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Item 4 on the agenda is the continuation of our stage 1 consideration of the Education (Additional Support for Learning) (Scotland) Bill, which will take place in public, as we decided.
Would it be possible to allow members to take a few minutes in which to read the two letters? We have received a letter from the Executive as well as one from the All for One/One for All group.
I thought that members had received a copy of the Executive's letter earlier.
Martin Verity told me about the letter this morning, but I have not had a chance to digest it.
Okay. I am happy to suspend the meeting for five minutes to allow people to read the letters and to get a cup of tea if they want one.
Meeting suspended.
On resuming—
We return to item 4, which is the Education (Additional Support for Learning) (Scotland) Bill. I hope that members have had a chance to read the two letters before them. The primary matter for us to consider is the draft report. We had a general discussion last week, so I am not sure that we have to explore further the general issues except in so far as they relate to the detail of the report. Unless anyone disagrees, I propose to go through the report section by section.
Peter Peacock's letter is hugely helpful and deals explicitly with some of the issues that we dealt with last week. I wonder whether we could take five minutes now to discuss the issues that he raises. That would expedite our page-by-page consideration of the report.
I am happy with that.
It is slightly frustrating that civil service letters never include headings.
The point about the financial memorandum is already in our draft report.
It is helpful to have the letter. It might have helped a large part of our evidence taking if we had had it earlier.
Can I ask a silly question? Is it possible for us to amend the financial memorandum? I am not certain about the procedure for that.
It is not our financial memorandum.
The end of the letter says:
I ask the clerk for guidance on whether there is a procedure for revising the financial memorandum. I have not come across that before, but it may be quite normal.
I am not really sure, to be honest. The financial memorandum is the Executive's, but I do not see why the committee cannot ask the Executive to amend it.
It has been helpful to get some clarification, in particular that the final intention is that all pupils should have a personal learning plan. There was some confusion in the past about whether somebody who had a CSP would also have an IEP and a PLP.
The trouble is that we are not starting with a clean sheet. There is provision in place. The bill will have implications for all that, but in itself will the substantive provision make a difference?
It is useful to have a rundown of the other areas where money is spent. My concern, however, which I have raised previously, is that much of that ring-fenced education funding often has no proper strategy around it. Considering the weaknesses in the financial memorandum, and the areas that we are not yet clear about, and given that it is two weeks before we debate the bill in the chamber, will we get clarification within that timescale that will satisfy us that the bill will have the resources to let it run properly? I do not think so. We should stop and take another look at the matter, and we should delay the bill until we have clarification. I feel a bit happier about what the minister has said about the code of practice, so why are we rushing the financial aspect, when it is crucial? Will we get any answers in two weeks?
I am not entirely convinced that all the funding that is mentioned is ring fenced.
A lot of it is, though. The problem with much of this kind of funding is that it comes into schools and has to be spent very quickly. There is no long-term strategy around it and much of it is wasted. I say that from experience. That kind of thing should be discussed and examined in much more detail than it has been. Perhaps that is a matter for another time, but the financial memorandum is current, and we are not clear enough about that at the moment to go forward.
I have quite some sympathy with what Rosemary Byrne said about the way that the money is going into schools, but there are two issues, and we are slightly rehearsing what is in the draft report. The minister's letter is welcome, as is the information on funding, but when it comes to the bill, we can take only the narrow view, in the sense that there is a wider issue about the resources that go into additional support for learning, which the bill does not address or even move forward on. The financial memorandum talks about the way in which we organise and approach additional support for learning and it even has implications for how we divide up the cake, but we can take only the narrow approach on it. There is a separate argument to be had as part of the budget scrutiny—or now—about trying to increase resources generally.
What about tribunals?
Tribunals are a different issue, but I think that the minister said that, as far as implementation is concerned, if the costs of the tribunals or the numbers of children with CSPs were out by a factor of as much as 50 per cent, he would be able to cope, although he would not want that situation.
That is a difficult issue. We could end up with spurious accuracy—I think that that phrase was used earlier—without shedding much light on the matter. A lot of bills are like that. The Homelessness etc (Scotland) Act 2003, which we considered in the previous parliamentary session, had issues of the same sort. There might be opportunities for monitoring, which we might want to consider later and which might meet some of Rosemary Byrne's and others' concerns. The picture is developing, and we can keep a handle on it even once the bill has been passed. The situation will not change overnight, because it will no doubt take a couple of years to bring the bill into force.
It is difficult to get precise figures, but I was reassured by the minister's approach, which Ken Macintosh outlined, and the wide range of services that he included and said that the Executive would fund. My understanding is that there is an absolute commitment to funding those services, and we are responsible for holding the Executive to account on that commitment.
The minister's letter says, on page 2:
The issue is surely the IEP rather than the PLP, because the PLP is not particularly linked to additional support needs.
There will inevitably be children on the borderline. If every child has a PLP, with additional support needs being covered by an IEP and the most severe learning difficulties by a CSP, we will not have an accurate picture of the precise numbers until all three systems are in place.
I am not sure that I agree with that, because the intention of the CSP is to ensure the co-ordination of services when other agencies are involved. The CSP has a particular role and is not dependent on the development of the PLP.
We have had a fair thrash at all that, and perhaps we should move to the draft report, unless members are desperate to say anything in particular.
I think that everything has been covered.
I think that everybody would agree that the letter is helpful, although it does not totally clear up the definitional issues—but we will come to that in a second.
I have two minor points to make. I want to ensure that we have quoted the Education, Culture and Sport Committee correctly. Under paragraph 5, the committee is quoted as saying that the record of needs
That is what it says.
I know. I am saying that we must respect that.
Ministers should be given credit for that; we should note the sensible attitude that ministers took. Are you suggesting that we should include a reference to that?
We should recognise what the Executive did. The bill was introduced on 28 October 2003 and yet, as is noted in paragraph 5, the draft bill was published on 17 January 2003. Something happened when the new Executive came in and we should recognise that. It is background information rather than detail, but it should be included.
We agree to add a reference to that. Members have no further points on that section.
We could include the fact that we had a helpful briefing from the Executive.
Yes.
Perhaps we should say something along the lines of "abolishing the record of needs and introducing a new system."
Yes; we need a slightly different wording. Perhaps the clerks could look at that.
I think that this is the appropriate place for me to make my point. From last week's discussion, I think that three main areas probably need to be emphasised; they are all covered in the report, but I wonder whether they are given enough emphasis. The first of those areas is the desirability for a single system. We acknowledged that a more pragmatic view is being taken of that issue. Some committee members and witnesses have said that we want to achieve a single system. The issue is whether the PLP, IEP and CSP will produce that, or whether something more fundamental will be required.
Much of that focuses on the paperwork.
Yes, but it also concerns the approach and whether it is possible to move that on quickly.
The bill does slightly more than that, because it widens the duty.
I want to concentrate on the three main themes. That is a practical point on the first of those themes.
There is a point in what Fiona Hyslop has said, but not in the way in which she has put it.
The first of the three points has come out in the report.
The point about reducing confrontation is very important and it needs to be flagged up. We might be able to strengthen the wording in that direction.
I am just not sure where we should add such points.
The bill's proposals, particularly those on the CSP, are supply led. The definition of a CSP means that an integral part of consideration of who will get a CSP is who provides the service; health or social work provision is necessary. Of all the points, that is probably the most controversial. The "Rights of the child" section of the report might be the most appropriate point at which to ask whether we have been strong enough on that. We might be able to redress the balance by including something about the needs of the child. The CSP, which is a central part of the bill, is defined by consideration of whether a child requires health or social work involvement.
The trouble with your general statement of the point is that it relates to the definition of the CSP, which is based on the key point that, as the minister put it, where things break down is where co-ordinated support fails.
We as a committee have to decide whether we agree that the CSP is the most important aspect of the bill or whether we want there to be greater emphasis on the needs of the child, which are implicit throughout the rest of the bill. We are talking about our general views on the bill at this stage.
I think that we need to be explicit—just as the bill should be explicit—in saying that the bill is intended to meet the needs of children and young people and their families. That intention should underpin the bill and I think that it does.
Are there not two points there? We are not actually eliminating an existing three-tier system; that is not correct. There is quite a lot of stuff about the need within a more inclusive framework to concentrate on the children who have had particular difficulties and whose needs have had to be focused by the system. If focus is lost, those children will also lose the resources that go along with it.
Yes. My point is that the new system is more inclusive. The definition of additional support needs is wider and it covers youngsters who were not included previously.
I would like paragraph 31 to be altered to reflect the fact that not the whole committee is in favour of going down the road of a two-tier system. I talked about that last week and I point it out again.
Are you suggesting that there should be no tribunals and appeals mechanisms?
