Equal Opportunities Committee, 09 Dec 2003

Meeting date: Tuesday, December 9, 2003

Official Report 235KB pdf

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Education (Additional Support for Learning) (Scotland) Bill: Stage 1

Under agenda item 2, I welcome Nicky Brown and Albi Taylor from Contact a Family Scotland and Douglas Hamilton from Barnardo's Scotland, who are here to give evidence on the Education (Additional Support for Learning) (Scotland) Bill. I will invite members to ask questions and panel members will participate. If witnesses want to say something about the issues that are being discussed, they should feel free to speak.

Do the witnesses support the general aims of the bill, as set out in the bill's policy memorandum?

Yes. Contact a Family Scotland supports the bill's general aims, but we think that there are issues that need to be addressed.

Barnardo's Scotland also supports the general principles of the bill and the proposed new system, which we think will be much more comprehensive and supportive than the current system. We welcome the broadening of the definition of people who will be covered by the legislation.

A number of questions will be asked. If there are issues that you think should be addressed that have not been dealt with, I will give you an opportunity to deal with them at the end of the session.

Do you agree with the proposed definition of "additional support needs"?

As I said, Barnardo's is pleased with the new definition of additional support needs. As an organisation, we work with a wide range of children and young people who have additional support needs who would be classed as having special educational needs. In addition, there are children who are affected by homelessness, parental substance misuse and HIV and AIDS, and there are young offenders and children who are looked after. The list could go on and on. In reality, many of those children might need additional support in their education but, as the system currently stands, the education legislation excludes them from additional support. We are pleased that the bill will broaden out the definition, in particular to take account of social, emotional and behavioural difficulties, because it has always been difficult to know whether those would be included in special educational needs.

Parents with children with special emotional needs feel that their children will fall through the net because the bill will not recognise them.

Do you mean children with social, emotional and behavioural difficulties?

Yes.

That was one of the concerns that we raised in our response to the draft bill. There are differences of opinion on how to assess social, emotional and behavioural difficulties, and on the definitions. In our initial consultation response, we argued that there should be national guidance on how to assess social, emotional and behavioural difficulties. We are pleased that the code of practice will provide guidance on social, emotional and behavioural difficulties.

We agree with the definition, because it covers a wide spectrum of children with different and complex support needs. However, it has not been opened out to include children who have input from people from voluntary and paid organisations. If that structure is not there in the first place, who will support those children?

The concern with current legislation is that the definition is too narrow. Many more children will qualify under the bill but, in reality, the new definition is almost identical to that in current legislation. Circular 4/96, "Children and Young Persons with Special Educational Needs", states:

"provision for special educational needs means educational provision which is additional to or otherwise different from that generally made for those of the same age".

The bill defines additional support needs as the requirement for provision, to help a child or young person to benefit from education, that is additional to or different from what children or young persons of the same age normally receive. To my reading, those are almost identical. The problem is not with the definition, but with the implementation and monitoring of the procedures. Without adequate monitoring, one has to assume that the same criticism will be directed at the bill as is directed at existing legislation.

You have touched on my question to some extent, but I want to consider the effect on equal opportunities. Will the bill have a positive effect on equal opportunities? Do you agree that it will help to ensure that children and young people with any type of additional support need will benefit from the same quality education as their peers?

It will have an impact on equal opportunities. The wider definition is of great benefit to the children and young people whom we work with. The fact that a duty will be placed on local authorities to identify and assess will be of great benefit and will assist many of those children.

I know that the equal opportunities section of the policy memorandum states that

"The Scottish Executive is committed to promoting equality of opportunity for all",

that children and young people will get

"the same quality of education as … their peers",

and that equal opportunities are

"essential to develop their potential",

but, in reality, although the bill provides legal rights, co-ordination and appeal rights, it does not provide equality of opportunity.

In the written evidence from Barnardo's, you state:

"some more thought needs to be given to ensure that the needs of all children with additional support needs are adequately addressed".

Will you expand on that?

