Subordinate Legislation
Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005 (SSI 2005/501)<br />Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 (SSI 2005/514)
Additional Support for Learning (Placing Request and Deemed Decisions) (Scotland) Regulations 2005 (SSI 2005/515)<br />Education (Additional Support for Learning) (Scotland) Act 2004 (Transitional and Savings Provisions) Order 2005<br />(SSI 2005/516)
Education (Additional Support for Learning) (Scotland) Act 2004 (Consequential Modifications of Subordinate Legislation) Order 2005<br />(SSI 2005/517)<br />Additional Support for Learning<br />(Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005<br />(SSI 2005/518)
No motions to annul have been lodged in relation to the instruments. The Subordinate Legislation Committee has considered the instruments and has raised points with the Executive on SSI 2005/514, SSI 2005/515, SSI 2005/516 and SSI 2005/518.
The Executive has responded to the Subordinate Legislation Committee, but the committee still has concerns and will not formally report on the instruments until the end of the week. That means, in effect, that we cannot make a formal decision on the instruments at today's meeting. However, as we have invited a group of officials to talk to us about the instruments, I suggest that we consider them today but accept that we will have to make a decision on them next week. I have a note from the Subordinate Legislation Committee of its concerns, which appear to be largely of a technical nature. I will raise those issues at the appropriate points.
Do we agree to ask the officials any questions that we might have and to defer our decisions until our meeting next week?
Members indicated agreement.
With us from the Scottish Executive are Robin McKendrick, the team leader in the additional support needs division and Sandra Manning, Andrew Mott and Shona Pittilo, who are policy officers in that division. With them is Douglas Tullis, who is a solicitor from the Scottish Executive Legal and Parliamentary Services; he will assist the team with our technical questions.
I invite our guests to make some introductory remarks.
Robin McKendrick (Scottish Executive Education Department):
On SSI 2005/501, I should point out that the use of dispute resolution procedures by parents and young people is voluntary and that they cannot be required to pay any fee or charge for using the procedure.
In the context of the Education (Additional Support for Learning) (Scotland) Act 2004, dispute resolution is a process of formal review of an individual case by an independent third party, external to the local authority, who makes a written report with recommendations to the education authority with regard to how the dispute should be resolved. The schedule to the regulations prescribes the disputes that can be referred to the dispute resolution process. On receiving an application, the authority checks that it relates to a specified matter and that all the supporting material that is required under the regulations has been provided by the parent or young person. If that is the case, the authority must, within 10 working days of receipt of the application, send the applicant confirmation of acceptance. The date on that correspondence is the start of the statutory process of dispute resolution.
At the same time as sending confirmation to the applicant, the education authority must send a request to the Scottish Executive for nomination of an individual who must be appointed as an independent adjudicator. That person must be drawn from a panel of individuals that is established and maintained by the Scottish Executive on behalf of Scottish ministers.
The education authority must, within a period of 25 working days, provide the independent adjudicator with the necessary documentation as specified in the regulations. Within that timescale, the education authority must send its response to the applicant for comment—the parents must be made aware of what the education authority intends to say to the independent adjudicator and have an opportunity to comment on that.
The adjudication process will normally be a paper-based exercise. However, where it is necessary to do so to carry out the review, the adjudicator can ask for further information or advice as they consider appropriate. In extremely rare and exceptional circumstances, they can arrange to meet either or both of the involved parties.
The education authority must, within 10 working days of receipt of the independent adjudicator's report and recommendations, give notice of its decision in writing to the applicant and any other person that it considers appropriate. That allows the education authority to receive the adjudicator's report and recommendations; to consider the implications of agreeing or not with his or her recommendations; and to send the parents a copy of the report along with its decision.
If the education authority becomes aware that a statutory timetable cannot be met, it must establish a new date that must not exceed the time limit by any longer than is necessary. In any case, there must not be more than 60 working days between the beginning of the process, when the authority accepts an application and asks for an independent adjudicator to be appointed and its end, when the adjudicator responds to the authority. As we say in chapter 7 of the code of practice, the guidance that will be sent out to local authorities is being prepared and should be ready by the end of the week.
Members will be pleased to learn that, as the provisions in the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 (SSI 2005/514) are fairly extensive, I will not explain the purpose and consequence of each and every rule. However, I will give a general overview of what they seek to achieve.
The rules set out how the new additional support needs tribunals for Scotland will deal with cases that are referred to them in respect of specified decisions on, information about or failures of co-ordinated support plans. Paragraph 11 of schedule 1 to the 2004 act requires Scottish ministers to make rules on the tribunals' practice and procedure. The rules do not cover some matters that are either spelled out elsewhere in the 2004 act, especially in schedule 1, or detailed in other legislation, such as the Education (Scotland) Act 1980.
