Education, Lifelong Learning and Culture Committee, 17 Dec 2008

Meeting date: Wednesday, December 17, 2008

Official Report 314KB pdf

---

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

I welcome Alex Neil, who has joined us for the second item on our agenda, which is stage 1 of the Education (Additional Support for Learning) (Scotland) Bill.

I also welcome Lorraine Dilworth, who is the advocacy manager with Independent Special Education Advice (Scotland), and Iain Nisbet, who is the head of the education law unit at the Govan Law Centre.

The witnesses will be aware that the bill allows for out-of-area placing requests to be made directly to local authorities. Are your organisations in favour of that? Is it a welcome change? Does the proposal strike the right balance?

The bill will do no more than put things back to how they were before the Education (Additional Support for Learning) (Scotland) Act 2004 came into effect. Under the old record of needs system, it was always assumed that an out-of-area placing request to the authority whose school someone sought to be placed in was competent. To revert to that position is only right and proper, as it gives the parents of pupils who have additional support needs the same rights as parents of pupils who do not.

I agree. Parents must have equality across the board, so they need to be able to make placing requests of other local authority areas.

The bill proposes that, where a co-ordinated support plan is in place, a placing request appeal will be heard by the tribunal. Are you content with that suggestion?

Yes, because we have been involved in cases in which there has been doubt about whether the tribunal has been competent to deal with the matter at hand.

In my consultation response, I said—as Jessica Burns, the president of the Additional Support Needs Tribunals for Scotland, said to the committee last week—that any such case involving a child who has additional support needs should go before the tribunal because the process by which it is decided whether a case is dealt with by the local authority's appeal committee, the sheriff court or the tribunal is complex. It would be much more streamlined and cost effective if parents simply went to the tribunal.

I have concerns about using the CSP as the criterion for the decision about which appeals go to the tribunal and which go to the education appeal committees. The system is complex and is not well understood by anyone. In the Gordon case—which the committee has discussed at previous meetings and which has, I think, led to some amendments—the parent was wrongly advised about what was the best forum for the appeal. That wrong advice was given by the appeal committee, the tribunal and the authority: all those bodies had interpreted the law incorrectly and even now there is confusion. I dealt recently with a case in which the authority had initially indicated that there would be a CSP, but it changed its mind. The question was whether the appeal on the placing request would remain at the tribunal.

Confusion will remain under the proposed system and the proposed amendments would serve only to make the system much more complex. I read them on the train to Edinburgh today and I do not see the rationale behind the suggested dividing line. It would serve parents, pupils and authorities better if there were a simpler dividing line. Either we should move all additional support needs placing requests to the tribunal, or we should come up with a simpler dividing line. The Administrative Justice and Tribunals Council and the president of the additional support needs tribunal have suggested that it would be simpler if, for example, all placing requests for special schools were heard by the tribunal and other placing requests were heard by the appeal committee. That would be easy to administer and it uses a sensible criterion that is based on consideration of the likelihood of cases requiring the expertise of the tribunal.

I am not asking you to second-guess the Government, and we will pursue this question with the minister, but can you think why the Government has drafted the amendments as it has rather than going for the much simpler approach that you are proposing, which appears to offer more transparency and be easier for parents to understand?

There appears to be an idea that the tribunal should be focusing on CSP cases. Clearly, those who have drafted the bill have tried to ensure that all CSP cases in relation to which there are placing requests are heard by the tribunal. There seems to be an attempt to address the Gordon case's surprising outcomes, which were not what Parliament had in mind when the bill was drafted.

However, the proposals might end up causing problems that we do not have at the moment because they will increase the complexity of the process. That is particularly true of the proposals that involve remitting forwards and backwards between sheriff courts, appeal committees and the tribunal. Under those proposals, a parent might be involved in a case that begins in one forum, switches to the tribunal and then switches back again. That would be unnecessary and would serve no-one's interests. That is probably why we have ended up with the muddled position that is being presented to us. It is an attempt to get back to the original intention of having a body that deals with CSP cases. However, as it is called the additional support needs tribunal, I can see no reason why a different and simpler dividing line could not be applied.

When the committee heard from stakeholder groups, we were told that there could be some difficulty if two local authorities were involved in the process. Do you share that concern?

I do. One problem involves the fact that health boards span authority boundaries, which can cause difficulties, and the other involves cost implications. When a parent makes a placement request to a host authority—we have put this in writing many times—the authority will consider how much extra it will cost for the child to be placed. The financial memorandum details the costs of dispute resolution, mediation and review of a CSP, the cost of which is, I think, £800. I cannot imagine that any local authority will not look at that and say, "This is going to end up costing a minimum of £800 a year, plus staff time."

There is also an issue about the fact that taxpayers in one local authority area will be paying for the education of a child who comes from another area. I think that such children, and the parents who make the placement request, will be disadvantaged in making such requests to other local authority areas. It will be problematic. We have heard from parents who have been told by a potential host authority that it does not take placing requests from outwith its area, and from parents who have been told by their home authority that they cannot make a placing request to another authority. I foresee problems.

Local authorities have different special school provision and there might be transfers between Scotland and England. Will such issues exacerbate the problem?

The approach that is taken in the bill to mediation and so on will exacerbate the problem, given the costs.

