short period. Some local authorities play on that fact, because they know that the children of people in the armed forces will be in their areas for only two years.
My understanding is that they would be included, but we need clarification on that.
We will follow that up. I am conscious of time—we need to move proceedings on.
I want to repeat the line of questioning on rights that I pursued with the previous panel. We have already talked about the fact that there is a perception that parents whose children have a record of needs at the moment and who might not have a co-ordinated support plan under the new system will be losing rights. What rights that they currently enjoy do you think that they will be losing?
My daughter will lose her record of needs. Under the current system, I can appeal against her diagnosis, the statement of her special educational needs and the services that are to be provided. Circular 4/96 makes it clear that part IV of the record of needs is about not only the child's statement of needs, but the services that are to be provided. With the record of needs, I can also appeal about the placement.
Although the bill will extend the ability to make a placing request to those who are outwith the co-ordinated supported plan and record of needs systems, those who currently rely on the record of needs will lose out on the bulk of documentation. However, parents will not have to have a co-ordinated support plan to ask for an assessment—they can do that anyway.
Yes, parents will be able to ask for an assessment, but the authority will be able to tell them that they are not getting it and they will have no right of appeal. Parents will be able to ask to have their child identified as having additional support needs, but the authority will be able to refuse that request and there will be no right of appeal.
The and/or point is important and we will pursue it. I think that local authorities will have a duty to meet any parent who makes such a request, but we will have to explore how quickly they have to do that and what would be reasonable.
The bill mentions an "unreasonable" request. The question is how "unreasonable" is defined and in whose eyes a request is "unreasonable". If someone is given the right to ask, they must have the right to disagree if the authority says no.
That is right. However, the purpose of the dispute resolution process is to resolve that matter.
Will it do that?
That is what we are asking.
Surely the point is that we should not be considering how the dispute resolution system works; surely we should be considering how we can avoid disputes. You are assuming that the parent has the wherewithal—the skill and the confidence—to say to the school that they do not think that their child is learning as well as he or she could be and to ask what needs to be done. Not all parents do that and not all parents have the wherewithal to do it.
We explored that issue well with the first panel of witnesses. Do we need to pursue the matter?
Yes, because this is the first time that anybody has said that specific rights exist. The previous panel said that no rights existed, but Lorraine Dilworth just named two or three rights. I am not sure about the right in relation to placing requests, but she made a strong argument that the ability to add weight to an argument with documentation that accompanies a record of needs will be lost.
Services could also come from the education authority.
What services are you talking about? I am looking for an example of a situation in which someone such as you has tried to exercise that right—successfully or otherwise—but would not be able to do so under the new system.
My oldest son had a record of needs and I was one of the lucky parents who read up on the legislation and applied that to my son's record of needs. Part IV of his record of needs specified daily speech and language therapy. My son was in a unit for children with communication difficulties that was attached to a mainstream school and he was the only child in the unit who received daily speech therapy, because that was provided for in the right section of his record of needs.
A personal learning plan has the potential to deal with that, because it is a working document. Children are involved in developing their personal learning plans. The professionals who are involved in supporting children can and should also be involved in that. Our argument is that we already have such measures, so why are we adding another layer?
You have argued that point well. Before we move on to another subject, I will ask about definitions, about which I remain puzzled. I know that Eileen Prior—perhaps Dorothy McDonald, too—does not accept the principle of differentiating and of having three tiers. However, if we are to go down that route—although I am not saying that we must—how do we draw the definition?
I do not think that it is possible to get a fair definition. Currently, under the Special Educational Needs and Disability Act 2001, children with disabilities as defined by the Disability Discrimination Act 1995 are entitled to expect to go to school and can expect the school not to discriminate against them. However, as Professor Sheila Riddell mentioned in her evidence, the 2001 act—which is reserved legislation—was introduced on the assumption that the auxiliary aids and services that are needed for a child with a particular disability would be provided under the SEN framework and the new bill. However, the bill does not say anything about that at all. In fact, it makes the current legislation—the 2001 act—less effective for such children.
You have made that argument forcefully. The committee is in a difficult position. We could adopt your view—we may do so—and reject the definition of a CSP because it is unworkable and would be discriminatory. Alternatively, we may decide that the bill is an advance on the current situation and that we want to make it workable and as fair and equitable as possible, to which end we may want to try to improve the existing definition. We must either try to make the bill work or throw it out—perhaps that is the way to do it. However, do you have any thoughts on how we might improve the definition rather than reject it entirely? That sort of thinking would be welcomed, although I am not discounting your suggestion that there should not be a definition at all. That point has been acknowledged.