No. I am saying that the legislation should be there for every child equally.
Okay. We will come back to that.
I have two reservations about the final sentence. First, current rights are not diminished and the needs of the most vulnerable in the community will continue to receive top priority. I raised my second reservation when I said that personal learning plans should be in place before the bill is implemented. I might not have the support of the majority but, on the basis of social inclusion, I think that all children should have a CSP or IEP or PLP. Some of the many children who are on the borderline are left out of the system and that is unfair to them. The system should be properly in place before the bill is implemented.
There is clearly an issue about what will happen under the bill to people who have records of needs at present, but we will come to that later. However, I am not sure that you are factually correct that the PLP must be linked in—I am not convinced about that. PLPs are an on-going development with many resource implications—the IEP is the key point for the bill.
My contention is that the letter from the minister suggests that he does not know who is in and who is not in for CSPs. Therefore, it is probable that he does not know who is in and who is not in for IEPs. If a large number of children do not have a PLP or any other document, we simply will not know what their needs are and whether they should come into the system. On the basis of social inclusion, every child throughout the education system should be properly catered for.
As I understand it, one of the general principles of the bill is to provide for all children who have additional support needs. The minister's letter mentions
While we are discussing the point, I suggest that we put up front in paragraph 17 or thereabouts a specific reference to the general duty in section 2, which would help to clarify some of the issues.
I suggest an amendment to the phraseology in paragraph 31 that might bring all members on board. In paragraph 31, we should leave out the first sentence and start the paragraph with: "The committee accepts the minister's point that it is the Executive's intention to meet the duty imposed by the 2000 act to ensure that children receive the education they require."
Sorry, I do not quite follow you.
I suggest that we take out the stuff about the three-tier system and put in the following: "We welcome the steps to inclusion within the bill but recognise that the success of the new system will depend critically on the integration and quality of the relationships between the CSP, the IEP and the PLP, while supporting all children within an inclusive framework." We should continue with: "The committee recognises that the Executive has taken a pragmatic position to create a system that balances the needs of all children, while co-ordinating support for those with complex and multiple factors."
I have two points. I draw to members' attention the fact that a unanimous view on the bill has advantages and gives us power, although I would not deny any member the right to press a different view. Perhaps you will give the clerk a detailed written suggestion, Wendy, but it seems to me that you are suggesting that we need a timescale objective for the bill, rather than saying that its implementation is going to happen now. You are saying that the Executive has taken the aspiration on board and that this is where the Executive wants to head, but that that cannot be done overnight.
What I am really saying is that, until the bill is implemented, we cannot judge whether it will succeed in its ambition, which is to create an inclusive system. The committee is considering a caveat that says explicitly that we want an inclusive system. Whether that is achieved by the bill will depend on the quality of relationships and the integration of the three elements. Obviously, some people are sceptical about whether the bill will meet its objectives, and some are more optimistic. I do not think that the committee needs to take a view on what will happen in practice. We will know that only post hoc.
Wendy is trying to get us a bit further along the road, for which I thank her. However, we can have an inclusive system only if everyone has the same access to it and if there is equality in it. I do not think that we should tie ourselves in knots about PLPs and IEPs because IEPs will be there in the interim until the development of PLPs, and things will eventually be broadened to cover more children. However, the system will not be inclusive when we have CSPs and IEPs/PLPs. I said all this last week and I do not want to go back over the same argument, but people will be chasing resources by asking for a CSP and we will have an adversarial situation in which people will go through tribunals and so on. There is absolutely no need for a two-tier system. With good practice, we can plan, and co-ordinate the planning, within an IEP system for all children. That happens at present.
We get the point. My difficulty with that approach is that it would be fine if infinite resources were readily available right across the country. It is not so easy otherwise.
What Rosemary Bryne says does not represent the majority view from the evidence that we received. A few organisations took that view, but the vast majority accepted that the bill was a step forward and would lead to a more inclusive system. Our report must represent that. Many parents would be appalled if the committee reflected the view that children with additional support needs were not going to have additional resources and time at their disposal.
I did not say that.
Some children face more barriers than others. As a parent of a daughter with special educational needs, I very much welcomed the reassurance that the barriers that she faced in her education were being specifically addressed and that there was a requirement to remove them. Not all children are the same.
To some extent, what we put in will depend on what we say about the detail in later sections. The issue is as much how the bill ends up as how it is at the moment.
We will then be able—for example, with regard to Lord James Douglas-Hamilton's point on the link between records of needs and the new system—to see what we are proposing on the rest of it and to take an overall view, which I hope will be balanced against what we decide on the rest of it. Is that helpful?
I seek comments on the definition of additional support needs, which is addressed in paragraphs 32 to 40 and which, I suspect, will raise some of the same issues.
Paragraph 40 states:
That is proposed later. We will come to your point when we reach that section.
I do not agree with the second sentence in paragraph 40, which begins:
It is not just the and/or provisions, as we received a lot of evidence from various points of view—from the COSLA end and the parent end—that people did not know what the implications would be.
I think that the definition of additional support needs is much simpler, which I welcome. It should make it much easier to decide which youngsters have additional support needs.
You are right. I was thinking about CSPs.
Should we make the point that although the definition is clearer, it will still require the interpretation of professionals, teachers or families? In other words, it will still need to be decided where a child falls on the spectrum of needs, in terms of a CSP or an IEP, which is why the code of practice is vital. The report could state, "The committee welcomes the broadening of the definition, however it notes that the definition will still require interpretation by professionals", or something to that effect.
Yes, it should. As we go through the draft report we should confirm the committee recommendations, so that we have a clear decision for the clerks.
The paragraph addresses the concern, but we have not come up with a positive recommendation. That is probably asking too much.
It is up to the Executive to do that. I made the recommendation in paragraph 34 at the beginning. Does anyone have a problem with it? It was tactical, to a degree.
It would be reasonably straightforward to make an amendment that said, "to fully benefit from school education", or, "to achieve their potential in school education." That would be a relatively minor amendment.
Is that agreed?
On paragraph 40, we need to welcome the new definition of additional support needs as being inclusive and helping to clarify what in the past has led to confusion. Of course, we still recognise some of the difficulties around the definition of a CSP.
This may echo some of the points in the last section, but is it fair to say that that is the central duty in the bill? It would be helpful to stress that again.
That helps us to move away from the pejorative interpretation of special educational needs. I was going to talk about new rights, but that is a different point as it does not come under this section. There would be a danger if we were to replace the legislation in 20 years' time but, at the moment, the definition is more inclusive—
It moves forward.
It is more inclusive than exclusive.
That is an important point. Because of the discussions about who gets a CSP and who does not get one, the focus has not been on the new duties. If we restated that at this point in the report, that would help to focus attention on the matter. I am with Rhona Brankin on this. I am not sure that I like the second sentence about the definition being complex. I do not think that the definitions are all that complex. However, there has been difficulty with people's interpretation of them. That might need to be made more explicit.
Some of the definitions are spread across a number of sections and are in various forms. I agree that the definition of additional support needs is not particularly complicated. Is that the view of the committee?
The definition is a welcome clarification—or simplification.
Is that the view of the committee?
We had written and oral evidence that indicated that provision is very variable in the area of English as an additional language. It has not always been dealt with correctly, and the potential of bilingualism as an asset has not been recognised. There has been a call for national standards to be developed in the area. Might it be relevant to say that the committee supports the call made by the Scottish Association for the Teaching of English as an Additional Language for national standards to be developed for the teaching of English as an additional language?
In which paragraph would you add that?
It would come at the end of paragraph 38.
I have forgotten who spoke about this, but the evidence on the positive steps that have been made was quite good. Less impressive was the interpretation of how the bill would affect—
I accept that entirely, but the central point was that there were no national standards in that area. That featured in written correspondence from various people with an interest.
Perhaps we could just flag up that view, rather than endorse it explicitly. That point was put to us during a half-hour or one-hour evidence session. We could flag up the fact that the committee was rather worried by the matter. It would not be the committee's wish to reverse two decades of advancement.
We could put in something like "The Executive might consider whether there is a need for national standards in the area of English as an additional language." Is that a valid suggestion?
Yes.
The witness was trying to say that, in many cases, bilingual children who come into the system without much English to start with might be labelled as needing learning support in the sense that they are poor at the work that they are doing, rather than in the sense that they do not have a grasp of the English language. People have worked for years to diminish that perception. It would be good if we could try to counteract that perception. The convener's suggestion might help.
Sheila Roberts made another point, which was that people can have a superficial knowledge of English on which they can get by socially although they might not be able to pick up more elaborate ideas, such as mathematical concepts, that they might pick up better in their home language, if that is the right way to put it—I am sure that that is the wrong way to put it, but members know what I am getting at.