If a child's best interests would be served by their attending a private school rather than a local authority school—irrespective of whether the school is north or south of the border—do you foresee difficult negotiations with the private sector?

Are you talking about children with special needs?

If a child was referred to a private school that had a specialist dyslexia unit, for example, would there be problems? Such a situation would be unusual, but it might happen.

The bill would not change the situation on placing requests to independent or grant-aided special schools, whether a school is in Scotland or England, Wales and Northern Ireland. Parents of pupils who have additional support needs are currently able to make placing requests to independent special schools, but the law does not allow such parents to make placing requests to mainstream independent schools, even if the school has a special unit, because of the way in which "special school" is defined. Such placing requests have never been an option for parents and I do not think that there are proposals to allow such an approach. The issue might be worth considering, although I do not know how common such a situation would be in the independent sector.

The process will remain relatively straightforward. A parent will make their placing request to the local authority that is responsible for their child's school education, and that local authority will determine the issue.

Are you saying that you do not rule out giving the matter further consideration? Some independent schools have specialist teachers and extra resources, which could help to solve a child's problems.

I think that currently a parent would have to persuade their local authority that a placement in such a unit would be a good idea, and it would be open to the authority to make a placement to the unit. However, further amendment to the law would be required if parents were to be allowed to make direct placing requests, given rights of appeal and so on.

Mrs Dilworth rightly mentioned financial constraints on local authorities. Private-sector means to help children would be worth considering.

Currently, if a child is placed in such a unit or in an independent special school, the local authority is obliged to meet the cost, so local authorities tend not to make such placements so that they save money. I am, however, speaking generally; there are particular specialist placements that are cheaper than similar provision in-house would be, where there would not be the required numbers of pupils with special needs.

Can we do more to the bill to ensure that we minimise problems that occur when two local authorities are involved? Should we consider other issues?

I am concerned that section 5, which attempts to clarify which authority bears responsibility, will not do the job that it is trying to do. I hope that problems to do with cross-boundary disputes in which authorities argue about who should bear the cost, which Lorraine Dilworth mentioned, will be resolved to some extent by last week's court decision by Lord Penrose in East Renfrewshire Council v Glasgow City Council. The ruling should put at least some problems to bed.

There is a difficulty with section 5 of the bill, which refers to the authority being responsible for the child's school education and links it to whichever authority is the

"authority for the area to which the child or young person belongs".

That concept of a child belonging to an authority comes from the Education (Scotland) Act 1980, and it depends on where the parent is resident. For children whose parents live in different local authority areas, a new confusing factor will be added by the bill because authorities will become involved that might hitherto have had no involvement with the child's education. That probably needs to be reconsidered.

Claire Baker had some questions about costs, which it might be best to pursue now.

We have discussed the concern that a burden might be placed on certain authorities because of the types of schools in their areas. Concerns have also been expressed about the financial arrangements that will be made between two authorities. We asked the bill team about the matter, and they said that that will be dealt with under the code of practice to accompany the eventual legislation. Are you happy with that? You have just spoken about a need to reconsider section 5.

The bill, with the clarification that is provided by the code of practice, spells out the current position fairly clearly. The home authority will need to bear the additional support needs costs of a child attending a school in a different authority. That is the decision that the court has come to. Section 23 of the Education (Scotland) Act 1980 act spells it out relatively clearly. There is probably no need for further legislative change in that respect, notwithstanding what I said about the need to clarify the provisions of section 5 of the bill.

The problem is probably one of practice. Where there is a prospect of additional costs, local authorities can be reticent about letting parents know that they have options in neighbouring local authority areas. In our casework, I have come across the problems to which Lorraine Dilworth referred. The host or receiving authorities can, for their part, be reticent about accepting placing requests from parents in other local authority areas, because they know that they might have a fight or an argument on their hands in trying to get the money from the other authority.

I do not know whether the code of practice is enough in itself. Section 23 of the 1980 act contains a dispute resolution mechanism for cases in which two authorities cannot agree how much money should be transferred between them. Such cases could go to the Scottish ministers to determine. Lorraine Dilworth and I are probably united in saying that we do not really mind what the arrangements behind the scenes are for two authorities arguing over who is paying what to whom, as long as that is not used as an excuse to delay or refuse placements that otherwise ought to be granted.

Evidence that we have taken indicates that local authorities may refuse requests on the basis of cost. Could Lorraine Dilworth give us any examples? Is that a common complaint? Is that something that parents have to deal with?

Placing requests that have been refused to parents who have approached us tend not to have been refused on the basis of cost alone. What is the wording, Iain?

It is to do with the balance between cost and suitability.

Yes—the grounds of "respective suitability" and "respective cost" are the argument that local authorities tend to use. The requests that we have been dealing with have been for independent and grant-aided special schools. In the case of a local authority school, the reasons are usually that there are no places, or the authority would have to employ another teacher, or are to do with the age, aptitude or ability of the child. When it comes to independent school places—for example for the Royal Blind school or Donaldson's school for the deaf—authorities use the grounds of respective suitability and respective cost. Those two issues feature in the one reason that is given for refusal.

The existing legislation refers to reasonable costs. In the case of Boyd v South Lanarkshire Council, which I know Iain Nisbet is familiar with, one of the council's arguments was that it was beyond reasonable cost to locate the child or to agree to the application for a placement at a school south of the border, as it was in that case. Is there a need for a clearer definition in legislation of what constitutes reasonable cost?