That has been one of our main concerns during the consultation process. The background to the legislation is the development of special educational needs legislation. During the consultation process, the meetings in which we have taken part have involved people representing those with records of needs and representatives of bodies that are concerned with special educational needs. We have been trying constantly to remind the Executive and Parliament that the widening of the definition means that the new legislation will affect a large number of other children, although groups representing them have not been engaged in the process as much as they could have been. Partly, that is because a lot of groups have not realised that the bill will impact on them. The ones that have been most vocal about their concerns are those that are already involved in the special educational needs system.

Some of our services that deal with looked-after children who do not have a disability or a communication difficulty that would have made them eligible for a record of needs are still trying to get their heads around how the bill can help them. Our push has been to ensure that all young people who will be affected by the legislation are considered during the consultation process.

The written submission from Contact a Family Scotland states:

"Currently parents enjoy legal rights to protect service provision from within the education authority. These rights will be removed by these proposals and replaced with a new dispute resolution procedure."

Will you expand on that statement?

I am not sure that any of my colleagues could expand on the definition of dispute resolution. As part of my research for my appearance today, I asked a few colleagues for their thoughts on dispute resolution. Most felt that it was unclear and that it sounded like something that would be done by the education department. Nobody was sure whether it would be an independent process. Most people felt that it sounded like a complicated quagmire and that, if we had a rights-based education system, there would be no need for dispute resolution. It was also suggested that the idea throws up the strong possibility of a two-tier process developing. For example, if the parents of a child who currently has a record of needs but does not qualify for a co-ordinated support plan are not happy with the situation, they will find that the tribunal route is not open to them, because the tribunal will be able to take only approved co-ordinated support plan cases, so parents will be referred to the dispute resolution process as a means of pacifying them. That would mean that there would be a first and second-class resolution system. To ensure that all children have an equal right to appeal decisions, only one route should be available.

A similar concern is raised by local authorities' differing abilities to provide financially for educational needs services. In recent years, the financial difficulties of Scottish Borders Council have had a big impact on children with special needs. Whether their needs would be covered by the bill or are catered for outwith the education authority, it has always been down to the educational psychologist to bring on board elements relating to additional needs. If the educational psychologist is not the main pivot in that process any more, who will be?

That is an important point.

Will Douglas Hamilton state his views on the removal of compulsory assessments?

We are satisfied with the concession in section 6 that allows parents to request an assessment, even though the compulsory assessment has been removed.

From an equal opportunities point of view, will that be an effective way of working?

I think that it will be. The bill will require a change in people's mindset. The new general duty and the fact that anyone who requests an assessment should be assessed opens up the process to a much wider range of people than could currently be included in the system.

That would also apply to Scottish Borders Council, where the educational psychologist is the pivotal person for additional needs. If parents are responsible for choosing assessments, will they be knowledgeable enough to know which assessment will be their best route into services within the authority's remit? If a parent specifically chooses the health assessment—which as a rule they would get in any case—will that put a duty on the authority to look into additional needs? At the moment, I do not think that it would.

We have already touched on the fact that the bill proposes to replace the record of needs with the co-ordinated support plan. I want to explore that issue further, as a number of concerns have been raised, some of which the Executive took on board when redrafting the bill. Do Contact a Family Scotland and Barnardo's Scotland support the replacement of the record of needs with the co-ordinated support plan?

Both the record of needs and the co-ordinated support plan are purported to be for children and young persons with significant and enduring needs, who require support over a long period. I am at a loss to understand how about 9,000 children who have a record of needs will not qualify for a co-ordinated support plan. A child can be classified as having an additional support need if outside agencies are continuously involved with them. My son has autism and fell away from speech and language therapy because the service was woefully understaffed. He still has significant and enduring needs that have an adverse effect on his education, but under the new guidelines, he will not qualify for a co-ordinated support plan.

We favour the co-ordinated support plan, but we have a number of concerns about how it has been set up.

A co-ordinated support plan must be about co-ordinating support. For a plan to be produced, a child must receive support from a variety of agencies. In the initial consultation, we asked which agencies were meant. We suggested that voluntary agencies should be included in the definition, and the bill indicates that voluntary agencies may be identified through regulations by Scottish ministers as appropriate agencies to provide co-ordinated support.

