Official Report 267KB pdf
Good morning and welcome to the eighth meeting of the Education Committee. As I check my own mobile phone, I remind everyone, as we are in public, to ensure that their mobile phones and pagers are switched off.
I start by introducing the team. First, on my left, we have Wendy Wilkinson, who is leader of the bill team. Behind me, we have Donna Bell from the education finance and enterprise and lifelong learning division in the Finance and Central Services Department; Naseef Huda, an economist from the Education Department; and Jillian Boyle from the finance division in the Health Department. As you remarked, convener, we have a larger team than usual, but we want to be as helpful as we can to the committee and, if you want to ask us questions about finance, it is helpful to us to have our finance colleagues with us.
I will kick off with a few introductory questions on time scales. Will you give us some indication of when it is proposed to bring the bill into force and what the time scale is on the code of practice, as committees get a little agitated about codes of practice—and other things—for which they do not know the time scales?
The time scale will be influenced by the time it takes for the bill to get through the parliamentary process and be enacted. Considerable time will be spent preparing for implementation. There are subordinate legislation powers to put the operational details of the system in place. We estimate that once the bill gets through Parliament it will be 2005 before it starts to be delivered on the ground, partly because we will have to deal with the logistics of recruiting tribunals and establishing where they will be based, before we can introduce co-ordinated support plans. The appeal mechanisms have to be in place before the plans can be operational.
Is it the intention of ministers to involve the committee in discussions on the code of practice? If so, will that be during the course of the bill's progress or will it be subsequent to the passage of the bill?
I am sure that the minister would be interested in the committee's views both during and after the passage of the bill.
There is reference in the policy memorandum to gifted children and children for whom English is an additional language. What sort of support would be provided to gifted children? It is an unusual category, which is not quite in line with other categories that you might be dealing with here.
The phrase ‘additional support needs' was aimed at any barrier to a child's progressing with learning. Education should be directed towards a child achieving their full potential. If educational provision is not meeting the specific needs of gifted children there is a possibility that they will not achieve their full potential and will become disaffected.
That is a fair point. It is about ensuring that we do not exclude any groups of youngsters. We would leave it up to the professional judgment of teachers in the first instance to decide which children need additional support. The fact that those children are gifted, or have English as an additional language, does not necessarily mean that they need additional support. However, they may need additional support, and we wanted to make that clear in the policy memorandum. We did not want to give a list of types of difficulties, because people tend to use that as a checklist. We wanted to give some examples to ensure that people think as widely as possible about what we are trying to get at when we speak about additional support needs.
Section 1(1) defines additional support needs and indicates that a child has those needs where
I do not think so. School education is defined in section 2(1) of the Standards in Scotland's Schools etc Act 2000, which says that education
My point was slightly different. Under the definition, which seems narrow, if the child gets any benefit from school education, he or she does not have additional support needs—if one takes section 1 literally. I might be making a lot of fuss about not very much, but I want to be sure that you have identified fully the issues in the section. It is perhaps worth thinking about that later.
It is not the intention to decide that simply because a child gets some benefit from education, which could be minimal, they do not have additional support needs. We have to consider more broadly the extent to which the child is able to benefit from education. That has to be considered with the people who know the child and who know what they expect the child to make of education.
I want to know more about the number of children who will have CSPs in comparison with the number who currently have a record of needs. Page 14 of the financial memorandum suggests that your estimate is that about 50 per cent of those with a record of needs will go on to have CSPs. However, on page 35 of the Executive report, which sets out the response to the consultation, paragraph 70 defines a complex factor and paragraph 69 says that it is something that should
I will ask my colleagues to explain the process by which we arrived at that figure. In paragraph 70 we mentioned conditions such as sensory impairments and ADHD. We have given examples of children who might require a co-ordinated support plan. However, there could be children who fall into those categories who do not require a CSP. We are trying to ensure that we focus on the needs of the individual child.
The criteria for eligibility for a co-ordinated support plan are not based only on complicated or multiple factors. Another strand to the criteria is the need for services from outside education.
If a child does not require services outside education, they will not get a CSP.
That is correct.
That was not completely clear from the report that was published last week. On Monday some of us heard from staff from a school in Dundee. Of the 22 young people in the resource centre, 14 had a record of needs. In the staff's estimation, most of those with a record of needs would also qualify for a co-ordinated support plan. The council officials were unable to estimate at this stage how many children in the council area would go on from a record of needs to a CSP. I wonder what model was used to get the 50 per cent that is mentioned in the financial memorandum.
It might be helpful if we ask Donna Bell from the finance department to answer that, because she was involved in the model and can explain it to you.
As Dr Murray said, council officials and representatives of other bodies have found it difficult to estimate exactly what number of children with records of needs will transfer to CSPs. We have carried out a detailed analysis of the financial implications and of transition costs. As you will have gathered from the evidence that you have taken from audit colleagues, it has been reasonably difficult to ascertain the exact costs.
As Dr Murray said, we used the figure of 50 per cent in our model, which was based on consultation with local authorities. Some local authorities said that they felt that all their records of needs would be converted into CSPs but, for the reasons that Wendy Wilkinson outlined, we felt that that would not be the case. To be entitled to a CSP, someone would need services outside education.
I want to pursue the financial side of matters. I notice that the financial memorandum identifies the costs of tribunals and various other things, but it does not seem to include the cost of any additional demands on the system in general that might result from the greater emphasis on inclusion. Given the Auditor General for Scotland's report and so on, should you not be making some allowance for the additional demands on the system that will result from the general move towards inclusion and the boost that the bill would give to that?
In general, we have covered the financial aspects in detail. The conclusion that we have come to is that there should not be any new children out there who are not being dealt with. The bill may cause expectations to rise, but that is a question of managing expectations through the guidelines and the code of practice, which will come out in due course.