The 2004 legislation says that the court or tribunal should have

"regard both to the respective suitability and to the respective cost".

Only if it would be unreasonable to place the child in the school of the parents' choice are they empowered to refuse the placing request.

There is a related issue in section 4 of the 2004 act, on the authority's duty to

"make adequate and efficient provision for such additional support as is required by that child".

However, that duty does not extend to anything that would involve

"unreasonable public expenditure being incurred."

There are various points in the existing legislation where cost is brought in.

The code of practice already does a reasonably good job of explaining what is meant by "reasonable costs". It also says that costs should not be the sole consideration, and that authorities should consider to what extent a resource or something else that carries a cost would benefit more than just the one child—it might be something that could have a wider benefit, and costs would be considered as part of a long-term view, too. Any initial cost should be considered if it might bring a benefit for a number of years. Given the wide variety of things that might involve costs, that is about as far as the code of practice could reasonably be expected to go.

The code of practice has, at the moment, the status of guidelines. Is there a need to put it on a statutory footing?

It is already on a statutory footing, to an extent. Not all Government guidance is mentioned in legislation. In this case, there is a requirement for tribunals, courts, authorities and appropriate agencies to "have regard to" the terms of the code. My experience has been that courts and tribunals accord it appropriate weighting.

Yes—I have found that the tribunals pay a lot of attention to the code of practice. Officials have acknowledged that certain parts of the code of practice need to be rewritten, because they are so vague or are open to many different interpretations. I am not sure whether the code needs to be put on a statutory footing, but it certainly needs to be tightened up, with more explanation added to it.

I return to the Boyd v South Lanarkshire case. One of the issues that arose in that case was the alleged disregarding of elements of the code of practice by the council. That caused some of the problem, albeit not all of it. Are you saying that clearer definitions are required in parts of the code of practice?

The code could certainly do with some redrafting. Parts of it perhaps do not go far enough, while other parts need to be redrafted because they are misleading with regard to some of the regulations. Overall, however, the code is a useful document, and I do not have any concerns that it is not being accorded appropriate weighting by tribunals and other decision-making bodies.

I return again to the Boyd v South Lanarkshire case. And there are other cases like it. In that case, a sheriff court took a decision—on a legal point—not to award, or agree with, a placement. The child concerned still has five or six years of formal education to go. Would you agree that, in such cases, it would be appropriate to have the right to appeal to a tribunal, notwithstanding the decision that had been taken by a sheriff court? Should the bill make it possible to ask the tribunal to revisit decisions in such cases?

It is certainly open for parents to make a fresh placing request at any time. The legislation states that, in relation to appeals of placing requests, a 12-month gap must be left, so in cases such as the one Alex Neil describes, in which the child still has five or six years of their education to go, it would be open for parents—

You would need a CSP.

To make a fresh placing request.

On who would decide the appeal, Alex Neil is right that it would go to the tribunal only if there was a CSP, unless Parliament were minded to change the criteria, as we have been discussing. The case that he mentioned involved a special school. If Parliament were to adopt the proposal by the president of ASNTS that all special schools cases be determined by the tribunal, that case and others like it would be determined in that forum.

I turn your attention to who has responsibility for reviewing a CSP. The bill proposes that the host authority will take responsibility for reviewing the CSP and that the review should happen

"as soon as practicable after the date of transfer."

Are there any difficulties in sharing information and co-ordinating provision between local authorities, especially in cases in which there is an out-of-area placing request?

When there is an out-of-area placing request, the home authority—the authority in which the family lives—no longer has any, or at least has very little, involvement in the child's education. In such cases the provision of education tends to be relatively straightforward. That is probably a better system than the old record of needs system, in which one authority was responsible for things that happened at school, another authority was responsible for the educational psychology input and so on. That could sometimes get a bit difficult. When there is an out-of-area placing request, the authority in whose area the school is will take control. That is probably a good system and a better way of dealing with the situation.

When an authority has bought a place in a school in another authority's area, or has reciprocal arrangements with another authority—as sometimes happens between neighbouring authorities—it is up to those authorities to ensure that whatever arrangements they agree to in respect of that external support work well. My experience is that when authorities have come to such arrangements themselves they tend to have fairly good arrangements. I do not have particular concerns about how sharing of information or co-ordination between authorities works in such circumstances.

Does ISEA have any different experiences?

I have a case in which a family has moved from one of the islands to a mainland town. The CSP was completed to the parents' satisfaction on the island and was very detailed. The receiving authority has, in the parents' opinion, ignored the CSP and is in the process of reviewing it—as is an authority's right because the child has come in. As I have said to the parents, the process will take a long time because none of the professionals knows the child and they need to get to know them. In the interim, the child is not receiving what is currently in the CSP. We have suggested to the authority and to the school that they should contact the professionals on the island who have worked with the child, but a barrier has gone up and they have said, "No. We'll do our own assessment." In that case, there are particular problems.

Do you think that the bill will address such problems?

Time limits need to be placed in respect of by when reviews of CSPs should be done. It would be helpful to the children and the parents if the local authorities worked within such timescales.

Yes—the bill currently just says "as soon as practicable".