However, the definition must be wider than that. Co-ordination does not depend on whether someone is supported by a health authority, an education authority, a social work department or a voluntary agency. A family member or neighbour may provide support. Structures may be very informal—a child may receive additional support from anyone outside their school. Informal support needs to be co-ordinated every bit as much as official support, because it may be making the difference. Barnardo's Scotland and I are concerned about the current definition that requires agencies to be involved in supporting a child.

The prediction for the number of children who have a record of needs but who will not receive co-ordinated support plans has been mentioned. We must ensure that every child who requires a plan receives one. It seems crazy to take rights away from children and families who currently have them, to reduce levels of support and to reduce legal entitlements. In my view, far more children will qualify for co-ordinated support plans than qualify for records of needs. The figures in the financial memorandum on the number of plans that will be needed do not seem to add up.

The committee should pursue that point from an equal opportunities point of view. Albi Taylor mentioned autism, but concerns have also been expressed about dyslexia.

If a child has a single impairment and there is not a secondary call-in of health or social work services, they will not qualify for a co-ordinated support plan.

Some time ago, concern was expressed that legal challenges could be mounted to decisions about records of needs. Earlier, you indicated that legal challenges will be replaced by a dispute resolution procedure. What are your views on that? Do you think that, at the end of the dispute resolution procedure, people should still have the right to mount a legal challenge?

That is where the tribunal comes in. It will deal with disputes about co-ordinated support plans.

Will that be adequate?

I have concerns about that. Legal aid will not be available. The Executive has said that it will encourage education authorities not to take legal representatives to tribunal hearings. To be honest I cannot see that happening, and if the education authorities take along legal representatives, it is understandable that parents will also want to have legal representation. Parents will have to find the money to be able to do that. That is an issue, particularly because the bill as it stands does not contain provision for independent advocacy.

We are also concerned about the jurisdiction of the tribunal. Although tribunal decisions are binding on the local education authority, other agencies might need to be bound by those decisions in cases that involve co-ordinated support plans.

In your submission, you talk about the role of supporters. You say:

"we have concerns about gaps that may arise because a parent cannot or will not participate."

You recommend

"a duty to make provision for ‘supporters'"

and consideration of

"the potential role of independent advocacy services."

Does the submission contain all the detail that the committee needs to have on those proposals or would you like to say anything further on the subject?

We were particularly pleased that the original draft bill and the accompanying documents contained provisions for supporters. However, the provision is not mentioned in the bill as introduced; it is mentioned only in the policy memorandum. Two or three concerns arise as a result. Many Barnardo's staff could be asked to become supporters, because we provide support in different situations for the child and their family. Our services are stretched at the moment, as are most voluntary and social services. If agencies were asked to act in that capacity, the additional time that would be required would need to be recognised in some way.

Another concern relates to the need to ensure that families who do not have someone whom they can call on as a supporter have access to supporters. If a family wants a supporter to attend a meeting with them, they want someone who knows the subject area. It might be nice to have a spouse, an aunt or another family member there as a supporter, in the sense of hand-holding and so forth, but ideally a supporter is someone who knows the system and who can give advice about how to act at meetings. A duty should be placed on the education authority to make supporters available to families.

My final question is for Contact a Family. You touched on this issue earlier in response to a question from Marlyn Glen. In your submission, you talk about your concern that, when no other services are involved, there is

"no requirement for such co-ordination for services solely from within the education authority."

You touched on the role of the educational psychologist. Will you expand on those concerns?

As the parent of a disabled child, I can speak about how things work for people such as educational psychologists in the Scottish Borders. Because of its limited financial budget—whatever the reason for that is—Scottish Borders Council has problems in supplying education services, never mind the special needs provision that comes from outwith the education remit. The bone of contention that I have with the withdrawal of the record of needs is that it has the legal status behind it that is needed to force the issue. From what we have heard so far about CSPs, we do not think that they will have the same legality. It is purely for that reason that parents like me will be reluctant to give up the record of needs.