We might come back to that in future questions.
I want to ask three questions on duties, the first of which relates to the duty of authorities to identify and address the additional needs of all pupils, which Mike Gibson has already mentioned. I would like an explanation of how authorities would be expected to identify and address those additional needs. Would that be covered by the guidelines that are set out in the code of practice that was mentioned in the opening statement? Would the guidelines cover the definition of "adequate and efficient provision"?
The simple answer is yes. We have already issued a fair bit of guidance that explains the operation of the current system. We have a manual of good practice that gives advice to authorities and schools on how they should be providing for children with special educational needs. A whole plethora of advice and guidance is available.
I notice that there will no longer be a duty on local authorities to carry out what might be described as a multi-profession assessment, involving medical, educational and psychological assessments. Why will the duty to carry out such assessments disappear under the bill? Might that mean that, if a local authority did not wish to provide a particular service, it could refuse to provide professional advice in that respect?
Views were expressed early in the consultation about the compulsory nature of the assessments that are required at present in considering whether a child requires a record of needs. One issue is that every child has to undergo a blanket set of assessments, whether or not they are necessary given the child's needs. For example, a child must undergo a medical assessment, whether or not that is relevant to their needs. Some people feel that that system is unnecessary and intrusive.
So it will not be open to authorities to withdraw certain types of services.
As Mike Gibson mentioned, the code of practice will be used to set minimum standards. As a result of the consultation, ministers added a section to the bill that will give parents the right to request a certain type of assessment, such as a medical or psychological assessment. Education authorities will have to meet such requests, unless they consider them to be unreasonable, in which case they must have grounds for doing so.
Education authorities will be able to assist in identifying particular needs and to offer advice for children and young persons who are not in the public system, such as those who are educated at home or who attend independent schools. What is the reasoning behind that measure?
The duties that the bill will place on authorities relate to the children whom the authorities are responsible for educating. Where the child is in the public schooling system, the duty to provide education should sit with the education authority. Given that it is a matter of parental choice to withdraw a child from, or not to enter a child into, the public schooling system, it was not seen as appropriate to make education authorities responsible for the provision of education for children who, not as a result of education authority arrangements, are educated at home or in independent schools. However, the bill offers authorities the power to help such children. Indeed, the parents of children who are not in the public system have the right to request the education authority to assess their child for additional support needs and to assess whether, if the child were in the public system, they would be eligible for a co-ordinated support plan.
What would that mean, for example, for a child who suffers from dyspraxia and who is educated at home because they cannot cope in mainstream education without significant help? Would that child receive assistance?
They would receive assistance if the authority were willing to provide it. For parents of children in the public system who are concerned about the provision made for their child, there will be appeal mechanisms and mechanisms for resolving those concerns, such as mediation and dispute resolution. Mechanisms will be put in place to endeavour to improve the provision in the public system and to resolve concerns that parents may have about that provision.
In your example, if the parents of the child with dyspraxia had withdrawn the child from the public system and were educating him at home, it would be up to the parents to approach the health trust or the local authority to get, for example, occupational therapy advice. There is no reason why they could not do that, but it would not be the duty of the education authority to do it for them.
If parents are entitled only to request a psychological or medical assessment and the compulsory assessments are done away with, my concern would be that some young people who have a hidden disability, such as Asperger's syndrome or a communication disorder, might not be identified. A number of children with social, emotional and behavioural difficulties could fall through the net and be labelled as children with bad behaviour rather than children who need to have their condition assessed and for whom appropriate treatment and education plans have to be put in place.
What do you mean by "only parents"? Parents as opposed to whom?
People can flag up their belief that an assessment is needed, but the legislation seems to give only parents the power to ask for one. It would be like my seeing that someone in my family needed to go to the doctor but waiting for them to make the decision to go to the doctor themselves. I think that the professionals who work with such young people should be in a position to ask for an assessment.
As you know, the formal statutory assessment applies to only around 2 per cent of the school population—basically, those pupils who have a record of needs or who are thought to require a record of needs. That is a small number of children.
The bill gives parents the right to request that the authority assess their child but it also places on authorities an obligation to carry out an assessment of a child if it comes to their attention through any means that the child might have additional support needs, unless it is deemed to be unreasonable to do so.
I am still concerned about psychological and medical assessments. In the proposals that are before us, I cannot see a means whereby psychological or medical assessments will be carried out if it is felt that a young person is having difficulties that have not been identified. I agree that there are many young people in the current system who have not been identified as having a specific difficulty. That would continue to be the case under the proposed system and I do not get a clear picture from you that psychological assessments, in particular, would be available. Such assessments are crucial if there is to be early intervention in certain conditions.
Psychological assessments will continue to be available. The bill provides that, if a parent requests a particular type of assessment,
You are saying, in effect, that a psychological assessment would be carried out if the powers that be thought it necessary. In addition to that, a parent or, indeed, an interested professional could request such a report. Could the refusal of such a request be the subject of an appeal?
No. If a request were to be refused, there would be other options, such as mediation and dispute resolution, to take the matter forward. However, one hopes that that situation would not arise. An authority would have to have very good grounds for saying that a request for an assessment was unreasonable.
Is there no one who would be in a position to take on the authority if it were to make an unreasonable decision? Would there be no right of appeal?
Dispute resolution would be one of the routes down which people could go.
My question relates to duties and powers, which Wendy Wilkinson mentioned in response to Lord James Douglas-Hamilton's questions. It has been brought to my attention that education authorities will have a duty to assess the need for additional support for all pupils for whom they have responsibility. However, they will have power to make such assessments only for children under three, whereas under the current system they have a duty to assess children aged two or over. Why is that change being proposed? Obviously we are now diluting that duty so that it is merely a power in relation to two and three-year-olds.