Yes. The matter can be referred to the tribunal if authorities do not meet the timescales. A number of references that were made to the tribunal within the first and second year were about local authorities not complying with the current timescales. It is black and white.

Timescales are set for other provisions in the bill and that is something that you would welcome for this provision.

The issues that you have just described are quite different from those that the Govan Law Centre outlined, which says that it has not come across any particular problems. You have given an excellent anecdotal example of such problems. Will the provisions of the bill have a positive or a negative impact?

I do not quite understand the question. Could you repeat it?

The responsibility for reviewing CSPs will be with the host authority: that will address the anecdotal example that you gave. However, the Govan Law Centre remains to be convinced on that point. What would be the impact of the specific provision that is proposed?

It is a difficult issue, because the bill will set up a two-tier system. If a local authority places a child in another authority's school, the home authority is still responsible for everything. However, if the parent makes a placing request to the host authority, everything changes. We will be setting up another tiered system for parents. Either host authorities that accept placing requests from other authorities should take over all responsibility for the CSPs of the children concerned, or home authorities should remain responsible. When legislating in this area, we keep setting up different tiers for parents, which is confusing. All cases should be dealt with in one way—they should not be split up, as is the case at present.

I do not see that as a problem. In practice, where there is a transfer of responsibility, authorities are reviewing CSPs. I am generally in favour of the proposed amendment, which provides a safeguard by obliging authorities to do what they are probably doing in most cases.

Lorraine Dilworth gave the example of a family that obtained a CSP that was to its satisfaction. A huge amount of time, effort, money and commitment must have gone into getting to that stage. Parents are sometimes not absolutely happy with CSPs, so there has to be compromise. If the provision addresses the issue that has been identified, it is to be welcomed. It will be good if host authorities retain responsibility for reviewing CSPs. However, if people move to another authority area—as in Lorraine Dilworth's example—and must go through the whole process again, the needs of the child are not being addressed in the best possible way. I do not understand why, if an extremely detailed CSP already exists, an authority would go to the expense of putting the same amount of work into another CSP, which may not be to the full satisfaction of the child's parents.

The quality of CSPs in the 32 local authorities in Scotland is variable. Some authorities produce excellent CSPs, but others produce one-liners. Why should people seek a CSP when what they get is a one-liner? We have seen that happen.

That is certainly true.

You touched on mediation and dispute resolution when speaking about section 23 of the 1980 act. In its written evidence, ISEA notes that about 75 per cent of parents are unaware of the fact that they can request mediation and that 80 per cent have no or poor information on their right to request dispute resolution. What do you see as the reasons for those high figures?

The information comes from responses to a questionnaire that we sent to the 150 parents with whom we had dealt most recently. There is a lack of information. Some local authorities provide access to the 2004 act, their policy and so on through their website, but in other cases that information is not there.

Parents inform us—we have also seen it—that local authorities are still sending letters that do not give them the right of appeal or information about how they can access mediation and dispute resolution. Iain Nisbet may agree with me on that. Parents are struggling to find out how they can access dispute resolution, which is quite a complex issue. Our questionnaire showed that there is a lack of information for parents. They are happy to go to meetings, but they do not know that they have the right to get papers, agendas and reports. How can someone play a full part in discussions with professionals about their child's education if they do not have the necessary information?

I echo some of the points that Lorraine Dilworth made, which reflect our experience. We run an education law helpline that is funded by the Scottish Government and receives about 600 calls a year. If the course of action that we are recommending is dispute resolution, it is unusual for the parent concerned to have heard of that—it comes as news to most people. My impression is that mediation has a rather higher profile than dispute resolution. Part of the problem is that all but one of the dispute resolutions that the Scottish ministers have received have related to the failure to provide additional support. When the ground for dispute resolution is a decision, there is a trigger that obliges authorities to bring the procedure to parents' attention, but when the issue is not a specific decision but failure to provide support, there is no trigger—nothing obliges authorities to let parents know that they have the right to dispute resolution. That may be the reason for the lack of knowledge that has been identified.

We are undertaking a training process for a number of advocacy groups in Scotland. One of the points that we are trying to promote to them is that dispute resolution is available and, in my view, works well. We want more advocacy groups and parent groups to be aware of it and to know how to make use of it.

We have flagged up the fact that, under current legislation, parents must write to the local authority to request dispute resolution—the local authority is the gatekeeper on the issue. We find that an increasing number of local authorities are writing back to parents to tell them that dispute resolution is not available. In such cases, we have to seek a section 70 order. Even when we write requesting dispute resolution on parents' behalf, authorities do not pass cases on.

That is concerning. You said that some local authorities are good, whereas others provide CSPs that are one-liners. I do not want you to name and shame particular authorities, but have you noticed a trend? Are there clear patterns that indicate where more best practice should be shared?

There certainly are. Some local authorities have very good practice; unfortunately, quite a few do not.

Is there enough sharing of good practice?

We provide feedback to Scottish Government officials on a regular basis.

Presumably, many of the parents who know how to ask for mediation or dispute resolution are more confident than others. Many parents who are lacking in confidence may need extra help to enable them to access those procedures. In an informal discussion, we heard about the situation of Gypsy Traveller children. Is there a definite need to do more to help those children's families, given that they travel a lot and pass through many different local authority areas?