I have often heard parents of children with special educational needs say that they have to fight for everything that their children get. They talk about having to battle all the way through the process. Will the bill make the situation easier or worse for parents?

Like Albi Taylor, I have a son with Asperger's syndrome. In all honesty, I think that the bill will make the situation worse. It will take the legal status of the record of needs away from me. I need that to be able to force the issue.

At the first consultation that I attended on the Education (Additional Support for Learning) (Scotland) Bill, at the beginning of the year, I said to the gentleman who was sitting next to me, "I have a record of needs for my son." He said, "You will automatically get a CSP." At the next meeting, it turned out that that is not the case. I had to fight with blood, sweat and tears for 18 months to get a record of needs for my son. Parents of children with special needs do not need any more pressure, or to have to face all these people who know what they are talking about. We sit at night going though screeds of paper, trying to teach ourselves the language. I finally got a record of needs for my son, Jack. He has had it for two years, and now it is going to be pulled, along with all the support and everything that we have worked for. Jack's needs are not any less enduring just because the Government has changed its policy.

Parent groups that gave evidence to the Education Committee on 3 December suggested that there should be a universal mechanism for recording all children's educational objectives, as opposed to a three-tier system, with personal learning plans, individualised educational programmes and co-ordinated support plans. Will you state your views on that suggestion?

The existing mainstream system should be strengthened by personal learning plans, and all children should have such plans, because any child might require additional support at some time in their life. There is a need to focus on the planning process and not on documentation, to ensure that plans are actively co-ordinated and that children receive the support that they need to remain at their peer level.

We must also bear in mind co-ordination between health boards and education authorities. For example, co-ordination is needed for a speech therapist to go into the education side.

I thought that you might believe that the suggestion that I referred to would provide for more equality for all children, across the board, and less discrimination. All children would be regarded as equal because they would all have a personal learning plan, regardless of how much was in it. You do you not think that that is an issue, though.

I suppose it is, but the real issue is what is mandatory. At the end of the day, there is an enormous financial strain on special educational services. Everyone is in favour of better co-ordination, which is fundamental to the system, but it has to be used across all services. To achieve a multi-disciplinary approach, the bill would need to cover more than just education.

I do not know whether you were going to ask about tribunals, but it is a big concern that the tribunals will have no authority over health and social work, regardless of what is decided at them. Even if a tribunal decides that a child needs speech and language therapy, and that is in the child's CSP, the tribunal will have no power to insist that the health board provides that therapy. The worry is that the system will become a tiered system rather than a support system. Children can have all the plans we like, but if those plans are not enforced, we will struggle to cope. Speech and language therapy is so understaffed and educational psychologists are changing all the time. Those areas are struggling to keep up and, if it is proposed to increase the number of supported children, there will have to be huge financial backing.

My first question is directed to the witnesses from Contact a Family Scotland; it follows comments on the Disability Discrimination Act 1995 in your submission. Are you concerned that there will be a gap in the legislation if the bill does not make provision for aids and adaptations?

When the Disability Discrimination Act 1995 was extended to education in 2001, it did not cover auxiliary aids, which were explicitly excluded because they were covered at that point within the special educational needs framework. It was assumed that the record of needs would cover the child in that respect. However, now that the record of needs is being pulled, an unintended gap has emerged between what it covers and the bill itself because the CSP will not cover that particular matter. Furthermore, there is no additional route of access, because it was never deemed necessary.

As a result, there are no rights under the proposals. The 50 per cent of children and young people with disabilities who are supported under existing legislation but who will not receive a CSP will have no alternative access to auxiliary aids and services and will receive no protection for the auxiliary aids and services that they already receive. That is particularly the case for those who have single disabilities such as dyslexia, hearing impairment and autism—which are all clearly included within the definition of disability in the Disability Discrimination Act 1995—and who do not access services from health or social work. That reduces their chances of benefiting from the Government's commitment to inclusion.

The way forward would be to allow anyone with a disability as defined under the Disability Discrimination Act 1995—where the condition is present for more than a year and has a significant impact on day-to-day activity—to retain their legal right to appeal through tribunal, or their external right to independent appeal. The bill takes away that equal opportunities right.