Under the current system, there is a duty to assess in relation to records of needs for children aged two and over. The new provisions will change that age from two to three, because three is the age at which children first attend pre-school centres and become the responsibility of the education authority. The definition of being within the responsibility of the education authority includes children who are
If, for example, a child was born with cerebral palsy and the parents knew from its birth that the child would require additional support, how would they prepare the ground with the education authority when the child was at an early age?
Indeed. That would likely be instigated by the health service, which would be the first port of call, or immediate assessor, in the process by which the child would be identified as having some form of additional needs. There is a power in place in the bill for education authorities to assist with such cases. They can do so for anyone under the age of three. The intention of the code of practice is that that will be encouraged.
Will the code of practice give considerable attention to that?
Indeed. Of course, with the definition of additional support needs now being so wide, the matter is not just about children who have the most complex needs, it is also about children with other needs.
I think that Fiona Hyslop has a point on this subject.
I am happy for us to move on, unless any other member has further questions on assessment.
We will move on to questions on different areas. I will come back to you in a minute.
I will start by addressing the new dispute resolution service that the minister outlined and to which you have begun to refer this morning. I am slightly unclear about what the dispute resolution powers will look like. Will the service be independent of the local authority in the way that mediation services and appeals tribunals are? Will it take decisions and will they be binding on the parties to the dispute?
The detail of how the dispute resolution service will operate in practice is still being developed. As you know, the minister has written to the committee and is keen to hear the committee's view on what a dispute resolution service should offer. Issues such as independence would certainly be a factor in those considerations, as would the question whether the education authority would be legally bound to respect the decision on whatever the dispute resolution procedures might be.
Would the disputes resolution procedure be a general one for all disputes between parents and local education authorities or would it have a specific remit to specialise in additional support needs?
The procedure would specialise in additional support needs. The scope of the bill is only around additional support needs. My understanding is that we could not introduce a dispute resolution service for all parents through the bill. It has to be for parents of children with additional support needs.
Could we expect, for example, that a member of the panel will have expertise in that area? I am thinking of the way in which a tribunal works.
Indeed, if that is the model that we use.
We are to take evidence from parents and other people. Bizarrely, the most common disputes that I am aware of tend to be over the choice of school and health provision and not over education provision. If we look specifically at health provision, the appeal procedure does not give any concrete mechanism by which parents can appeal the decision or behaviour of health authorities or other authorities that provide certain services to their children.
It is important to note that the health provision that we are talking about is intended to support a child's learning. It is health provision that deals not only with a child's health, but with the child's education.
That was my understanding, but I am still trying to work out how, if an education authority wants an extra couple of hours of speech therapy that the health authority refuses, the education authority can enforce that request in practice. Can a parent appeal a CSP purely because of the speech therapy that is available, for example?
Such an appeal would be on the detail in the co-ordinated support plan about the provision that will be put in place for their child to achieve specific learning objectives.
So a parent could make such an appeal.
Yes.
In some cases, education and health needs are intertwined. Would it not make sense to bring health boards under the tribunal's jurisdiction, too?
One difficulty is that, as you say, grey areas exist between educational needs and wider health provision, which would make it difficult to draw the line on health provision issues that should go to the tribunal. Should the tribunal's jurisdiction extend to all health provision, or simply to health provision that is directed purely to education?
Is that really an issue? The definition would be in the bill. We are surely talking not about all health provision, but about health provision that is linked to education provision.
That is right. Wendy Wilkinson makes the point that it can sometimes be difficult to draw the line between what is required from a health point of view and what is required for education. For example, a child with cerebral palsy might need an operation to help him or her to access school. How do we decide whether that is health provision purely for the child's well-being, or whether it has an educational component attached to it—as it has—which would mean that it was approached under the bill? Complicated issues would arise for a tribunal, which might be seen as straying into matters that it does not have the expertise to deal with.
One aim of the co-ordinated support plan is better facilitation of co-ordinated working by agencies. The view was taken that we continue to need a lead agency to have overall responsibility for a child's education and the provision that is put in place to support a child's education. If that responsibility was shared, there would be a danger that co-ordination would start to fall away. Agencies might not work jointly so well if there were disputes over who was responsible for what and who would be held accountable for what. Ministers feel that the duties that the bill's provisions place on health and other agencies to help education authorities are sufficient.
If we accept what you say about that, Ken Macintosh's point still remains valid. If somebody requires two hours of speech therapy or some other form of therapy that is provided by the health board, who would ensure that that happened? What provision is there to approach some outside agency for such provision if there is a problem?
The education authority would still have the responsibility to ensure that the provision was put in place.
Yes, but the education authority will probably not have the resource if provision is by an outside agency. How would the education authority make it happen? Local authorities are replete with examples of disputes between their own departments, never mind between departments and outside agencies. That is a key issue that needs to be pinned down very precisely. I accept that, in the background, people are trying to work in partnership and all that, but if it does not work for whatever reason, how do we make the thing happen?
When the co-ordinated support plan is being prepared or reviewed and the provision that the child needs is being discussed, the education authority would not take decisions on that in isolation. We are promoting partnership working, whereby a multidisciplinary team will consider the needs of the child and determine what learning outcomes the child can be expected to achieve and what provision needs to be put in place in order to achieve that.