I fundamentally disagree with Sheila Roberts, who, as it is put in the draft report,
Slow learning?
That is right: people do not understand what those children's needs are. However, they very much come under the broad definition of children who require additional support.
Yes, they do.
Those children face significant barriers. There is an issue here about training. The wider definition of additional support needs has to be addressed by training the practitioners. I fundamentally disagreed with Sheila Roberts when she said that that area should not be included in the definition.
That is right. There are two points: training and national standards.
My point is similar to the point that was made by Rhona Brankin. I disagree with the use in paragraph 38 of the quotation from Sheila Roberts. We should concentrate on what could be done to improve support for bilingual people. She equates bilingualism with learning difficulties and says that
Well, past practice—
That may be past practice, but that does not mean that—
No, but I must say that that attitude is still out there. The point that Sheila Roberts made is relevant if we can word it so that—
Should we say that the committee does not accept that point but that we will bring the other parts in? It is fair to say that that is what she said, whether it is right or wrong.
Can we say that we recognise her concerns but that we want to move forward?
Yes. Have we dealt with that point? I do not want to make a meal of it.
I suggest that it would be helpful to include a paragraph after paragraph 38 about children who have to move by virtue of their way of life, such as the children of travelling people and services personnel. When people in the services are moved from country to country, it is obviously disruptive for their children, who have to move from one school course to another and to fit in at different stages. There is a particular case about the children of travelling people and a paragraph on that would—
What would be the point of that? Are you drawing attention to the need to have provision for them?
Children who move a great deal by virtue of their way of life have additional needs because their education is disrupted constantly.
We sought reassurance from the minister on those points and we got that reassurance. It might be worth while to state that we understand that these—
Is that agreed?
Let us move on to the next section—paragraphs 41 to 54—on co-ordinated support plans and integrated working.
I have difficulty with the first sentence and particularly with the word "additional". There are different rights—take the child who cannot talk, the child who cannot see, the child who cannot hear, the child who cannot walk unaided, or the child who has cerebral palsy. Those children have severe learning difficulties and I am wholly opposed to anything that infers a diminution of priority or funding for the most vulnerable people in the community. For example, a child with dyspraxia should receive top priority because their needs are particular and considerable. To say that
I think that you are referring to paragraph 54, not to paragraph 41.
Yes.
I am not sure that I disagree with the sentence to which you refer.
I do not disagree with that sentence. Although I agree with what Lord James Douglas-Hamilton says, I do not think that what the minister said means that any youngster's needs will be met any less. For example, a youngster may have complex needs and barriers to learning but no need for inter-agency working. It is important to reassure parents that the question is not whether their child has a CSP. Parents have the right to have their child's needs met.
The first sentence of paragraph 54 ought to be reworded so that it is clear that the most vulnerable children in the community will not be disadvantaged.
It is a way of trying to beef up and improve the situation, but we could meet all children's needs without a two-tier system.
With respect, Rosemary, let us not have that argument any further. Do you have a particular point to make?
The issue is so relevant because we keep on having to pick up on it and look at ways to clarify it. We are trying to make a good job out of a bad premise.
I am sorry to cut you short but we are not going to have a discussion about that again. We can come back to that when we discuss the general principles of the bill. We know your views on the subject, but we have to deal with the detail of the co-ordinated support plan now.
I refer members to paragraph 54, which says:
Do you have any suggestions?
I thought that that was the area that we should focus on.
There are three issues involved in that. The first is whether the minister is right to focus on the co-ordination issue; the second is whether co-ordination is defined correctly; and the third relates to the issues that are raised for people who might not qualify for a CSP if that definition is right.
On that last point, paragraphs 61 to 65 specifically deal with the abolition of the record of needs and the views of the committee on the transition. We have all flagged up the fact that the perceived loss of rights is important. We will come back to that point.
Does Adam Ingram want to come back on that?
The words that Adam Ingram highlighted from the middle of paragraph 54 are helpful. We will come back to that issue.
Paragraph 47 refers to further clarifying the definition of eligibility for a CSP in the code of practice. However, I wonder whether something should be included in the bill as opposed to the code of practice.
The question is what.
On Lord James's point, we all wish to ensure that the most vulnerable are protected. Perhaps we need to add that to paragraph 54. However, we also need to say that the system is not designed to give those with CSPs additional rights over and above those who have additional support needs. It is important that we say that for those who are not eligible for CSPs.
I believe that that point was met with nods from around the table.
We should pursue Adam Ingram's point about identification, because it is crucial.
We are coming to the issue of identification under another heading.
Yes, but I agree with Adam Ingram's point that there must be more assurance about the issue of identification for CSPs. We must keep identification in mind because it is an important aspect for parents and is often a problem.
Not to beat about the bush on the matter, I believe that identification is central. I have two points. Paragraph 48 states Children in Scotland's view that the decision on a CSP must not be based on from where the support is provided but whether co-ordinated support is needed. Capability Scotland said that the definition did not recognise the extent of co-ordination and referred to the example of co-ordination within education authorities. I raise that point partly because of the issue about whether an education department or a health department should provides therapists of one sort or another. To some extent it would be accidental whether a CSP resulted from such co-ordination. There is a definition issue there. We discussed that matter with the minister and others but perhaps it needs further discussion.
Is the point not about which department provides the service but whether the service is supplied in connection with education duties?
Yes, but can you argue, for example, that speech therapy is not supplied as part of educational provision?
Occasionally, speech and language therapists are attached to education departments, but health boards mainly provide them.
What I am trying to say is that I believe that we have not fully teased out a definition.
I apologise for leaving the meeting. I had to work elsewhere for 30 minutes.
That is partly my point. How a service is defined would affect whether a child is eligible for a CSP, which is an important point.
The minister's evidence was clear: the provision of certain services is part of the problem—services such as speech therapy, physiotherapy and—
I am sorry, but what are those services a part of?
I mean the services that are currently provided by the health service.
I do not challenge that aspect of the definition, but my concern is about whether the definition is sufficiently precise to avoid accidental results that depend on where a therapist or psychologist comes from.
Confusion remains about the interpretation of co-ordination of services, so perhaps that is another matter for the code of practice. When I first saw Children in Scotland's suggestion, I thought that it was a step forward, but it probably leaves the same set of interpretation decisions to be made.
I have difficulty with the concept that a provision that can lead to legal rights, such as the right to go to a tribunal, should not be defined in the bill in a way that the tribunal can get a handle on. It is unsatisfactory to put such a matter in the code of practice. Perhaps we will seek clarification on that, even if we are not unanimous about the solution to that problem. Could we seek clarification?
Perhaps we need legal advice, rather than political or policy-based interpretation.
Could we have guidance from the Scottish Parliament information centre?
The Parliament has a directorate of legal services, which can advise us on the point.
Having clarity would help. The clerks have picked up the point about what is included and whether that matches the definition.
Section 23 says that the code of practice may, not should, make provision as to many details. That is an enabling power.
That comment is helpful and relevant.
I will return to what Ken Macintosh said. It is important that although it is clear from the bill that a CSP should be in pursuance of educational objectives, if, for example, a young person who required the involvement of social services was in Dumfries and Galloway, where the council's social services are part of the same department as the education service, there would be no argument about whether they were eligible for a CSP, irrespective of the council's departmental organisation. However, concerns have been expressed, and the code of practice should make such matters clear.
Do members have any other issues to raise? I will return to the recommendations in a second.
Did we agree to Elaine Murray's point about paragraph 52?
We agreed to reword that paragraph. Elaine Murray phrased it well and members nodded.
It might be worth putting in a phrase about taking resources away from the most vulnerable.
The committee's view was that the issue should be presented positively and that people who have severe learning difficulties should be properly looked after. Positive wording can be achieved; my point is just that the first sentence has an undesirable implication.
That is right. That sentence sets the focus. Adam Ingram asked whether the middle of the paragraph should be firmed up. I am not averse to returning to that if members want to think about it for next week.
So with Lord James Douglas-Hamilton's amendment, the paragraph will say something like, "The committee believes that"—
The clerks are brilliant at sorting out the wording to the committee's satisfaction.
I would like to clarify what I think we are saying. The committee is saying that it believes that the bill will ensure that the most vulnerable—I am not sure whether we want to use that word, but we want a word with that meaning.
The phrase "children with the most significant barriers" could be used.
That is right. We should say that the committee welcomes the fact that the children who face the most significant barriers will be given the support they need, but the committee also welcomes the assurances that the system is not designed to give children with CSPs additional rights.
We should say that the committee supports the policy that the most vulnerable children should receive priority support. There may be a debate as to whether, under the bill, such children will receive such support.
There are two different points. The main point that you are making is that children with additional needs have barriers in their way. The bill is designed to give them help in surmounting those barriers.