We have identified a need in that area. Armed forces children are also on the move and spend only short periods in local authority areas. Your suggestion that some families are more able than others is interesting. The majority of the 150 families that took part in our survey had an income of £25,000 or more. The survey showed that those families were able to access our service, because we do not advertise. We are concerned about where the support is for low-income families. Families with an income of £25,000 and above require our assistance to attend meetings with them and so on. We have dealt with parents who are solicitors, but because they are so emotionally involved in their child's case, they need someone to come in and support them.

Are those problems best addressed in the bill or in the code of practice?

A lot of work must be done to get the information out to parents. Parents are hard to find, because they come to us only when they are at crisis point because the child has been excluded and so on. I do not know whether Iain Nisbet finds that, but it is certainly the case for our service. Enquire is working on producing information, but the issue is getting it out to parents. The more that parents know about their rights and their children's rights, the more CSPs we will see.

Section 30 of the 2004 act said that for the first two years of implementation local authorities should pay particular attention to children and young people who had a record of needs. Local authorities were given a two-year period to ensure that all those children were being provided for and that consideration was given to a CSP. It is now time to do the same for the groups of children that Her Majesty's Inspectorate of Education's report states are not being well catered for by the act. We would include in that bracket the families to which you have referred: looked after and accommodated children; young carers; and children and young people with mental health issues. Those three groups are identified by HMIE as being examples of groups for which local authorities are not catering well. The bill should state that we have had our two years when we have looked after children who had a record of needs and paid them particular attention and that we should now do the same for the groups that are being left behind.

I am perhaps going back to the same issue again rather than asking you another question, but when you refer to local authorities being good at getting information out there, what are they doing? You mentioned that they have provided the opportunity to access information online, but are they doing more than that? Not everyone has access to information online.

They also send leaflets and so on out to parents and the professionals are also providing parents with information.

Some parents who are teachers who have come to us did not know about the 2004 act. Even though they are teachers and have a child with additional support needs, they did not know what their rights are. They are teachers working in mainstream schools.

In local authorities where there is good practice the parents have received leaflets, they know how to access the authority's website and the information is easily accessible. However, for one local authority, which I will not name and shame, you could not even find the name of the director of education on its website.

Although you have a problem with some elements of the bill, it is coming through to us that, for the most part, most of the people from whom we have heard—formally or informally—are content with the general direction of the bill and with what is in it. However, they feel that it does not go far enough and that this is a missed opportunity to look at a matter that, although we all agree with it in principle as set down by the Parliament, and it is something that we all want to happen, has in reality not been happening.

When the committee took evidence from the bill team, we asked about issues such as definitions, the timetable, the rights of parents to receive information and all sorts of matters. The response was often that those issues would be covered in the code of practice or in secondary legislation. I am quite uneasy about that, because we have reached the position that we are in despite having had primary legislation, secondary legislation, a code of practice and a historic concordat with local government, which one would think would mean that local government would do what the Government wants it to do on such issues. I am not making a party-political point. It is a fact that a lot of things have been in place, but it seems from what you are telling us that the system is in a pretty critical condition and is not delivering what the Parliament wanted it to deliver. Are you content that such issues should simply be covered in codes of practice, or should we put much more in the bill to ensure that people know what the law requires them to do?

It is probably a little harsh to say that the state and operation of the bill are critical. I would not go that far. I will be fair to local authorities, which I do not like to do too often. I am always conscious that, in my work, I see only complaints or cases in which things are going wrong—it will be the same for Lorraine Dilworth. People rarely phone us to tell us what a good job their school is doing, but we know that there are plenty of examples of schools doing good jobs. That is an important point.

The legislation has taken a step forward from where it stood when we had the record of needs system. Things have improved overall. That said, things undoubtedly need to be done with the code of practice and subordinate legislation, and I agree that more needs to be put in the bill. If that is not done, Parliament will have missed the opportunity to address issues.

The point of the HMIE implementation review was to revisit the legislation. The bill does not cover serious and important recommendations that have been made, and I am concerned that subordinate legislation and the code of practice are not capable of addressing those recommendations.

Would you give us examples of what you mean?

The five proposals made by the consortium of organisations in the joint response to the committee's call for evidence address the matter. As a group of organisations that work throughout Scotland with many thousands of families that the bill will affect, we tried to identify issues that HMIE picked up, or that arose as a result of court cases that required legislative responses. I have already mentioned the three groups that the bill needs to cater for. The definition of additional support needs to be reconsidered and transition questions, for example, need to be considered.

I agree with much of what Iain Nisbet says. We deal with parents who are at crisis point. There is good practice out there, but we do not hear from a huge number of parents in the middle, such as Gypsy Travellers, who do not know their rights or who to turn to. We are especially concerned about looked-after children, a very low number of whom have co-ordinated support plans, because social workers are their guardians—and they work for local authorities. Something needs to be done about that.

When the 2004 act was being drafted, we made a number of recommendations and expressed concerns in written and oral evidence to Parliament. I am sorry to say that, over the past couple of years we have ticked off things that we said would happen as they happened. Some of the bill must be changed. It does not go far enough in tackling what is happening at the grass-roots level. We want the legislation to be successful. I am sure that every MSP who passed the 2004 act wanted to help the most disadvantaged children in our society. However, my organisation has done road shows throughout Scotland and spoken to parents in every local authority area, and it knows that the legislation is not, unfortunately, delivering on the ground. We need to make changes in order to deliver on the ground.