I am conscious of the need to move on to other areas. Perhaps that is an issue that the panel could think about and, in accordance with Lord James's suggestion, come back to us on. The question is complex and we might get an answer to it in that way. Would you be prepared to do that?
There is no such definition under any other legislation. The National Health Service Reform (Scotland) Bill, for example, is not suddenly going to define people who have complex needs or needs that are additional to the norm. What do you mean by the definition? It is not possible to define children with additional support needs.
So you are saying that it is not possible for you to come back to us with a definition.
I do not think so.
Is that the view of everyone on the panel?
We are talking about the level of support that a child needs. The Standards in Scotland's Schools etc Act 2000 clearly states that every child has the right to reach their potential. It is that potential that we must tap into—whether it is a low potential, a high potential or whatever. Every child has the right to reach their potential: that is the starting point. What is the child's potential? What is the gap between their potential and where they are currently at? What support is required to get them to reach their potential? I do not think that we need to collate two three-tier systems to be able to do that. Nor do I think that the issue is solely about resources, as I have found that some of the resources are working in the way that they were working 20 years ago. We need to review that and apply the resources better before we start flinging new money anywhere.
I am sorry, but we must move on to a different issue. We have gone round in circles a bit on that one.
I would like to stay on the issue of legal rights. Lorraine Dilworth mentioned that the parents of children with a record of needs have the right to appeal against a decision on the services to be provided, but it has been put to us that they do not have legal rights in relation to that support. Will you comment on that?
Circular 4/96, which is a Scottish Executive publication entitled "Children and Young Persons with Special Educational Needs: Assessment and Recording", states that
Many local authorities spend a lot of time ensuring that the record of needs is a worthless document. They put information into part V, knowing full well that parents cannot appeal that part, but part IV is often vague nonsense that does nothing to develop the support for the child. That is what I am talking about when I say that resources go into the administration, not the delivery.
A number of witnesses have mentioned that the IEP is a potential vehicle for a single system. I am concerned that we might weaken rights if everything were put into one system through the IEP. Would a single system work if there were similar rights and a system of tribunals for appeals? From your experience of IEPs, are you satisfied that they could be the correct vehicle to provide the necessary documentation, recording and reviewing in a single system? The experience of the implementation and working of IEPs seems to be variable across the country.
I have a lot of knowledge of IEPs because many parents send me their child's IEP. Although the IEP was a good idea and was meant to involve a multi-agency approach, I find from talking to teachers that they are left to make up IEPs in their dinner hour and that many teachers have not had training. Some authorities have provided training and have good codes of practice for teachers on how to deal with IEPs, but the parents and children are not involved. Some of the IEPs that I have seen were really poor. We would need a standard with which IEPs would have to comply and they would need to be dealt with on a multi-agency basis, not only by teachers in their breaks. Teachers would have to be given time to work with other agencies on the aims and objectives for the child. The IEP could be used as the basis for a single system, but parents would want it to be legally binding.
The piece of paper that should be used is the personal learning plan, not the IEP. None of us knows what the co-ordinated support plan will look like, but the personal learning plan has been piloted throughout Scotland. At least one of our members has been involved in one of the pilots—she e-mailed me last night with her thoughts on it, which I will leave with the committee. One of her children has autism and the other has no additional support needs, but both of them have engaged in the process and have thoroughly enjoyed being part of it. The little girl who has autism has started writing in her plan, even though she has never written or engaged in that kind of activity before. Her mother is delighted, although she would like a few points to be changed.
My daughter has a record of needs and an IEP. She also receives an end-of-term report card and we go to parents' nights. She attends a mainstream class in a mainstream school, where she gets a lot of good support. The best support that we receive comes during the five minutes before 9 am, when I drop her off at school. If I am not happy with something, or I want to raise an issue about her support, I can go into the school then, speak to her class teacher and resolve the problem informally, without an IEP or record-of-needs meeting. I have attended such meetings about my daughter at which 12 people have been sitting around the room; they have obviously spent time writing reports and coming to the meeting and support staff have been put in place for them so that they could attend—but nothing much has been discussed at the meeting and nothing much has happened as a result.