There is no problem about that.
However, the second point is that—
With respect, Ken, I have no doubt about the clerks' ability to sort out a suitable form of words to your satisfaction and that of everyone else.
We will come back with a final view on that issue next week.
It needs rewording.
They have different rights rather than additional rights.
They will have additional rights. I think that there are no two ways about that.
The issue is that people must be reassured that young people's additional support needs will be met. The bill's intention is that, whether or not young people have a CSP, their needs will be met and the barriers that they face will be dealt with. People need reassuring. The worry for many parents is that they will have what they perceive to be reduced rights.
Okay. We will obviously need to return to the final version of that recommendation. If we are done with that section, let us move on to the next.
I want to make just one point. Basically, the CSP is supposed to co-ordinate things. Consideration needs to be given to ensuring that all children have the same rights, whether or not they have a CSP. We need to talk about that again. I know that we will come to the tribunal system later in the paper, but there just seems to be such a contradiction there.
That is the general point. I appreciate that you want to keep making it, but it does not particularly advance our work for you to do so.
I have to keep reminding people. The CSP is supposed to co-ordinate the agencies that are involved with the young person.
It will do more than that.
If we are saying that the CSP will do more than that, what other rights will children with a CSP have that children without a CSP will not have? There is the right to go to the tribunal and so on—
I seriously think that we should leave that issue until we come to those sections in the report. If there are hangover points, we can return to them and to that general point next week.
Perhaps the issue is not so much the need for stronger powers as for clarity as to how those powers would operate.
I think so. That is what I was struggling towards.
It would be helpful if the sense could be added that there should be enough procedures in place to ensure that agencies must deliver.
The issue is about the process that would be followed if a health authority did not follow through in spite of a tribunal direction. I do not doubt that the minister would have powers—as he said—to enforce such decisions if necessary.
I rather doubt whether there is an issue to do with judicial review by an individual in that connection. It is the local authority that has the right to pursue that duty, is it not? I wonder whether there are issues about timescales, documents and directions by the local authority that would have to be dealt with by the code of practice, which is one of the areas in which powers are given.
The specific point about timescales and reports is addressed in the bill. It gives the timescales by which other agencies are expected to report, does it not?
I did not think that that point was addressed. One or two of the people who have commented on the bill in writing have made the point that there should be timescales in some instances.
I think that that is one of the most important aspects of the bill. One of the areas that I have most concerns about is how we ensure the kind of health services that youngsters need are delivered. As a committee, we must reflect on the fact that we need reassurance that that can be done. We have not, as yet, had an explanation of how it will work in practice.
There would be general agreement on that in the committee, but I do not know whether we can go much further in the stage 1 report than simply flag up the issue and demand that the minister give us a bit more detail.
I am happy with the wording. It is vital that we say that, because there are still outstanding concerns in this area.
We might want to push particularly on the areas of shortage. There are already waiting lists for speech and language therapists.
That comes later, under training resources.
Yes, but it is also relevant to our concerns about this section. We must point out that we have those concerns because we know there are shortages, although that is not the only reason. We want to improve the system to give access. I would also like to clarify whether a child who receives speech and language therapy only, and for whom that is the only need, would have a co-ordinated support plan.
If they had complex needs—
If their only need is for speech and language therapy.
It depends on how complicated it is.
That shows how difficult it can be to decide where we are heading. Some children will receive speech and language therapy because they have some debility in their speech. That may not impede other aspects of their learning, but there will still be a requirement for speech and language therapy. Does that mean that, if they do not have any other needs, they might not get a CSP?
That is probably right in that situation.
We have to consider those areas as they arise. The code of practice will really have to clarify all those aspects. At present, there are lots of young people who should be getting speech and language therapy who do not get it.
Is not the point that, even short of co-ordinated support plans, co-ordination will be needed in some of the less significant cases? The code of practice should deal with that, and I am sure that it will.
We should be pointing those things up.
I made a point about concern about outside agencies, but perhaps we should widen it. We heard evidence that pointed to concerns about what happens when youngsters leave school and the importance of on-going post-school provision.
That is also in a later section.
Does not that come under integrated working and joint responsibility?
It sort of does, but I think it fits more readily with the issue of 16-year-olds.
I do not mind. I just wondered whether we should try to link in that suggestion when we make that particular point.
We are talking about a different issue. We are talking not about agencies co-operating at school level, but about the time of transition.
Well, that is when co-operation takes place. In that case, I am happy to leave the report as it is.
Perhaps we should beef up the education authority's lead role so that it has more clout or leverage. Is it absolutely essential that section 19(3) is in the bill? After all, it appears to contain certain get-out clauses.
I feel that you are criticising not section 19(3) as a whole, but section 19(3)(a) and (b).
Aye. Legally, does that section have to be in the bill? We could suggest that, if it were removed, other agencies could appeal to the minister if they think that the education authority is being unreasonable. Such an approach could short-circuit any tendency to delay or remove the prospect of a dispute.
We could do that in different ways. I cannot think how section 19(3)(a), which refers to a request that is "incompatible with" an agency's
Can we capture that in the stage 1 report and recommend that there should be amendments to ensure that that is the case?
Is that the general view?
I am not sure that I necessarily agree with that.
I am not necessarily singling out this provision, but we must consider ways of taking some of the friction out the system.
Is it fair to say that the committee expects the other agencies usually to comply with the education authority's requirements and that we would appreciate clarification from the minister about how that would work in practice?
We could also ask whether the bill could be strengthened to ensure that that is the case.
Yes. We could find out whether it would be appropriate to strengthen the provisions in that regard.
Could we also seek some clarification about section 19(5)?
I think that the point is the same.
That subsection refers to the education authority.
The difficulty is that this is an education bill, but we need some reassurance that the Executive is considering imaginative and creative ways of ensuring—
Capability Scotland made the same point about the need for co-ordination outwith education authorities and other agencies and within education authorities. Even within the education sector, there are times when someone else has to provide something you want but it is not done right.
Co-ordination does not begin only when a CSP is implemented. After all, youngsters with IEPs also require co-ordination. Indeed, co-ordinating provision within a school, never mind outwith a school, is a huge job. We need a co-ordinated approach across the board.
We have stressed that point down the line. I think that the recommendation needs to be rephrased in light of our discussion. Martin, can you do that?
Yes, we can.
We will try to take on board some of the suggestions that have been made.
If we are going to go along this particular route, we should go a bit further than what the minister has suggested and recommend an interim co-running of the records of those children who will not get a CSP.
Paragraph 65 says that
We heard evidence that some local authorities were allegedly stopping doing records of needs. That would obviously not be right and not in accordance with the law. Lord James is making a fundamental point about how we tackle the transition.
Lord James made this point earlier and it was flagged up at our very first meeting back in the summer. I am not sure whether the bill will fail them, but it will certainly do a disservice to many people if they have a record of needs and will not qualify for a CSP and feel aggrieved. The first and obvious solution was to have, as Lord James suggests, some sort of transition arrangement with schemes being run in parallel. We have also heard arguments against that. Lord James speaks about five years, but they could run for 13 years because a person can have a record of needs long before they go to school. That would not be a desirable state of affairs.
Short of running it for the whole school period, you could run it for an extra year or until the end of that stage of schooling or something, if you were so minded. I am not necessarily saying that that is the right way, but you could do that. That would be one way.
I understand the logic of what Ken Macintosh is saying. The good faith and good will part of this bill would lead me to support that, but we have to consider realpolitik and experience. That brings us back to the issue of trust. The bill must ensure that there is trust and our report must reflect that. Paragraph 65 says:
I would rather approach the problem from a different direction. To transfer everyone with a record of needs to the CSP system would cause major problems, as CSPs would be prepared for people who would not otherwise have been entitled to them and a precedent would be set. The whole system might begin to founder.
We must hang on to the central point, which is that if the bill's formulation of local authorities' wider duties works, people's fears will prove not to have been justified. Over time, people will be reassured by the fact that the system is working. No doubt there will be hiccups, as is always the case in such matters.
Perhaps we should ask for legal advice. In an ideal world, it would not be desirable to run two systems, but I do not think that it would be legally feasible, either.
To do what?
To run two systems in parallel for an interim period.
I do not think there is any doubt but that it would be legally feasible. For example, under housing legislation, people retained their secure tenancy status after the law changed. Indeed, different systems ran in parallel for years. That might not be desirable, but it is certainly legally possible.
That is not the evidence that we heard.