I would like to ask about timescales. We heard from the president of the ASNTS that the tribunal had the ability and the resources to take on a fundamental role in monitoring whether its decisions had been implemented by local authorities within set timescales. It concerns me that, if parents are not happy about something, they are expected to deal with it themselves. A tribunal may have considered the issue and made recommendations, but if the tribunal has no powers to monitor the implementation of the recommendations, or to impose sanctions if they are not implemented, it will again be up to the parents to resolve the issue. Could we improve the situation by giving the tribunal more involvement, or by giving it the power to impose sanctions or take other measures?

ISEA has dealt with quite a few tribunal cases. When the local authority has not implemented the tribunal's decision, parents have sometimes had to find a lawyer and threaten to go to court to get the decision implemented.

I spent three days on one particular case, relating to the contents of a CSP. We rewrote it, the tribunal accepted it, and the local authority eventually accepted it. That child must now have one of the best CSPs in Scotland. However, the local authority has not implemented one thing within that CSP, and six months have now passed. We have had to resort to a section 70 complaint.

In another case, the local authority was told that it had four weeks in which to issue the CSP. Two months later, the local authority had not done it.

I therefore agree that the tribunal needs monitoring powers to ensure that its decisions are being carried out. If the tribunal does not have those powers, it will need some mechanism by which it can fine a local authority. Parents should not have to pay out of their own pockets or go through even more stress while trying to get a tribunal decision implemented.

I would sound a note of caution on giving the tribunal monitoring powers. Unless you were also going down the route of giving the tribunal powers to attach financial penalties or something along those lines, I would be concerned about giving the tribunal a monitoring power. If the tribunal could call the matter back in, without there being any definite end point, it could disadvantage parents because it might prevent them from taking legal action—a judicial review action for the implementation of the statutory duty—because the court would say, "You can't come to us just now, because there's another remedy available to you."

Giving the tribunal a monitoring power could mean that the legal option for parents would be delayed. If there were going to be some mechanism, I think that it would have to be at the level of a power to impose financial penalties. I am not sure how realistic that would be.

Issues certainly arise when a child has a CSP and it is not being put in place. There are remedies, but as Lorraine says, it then goes back to the parents to take the initiative.

Is there any way in which the tribunal could take the case to court? Could it be up to the tribunal, rather than the parent, to make the decision? I am not suggesting that that would happen in many cases; if the tribunal had the power, minds might be more focused on what should have been done—perhaps much sooner—on the back of the tribunal's original decision.

You would have to discuss with the tribunal how comfortable it would be with that idea. It might compromise the tribunal's independence if it were seen to be acting directly on behalf of one party in a dispute—even after the dispute had been resolved.

I was taking advantage of the free legal advice while you are here.

All our legal advice is free.

The issue needs to be considered, but remedies are available. I would be uncomfortable with giving the tribunal powers unless they were substantial.

Lorraine Dilworth mentioned section 70 requests. The bill team mentioned that measure to us as well. The committee is keen to get an idea of what going down that route means for parents. Is it successful? What stress levels are involved? Is it realistic for most parents to say that the final option is to go to court?

I will defer to Lorraine Dilworth on that, because she probably has much more experience of it than I have.

A section 70 request involves writing to the Government to say which part of the legislation the authority has failed on. How can most parents do that? When I worked on such cases many years ago, solicitors used to draft the letters, but ISEA does it now. We have lodged about five, I think. Such cases take time, so the stress levels for parents are sky high, as in the one that I mentioned on the CSP. It takes months to get to and go through the tribunal. Then we have to leave it for a couple of months before writing to the authority to say that it has not implemented the tribunal's decision, after which we have to write to the Government to say that we are making a section 70 request. The Government then writes to the local authority, which then writes back and then a decision is taken. I think that we started to lodge the requests in May. None of the five cases has concluded yet.

Is that the first time that you have used the procedure? We are trying to get a sense of whether it is successful for parents.

We have not had any success yet.

You have not had any experience of a successful conclusion to a section 70 request.

Not so far.

Because the Govan Law Centre is a firm of solicitors, we would tend to take court action on the non-implementation of a CSP or something similar. Obviously, that has its own issues, such as whether legal aid is available depending on the parents' income. However, if the case is urgent, the process can be expedited, and the Court of Session is pretty good at prioritising cases that involve children with disabilities. The court approach can be effective. It is a big stick to use, and the issues are how comfortable parents are with the process and the financial implications of going to court if legal aid is not available.

We explored with the bill team and witnesses from the Additional Support Needs Tribunals for Scotland the provision to allow a tribunal to review its own decision. The president of the ASNTS said that the provision would be useful if a decision required further clarity, and the bill team said that the subordinate legislation containing the details would have to be consulted on. When we took evidence from stakeholders in a round-table session, they expressed caution about the idea of a tribunal being able to review its own decisions. What are the witnesses' views on the issue?

It is a power that tribunals generally have. There is certainly an administrative use to it in cases in which there is an error that has not been picked up and on which both parties can agree. However, I have real concern about allowing parties to come back to the tribunal with new evidence or to request clarification of the detail of the tribunal's decision in light of new information.