The 2004 act brings the tribunals under the supervision of the Scottish Committee of the Council on Tribunals, which keeps under review, and reports on, the constitution and working of the tribunals under its supervision. The drafting of the rules has followed, as far as it is relevant, the council's guide to drafting tribunal rules, which was produced in November 2003. The Scottish committee was consulted on the rules and the Executive has largely accepted its recommendations on finalising them.
As far as the procedures are concerned, on receiving the notice of reference, the secretary of the tribunal sends a copy of it to the education authority. A convener decides whether the tribunals can deal with the reference and if the appellant has not provided enough information, he or she writes to ask them for the missing information. The appellant then has 10 working days in which to reply.
The secretary then writes to both parties to advise them that the case statement period has begun. During that period of 30 working days, the education authority must provide a response and both parties may provide further written evidence. Before the end of the period, both parties must provide the secretary with a list of the witnesses whom they intend to bring to the hearing. However, the parties can also ask the tribunal for more time.
At the end of the case statement period, the secretary sends the appellant a copy of the education authority's response. Again, because all the information is available to all parties, the parent is aware of what the authority intends to say at the tribunal and vice versa. The secretary asks the appellant and the education authority about hearing dates and subsequently writes to inform both parties of the place and date of the hearing. That ensures that the arrangements are suitable for the parent. Finally, the secretary confirms the place, date and time of the hearing about 10 working days beforehand and sends a written decision to both parties, usually within 10 working days after the hearing.
The Additional Support for Learning (Placing Request and Deemed Decisions) (Scotland) Regulations 2005 (SSI 2005/515) brings the procedure for placing requests and deemed decisions for children with additional support needs into line with the procedure for children elsewhere. Paragraph 4(3) of schedule 2 to the 2004 act allows Scottish ministers to make regulations that apply to an education authority's failure to notify in writing the parents or young person making the placing request of its decision within a set timescale. Paragraph 6(6)(b) of schedule 2 to the 2004 act allows Scottish ministers to make similar regulations if an appeal committee fails to notify the parents or young person of its decision or to take other specified action. Those are referred to as deemed decisions.
The purpose of making the regulations in respect of deemed decisions is to allow the parents of children or young people with additional support needs to move the reference on to the next appropriate stage of the appeal process when a decision has not been reached within a prescribed period, rather than having to wait indefinitely for an outcome. Although that offers nothing new in the process of placing requests and deemed decisions, it gives parity to children with additional support needs as well as definite timescales.
The regulations deal with the provision of information by an education authority with the purpose of ensuring that the appeal committee has all the relevant information for consideration as quickly as possible, and that the parents or young person are fully aware of the information that is relied on by the education authority in reaching its decision, prior to the hearing.
Next is the Education (Additional Support for Learning) (Scotland) Act 2004 (Transitional and Savings Provisions) Order (SSI 2005/516). As many members of the committee will be aware, section 30 of the 2004 act addresses the transition from the current system to the new one that was introduced by the 2004 act, in respect of children and young people who have a record of needs immediately prior to the commencement of the 2004 act. There will, however, be a small number of appeals that relate to children or young people with records of needs that were not concluded by the time of commencement of the 2004 act.
Provision is made in the order to allow records of needs appeals and placing requests in respect of recorded children or young people, made under the 1980 act before commencement of the 2004 act, to continue to be considered and determined by the Scottish ministers, an appeal committee or a sheriff, as appropriate, depending on the nature of the appeal. Time limits apply to references that are made to the appropriate body after commencement. After those time limits, appeals that are made under the 1980 act will no longer be competent and the provisions of the 2004 act will apply instead.
Perhaps it is simpler to say that in all cases, determinations will be taken to have been made immediately before the commencement of the 2004 act. We will provide more detail about that if necessary. The order also provides for the preservation of records of needs for reference purposes only for five years from the act's commencement.
The purpose of the Education (Additional Support for Learning) (Scotland) Act 2004 (Consequential Modifications of Subordinate Legislation) Order 2005 (SSI 2005/517) is to modify secondary legislation, which is supplementary, incidental or as a consequence of the 2004 act. The order is largely technical, but it brings all the relevant secondary legislation up to date.
The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 (SSI 2005/518) are in line with the Executive's commitment to the Subordinate Legislation Committee to lodge an amendment to the previous instrument before commencement of the act and, in drafting that amendment, to have regard to the committee's helpful comments. As the instrument is not yet in force, the Executive believes that it would be of assistance to users to replace the regulations that were laid in May 2005. The regulations therefore revoke the previous instrument and a copy of the explanatory note is attached for the interest and reference of the committee.
I hope that the committee found that explanation of the regulations helpful.
I have three questions. If there is no response today, I would be grateful if my questions could be considered and a response made in due course.