If I have understood correctly, that evidence related to a slightly different point, which was that people who have records of needs cannot be given an automatic right of appeal to the tribunal under the criteria that will apply to CSPs. I am not saying that a mechanism could not be devised to allow tribunals—perhaps for a temporary period—to opine on matters that are currently within the remit of the record of needs system. As I have said privately, I am certainly attracted by the idea of widening the jurisdiction of the tribunal, either when the system starts or over time, partly in order to deal with that issue, because people are more concerned about enforcement and rights than the bit of paper and schools' practice. It is a complicated area.
I am reconciled to the reality that we will not reach a unanimous view on the matter.
I am not sure whether you are right. Committee members have concerns about the issue, but the question is, what is the mechanism for tackling it?
From the point of view of administrative convenience, it is difficult to run two systems simultaneously, but it is not impossible—it has been done before.
I do not think that there is any disagreement in the committee. The problem was one of the first problems that we identified and we are still wrestling with it. We have come much further in the past few months, but all of us can see the particular need. Those of us who have dealt with cases involving a record of needs or additional support needs in general have experience of how stressful, difficult, disturbing and damaging it is to families to battle for a record of needs and of the value that they put on such a record. Would we do a disservice to the whole bill by suggesting the route that Lord James Douglas-Hamilton suggests? Perhaps there could be a transitional arrangement—I am not 100 per cent sure about that—but I worry that everything that we stand for would be undermined. I hoped that there would be another way of doing things.
Is that not reasonably clear? They value the bit of paper and the appeal mechanism—not just the provision, but the other things that are given by it, as we have always pointed out.
The committee should ask the Executive to consider whether there are other ways of reassuring parents. We have taken evidence and have asked a specific question about parallel systems. I do not suppose that anybody has the Official Report of what has been said, but we did ask a specific question.
The minister was against the suggestion that was made. There is no compelling reason why such things could not be done, although I am not saying that they should be.
I cannot remember what was said. It would be useful to see the Official Report.
I think that I asked the question and that the minister replied that he would prefer not to have two systems running in parallel, as the convener recollects. If I remember correctly, the minister also said that he would consider the committee's recommendations and representations.
It would be useful if we could see what he said.
We are at a crucial point and the issue is difficult, but I am sure that we can capture what we are trying to achieve without necessarily reaching a conclusion one way or the other. Perhaps that is beyond us. I wonder whether we could go back to the parents or families whom we are discussing. The submissions that we have received have been based on the idea that the record of needs could be preserved in some way or transferred over to CSPs, although one could argue about the number of CSPs that would be involved. We could start from the assumption that a CSP is not the same as a record of needs and that CSPs will include only half of the families who currently have a record of needs. We could ask families what we could do to give guarantees. The minister has already done many things, which we should welcome, and he is clear about his intentions. However, he has not got there yet because there is so much mistrust, which we keep talking about. Rather than try to achieve the aim through bland expressions of good will, it would be better to ask for a practical way forward.
Do you mean that we should go back to the groups such as Dyslexia in Scotland, the autistic societies and so on?
Exactly. We should also go back to Lorraine Dilworth and many of the other people who have practical experience of using the current system.
That does not take us away from flagging up a transitional theme in the report and saying that we are looking for something further to be done about that. If the idea meets with the agreement of the committee, we could mention that we will make those further inquiries in the meantime.
We must flag up concern about transition and state that the children and families who currently have a record of needs have got to be the top priority. We must be explicit about that.
Yes. I will again refer to housing. I remember that when we changed the right to buy, one of the important underlying propositions was that people who had existing rights should not lose those rights. Rightly or wrongly, the Executive has taken that approach on a number of issues. People have rights now and whatever the future system is, those rights will not be taken away. That is a helpful approach to the issue.
Surely the whole point of the bill is that nobody should lose rights that they currently have. There should not be a perception that people are losing rights. The issue is what they can do to ensure that those rights are fulfilled.
People may not be losing services, but they are clearly losing rights. They are losing the right to have a determination of a record of needs issue at a higher level.
Perhaps that is the issue that needs to be examined, so that we can see what needs to be done to reassure people and give them the opportunity to appeal when they feel that their rights are not being fulfilled. That is where the issue is; it is not so much—
One example of that is that under the record of needs there is a right to regular reviews.
There is a mechanism under the existing legislation under which records of needs go higher up—they go to appeal committees and after that they go to the Secretary of State for Scotland—or the Scottish ministers in the current context. I suppose that that jurisdiction could be transferred to the tribunal as a practical method of fulfilling that right. Again, we would need legal advice on the possibilities of such a measure.
Perhaps we could take some sort of interim position. We could state explicitly that, although we welcome the minister's attempts to meet and reassure parents, we recognise that he has not so far succeeded in reassuring them and that, as there is a difficulty and mistrust, a great deal of effort will be required to address the situation. It may be that we require some sort of transitional arrangement, but we are looking to the Executive and to others to use the current period to address the situation. Even if we can get that grain of an idea here, there is still the whole period before the bill comes into force in which to address the matter. There is quite a base of comfort, as it were, but we should state in the stage 1 report that we are not convinced that the minister has got it right yet, although he is trying; that we are looking for further efforts to be made; and that, in the meantime, we will also look at whether it is necessary to put in place transitional arrangements.
Right. Let us see whether we can keep the nub of that. Does that approach meet the needs of the committee? Can we unite round that or do members have qualms about it? We are not saying that the precise mechanism is X, Y or Z. We are saying that there is an issue to be dealt with. We acknowledge that we are not sure of the precise mechanism that should be used and that we want the minister to examine the matter further and we will consider it further, but we recognise the perception that has to be tackled. Does that meet the needs of the committee?
Yes, although I think that we may want to make some suggestions as to what could be considered, without saying that it is what we necessarily think should happen. That would give a flavour of what could happen.
We have made a number of suggestions during the meeting. Perhaps those can be drawn together by the clerks and put in the report.
The danger is that the draft report confuses some of the different time frames in which we need to have reassurances and guarantees. Paragraph 63 deals with the here and now. There are, basically, three periods in which there are problems. As of now, we are concerned that the minister's guarantees may not be being met.
I think that we have all accepted that that is the area of paragraph 63.
Paragraph 64 talks about the new system. Our commentary talks about the new system, but the quote—
Can we separate out the recommendations, so that one attaches itself to paragraph 63, on the current position, and another is on the more important, longer-term issue?
Right, but the quote and the evidence that we had from the minister refer to his current letter to chief executives, saying that, while the bill is being considered, they must ensure that people's support needs continue to be met.
No. I do not think that that is what he said. He said that, after the bill comes into effect, people will continue to have their existing rights. That is the longer-term position.
My understanding is that the letter that has been written—I have seen the letter that has gone to chief executives—is about the current system rather than the new system. If the minister is now saying that he has written a separate letter, that is fine. We have to separate out the existing situation before we get the legislation; the transition period, when we get the legislation; and the future situation.
We could perhaps get hold of a copy of the letter to the local authorities before next week, to clarify that. When the minister spoke to us, he was talking about the guarantee that provision will continue to exist after the bill comes into effect.
So, we can put a recommendation in paragraph 63 that we need to have reassurances about the period before the new legislation comes into force.
Yes.
Fine. Then there is the transition issue, on which we are agreed. The question then is whether, after the bill is implemented and we have gone beyond the transition period, we are happy.
Yes.
We need to say that we welcome the minister's reassurances but that we recognise that there are still some parents who have concerns. I am in touch with some parents groups and have spoken to other parents groups that are extremely happy with the bill. I do not think that we are at a stage at which we can make concrete suggestions. We just do not know—
Well, we are not doing that. What we are doing is recording one or two thoughts that have been put forward against the background of the question, "What's the way of doing it?"
I do not know whether we have had enough discussion to warrant that. The minister should look again at transition. It is important to state that those young people who currently have records of needs should be the top priority. There must be a clear transition phase and those pupils who currently have records of needs must be top priority. We should be explicit about that.
I think that that is what we have agreed. It is the formula that we have been talking about. Are you happy with that, James?
Yes. The form of words in the draft report does not preclude our lodging amendments at a later stage.
No, absolutely not. It precludes neither what we do at stages 2 and 3 nor the phraseology that we use when we come back to approve the report next week.
I recommend that we defer consideration of this section until we get the correspondence from yesterday's meeting with COSLA.
Yes. I have no personal observations on it as it stands.
Are we able to make reference to the letter that we have subsequently received from the minister, which clarifies the relationship between PLPs, IEPs and CSPs?
Yes, I think that we can. Although the minister's letter will be part of the evidence, one suggestion was that we should attach it as an appendix to the report. That would be quite useful. Among other things, it would save our having to put in the financial stuff in detail, as it is all laid out in the letter.
It would be helpful if we could ask whether the minister could give us a timetable for the bill's implementation.
The minister said that in his evidence, did he not?
To some extent.
It might be worth making a reference to it in the report.
I do not think that he gave a specific timescale.