You have presented a consistent line of argument. However, if there were to be a single plan—whether that was a PLP or a new additional support plan based on the PLP or the IEP—would there not be a danger that, because all children had a plan that contained varying degrees of information, it would be left to individual teachers to interpret the level and extent of support services that children should receive? As you said, it might be difficult to define the child's needs. Would there be a danger that teachers might get caught up in bureaucracy for every child? The children who really needed extra support—both in terms of time and physical support—might not get it, because teachers would be too busy operating a single PLP system that tried to create an ideal world in which all children received some degree of support. If we were to have a catch-all system, would there not be a danger that children who really needed support would lose out?
No, because teachers already provide that support. Every child in Scotland gets a report card at the end of the year and systems are already in place to assess and plan for all children's educational needs.
Can I just say that, although I slightly slandered local authorities earlier on, an enormous amount of good work is going on out there. An enormous number of teachers are doing fabulous work. I have brought a home-school diary that belongs to one of our members, which I am happy to leave with the committee. It is about her son Ross and covers the period from—I think it was18 August this year—when he started school to the present. It tells the story of a wee boy, his teacher and his mum and dad, all of whom are learning to work together. One diary entry covers an instance when Ross threw a cup away because he did not like it. The diary records the suggestion that a clear cup would be tried on the next day to see whether Ross might like it better. The diary covers dead practical stuff—the sort of stuff that is happening in schools at the moment. The system does not have to be bureaucratic.
A central theme is emerging that it is what happens in the schools that is important. That is the main thing that should be concentrated on and encouraged. I think that we have to build on that theme.
Lorraine Dilworth spoke about one of her children who has a record of needs. She said that her daughter would not get a co-ordinated support plan. I was struck by that. Organisations such as COSLA, the Association of Directors of Education in Scotland and so forth seem to be confused about who will be eligible for co-ordinated support plans. I do not want to ask you to disclose personal information, but is the bill clear about which children will be able to get a co-ordinated support plan?
The bill refers to children with "complex factors" who require "significant additional support" from other agencies. My daughter gets only learning support. That, however, does not make her special educational needs any less than those of a child who gets support from other services. Her disability impinges severely on her education. She has an intelligence quotient of 120, but she cannot access her full IQ without support at school.
Fairly significant sums of additional money are going to go into additional support. If you do not have the legal right for your daughter to receive additional support, are you confident that that support will be delivered for her?
No, because at the moment every school is chasing its tail. The bill puts everything firmly in the hands of the learning support teacher and the school. It says, "This is your problem. Deal with it." The bill does not bring educational psychologists and other professionals into the picture; they are brought in as the last resort. It is the teacher who has to identify the need. How can a teacher who has not been trained identify a child's problems? I think that the speech therapy, occupational therapy and physiotherapy services have given evidence on that.
Are you saying that, although that is the intention of the policy, it cannot be delivered in practice?
Definitely.
The bill gives legal rights to children with a co-ordinated support plan, but not to other children with additional support needs. Local authorities that are strapped for cash will obviously say that they have to meet the needs of the kids with legal rights first. Reading the legislation, I believe that my daughter would be eligible for a co-ordinated support plan, but I know of parents whose children need an awful lot of learning support in the classroom, rather than multi-agency support, and that would mean that they would not have a co-ordinated support plan. Those parents are worried that they would lose that learning support because the authorities would not be obliged to provide it.
I want to ask about the estimates in the financial memorandum, but I think that we have covered a lot of that already. However, in case there is something that you want to say on that, I will ask you to give us your view on the estimates that have been given.
Rosemary, could we deal with the resources question first, before returning to this question?
Some of this has been touched on and it is perhaps a bit unfair to take too long over it, but I would like to know what you think of the proposals for assessment, examination and identification. Do you agree that if that system were better planned and resourced so that the needs of children were identified at an early stage by parents, teachers and professional assessors, the rest of the process would be smoother and there would be fewer appeals and less need for mediation?
Yes.
I know of a parent whose child has autism, but does not have a record of needs because she felt that there was a stigma attached to having a record of needs. The child is in a mainstream school with lots of support. The reason why that is working is not because of the safeguard that is provided by the record of needs—because the child does not have one—but because the school took her seriously when she said that she wanted to work in partnership with it. She was listened to by the school and, because the autism was diagnosed at a young age, she got a lot of support from health workers and so on and was clear about the kind of support that her child needed.