My first question relates to SSI 2005/514. Regulation 5(2)(e)(i) states that in referring to a tribunal, a parent must state the date on which they were notified by the local authority that their request for a co-ordinated support plan had been refused. However, it appears that there have been representations that suggest that there are cases in which local authorities do not provide written notification to parents about their request in the specified time limits. The regulations appear to make no provision for that situation. I wonder whether that matter can be considered.
My second question, which also relates to SSI 2005/514, concerns expenses that could be incurred by parents. Regulation 39 states:
"A Tribunal shall not normally make an order as to expenses".
However, it would be appropriate for parents to be made aware of the possibility that expenses could be charged. The fear is that parents may be put off taking their child's case to the tribunal due to lack of funds and the possibility that expenses could be awarded against them. Could that be taken into consideration either in later versions of the regulations or in guidance to parents, so that they will know what the prospects are before they embark on an action?
I will respond to your last point, on expenses, first. The tribunal will make an order for expenses against a parent only in exceptional circumstances—for example, when the parent has deliberately wasted the tribunal's time. It is difficult to imagine when that might happen. We believe that it is right and proper that the tribunal has the power to do that. Incidentally, that power enables the tribunal, equally, to make an order for expenses against a local authority. The parents guide that will be produced by the tribunal administration will tell parents about those provisions and make it clear that anyone who makes a reference in good faith has nothing to worry about. I hope that that answers your question.
We recognise that there is a substantive point in relation to regulation 5(2)(e), on the notification of deemed decisions. We note that and will consider the matter further. It may be that something could be included in the regulations; it may be that we need to look further and discuss with other policy colleagues the implications for placing requests. We will be happy to look into that. On 3 November, in response to the Subordinate Legislation Committee's earlier comments, we stated that we would produce an amending regulation as quickly as possible. We will reflect on the point that you raise when we do that.
Thank you very much for those replies, which are extremely helpful. When you have made your decision, it would be helpful if you would come back to us.
You have written to the Minister for Education and Young People and will receive a substantive response to all the points that you raised in your letter.
Thank you.
My third question relates to the Additional Support for Learning (Placing Request and Deemed Decisions) (Scotland) Regulations 2005. Is clarification needed on the status and duties of authorities when cross-boundary placing requests are made? For example, if a child lives in East Lothian but attends secondary provision in Midlothian, the child's co-ordinated support plan is the responsibility of Midlothian Council. However, if the child's parents wish to make a placing request for a special school in Edinburgh, it is unclear whether the placing request should be made to East Lothian Council or Midlothian Council. If the home authority refused a placing request, would responsibility lie with the home authority, which made the decision to refuse the placing request, or with the host authority, which had responsibility for the co-ordinated support plan?
The regulations do not cover those scenarios. Might it be possible to have some clarification on which authority could be taken to the tribunal by the parents? I do not necessarily expect an answer to that question this morning.
We are rather relieved to hear that. We do not believe that it is appropriate to reflect that issue in the regulations, but Shona Pittilo will give a short response to the points that you have raised.
Shona Pittilo (Scottish Executive Education Department):
The scenario that you have described is fairly complicated and the exact circumstances surrounding it are not particularly clear. If you sought further clarification, we would consider the matter, but schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 and the code of practice provide what we believe is clear information about making and appealing placing requests, about co-ordinated support plans and about home and host authority responsibilities in relation to those.
Education authorities will have to apply the provisions of schedule 2 and the guidance in the code of practice when they consider individual cases. The further clarification that they seek may be contained in the guide for parents that the advice service, Enquire, is producing on placing requests. Enquire has already prepared a parents guide, but it is working on a specific booklet about placing requests. The advice that is in the code of practice can be expanded and made clearer to help parents to deal with some of the issues that you raised, such as to which authority they should make a request and which authority would have responsibility.
Thank you very much. I am glad that such matters will be taken into account.
I, too, have a question about SSI 2005/515. It is about the deemed decisions. I may have read the explanatory notes wrongly, but it appears that if the education authority does not respond to the parent's request for a placing request within a certain period of time, it is deemed to have refused it. If the parent takes that refusal to the appeal committee and the appeal committee does nothing, the appeal committee is deemed to have agreed with the education authority. What does the parent do then? Their request could be blocked simply because of inaction on the part of the education authority and the appeal committee. I know that that scenario is probably highly unlikely, but the parent and the child could lose out because other groups of people just did not bother to meet. Where would the parent go next?
If the appeal committee took no action within the relevant timescale, the parent could take the matter to the sheriff.
On SSI 2005/501, you made the point that the dispute resolution exercise, which involves the appellant and the local authority, is voluntary. Under regulation 10(1)(c), what recourse does a parent have if the local authority does not follow the recommendations of the independent adjudicator?