I am quite concerned about the gap that you mentioned. For example, in relation to autism, constituents have highlighted the fact that under the current system a youngster might have a learning plan for two thirds of the year but receive no support when they are not in school. Indeed, I have been examining that major issue in my own local authority area. Services for people who require continual stimulation stop for a third of a year. Will that situation worsen under the proposed legislation and, if so, why? Will you also elaborate on your comment that there would be no authority over health and social work? How will that impact on the other third of the year in which services stop? What changes are needed?

Many cases involving auxiliary aids and services are being referred to the Disability Rights Commission. However, the Commission has to make it clear that those aspects will not be covered by the tribunal. Obviously parents find that to be astonishing, because the tribunal will cover everything else.

The Disability Discrimination Act 1995 was never meant to stand alone; rather, it was supposed to work in partnership with the SEN framework. As I have said, people are struggling to get what they can. If the services in question are pulled, those people will be in a worse position. As far as health and social work is concerned, the paediatricians, speech and language therapists and so on to whom I have spoken have said that they want to be covered by the tribunal. They know that if they are covered, their managers will have to find the money to fund services.

Far too much of the proposed legislation relies on good practice. It would be fantastic if everyone could adhere to the code of practice, the manual of good practice and circular 4/96. However, they are only guidelines. Parents come back to me from hearings and say, "They said they were only guidelines", and I think, "Well, exactly". Everyone is up to their ears in work and no head teacher is going to say that they will take on more educational psychologists. Unless the matter is put on a more mandatory footing, many more children will fall through the gap.

I was going to ask you for your views on the proposed tribunal service, but I think that you have more or less answered that question. Do the other witnesses want to comment on that before I move on?

As Albi Taylor has just pointed out, the code of practice is good if it is adhered to. However, if the situation is not coherent from region to region, we could end up with a postcode lottery.

The difficulty is that the children and young people who will access the tribunal system will have the most significant and enduring additional support needs, but will not be afforded the right to legal aid and legal representation at the tribunal hearing. I suggest that it will be a breach of human rights and of equal opportunities if their cases are compared to those of children and young people who have additional support needs but who do not have a CSP and can access legal aid if they qualify. That is a real issue for parents, because children from low-income families will be put at greater disadvantage if those families cannot afford legal representation.

Parents and young people will be able to refer a case to the Court of Session on a legal point, but how will they know whether a legal point has been breached? It is clear that parents and young people will be at a disadvantage in presenting their cases and in cross-examination.

I want to take a step back and discuss independent mediation services. What do you think of the proposal that education authorities will have a duty to make provision for independent mediation? Can many issues be ironed out at that stage?

The worry with that proposal relates to how independent such mediation would be. At the consultations that I attended, it was said that the local authority would run the service but that the mediation would be independent. A genuine issue involving the establishment of trust is involved. If trust has been stripped away and people have to go to mediation, they will not want to go to a local authority mediator. Even if mediation were completely independent, it seems—sadly—that councils could ignore decisions, irrespective of the findings or the outcomes of any mediation.

Barnardo's supports the introduction of mediation, but I agree that it is important that such mediation must be seen to be independent. Obviously, the attraction of mediation is that it tries to deal with matters in order to prevent confrontational situations. In our experience, confrontation with an authority is often the most draining part of the process, so anything that can be done to minimise such battles and to provide as many alternative options as possible is a positive thing.

I take your point. We would want such matters to be resolved through independent mediation. Albi, how would you improve matters?

The whole tier system would have to be removed. The tribunal should have power over all additional support for learning matters. All children should have a right to access the tribunal and that tribunal should have power over all CSPs. We are talking about multi-agency working, but if the court can mandatorily pull only one section of that work, there will not be multidisciplinary working and efforts will fall at the first hurdle.

Many parents also raise with us their concerns about transitional arrangements. Parents might have concerns about a child in full-time education, but they can also be concerned about their child's leaving their educational facility—I have heard of two cases in the past week alone. What are your views on the transitional arrangements in the bill? In particular, Contact a Family has said that a minimum of 12 months is too short a transitional period. Should that period be extended in the bill to, say, 18 months? What do you think about the arrangements that are outlined?