He did not give one for PLPs.
I think that we are entitled to ask whether he can give a more specific timescale.
Perhaps it was a throwaway line but it might be helpful for the report to record the minister's statement about how long it will take for the code of practice to be discussed and for the proposed legislation to come into force, because he said something specific about that.
We have to be explicit that the committee feels that a single system is more inclusive. We welcome what the minister has said about that, but it is important that any further development of PLPs, IEPs and CSPs should be done in an integrated way. The parts of the Executive that are considering PLPs are different from those that are considering CSPs.
That is crucial.
I do not know that the minister's description of PLPs and IEPs as a "light touch working tool" is particularly helpful. There might be a perception among parents that the IEP is the Mini to the CSP's Rolls-Royce, as it were. I do not know whether the Rolls-Royce is driven by a bald, ugly man or not.
You have a hitherto unsuspected flair for graphic language.
One of the major concerns that parents have is that the CSP is the desired mechanism that they have to get in order to have a passport to services.
Is the central point there not the desire expressed by the minister to have a system that is as free from bureaucracy and red tape as we can make it and that has as light a touch as possible?
Is it robust enough to deliver on the demands for additional support needs?
I noticed a couple of good comments in the evidence. Professor Sheila Riddell said:
Obviously paragraph 76 will change in light of the letter that we received from the minister. I am not sure whether it is appropriate to include this in the bill, but somehow we want to call on the Executive to provide a clear explanation of how IEPs and PLPs will ensure that the proper support services are provided for those children with additional support needs who are not eligible for a CSP. We want a practical explanation of how those tools can and will be used to ensure that support needs are met.
We should not lose the idea that there should be a single document if at all possible.
PLPs and IEPs have as much of a role as CSPs have and we should make sure that that is emphasised throughout the report.
When consultation and discussions take place on the code of practice, we should clarify the situation. If we hope to phase in one means of planning, which may be the PLP, we must examine good practice with IEPs and incorporate that into the PLP at some stage. If there are two means of planning, there will be a paper chase and confusion about who gets what.
There is a linkage with other plans, such as those for people who are in care.
I want an integrated system, but one that has different stages to meet children's needs. Some children require more complex ways of working in schools to meet their needs. An IEP requires huge amounts of co-ordination. One difficulty with the introduction of PLPs is that teachers are worried that they will mean additional bureaucracy. I welcome the minister's comment that the integrated system recognises the need for a light touch, but we need a system that is strong enough to meet more complex needs.
Given that the bill concentrates on CSPs but that the evidence leads us to say that IEPs will be important for a great number of children, should our report not push that perspective? Although, for legal reasons, IEPs might not be covered in the bill, that does not undermine their role. There are mechanisms through which the Executive can reinforce that role.
I have one small point. We have some evidence that IEPs, which have been seen as a desirable way forward in many respects, are of variable quality—there are good examples but also pretty awful ones. Perhaps in that context we should make the observation that the issue of standards must be tackled.
Absolutely. The code of practice is central.
Yes. If members are happy with those comments, we will have a revision of that section of the draft report shortly.
In a previous meeting, I said that the DRC made that point, but I cannot remember whether it was the DRC or the gentleman from Sense Scotland. Perhaps the clerks will check that, if they have not already done so.
I ask that the word "urges" in paragraph 83 be changed to "asks".
Okay. Are members happy with that section?
Assessment, which is an important issue, is covered in paragraphs 84 to 93. A lot of the section is narrational, but I have a couple of comments. We have received a lot of evidence that people are concerned about how the process of identification and assessment will work in practice—the point has also been made to me in private conversations. It is fairly obvious that, in some cases, an issue will arise in the course of education provision, something will be done about it and the situation will then move on. In other instances, issues need to be identified and tackled early, before school provision kicks in. Issues were raised about the cases in which specialist assessment is needed, but it is clear that multidisciplinary assessments are needed in complex cases. The question is about the best way of triggering such assessments.
I agree with much of what you have said, convener. We might be in danger of overloading the code of practice, but there might be a way in which we could use the code to tackle the issues raised in paragraphs 90 to 93, which deal with the two different points of view involved. Local authorities do not want an open-ended demand; I believe that they suggested to the Executive that an ability to decline a request for an assessment be included in the bill. On the other hand, we all know that one of the most frustrating and difficult tasks facing families is getting a diagnosis. They have to fight hard to get one and it is often the local authority that they are fighting. We have to balance those elements.
We should welcome the end of mandatory medical assessments. However, we have to reflect the concerns that some groups have raised. Specifically, it is important to mention the concerns of groups representing youngsters with autistic spectrum disorders. Often, it is wrongly assumed that a youngster who presents as having behavioural difficulties has Asperger's syndrome. It is important that we say that. The code of practice will be vital in that regard, as there will be some hidden barriers that will not be picked up unless a youngster has further assessment. Similarly, youngsters are sometimes wrongly diagnosed as having dyslexia when they actually have another form of visual impairment. We must be explicit in saying that the code of practice has to ensure that, where there might be hidden barriers to learning, wider assessments should be put in place.
Yes, that is right.
That would also cover those children with a dyslexia problem, which often is not identified.
I think that we are all agreed that assessment is the key to accessing services. From the evidence that we have received, I understand that the code of practice will cover the process up to the point where, under the current system, the child is considered for a record of needs. That will include IEPs and that type of thing. It is to be hoped that the code of practice will institute best practice across the country—that would be a positive step. However, we need reassurance that assessment beyond that point will be attached to the child's action plan in the IEP or CSP, because assessment does not come automatically.
Are you talking about reviewing the assessment from time to time?
Yes. The action plan should be reviewed on an on-going basis. Among the considerations should be the requirement for assessment over time, because, as we all know, assessments are not available automatically. We need reassurance that that will be built into the process.
That is an issue for the code of practice. I would be reluctant for the bill to get too formulaic about that. The issue is how the system operates in practice, which requires a light touch.
If we take away compulsory assessment and put the onus on parents to call for an assessment, people might fall between two stools. It is important that the assessment process is built in.
The ability to request an assessment is an extra right for parents, rather than the normal arrangement, as I read it. Best practice will be for the authorities to pick up issues as routinely as possible. However, if they miss things, parents will have the right to challenge the set-up and trigger an assessment.
But, as we know, not all parents are as informed as they could be.
That is why I am saying that the code of practice is important.
There are two aspects. Adam Ingram dealt with the first well, which is that we must ensure that we cover those children whose parents do not demand an assessment. I support everything that he said on that.
There is also not much guidance on valid reasons for refusal. That might be dealt with in the code.
We do not need to be specific about what we should do—that is for stage 2—but we should make it clear that we are concerned about the balance in the bill. More reassurance needs to be given, whether that is done in the bill or elsewhere. There is no point in having a new right if it is then—
I seek guidance from other members on that point.
I disagree with Fiona Hyslop. The right is new and I welcome it. It is not possible to say that the system is not balanced. In a sense, that is something that we will be able to see only when the legislation is in place. Someone might raise the issue as a concern, but we have had no evidence of what will happen. As I said, the legislation is not in place yet.
I have a point about paragraph 92. We know that witnesses were worried about the authority's right to refuse a request for assessment. We have to agree whether those concerns are well founded and, if so, whether something has to be done. We can otherwise make a note that people are worried. We have to acknowledge the concerns that have been expressed. With good faith and good will, assessment will not be an issue. However, we know that, until now, it has been an issue in practice.
Would it be fair to say that there is at least a need to have clarification of what are valid reasons for refusal and what are not? That would move the issue forward a little. The secondary question is whether there should be some sort of appeal mechanism. I am not sure whether the dispute resolution procedures were supposed to kick in at this point. That may have been the case, but I am not sure. Shall we seek clarification from the Executive about how it sees the provision operating in practice?
I think that we need to do that. I share Fiona Hyslop's concerns. It is great that parents have the right to request an assessment, but if we end up with a situation in which no reasons of substance have to be given for a refusal and there is no recourse for parents after a refusal, the provision will not be such a great improvement.
Let us get clarification on the issue.
The point about an appeal mechanism is important. There will be a number of borderline cases.
Yes. That point probably comes under the broader issue of tribunals, which we will look at in a minute. Do members have anything else to say on assessment or identification? Assessment is an important matter, but we may have covered all the issues.
I say to Adam Ingram that the bill states that CSPs must be reviewed annually.
I assume that that applies only to co-ordinated support plans; I was also talking about IEPs and about building in an on-going assessment.
It would be useful to clarify the right of review for IEPs.
The bill does not deal with IEPs.
That is the problem. How do we ensure that those with additional support needs get access to reviews?
I think that a code of practice issue is involved. We should seek clarification on the point.