The independent adjudicator will write to the education authority with their report and recommendations, after which the education authority has 10 days to consider the terms of the report and the recommendations before it must write to the parent with its decision and the report. If the parent continues to be unhappy about that, the guidance that we are issuing to authorities will say that the authority should offer to meet the parent to discuss the issue. The authority should not just provide the dispute resolution report and state its decision without offering to discuss matters with the parent.
At the back of the dispute resolution process, under section 70 of the Education (Scotland) Act 1980, the parent would have the opportunity to make a complaint to Scottish ministers about the inadequacy of the additional support that the education authority was providing for the child or young person concerned.
I have a general concern about disputes—between authorities, rather than between parents and authorities—about who is responsible for funding the placement of a child with additional support needs in a school in another authority area. I have raised the issue before in committee and with ministers and I believe that, following discussions, it is close to being resolved. If you can shed any light on that, that would be most welcome.
If the stumbling block was a dispute between local authorities, would the parents be able to refer the case to the tribunal? Would that mechanism be appropriate? In my constituency, a case that involves a dispute between authorities has taken a long time to resolve and has now been referred to the Scottish Executive. Would such a case go through the tribunal system from now on?
A decision on whether to review a CSP would depend on the stage that it was at with the home authority. You referred to disputes between local authorities. Since the minister wrote to you on that issue, Glasgow City Council and East Renfrewshire Council have attended a meeting with the Convention of Scottish Local Authorities. As a result, both councils are to produce a written note of how the issue might be handled, which we await. In addition, COSLA has undertaken to write a convention of understanding between local authorities with regard to issues arising from the 2004 act.
As he has done previously, the minister will write to the Education Committee with an update on the position. We hope to be able to meet COSLA in the not-too-distant future in order that we can have a resolution at that level, so that parents do not start to get involved by asking which authority is responsible. Under the umbrella of COSLA, local authorities can agree among themselves how to handle such issues.
It is encouraging to hear that and I hope that a satisfactory outcome is reached in the case to which I referred. However, I want to consider a hypothetical situation. Even with the memorandum of understanding or the protocol that has been drawn up, if a case arose in the future about a placing request—the issue is not about opening a CSP—does a parent have the right to appeal to the tribunal about it?
No. The 2004 act is clear that that can happen only with a CSP. If a CSP has been opened, or if a local authority has indicated that a CSP will be opened, when a decision is taken to refuse a placing request, the 2004 act allows the issue of the CSP to be referred to the tribunal. Disputes between authorities cannot be referred to a tribunal by a parent, but a decision relating to a CSP can be so referred.
That was helpful.
We look forward to the minister's words on that issue. I do not know whether you want to add, for the committee's clarification, a few words about the issues that the Subordinate Legislation Committee raised on the instruments.
Certainly.
First, we respect the Subordinate Legislation Committee's advice and are grateful for its constructive input. We would like to consider the terms of its formal comments on SSI 2005/514, which we have yet to see. As I said, the Executive's response of 3 November to the Subordinate Legislation Committee undertook to produce amending rules to address the points that were raised in respect of rules 37(2), 39(2)(b) and 39(5). We would wish to consider the terms of the Subordinate Legislation Committee's formal response in order that we might consider amendments to the rules and the associated implications. We would thereafter introduce, with all due speed, amending rules.
As you said, the Subordinate Legislation Committee's concerns may be more technical. We do not consider that they go to the root of the rules; they are more about points of detail. However, they are extremely important. As I said, we will introduce with all due speed amending rules and, when we do so, we will consider the points that Lord James Douglas-Hamilton raised.
Thank you.
I seek clarification on an issue that the Subordinate Legislation Committee raised and which touches on a policy aspect.
Paragraph 37 of SSI 2005/514 is about voting in tribunals. In effect, that paragraph says that if one member of a tribunal of three members was missing, the chair would have a casting vote, which would mean that the chair could just decide by themselves without reference to the other member. Obviously, we would not expect that to happen as good practice, but does it happen in other tribunals and is that why the provision is in paragraph 37? I thought that the original intention was to have unanimous rather than majority decisions in tribunals and, in particular, not to have majorities of one.
Douglas Tullis (Scottish Executive Legal and Parliamentary Services):
There is considerable diversity of practice in tribunals throughout the United Kingdom. Some seem to require unanimity, some require a majority and certain tribunals, including the one that we are discussing, have legislative provision for a two-person tribunal to continue to operate in the event of the unexpected absence of one member. In the light of the Subordinate Legislation Committee's observations, we must consider its particular reservation about the casting vote. We must take that away and think about it.
There are no further questions from members. I thank Robin McKendrick and his team for coming along to answer questions and for the responses that they gave.
Thank you.
We look forward to the additional information that will come in due course. I remind members that we will make our decisions on the SSIs at our next meeting, once we have received the Subordinate Legislation Committee's formal report.
We will have a brief suspension to allow for the change of witnesses.
Meeting suspended.
On resuming—