Given the nature of the decisions that the tribunal takes, it is not like an employment tribunal, which considers whether a decision was fair at a fixed point in time. The additional support needs tribunal's decisions are, quite rightly, to do with a child's stage of development and needs at the time of the hearing. There will always be new evidence. Therefore, I am concerned that it will be much easier for an authority to say, "An assessment that was carried out by our educational psychologist in the week after the tribunal has provided new information that the tribunal must consider." There is the potential to undermine the security of a decision that is in favour of a parent.

I am not against a review power as such, but I would be very concerned if parties were allowed to revisit the content of the decision on the basis of new information.

The bill team said that the detail of what could be reviewed would be dealt with in subordinate legislation. Is that the right approach? Will we be able to return to the issue at that stage?

The issue is for subordinate legislation, which is where the rules of the tribunal are to be found. This committee, or another committee, will deal with the subordinate legislation. I have expressed my concerns about the power, as we did during the consultation. We remain concerned.

I share those concerns. We find that many more local authorities are employing advocates to represent them at tribunals, along with their in-house solicitors and senior officials. We would be concerned if the tribunal had the power to review its decision on a point of law, because the parents whom I accompany to tribunals are not legally qualified—although I am learning quickly. A parent might be able to get legal aid for advice and assistance from a solicitor, but the solicitor would not attend the tribunal and could only view the decision. If an authority asks the tribunal to review a decision on a point of law, it will be represented by its advocate and senior solicitor, who can easily pick up on points of law, whereas the parent will be represented by me or Iain Nisbet—to whom I mean no disrespect.

Inequality of arms is a human rights issue and is increasingly a problem. I can understand why local authorities use advocates and senior solicitors to contest, for example, requests for a placement at Daldorch House school, which would cost an authority more than £100,000—although inequality of arms remains an issue in such cases. However, this week a local authority employed an advocate to contest a parent's reference on the contents of a CSP. We were asking only for what the child was receiving, but the authority was represented by an advocate, senior officials and a senior solicitor.

The tribunal tries to be user friendly, but authorities are coming in heavy handed. That needs to be stopped. The officials who made the decision have all the information. Why cannot they represent the authority? Why do they need senior counsel? The approach is damaging the tribunal's ethos; the tribunal is no longer user friendly. I am often asked, "Mrs Dilworth, will you sum up your legal arguments?" I reply, "I'm not a lawyer, so it won't be a legal argument." However, the authorities are represented by people who can make the legal arguments.

Why are some authorities taking such a heavy-handed approach?

They want to win at all costs. As I said, authorities used to bring in senior counsel when the issue was a placing request, but now they are doing so to contest the contents of CSPs.

We got the tribunal to overturn a local authority decision not to open a CSP for a child, but the authority lodged its appeal with the Court of Session this week. I do not think that the parents who are involved qualify for legal aid, so they might not be able to defend the case in the Court of Session, whereas the local authority is using public money to take the case to that court.

Will you tell us which council is involved?

I do not know whether I am allowed to do that.

The name is lodged in court.

It is the City of Edinburgh Council.

That information is helpful.

I understand that the equivalent tribunal in England has the power to review its decisions. Do you know or have experience of how the system operates there?

We have a sister organisation in England, which has said nothing negative about the system, but I urge caution, because the English process does not last as long as our tribunals in Scotland—it works differently.

That answer is helpful. Thank you.

I will continue that line of questioning. What are your suggestions for reducing the use of the adversarial approach at tribunals?

My solution is that the people who have made the decisions should be present to support them.

Last week, the president of the tribunals gave evidence that, in most cases, the representatives were education officials. She did not say that no advocates were present; she said that they—or, more commonly, solicitors—were present occasionally. Usually, education officials are the representatives, but you think that a definite trend exists. Should we ban lawyers from tribunals? Could that be done? Could the role of lawyers be restricted at tribunals?

The code of practice said that parents and local authorities would be discouraged from bringing solicitors and advocates. That part of the code is obviously not working. I think that I have attended more tribunals in Scotland than anybody else and I see a trend of authorities using solicitors and advocates more than officials. I believe that as officials make the decision, they should come and state their case. That would make the playing field more level.

Parents need support. As Iain Nisbet said, he is providing training to get more advocacy groups up and running. If many more advocacy groups were up and running, we could even do away with Iain Nisbet's services for representing parents. However, we need a level playing field.

I cannot speak with much authority on the issue, as I am a solicitor who appears at the additional support needs tribunal, so I have been only in situations in which both sides were legally represented. As Lorraine Dilworth said, we would like enough advocacy organisations throughout the country to be skilled and experienced so that we do not need to attend tribunals and can concentrate on the education law issues that require solicitors, such as appeals, sheriff court actions and discrimination cases. That is the direction in which we are moving. We are trying to do ourselves out of a job. Other than in exceptional cases, neither side should be legally represented. That is the appropriate way for tribunals to work.

If the code of practice discourages legal representation, can the tribunal do more to discourage local authorities from bringing lawyers?

I understand from conversations with Jessica Burns that she has no powers to do that.

Ms Burns suggested last week that the tribunal could have not a power to grant legal aid, but a budget to appoint to families legal representation on a point of law.