Although this point also applies to the next section, one area that I am keen should be beefed up concerns advocacy. Advocacy must be a major issue in the report. We say:
Yes, that is a valid point. Let us include a reference to the importance of advocacy in relation to assessments.
May I ask a question? I am thinking of a child with cerebral palsy, for example, who is in the public sector education system and needs classroom assistance. If the parents decide to put the child into private education, who pays for the classroom assistant? Does the right of the child to additional support override the fact that they are being educated privately?
I was going to raise that point, albeit in a slightly different way. Reference is made in the evidence to the context in which charging should apply. I do not know the answer to the question, but I think that it has to be seen against the background of the power and the duty issue and where the extra support comes from in respect of educational or other provision.
The child has not done that; the parent has. The question is the philosophical approach that we adopt to the rights of the child and to how parents decide how to spend their own money.
How do we encapsulate that? Should we add something to paragraph 98 about what the intention is? No—that is the wrong way round.
The issue relates to several sections of the report; it arises in relation to private education, home education and nurseries. We have all agreed that, unless there are public nurseries in every town, which there are not, people are not opting out of the system when they send their children to private nurseries. In rural areas, and for many working parents, the choice is not available. I am not sure that we can come to any conclusions other than the ones that we have already arrived at, but we can categorise the differences. An answer needs to be provided for all the various situations. I am thinking in particular of home education, which may involve a parent being in dispute with the local authority precisely because—
As indeed might independent education.
The big area is nurse supervision. Clarity on that issue would be extremely helpful.
I thought that we had obtained further clarification from the minister about nursery provision.
No, we have not. I was looking at the evidence.
So we have not had a response.
No. I will explain what my understanding is. You know how two hours of nursery provision are given.
Yes.
If there is a partnership involving a private nursery and the local authority, the nursery gets some kind of payback. It must of course meet the educational standards of the local authority for that provision, but it would be captured by the measures of the bill. If the bill applies to such nurseries, and if all councils are operating a similar system, there should not be a difficulty. However, we are not convinced that they are all operating such a system. Although we have heard an opinion, from COSLA, about how the measures could be interpreted, I do not think that we have heard anything from the minister about that. It would therefore be helpful to list the areas on which we need clarification.
That is fair enough. Rhona Brankin is right to say that we have had some clarification from the minister, although I am not sure that it entirely covers the point.
Do those rights include the right to appeal?
I think that they include any rights that may be exercised by adults on the children's behalf.
That reinforces the point about advocacy.
Yes, I think that it does.
Before we move on to that, could we look at paragraph 100? The Equity Group is advocating a rights-based system. I am still concerned about the differences among the various rights of children, depending on whether the children have a CSP or additional support needs. If we are going to go down that road, we need to consider access. That goes back to the questions of assessment and identification. Where do children go if the authority refuses a request? That has a bearing on the matter.
That goes back to the general issue, because it applies to parents, too, whether or not the point is valid. We can return to the issue when we consider tribunals. The point that paragraph 100 specifically addresses is capacity. We are saying that children with capacity should have the same rights as their parents to trigger whatever it is that they want. That is the bottom line.
I am looking at what the Equity Group said, as is quoted in paragraph—
Yes, I know, but that deals with other issues, too, Rosemary, if I may push on.
Paragraph 106 contains a valid and well-made point by Dyslexia Scotland. However, I am not sure that it is relevant to cite it in this part of the report. Dyslexia Scotland is not arguing against having an intervention, but its point is presented as if it is an argument against having treatment. I do not think that the point was made with that intention.
Yes. I think that the object is to put in place mechanisms to identify and deal with a child's needs and to enable them to take the fullest possible part in pre-school and school education.
I suggest that we take out paragraph 106.
I agree with that, but I was just saying that there is a more general point on the objective of the exercise. I am not sure that the recommendation in this section quite hits the nail on the head.
As well as saying that we welcome the fact that the Executive has an open mind, we should recommend that the legislation should cover children under the age of three. The recommendation should be firmer. We should tell the Executive that, now that it has an open mind, it should legislate accordingly.
When I visited the Craighalbert Centre, it was pointed out to me—as it was to Ken Macintosh and to others who visited—that the children go there to boost their ability to take part in wider society. It seems to me that the issue that the section is trying to highlight concerns children who have issues of that kind.
This is one of the few areas in which there would be a loss of rights. Children between the ages of two and three would lose the right that they currently have. Given that some children are identified at birth as requiring a record of needs, I think that the general duty should apply to all children rather than just to those who are two years of age and older.
I do not entirely agree. For the majority of under-threes with additional support needs, it is the parents who first recognise that something is wrong. That is not always the case, but that is what happens on the whole. At that stage, the health services tend to be engaged with the families. The important thing is that the child's needs are met. The difficulty is that some youngsters under three with additional support needs require input from education services prior to their going to nursery, so that they are, in a sense, prepared for nursery. I am not aware that there is anything in the bill that would impose a duty on health services to ensure that the additional support needs of youngsters under three are met and co-ordinated.
The British Association of Teachers of the Deaf suggested a number of helpful amendments that might do that. BATOD's suggestions were along the lines that there should be a duty on the various services to draw such needs to the attention of the education authority and that there should be a duty on the education authority not only to provide additional and appropriate educational support for such children, but to respond to notifications by health boards and other agencies about children with such needs. That may not be the right wording, but it seems to me that something along those lines should do the trick.
Essentially, we need to say that no youngster should be disadvantaged by the change. That is the worry. A tiny minority of kids have a record of needs opened for them at the age of two, but co-ordination is sometimes required for youngsters at that age to prepare them for nursery.
I do not agree that the problem is only that some will lose the rights that they have under the record of needs. There is the opportunity to do something slightly better if we get the framework right.
Absolutely.
Shall we reconsider the phraseology of the section along the lines that have been suggested? We are clear that there should be a commitment to do something a bit better than the current position, whereby the rights under the bill would kick in when the child is three. We might need to argue about the formulation of that.
That is an anomaly, but I do not know that I would necessarily say that it is an unfairness. The evidence that we received was that having legal representation was not necessarily an advantage.
I accept that entirely. I generally share that view about legal representation before the tribunal, but the bill would create an oddity by taking away existing rights of legal representation for placing requests. Perhaps there is a need for some sort of sift, cut-off, qualification or other mechanism that should put children with additional support needs and children without such needs in the same category as far as legal representation for placements is concerned.
Am I right in thinking that we asked the minister this and he said something?
He was sympathetic to the suggestion.
I think he said something to the effect that he would look at the matter. It is a tricky issue, however, and I do not know how he will resolve it. I believe that he has been considering it since it was flagged up at a meeting of the cross-party group on autistic spectrum disorder, or perhaps since the summer.
At our meeting on 17 December, he said:
Did he not say that he is going to resolve the anomaly?
I beg your pardon; you are right. He went on to say:
On paragraph 110, it is obviously a good thing that more children can request a place in a special school. However, paragraph 114 says that, in order to get into the school,
That point is linked to the legal aid point. I understand that the Dyslexia Institute supplies many parents of children who have dyslexia with a report for an educational psychologist. That is used either to persuade the local authority to change its mind or to deal with other records of needs issues. I imagine that the same situation would apply in relation to the widening of a placement.
So there is a question about what could be used to demonstrate that the child should be allowed a place in a special school and what support parents will have in—
I am sure that it would be possible to get a report; however, that would have cost implications.
We should recognise that, previously, if the child did not have a record of needs, there was no right to request a place at a special school or to request an assessment. Now, however, all children with additional needs have the right to request a place in a special school and the right to request an assessment. That is a huge step forward because those are the issues that come up time and again when we talk to parents. However, it is important that the code of practice should put in place a system that works properly, and that parents and local authorities know how to implement the system fairly.
I am anxious to move on. I wonder whether a word has been missed out of paragraph 115, which reads:
Or "notes". I think that "notes" is good.
"Notes" is not bad, but joining two things together with a single verb is not terribly satisfactory.
In the second sentence of paragraph 121, the importance of firewalls should be mentioned. I think that the minister used the politically incorrect expression, "Chinese walls".
Although that is touched on earlier, it could be rephrased there.
I think that the minister has accepted that principle.
The paragraphs encapsulate the matter very well. I cannot remember whether we received evidence to that effect, but it is important that there be some way of ensuring that the quality of mediation services is high, so there must be some standards for evaluation of mediation services.
In this context, I have concerns about independence, but I do not think that I could go as far as to say that there should never be council mediation services. That is the issue.
That is why I am saying what I am saying about the quality of mediation services. If they are to be of adequately high quality, they must be independent, if they are to fulfil their function.
If they are not independent, people will not use them or—if they use them—they will not like the result. That is the bottom line.