I have another point, which is an observation that I want to make. The example of cerebral palsy that Mike Gibson gave is an interesting one. I know of a case in which the parents of a two-year-old with cerebral palsy wanted their child to attend the Craighalbert Centre but they were in dispute with the local authority over whether the child could do so. It is interesting that the local authority will no longer have a duty to provide for the needs of such a child. The local authority will have powers but no duty to provide that, so parents will have less power. I would be happy if the issue were clarified. It should be made more obvious to parents and local authorities what rights they have in such situations. The source of that dispute was the question of who had the right to argue for the place at the school.
Was that child under two?
The child was two years old.
If the child had just reached the age of two, the parents could ask for a record of needs. If the child fitted the criteria, the authority would have to supply that.
I should add that the dispute has been resolved, but I am aware that applying individual examples to the bill can help to illuminate matters. I am not quite sure where the bill would have helped that family in what was a fractious dispute, although it was resolved satisfactorily.
It will not be available for representation at the tribunal.
My understanding is that that is because parents and people in a similar position who are appealing to other tribunals do not have access to legal aid. Is that the case for any tribunal?
It very much depends on what is being considered by the tribunal. If the tribunal is determining anything with regard to civil rights and obligations under article 6 of the European convention on human rights, legal aid may be available. It has been considered that the tribunal that the bill will set up will not be in that situation, because it will not consider civil rights and obligations.
Is it not the case that the tribunal will be the last recourse for parents? After they have appealed to the tribunal, parents will have no legal remedy available to them by which they can enforce their rights. Therefore, the tribunal is in effect the last place to enforce their rights.
They will be able to appeal on a point of law or seek a judicial review, which is open to all parents, but what you say is broadly right.
Mr Macintosh has described the situation accurately. The position is that the tribunal is the final stop, except in the circumstances to which Wendy Wilkinson referred. At the end of the day, the tribunal should be the best place to make the final decision because it will have impartial experts who will have built up some understanding from case law about what the issues are. It is like a referee's decision—one might not like it, but the members of the tribunal are perhaps the best people to reach a decision.
I understand that and I appreciate the need not to be adversarial, but it may be that a lawyer is the best person to represent someone at a tribunal. People want their rights to be effectively argued and that is what lawyers do. Those who are worst off might therefore be disadvantaged, as always happens with special education needs.
It is important for us to aim to have tribunals that are family friendly and not adversarial. The tribunal will make its decisions and judgments on the basis of the facts rather than on how well the case was presented by legal representatives.
At this point, I declare my interest as a solicitor and my link with Ross Harper solicitors of Glasgow.
I have a line of questions about placing requests, but I am conscious that I am asking a lot of questions.
Carry on.
Special schools cost more than local authority schools, but we seem to be building into the bill the ability for local authorities to dismiss a placing request on the ground that it will cost more. Paragraph 63 of the explanatory notes states, on schedule 2 to the bill:
There is no change from the current position, which is that an education authority need not agree to the placing request if it can make provision at its own school. If the education authority argues that the provision that it can make in one of its local schools is appropriate for the child, that would be a reason for it to refuse the placing request.
In that case, the parents can go to a placing requests appeal. However, if the issue is not a placing request, where can they go? The convener mentioned appeals for a review of the additional support that is given to a child where a parent is unhappy with that support. If such a child does not have a co-ordinated support plan but is getting additional support and the parents want to question a decision, where do they go? Other than the dispute resolution procedure, is there no other appeal mechanism or recourse?
We hope that, in the first instance, the parents would go to mediation to try to find a solution. The dispute resolution procedure would then be open to them and, if the case was about an administrative decision by the authority, it might be relevant to go to the public services ombudsman. Cases could also go to judicial review and there is the option of a section 70 complaint to the Scottish ministers under the Education (Scotland) Act 1980.
I have a question about placing requests. As I understand it, certain types of placing requests will, under the bill, go to the tribunal. If one were making a placing request for one's child to go to a different school and any of the issues that have been mentioned arose, legal aid would be available and the matter would be dealt with by the court. There is arguably a more complex issue where a placing request is made and the case goes to a tribunal without legal aid. Is not that an anomaly?
In the case of an appeal regarding refusal of a placing request where the child has a co-ordinated support plan, you are right to say that the appeal will be directed to the tribunal. The view has been taken that, in such an appeal, because the child has a co-ordinated support plan, they have, by definition, complex needs that are enduring. It was therefore felt that the tribunal would be best placed to consider which school the child should attend, particularly because that decision will have a bearing on the delivery of the plan.
I am not arguing about that. I am saying that, despite the complexities that are involved, no legal aid would be available, whereas arguably it would be where there was an ordinary placing request without such problems.
An appeal and ordinary placing request would go to the education authority appeal committee. I understand that no legal aid is available for attending an education authority appeal committee. The second recourse is appeal to the sheriff court, but the number of cases that reach appeal at the sheriff court are very small—we are talking about around 0.01 per cent of all placing requests.
I accept that, but wonder whether any consideration has been given to the anomaly that might arise in respect of different rights in different circumstances through the creation of the tribunal and the new line of approach. Do officials want to reflect further on that, in the light of questions that have been asked?
Okay.
I assume that it will not always be necessary for parents to apply for a placing request. I will take you through my understanding of the current system so that you can clarify matters. If a young person has a review as a result of their record of needs prior to transition time, currently, during the review process, professionals and parents who attend the review can recommend a placement in, for example, a specialised setting rather than in the mainstream secondary school. Will such a system still be in place? Parents will be taken through something of a minefield in respect of placing requests and I share concerns about the lack of legal aid.
Will you confine yourself to asking questions, Rosemary?
I will come to my question.
I will pick up on your first question and perhaps ask you to refresh my memory on your second question. You mentioned transition and a youngster with a record of needs going from a primary school to a secondary school. You said that, under the current system, a parent could make a placing request for a special school, as the child had a record of needs, and you asked whether that system still applied.
I will clarify that. The professionals at the review could make a recommendation.