Part of my point is that there is a lot of good practice; you have all identified that in some way. I wonder how much consideration was given to good practice before the bill was drafted. I would like to hear Lorraine Dilworth's point of view.
That is fine, and there is good practice out there, but there must be something in legislation that stops bad practice happening. We have to acknowledge that there is also bad practice. Why have 1,200 parents come to my organisation? We do not advertise. Those parents have not come across good practice.
Could that not be dealt with by the proposed code of practice? It is an important point, but it is down to good practice.
Yes, but even if it is in the code of practice, it depends on how that code is interpreted. It has to be firmed up. It is not an and/or situation; parents have to have the right. If we are really talking about a multi-agency approach and the involvement of parents and young people, why does the bill not stipulate that the parents have to discuss and agree with the local authority who they want to assess their child?
I am grateful for the opportunity to ask a question. I want to pick up on the point that you and other witnesses have raised about the differences in quality of provision. The bill seems to assume that there is universal coverage of standards throughout Scotland. It is interesting that we have a geographical spread, and Donna Martin and other witnesses have mentioned the differing levels of provision. I am also interested in the points about raising the quality and using best practice.
My experience has been that local authorities publish information about children in their children's services plans and nobody reads it. Any information that is published must be published in a format that people will understand and read. I would like there to be more recognition of the fact that there are many parents out there with skills and resources. Lorraine Dilworth's organisation and other organisations, such as our very small-scale island organisation, advocate on behalf of one another and get information about different things. In Bute, we have a really good relationship with the schools and with learning support services, and they take us seriously. That is one of the things that needs to be addressed, because I know that that is not the case across Scotland. I know parents in other parts of the country where that is not the case, and that is the sort of thing that needs to be addressed.
One of the things that the Equity Group is working on at the moment, with funding from the Scottish Executive, is an inclusive learning network. We are working with teachers and parents from six local authority areas across Scotland, looking at inclusion and education and working out with them some ways in which it can work. My response to Jeremy Purvis's question is that, in reality, there is not one answer. Again, that is a common misconception—that there must be one thing that is just the ticket and will sort out the problem for these children. There is no single answer, because every child is an individual. What it always comes down to is the relationship between the parent and the teacher and between the parent and the head teacher.
I would like to ask one small question on a technical matter. It concerns something that Lorraine Dilworth mentioned to me in conversation earlier. I think that the Disability Rights Commission has a tribunal that is linked, in English legislation, with the English tribunal equivalent to that proposed for the co-ordinated support plan. Should we be aware of an issue with regard to the division of the ability to appeal and to take things to a tribunal?
In England, if a disability rights issue comes up, it can be dealt with by the tribunal. What you will find is that there is a crossover between the co-ordinated support plan and the disability rights issue, and even exclusion legislation. As parents, we would want the same rights as English parents have and we want the tribunal services to deal with disability rights issues. I was told by the bill team that the only reason that our tribunals will not be able to deal with DRC issues is that we did not have tribunals when the act that set up the English arrangements was passed. It seems that an act of the Westminster Parliament is needed, but I would really like the committee to ensure that the matter is addressed again.
I touched on that very point earlier. For example, although the Special Educational Needs and Disability Act 2001 deals with reserved matters, there is a code of practice for Scotland's schools. Under that legislation, children with disabilities have a right not to be treated unfairly in schools and schools should make reasonable adjustments for their education. Under the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002, which is a piece of Scottish Parliament legislation, Scottish local authorities also have a duty to plan for the inclusion of children with disabilities. However, neither of those acts covers the issue of auxiliary aids and adaptations. As a result, a school might say that the reasonable adjustment would be providing a hoist or something like that, which is technically an aid and adaptation. That aspect is supposed to be covered by the current SEN framework, but it does not seem to have been addressed in the bill.
So the link between those aspects has to be made.
Indeed. There is not enough linkage. Reading over the previous evidence, I found that Professor Sheila Riddell made the same point. Although the bill was always intended to cover that matter, it does not appear to do so robustly enough.
I am aware that we have had a very long session. We are very grateful for your input, your insights into the matter and the time that you have given us today. I am sure that we will have arguments about the complex and important issues that have been raised for some time to come. As Lord James Douglas-Hamilton said earlier, if you want to come back to us with anything, or if you have any points that, on reflection, you want to share with us, please feel free to write to us.
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