There is a quality issue. I suppose that we could say something like, "The committee believes that it is important that mediation services are of the highest quality and that a system is put in place to evaluate them."
I think that we would agree with that.
Although we have already made the point that advocacy should also be available for young people, perhaps the point should be remade in paragraph 125, because the way the paragraph reads suggests that only parents need such services.
That is a very good point.
I will digress slightly, because I have a point that is more to do with mediation than with advocacy. Although I firmly believe that advocacy should be mentioned specifically in the bill, I quite like the bill's move away from a legalised approach. Reduced confrontation and mediation are important not just for this bill but for the approach of Government policy generally, and I do not want to undermine that. In other words, reference to advocacy—to empower and support, rather than to increase confrontation—should be included.
That is entirely right.
I am not sure that that needs to be stated in the report; I am just putting it on the record.
The committee is strongly of that view; many thoughts have been expressed on that subject.
That represents acceptance of the idea that the CSP will be the passport to everything that a child needs. Fundamentally, the proposed system is intended to be a move away from that, so I would strongly oppose that suggestion.
According to Rhona Brankin's logic, a CSP must not be the passport to resources, but why is it the only facility for accessing a tribunal? That would defeat the tribunal's purpose.
That is my fear, too.
To return to the issue of trust; to allow wider access to the genuine legal rights that a tribunal would confer would go a long way towards reassuring people about the good faith and good will behind the bill. However, in practice, how wide can that access be? Our concerns about the tribunal's ability to meet demand were not reflected in the evidence that we heard from witnesses from the tribunal sector. That is the big issue that we must consider.
I agree with the proposition that to widen the tribunal's jurisdiction might encourage more people to appeal in borderline cases —sometimes with justification and sometimes not—about decisions on whether to prepare CSPs. There would be a lot of appeals, regardless of any widening of the jurisdiction.
It is a difficult issue. I start from the point of view that Rhona Brankin espoused, which was that to widen access to cover all children with additional support needs would slightly undermine the logic of the bill.
Trying to set national standards in the area—
Could I just finish making my point? We have local democracy: local councils are elected, but the tribunal would not be. There should be an element of control. Either we accept that there are different approaches to additional support needs throughout Scotland, or we do not accept that. There is a difficult balance to be struck and there are arguments on both sides.
It seems terribly complicated.
Yes. It might be easier to use the tribunal system. If I could be reassured that the tribunal system would not have all those other effects and would not be overused—or underused—I would not accept that there was a need to invent a brand new system at local authority level. People could use the national tribunal system, which would have the confidence and the trust of parents: the system would certainly get over that hurdle. As long as the system did not usurp the authority of local authorities—
There are technical ways of raising or lowering the barrier to some degree. For example, a chairman might sift through cases to identify issues that it would be worth taking to a tribunal. There are ways to regulate the flow of cases.
As the bill is currently drafted, a tribunal would have a fairly specific purpose, which would be to determine whether or not a child required additional services from external agencies and was therefore entitled to a CSP. In extending the tribunal's purposes we would be changing their nature. There is a need for reassurance.
I am sympathetic to widening the jurisdiction of the tribunal. In time it will set out a series of precedents, which will make it easier for people to determine whether they have a case. Should the sections of the bill be reordered so that advocacy would be first, mediation would be second and the tribunal would be third? I remember that at least one of the witnesses thought that the process would mean that the tribunal came before advocacy. That is an unfortunate and misleading impression that is derived from the ordering of the sections of the bill.
That would certainly do no harm.
We have to make the tribunal system open to all, regardless of whether they have a CSP. People can go to a tribunal to dispute the decision not to grant a CSP and it seems crazy to me that we cannot just take that right through. On local authority tribunals, I would like to see the Executive setting up a system that would be fair and equitable throughout the country.
The system is a central system. There will be an additional support needs tribunal for Scotland. We are not talking about local authority tribunals.
People mentioned local authorities earlier.
That was the dispute resolution stuff, which might be local authority based. We do not know yet.
There seems to be too much. I wonder whether it will be terribly confusing for everybody. I am concerned about that.
I recognise that in the first instance, or during the transition period, there might be more people using the tribunal, but I do not envisage that being the case in the longer term. At the moment not many people get to that situation, although they might like to get to it—we are not talking about large numbers. It is fundamental that we do not design a system that is based around the tribunal, because it should be the last resort.
We are all conscious of the pros and cons, if I can put it that way, and the paradoxes in the jurisdiction of the tribunal, by which I mean the specific functions that the tribunal would have, which would be different if the jurisdiction were widened. There would be a problem if we opened the floodgates to lots of people and the bureaucracy swallowed up the resources. There are ways of dealing with that. All I am asking is whether we should ask the minister to consider whether widening of the tribunal's jurisdiction, perhaps with some sort of sift to keep trivial cases out, would provide reassurance about some of the things that we have been talking about, and allow the system to be equitable and manageable over time. I am not taking a firm view; I am saying that the issue should be considered further and the minister should respond.
I am not sure that we all agree. We can start by saying that the status quo is fine, that the jurisdiction of the tribunal should be widened from the start, or that it should be extended as they progress. All those arguments are valid. It depends on balance and on whether there is a majority view. We must capture the fact that an extension could be helpful, notwithstanding Rhona Brankin's point that the tribunal should be a safety net to provide reassurance, and not a central integral part of how the system would operate.
If the tribunal's jurisdiction was widened, that would take away a lot of the criticisms at the beginning. The practical consideration is whether it is workable to widen it or whether that would land us with problems. I am being tentative because we do not have qualitative evidence on the matter.
Fiona Hyslop is right. We cannot sit on the fence between two very different suggestions, but we can invite ministerial responses, as you suggest.
We are not quite at the point of the final decision, as we will have to make decisions on amendments later.
The options are not necessarily mutually exclusive. If the committee has difficulties, one way in which to resolve them might be to make a more open-ended recommendation.
The problem is about who determines that: Is it the authority, which is not always satisfactory to the parents for obvious reasons, or should there be external resolution? The latter might not satisfy parents either, but at least it would be independent, and would be seen to be so.
We do not know what the dispute resolution procedure will be, but I assume that it will be relatively independent. It will not involve anyone who was involved in making the original decision, but it will still be part of the local authority. Am I right to think that beyond that, there will be recourse to the courts?
You are right to a degree. There will be judicial-review-type things.
But not on the merits.
Not on the merits of the case.
No.
That is the issue. I do not want to dwell on the matter, although I caused this discussion by starting it off. There seems to be consensus that we should ask the minister to reconsider this area and whether a unified tribunal arrangement, which would incorporate dispute resolution and therefore simplify it, should be considered, albeit with some sort of phasing, or with a higher bar to regulate the numbers. We will make our final decision at stage 2 when we consider amendments. Are we agreed that that should be considered or are we in dispute?
Some of us might want to go further, but that suggestion is reasonable for the moment.
Can we unite around that? It is probably fair to say that Rhona Brankin is the least keen.
Are we saying that we welcome the minister's commitment to dispute resolution, but that when he draws up the process—there is little detail on that at the moment—he should look again at the possibility of extending the tribunal system instead of setting up a separate system?
I do not think that the matter is linked in that way. There are two elements: reassurance to those who have records of needs at the moment; and the additional support needs of people who do not get CSPs in the future. We have to join those two bits together in some way or another. We are saying that, as a general proposition on this area of the bill, the application to a tribunal and its jurisdiction might usefully be reconsidered by the minister. The committee believes that consideration should be given to re-examination of the matter to see whether a unified system is appropriate and possible. That is set against the recognised problem that we do not want to open the floodgates to thousands of cases.
I am conscious of the time. Can we finish and come back to the issue next week?
We will come back to it anyway.
It is too important to—
There is another meeting waiting to come in.
We will come back to it anyway.
I am inclined to think that we should stop at this point. There are other issues to come, but we have taken the heat out of much of the matter.
We can carry on the discussion on that particular issue next time.
Yes. When we come back next time, there will be a redrafted paper. Would it be helpful to show where the changes are, as a tracking mechanism?
We can do that.
That would be helpful. We will consider the remaining issues and any changes, and we will finish the paper. However, the background is that to meet the deadlines for the bill, we will have to finish next week.
The report has to be agreed next week.
It would be helpful if members could send their suggestions on the remaining bit of the paper to Martin Verity. That will help him to redraft the paper.
I can sum up in two sentences the complexity about disability, which could require an amendment to UK legislation. There is also a case for consulting the Equal Opportunities Committee on that point.
Could you put that in an e-mail to Martin Verity?
Yes. I will do so straight away.
Thank you. It has been a good meeting and I am grateful to everyone who attended—it was a bit lengthy. I close this meeting of the Education Committee.
Meeting closed at 13:21.
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