That is absolutely right. Under the bill, a co-ordinated support plan would not be needed to make a placing request for a special school. Currently, a record of needs is needed in order to make a placing request for a special school, but the bill will open up the system so that things are easier.
Perhaps I do not quite understand the point that you are making. The point that I am trying to clarify is that, although parents would be part of the decision making at a review, there would be a recommendation from the professionals. With or without a co-ordinated support plan, can those professionals still make a recommendation?
Yes. The professionals can make a recommendation, but, in effect, the parents would make the placing request. If, for example, the professionals made a recommendation, the authority agreed and everybody was happy, the parents would not need to make a formal placing request. However, if a dispute occurred and the professionals said that they did not want to send a child to a particular school and the parents disagreed with that, the placing request mechanism would come in. The parents would then make a placing request for the school that they wanted, which is similar to the current situation.
I want to clarify something. Let us take the case of a child with complex needs that required multidisciplinary support, who attended primary school and whose parents wanted them to go to the local secondary school. Under the presumption of mainstreaming, the parents might make the assumption that their child's needs should be met in the local secondary school. Do they have a right as parents to have their child placed in that local secondary school and have the child's needs met?
The question of rights is a difficult one. If the authority said, "We don't want the child to go to that mainstream school. We want the child to go to a special school," the parents could say, "No, I want my child to attend a mainstream school." It would then be up to the authority to show that some of the exceptions that apply to the mainstreaming legislation apply in that case. There are three exceptions, including whether the mainstream school is suitable to the ability and aptitude of the child or whether the school would be detrimental to the child. The authority would then have to show that the exceptions applied and that therefore the child could not be educated in the mainstream school.
Rosemary, do you have any more questions?
It is important that we examine anything that we feel will not give people equality of opportunity. I would like the officials' views on the lack of legal aid. Is it the case that only those parents who can afford to take a legal representative to a tribunal will be able to do so?
There would be nothing to prevent parents from taking along supporters or a legal representative if they so chose.
So you are saying that parents could pay a lawyer to go along with them if they can afford it.
My question is on the replacement of records of needs and the move to co-ordinated support plans. You say that 50 per cent of those who currently have a record of needs will have a co-ordinated support plan. That will mean that 50 per cent of those who currently have a record of needs will not have a co-ordinated support plan and the record of needs will be withdrawn. What legal guarantee can you give in the bill that the support needs of such people will be met? If the child does not have a CSP, their parents will not have access to tribunals. Moreover, section 3 states that local authorities are not required to do anything that
The issue about what is practical at a reasonable cost would hold anyway because, in a sense, authorities will not be able to do anything that is unreasonable. That would still stand, so authorities would have to be mindful of it. If you describe a position where a youngster does not have a record of needs—
No, I am asking about those who currently have a record of needs but who will not have a CSP.
The minister has already written to local authorities to state that he fully expects that provision will continue to be made for youngsters who currently have a record of needs but will not have a CSP, so there is no reason under the new legislation why, if someone had a record of needs but will not have a CSP, provision for them should not be met. We should bear in mind all the other duties in the bill on education authorities and all the other rights that parents can pursue if they feel that things are not working out as they should for their child who had a record of needs but has no CSP. However, ministers' expectations are that those youngsters' needs should continue to be met.
What happens when the needs change—as happens often—of a child who had a record of needs but will not get a CSP? Alternatively, what happens to a child who is born after the bill comes into effect and who would have had a record of needs but does not get a CSP? How can we ensure that the legal requirements for support are met for that child, given that the child's parents will not have access to a tribunal and dispute resolution lies with the same authorities with which they are having the dispute?
Towards the beginning of the bill are outlined all the duties that education authorities are required to fulfil, which is to identify, address and keep under review provision for the needs of all children with additional support needs. That would include those who had a record of needs but who will not have a CSP. Education authorities will still be under lots of duties to ensure that those children's needs are met.
Do you appreciate the anxieties of parents of children who currently have a record of needs but who will not have a CSP?
Absolutely.
What is the thinking behind CSPs, which, despite being a passport to a range of other services and stronger legal support, are restrictive and selective? It seems to me that the proposed system has been driven by the needs of the service provider; children will get a CSP only if they need more than education support. Will that top-down approach to management in what is a fundamental change to the system deny children the right to be at the centre of the system?
I will answer that question, but I will ask Wendy Wilkinson to come in. One difficulty with the record of needs is that, in a sense, it does not guarantee much. A record of needs contains a statement of what a child needs and a summary of impairments. Those two aspects of the record can be challenged and an appeal can be made to the Scottish ministers if the parents disagree with what is written. However, we know well that parents are most interested in the part of the record that details the provision that the authority will make to provide for the young person's needs. If the parents disagree, they cannot do anything about it, because there are no appeal rights.
Why will somebody who does not have a CSP have fewer rights than somebody who has one?
The rights are different only in relation to the appeal mechanism that will be implemented. If a child does not have a CSP and if the parents feel that the provision is not appropriate, they can follow certain channels.
So, from what you have said, the CSP is intended to help the system to deliver rather than to recognise the needs of the child. The plan is intended more to help co-ordination between health and education authorities and other bodies.
It is the other way around. The intention is to identify a group of children who need highly co-ordinated services because they are the most vulnerable and to put in place a system to ensure that those children get what they need.
I was going to move on to another question.
Before you do, I will bring in Lord James Douglas-Hamilton.
Is it not the case that several thousand youngsters with records of needs will not have CSPs? Would it not be sensible to have transitional provision to get those youngsters through the present system? Many parents believe that the safeguards are stronger with records of needs than with CSPs. A change to the new system overnight could cause a lot of consternation and anxiety.