With the record of needs, transition is planned from age 14. We do not want the current situation to be worsened. More children with complex needs are leaving school and are living when perhaps they would not have done so before life expectancy was increased, so that is an increasing concern. The resultant pressures are emerging as a key issue for families.

For Contact a Family Scotland, 14 seems to be the minimum age at which planning should start, but the draft bill proposed a minimum of six months, which the post-consultation document increased to a mandatory minimum of 12 months. Bearing in mind the record of needs minimum of six months from start to finish, a straw poll of parents at last week's consultation showed that only one in 15 had achieved record of needs planning within six months. The average was 18 months, which is three times the mandatory minimum level.

If the mandatory period for effective planning for a child is 12 months but effective planning ends up taking three times as long as that—36 months—how many children will find themselves out of secondary education with no support or planning in place for tertiary placement proposals? The notion of multi-disciplinary working is again being flagged up. Adult services need to be given the time to plan effectively for an individual's future and if, as a result of poor or rushed planning, the individuals concerned are at a disadvantage compared with their peers, their access to equal opportunities will be reduced.

I support many of the concerns that people have raised around transition, although it is not something that we have considered in detail. It is important to remember that a wide range of children will be covered by the co-ordinated support plan. There must be a minimum time scale and it must be clear that, although the minimum time scale is 12 months, the individual needs of each child should be taken into account and planning must start at the appropriate stage. Whatever time scale might be set—even if it is 18 months—planning will in some cases have to start earlier.

Are you generally happy that the present situation regarding future needs assessment will actually be changed? Has the current system caused concern in the past?

I have a bit on that subject in my submission, but I cannot find it at the moment.

I think that your submission or explanatory notes said that some parents who had been consulted said that they were unhappy with the way in which things worked at the moment and that the transition period was quite difficult. Have you had any feedback from parents about the need for the system to be changed?

Off the cuff, I would say that any concerns that exist will only be heightened by an adverse adjustment in the time scale. That goes back to the issue of multi-disciplinary co-ordination between health and social work. If a child with disabilities requires services, the child should receive that support, no matter where he or she comes from.

The convener has already highlighted the fact that some parents feel that any support that they have managed to get for their children has been as a result of a hard battle. There are overarching issues, obviously, relating to lack of staff and resources. I believe that the issue of resources is picked up on in the Barnardo's submission.

Section 3(2)(b) of the bill provides a sort of get-out clause by saying that the education authority is not required to do anything if doing so

"is not practicable at a reasonable cost."

That seems to be a "get out of jail free" card that might be used because of a lack of resources. Do you believe that the financial memorandum's conclusions about the level of resources that are required are correct? What do you think about section 3(2)(b)? Do you have any other comments about personnel? I note that comments have already been made about the lack of speech and language therapists, clinical psychologists and others. Given that we are talking about reducing the number of people who have co-ordinated support plans, but extending additional support across the board, will we have a problem in terms of staff availability?

Yes. That is the starting point of my answer, although I will not pretend that I know the figures. The Scottish Executive has worked out the figures using various formulae and statistics, but I will not go into the detail. However, when the bill was published, the financial memorandum was the first thing that I looked at. I did that because of the Audit Scotland report—which was published earlier this year—about the presumption of mainstreaming in the Standards in Scotland's Schools etc Act 2000. The report highlighted that that presumption had not been properly costed and that we probably still do not know its cost implications.

My initial reaction to the financial memorandum's statement that the expected additional yearly costs for local authorities will be about £2.7 million is that the figure seems to be small. I do not have the details, but I do not believe for a second that at present we meet the needs of every pupil who requires additional support, despite the great efforts of local authorities throughout Scotland. If we were doing that, new legislation would not be needed to give those pupils additional rights. The legal rights to additional support clearly need to be strengthened, which will require additional resources. As I said, I believe that, because of the range of needs that will be taken into account in the wider definition, more children and young people will have co-ordinated support plans than have records of needs. That is why I have concerns about the resources.