Once the bill is enacted, we will have to give careful thought to how we move from the current system to the new system.
Can that not be provided for in the bill rather than left to officials to do afterwards?
It would be difficult to run the two systems in parallel, partly because much of the bill repeals the provisions in the Education (Scotland) Act 1980 concerning children who require records of needs. It does not seem right to leave some children in the current system while other children are in the new system, especially given that ministers take the view that the new system is an improvement on the current one.
With respect, a small group of children is numbered at several thousand in your document. That is not a small group.
That is one of the reasons why the minister has written to ask all local authorities to endeavour to guarantee that provision will continue to be made for those with a record of needs who might not get a CSP. The fundamental principle of the bill will be that all children who have additional support needs will have those needs met.
Is there any reason why the children who have records of needs but who will not have CSPs could not swing in under the tribunal arrangements? The central point is the loss of legal rights, which people feel that they have fought very hard to get. Whatever the objective reality is, there is a perception about this very sensitive area. Is there any reason why there could not be a transitional arrangement under which for a period of some years children with records of needs who do not get CSPs could be fed into the tribunal system? I accept that the arrangements might have to be slightly different, but those children would nevertheless retain the legal rights that they have at the moment.
There are several reasons. One would be that the record would have to be maintained. The criteria for a record of needs are different from those for a CSP. The appeal rights for the record of needs are also different; provision cannot be appealed.
The central concern that we all share with parents relates to children who have a record of needs but will have an individualised educational programme—IEP—instead of a CSP. If the parents feel that the local authority is not meeting that child's identified support needs, what recourse will they have? Will they have as much power in law as they had with the record of needs?
Under the current system, the parents could appeal to the Scottish ministers. In effect, there are very few such appeals—a fraction of 1 per cent, or 30 appeals out of 16,000 to 17,000 records. The problem is that, even under the appeals system, an appeal cannot be made against the provision that is being made for the child. That is one of the difficulties with the records of needs process. There is a statement of the child's needs and an assessment profile that describes the child. However, the real meat of the record is in the provision that will be made to meet the child's needs. If the parents disagree with that, they cannot appeal against it. That is one of the weaknesses of the process.
I would like to develop that point. You indicated that the new legislation will not be implemented until 2005. What happens to those children who are coming into the system now or who come into the system over the next 18 months? Will a record of needs still be available for them? How can we ensure that local authorities do not backslide and avoid keeping records of needs, using the excuse that new legislation is on the way?
The current statutory provisions, including those under the 1980 act, remain in place. All current statutory obligations on local authorities with regard to records of needs remain in place. In the letter that the minister wrote last week to all local authority chief executives, which was copied to health authorities, he reminded authorities of the fact that the obligations that exist under the current legislation will remain in place until the bill is enacted and commenced.
Is there any reason why people with records of needs who will not get CSPs under the new arrangements could not, in the meantime, and if they so wished, be deemed to require to have a plan? There is the perception of a security issue, which I think the whole committee is concerned about. I think that we would want to ensure that all options are explored.
I know exactly where you are coming from. The issue is that the criteria for the record of needs and those for the CSP are different. If the same mechanism is used for appeals to the tribunal in both cases, that makes things extremely difficult.
Is there any reason why, in the meantime, authorities could not be required to give a CSP to those who would not otherwise get it? That could perhaps be some sort of temporary provision until the end of primary school.
That takes us back to the criteria. Let us suppose that there are two groups of children with CSPs. If one group fulfils the criteria as stated in the bill and the other group fulfils the criteria through the record of needs, that would require legal provision that would be difficult to write into the bill.
You have already indicated that not many people have taken advantage of the appeals mechanism anyway, so we would not be dealing with a large number of people.
The people with records of needs have not taken advantage of the appeals mechanism because it is not very effective. The mechanism involving the tribunal will be much more effective. The grounds on which an appeal can be made before the tribunal are framed in terms of a child having a CSP. It would almost be necessary to write a whole new piece of legislation to cover what could be appealed against in cases of children who had a record of needs instead. Currently, it is not possible to appeal against provision on the basis of a record of needs. It would be extremely difficult to make draft legislation that covered both groups.
To ensure that there is no doubt, I should mention that I am a non-practising lawyer.
It would be extremely complicated to run the systems side by side, particularly given that aspects of the 1980 act will be repealed, as Wendy Wilkinson indicated. Perhaps another way of looking at the issue is to go back to the provisions of the bill, which offer much more support and protection to people than the current system offers. One could argue that, under the current system, if someone does not have a record of needs, their rights and the duties on authorities are not very strong. If someone had a record of needs but will not have a CSP, they will still, under the bill, have much more opportunity to challenge the authority, if they wish. Many more duties are imposed on authorities to ensure that children's needs are met.
At issue is what will happen under the new system to those who are within the current statutory system. Will they gain or lose from the changes? We need to address those concerns and to decide whether to do so through legislative provision or through other means when supporting the implementation of the changeover. At the moment, ministers take the view that we should do so not through legislation, but through other means.
From the policy memorandum, it is clear that the provisions of the bill are designed partly to extend the legislative framework to encompass more children, which would be welcomed. However, I have serious concerns that the financial memorandum does not back that up. To return to Robert Brown's earlier question, I do not see how you can anticipate that you will provide a wider legislative framework—which, by implication, means making more service provision for more children—and not have a significant increase in the general spend. The figure of £2 million for local authorities has been mentioned. Does that mean that there is a bill of £60 million a year for the co-ordinated support plan? Can you explain that further?
Before handing over to my colleagues, I will say something about general funding. Funding in the area of special needs is increasing. Members may know that we are increasing funding by about 35 per cent between this year and next year. Inclusion funding will rise from £20 million to £25 million. Funding for accessibility strategies will rise from £9 million to £17 million. Funding for special educational needs training will remain constant at £8.4 million. Even if we leave aside the bill, funding is increasing. The funding that I have just described is relevant to the provisions of the bill, because it is all being used to meet the needs of children with special needs or additional support needs. Any new funding for the bill is a matter for the minister, who will make any announcements about that.
As Mike Gibson indicated earlier, because there are so many grey areas and so many different areas are drawn into the framework of the bill, it will be difficult to decide what is a direct result of the bill. A number of other initiatives are in place that overlap with the provisions of the bill. I refer to integrated community schools and some current health-related endeavours. The national priorities action fund and the changing children's services fund address many of the issues. Earlier, I said that it is not the case that new children are being created. There are resources to deal with the children in question and the associated issues. The bill brings together the framework that will allow progress to be made with a concerted effort.
That sounds as if there will be more children within the legal framework. However, present support needs are not being met by the resources that are available and the bill will not provide additional resources to meet the wider additional support needs. I am concerned about those who have such wider needs, rather than about those who have a record of needs or who will have a CSP. I am not convinced that the many children who need a lot of help are getting it. If they are not getting it under the current legal framework, where will the budgets come from? I appreciate Mike Gibson's point, but considerable resources will be needed to provide additional support.
We worked with local authorities in developing the financial memorandum. One of the issues was trying to identify where there are gaps in services. It was difficult to quantify where those gaps are and what the cost differential is.
The fact that something is difficult does not mean that it does not have to be done as part of the legislative process that we must go through. We must be satisfied with the financial memorandum if we are to progress with the bill.
As we said, we have attempted to cost ranges of potential financial implications. It is a question of deciding where in the range we think a realistic cost will fall. Our economists have been involved in trying to ascertain where it will fall. I am sure that you will understand that it is difficult to predict the future. There are uncertainties in the area that we are discussing; all that we can say is that provision is being made elsewhere to fill the gaps. It is difficult to decide what will be a direct result of the bill and whether funding should accompany it or should be directed from other sources.
I suggest that we approach the minister and ask whether we can have access to some of the background scenario planning for the financial memorandum.
Yes. I mention in passing that the Finance Committee is to undertake an examination of the bill's financial implications as well, and access to that material might be relevant to that consideration. We could follow your suggestion.
I am a bit concerned about a statement that Donna Bell made earlier. She said that she was not anticipating additional children coming into the system and that expectations should be managed. We are considering extending the legislative framework to encompass more children, which Fiona Hyslop has just been talking about, and we have also talked about children with transient needs coming into the system—such as children who are bereaved, who have illness in the family, or who need some support because English is not their first language. I cannot quite reconcile that with the earlier statement.
Those children are in the system at the moment; there is no debating that. The issue is the level of support that they receive. There are already duties in place that suggest that those children's issues should be dealt with. The question is one of providing the framework around those legislative aspects to consolidate the responses to those issues, rather than of creating new needs. The needs are already there.
The needs may already be there, but they might not be being met. I would have hoped that the bill was about meeting the needs that are there.
Absolutely.
Therefore, meeting those needs must have some resource implications.
That is what I am saying. As I have said, it is difficult to decide what will be a direct result of the bill. We can go back to the example that Mike Gibson gave about whether an operation is the result of an educational need or a health need. Where does that cost fall? The end result should be that the child gets the services that they need. The funding might come from various routes—it might come from health, education or social work. The important part is that the child eventually gets the services that they need.
However, the bill surely raises expectations on, for example bereavement. We were told on at least one of our school visits that most schools did not have the facility to deal with a temporary issue such as that that could nonetheless have important consequences. There is also the issue of children with emotional, social and behavioural difficulties, which are likely to be recognised more fully in the CSP arrangements than in the record of needs. Are additional demands not likely to arise if the bill is implemented in the spirit in which it has been drafted?
That is a fair point. I will deal with bereavement first. In good practice, if a child needs support because of bereavement or some traumatic event, schools will respond. Good professionals will take account of such needs, so in the bill we are trying to set standards and acknowledge that youngsters with—in the case of bereavement—temporary, transient needs exist and schools should respond to those needs.
There is an element of mainstreaming the finance as well as mainstreaming the provision.
My understanding is that children with social, emotional and behavioural difficulties are quite a large group of the young people who are currently excluded from the record of needs but who will come under the umbrella of co-ordinated support plans. I welcome that, as the lack of provision for them has been a huge gap. Is the Executive saying that more joint working is going on for such youngsters, through the new community schools and the development of youth strategies, but that their parents have no right to make demands and the authorities have no duty to implement inter-agency working?
That is right for some youngsters with social, emotional and behavioural difficulties. Obviously, all the provision about which we have talked applies to children with social, emotional and behavioural difficulties, such as the duties on authorities to ensure that they identify and provide for such young people and the rights of their parents to mediation and dispute resolution, and I am sure that most people agree that that is a good thing.
Is it true to say that the largest group of young people who will have co-ordinated support plans and who currently do not have a record of needs will be youngsters with emotional or behavioural difficulties? On additional costs, are you saying that because of the considerable development of youth strategies and new community schools, much of what would have been new cost is already being met through mainstreaming and other developments? It is not just a question of saying that all the youngsters that fall outwith the record of needs will now be covered by the CSP.
That is precisely right.
I have a question on mediation, which has been touched on in passing. There is to be greater provision of mediation, whether from the local authority or elsewhere. I might be viewing this as a lawyer, which might be wrong, but bearing in mind that the dispute is always with the local authority, is there not an inherent conflict of interest that makes it inappropriate for the local authority to provide mediation?