On the get-out clause in section 3(2)(b), it is interesting that I have not seen the word "practicable" used in other legislation. Section 15 of the Standards in Scotland's Schools etc Act 2000, which introduced the presumption of mainstreaming, has a similar financial clause to the effect that the cost of provision of that education must be reasonable and that it should not affect the education of other pupils. I cannot remember the exact wording of that provision, but it seems to be stronger than the provision in the Education (Additional Support for Learning) (Scotland) Bill. At the very least, the financial get-out clause in the bill should be similar to the one in section 15 of the 2000 act. As local authorities will not have sufficient resources to meet everyone's needs, they will have to decide, on the basis of priority, where to allocate resources. I doubt that the word "practicable" is strong enough.

The financial memorandum considers the costs of the bill to the Scottish Executive and to local authorities, but I presume that there will also be a knock-on impact in costs to the voluntary sector.

Yes. For example, there will be an impact on provision of the role of supporter, although that is not covered directly within the bill. The bill will have a knock-on impact on a range of agencies.

The bill proposes a code of practice, which will include guidance on identifying complex and multiple factors in considering whether a child should have a CSP, and on seeking the views of children and young people and parents. Do you have views on what the proposed code of practice should contain?

I reiterate that, in the past, fabulous codes of practice have been widely read but widely ignored. The code of practice should set a minimum level of service for people wherever they are in Scotland: that would be the best hope for consistency. My one question is: what will happen if an organisation breaks the code?

My understanding is that a statutory code of practice is a stronger tool than guidance is because education authorities must comply with it. That is why a code of practice is proposed. I am pleased that the bill will introduce a code of practice because, as was said earlier, inconsistency throughout Scotland is one of the big concerns with the record of needs; it is also a concern about the new system. At least the code of practice will set out the standards that will be expected to apply everywhere.

When it comes to issues such as mediation, dispute resolution and the tribunal, the code of practice will play a key part in ensuring that young people get the service that they are supposed to get.

At point 14 in your submission, you advocate additional rights for children where the parents or carer

"cannot or will not participate."

That is an interesting concept. How would you see it working if it were included?

First it has to be said that there are additional provisions in the bill to ensure that the child's voice is heard throughout the process, which we support. One of the key things that is missing from the bill is mention of children's ability to appeal or request assessment. Those rights are given to parents and young people over the age of 16.

There are two threads of argument. The first is about a rights-based approach. The Age of Legal Capacity (Scotland) Act 1991 sets out that children over the age of 12 have legal capacity to instruct a solicitor and to bring civil cases in their own name. That is dependent on maturity and there are complications within that act. During the passage of the Standards in Scotland's Schools etc Act 2000, an amendment was lodged to give children the right within the same framework to appeal against exclusion from school. That recognises that children have had legal capacity for a number of years and that they should be able to exercise it in decisions that affect them directly. Decisions about children's education, exclusion from school and the support that they receive go right to the heart of what the concern is about. In order to achieve consistency with that, under the same definition as that which is in the Age of Legal Capacity (Scotland) Act 1991, children should be able to appeal or request assessment in the same way that their parents or young people aged over 16 will be able to.

The second thread of argument is about practical issues. A child might require additional support, because the parent is not capable of supporting them. The parents of some of the children with whom we work have substance misuse problems or are going through a difficult time because of homelessness, so they might not be in the best position to fight on behalf of their child or to make requests. On that basis, children and young people should have the legal right to make requests.

Have you had the opportunity to raise all the issues that you wanted to raise this morning? I will give you a minute if you want to make any other points.

I sit in front of you today as a mother whose son has the same disability that he had last week, but under the bill he will not qualify for a co-ordinated support plan. As a result he will not be allowed a right of appeal to the new tribunal system. He will lose his right to his current auxiliary aids and he will be less likely to succeed in his current mainstream and fully inclusive placement because of the removal of that support.

Thank you for your evidence. I suspend the meeting for five minutes to allow a changeover of witnesses.

Meeting suspended.

On resuming—