The bill aims to address that issue by obliging local authorities to provide a service that is independent of their other functions as set out in the bill. Whoever is providing the mediation service will have to be independent of the decision-making functions regarding additional support needs.
There is a slightly technical argument about how people view the system. The perception is important as well as the fact of justice being done.
We have to consider the perception of independence and the trust that parents will have in the system. We want to monitor that aspect of the bill to see how effective it is in practice.
My first question is on cost. Section 3(2) states:
It has always been there implicitly, in that local authorities cannot spend public money unreasonably. The wording has been included in the bill to make that more explicit.
My understanding is that there has always been an undercurrent of families feeling that local authorities make decisions on the ground of cost, despite the fact that they have no right to do so. It is slightly worrying that we are now making that statement explicit. Capability Scotland has written to tell us that a legal judgment was made in the House of Lords about an English case whereby it was specifically stated that local authorities cannot make decisions on the ground of cost alone.
You are right. They cannot make decisions on the ground of cost alone. However, it is fair to say that, in using and being accountable for the public purse, cost is considered at some point. Some people have referred to section 3(2) as a get-out clause for local authorities. The most important factor is to ensure that the needs of the child are addressed.
There is a wide variation in practice, but the idea is to make explicit what is already happening.
If the wording was not there, it would still be implicit.
There is probably a slight worry about making it explicit and giving it legal status.
There could be two separate people or there could be just one person.
Who decides? Can the young person choose their contact person?
The education authority will be responsible for determining who the co-ordinator will be. It is expected that, in practice, they will take account of the views of the parents and the child who is involved.
Do you think that it would be good to have a co-ordinator or similar person for additional support needs generally, as opposed to having one just for CSPs? That differentiates between the treatment of children who benefit from having a CSP and the treatment of those who have additional support needs generally. If a child receives a range of support, through the education authority, they should also have a point of contact—perhaps not a co-ordinator—for advice and information.
With regard to the co-ordinated support plan, the co-ordinator will—as the name implies—be responsible for co-ordinating the services and for liaising between the various agencies that provide the support. For those who do not have a co-ordinated support plan, there is provision in the bill for education authorities to have to provide the name of an information officer who will be somebody whom people can contact. That will be in addition to what is provided for those who have co-ordinated support plans and will be available to all parents, who will be able to obtain advice about the system, provision and the assessment arrangements regarding additional support needs.
I was looking for that.
At the moment, when a child does not have a co-ordinated support plan, IEPs are likely to be used along with personal learning plans. Personal learning plans are still at the development stage. The way in which the personal learning plan and the IEP interact is being examined, and whether the IEP should become an extra couple of pages in the personal learning plan is being considered. For children with a co-ordinated support plan, the IEP will be subsumed by the co-ordinated support plan and they will have just one plan, not the extra plans as well.
There is no mention of IEPs in the bill; however, that is not a failure to mention them.
No.
I am conscious of the time. We have run on a bit.
I have a question about transitions into adulthood. I believe that there have been some changes to the bill, following the consultation. Could you take us through those? Having worked in the system, I am of the view that one of the strengths of the future needs assessment was the fact that it was required to take place a considerable length of time before the youngster left school. I also understand that one of the strengths of the record of needs was that it applied until a youngster was 19. Can you clarify what changes have been made in that area?
Additional sections have been added to the bill as a result of consultation on future needs and the way in which education authorities will have to plan and prepare a child for the transition from school. There is now an obligation on education authorities to seek information from other agencies—post-school agencies—regarding the support that they are likely to provide for a child once the child has left school. That relates not only to educational additional support needs; it can refer to the broad range. That must take place at least 12 months before the child is expected to leave school.
For how long will that apply to the young person?
The post-school support is provided under legislation other than the legislation that we are discussing. This bill relates to education. Once the child leaves school education, other welfare, health and community care enactments oblige other agencies to provide support for them.
Who will be responsible for ensuring that the young person has continuing support when they leave school? When a young person is in school, it is felt to be important for someone to have responsibility.
Part of the aim of moving towards more integrated services is that agencies that work together will be aware that a connection needs to be made when someone moves from children's services to adult services. There are a number of initiatives to help such people, particularly those with the most complex needs. For example, the Beattie report makes recommendations for key workers to be involved. Further, local area co-ordinators are being put in place for people with learning disabilities. Such key workers will act as a link as the young person moves into young adulthood and beyond.
Is it possible that they would continue to see the same key worker?
Yes.
I am conscious that we have gone on for a long time on this issue. We dealt with the question that Adam Ingram was going to ask while he was out of the room. Would he like to add anything?
I was going to focus on mediation and appeals, but I think that we have covered a lot of that area.
The minister aims to provide members with working drafts of the key pieces of subordinate legislation prior to the beginning of stage 2.
I understand that we will not see a draft of the code of practice, however.
That will take substantially longer to prepare. We have started considering what the code of practice will have to contain and the bill contains a new section that highlights what needs to be covered.
How many more children do you estimate will be covered by the proposals relating to additional needs than are covered at the moment? Might the estimates of increased expenditure have to be revised because the costs might be more substantial than was expected?
There is always a possibility that cost estimates will have to be revised. As Donna Bell said, the children are being provided for. We have asked local authorities to identify gaps in provision, but they have been unable to do so. With the introduction of the bill, there will be an increase in the quality of services. I appreciate the frustration about the availability of precise numbers in this area, but, given the definition that we have for additional support needs—as was the situation with the definition that we had for special educational needs—it is extremely difficult to give them.
I am conscious that we have given you a hard morning, but I think that it is important to get the framework right at the beginning. We are all grateful for your time and effort and for the good humour with which you have answered our questions.
Meeting suspended.
On resuming—
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