I disagree with that. That would create a two-tier system among parents. For example, if Argyll and Bute Council did not bring a solicitor, parents in that area would have to argue against the official and all their witnesses, whereas parents would obtain a solicitor in Edinburgh. Parents might move area to ensure that they have a solicitor if they must go to a tribunal.

Let us get back to the original idea, which is that the system should be user friendly and allow parents to speak up. Parents have great difficulty at times. In two separate cases in which my colleague and I are involved, we cannot get teachers to appear as witnesses for the parents, and we now have to get citations for them. Health boards are not releasing records, and we have to apply for citations so that we can get the parents the records that they need to support their case at tribunal. Parents are expected to know how to apply to tribunal for citations.

The committee has heard a lot of evidence, including at our stakeholder meeting, suggesting exactly that—that we put more support into advocacy and into mediation and dispute resolution before a case gets to tribunal. Can anything be done in the bill to support that work? I know that, for example, ISEA has recently received funding, but is it a case of funding advocacy support groups and services such as yours to a greater extent, or is there something that we can put into legislation?

The code of practice and the 2004 act both refer to advocacy, but it would be useful if we made it a given right in the bill that parents and young people could have advocacy representation and could be given the information on how to access the service, if they wished to do so.

That is the approach that is taken to mental health advocacy. There is a right to those services and an obligation on health boards to fund them, so a model already exists. It is principally an issue of funding and, to an extent, of experience and expertise, which we are trying to address through the training that is being funded by the Scottish Government. Ultimately, groups cannot spare members of staff indefinitely to do the work when there is no funding base for it. That issue needs to be addressed in some way.

Are you saying that, to square that circle, we could include in the bill a right to advocacy for parents? Would that not increase the adversarial process? If the right depends on a funded service and the funding does not exist, is it a meaningless right?

There is already a right to advocacy; people are entitled to be represented at meetings and at tribunal. What is being described is a model similar to that in the mental health processes, in which there is not only the right to the service but an obligation on health boards to fund it. That is one model. The other would be to put in the funding centrally so that the Government knew that it was there.

We are looking at the bill, rather than the funding, but thank you.

In the mental health model, there are provisions in the legislation. If you wanted to follow that route, it would require legislation.

Thank you for that suggestion, Mr Nisbet.

You have spoken about some provisions that you would like to be added to the bill. Are there any issues that would be better progressed through subordinate legislation, the code of practice or the implementation of policy?

Yes. We have already discussed the tribunal rules. Those rules are governed by subordinate legislation, which is the appropriate way to address any changes. When the president of the ASNTS gave evidence, there were questions about issues such as the length of time that some tribunals take and how the documentation is handled. Those issues will all be addressed through the rules in subordinate legislation. On the tribunals' jurisdiction, powers are already available in delegated legislation to add to the cases that they can handle.

Similarly, the dispute resolution process is governed by subordinate legislation, so the changes to that would appropriately be effected by amendments to regulations. We talked earlier about issues on which the legislation already says what we want it to say but there is a question of getting authorities to comply with their duties or a question of ensuring that more parents are aware of their rights under the existing legislation. Those are issues for the code of practice and for policy.

Access is important. It is also important that we tighten up the code of practice to ensure that the legislation is implemented effectively. We have talked about tribunals and the fact that, on occasion, their decisions can be ignored. Would it be appropriate to give tribunals more teeth and to allow them to give financial penalties?

I do not know how realistic that suggestion is. As a concept, I am quite attracted to it, because I feel that some kind of punishment is merited on occasions. However, to be realistic, it is unusual for tribunals to have enforcement powers. At present, matters such as a failure to comply with a CSP can be dealt with by dispute resolution or through a section 70 order. We need to consider those processes and ensure that they can deliver the outcome that parents are looking for—swiftly.

We have talked about heavy-handed representation—for example, local authorities employing advocates—and whether neither side should be allowed a solicitor. Is there a happy medium whereby only a certain element of legal representation should be allowed? No one wants the sort of escalation that we have heard about or a sledgehammer approach being taken, such as in the case in which the City of Edinburgh Council employed advocates. Do you think that, although legal representation should be allowed, there should be a limit to it?

It would probably be difficult to introduce such a restriction. Given human rights legislation, I am not sure that we could tell an authority or a parent that they were not entitled to be represented legally. The best that we can do is to encourage and support non-legal representation. For example, in social security appeal tribunals, people are entitled to legal representation, but they are much better off being represented by a welfare rights officer, because those officers know what they are talking about.

The conveners of the tribunals are legal people—they are lawyers. Why is there a need for either side to have legal representation? It is the job of the tribunal members to interpret the legislation and to apply it to the individual child's case. Why are we employing conveners who are lawyers if matters are being taken out of their hands because of a heavy-handed approach by local authorities?

You talked about the interminable process and the five cases that were presented in May and have still not been resolved. What can be done to expedite matters to ensure that the process is not dragged out in that way? You talked about the impact on parents and children. The approach that you described is almost a way of countering the spirit of the legislation.

In fairness to the officials, there was a hiccup with the cases that I lodged in May, because of people leaving and so on. Parents need cases to be turned around quickly. I do not know whether this is possible, but if a time limit was set on the turnaround of section 70 cases, parents would know when the decision would be made. If they had a date to look forward to, that would certainly help.

So you would like such time limits to be in the bill.

Yes.

If your proposals were incorporated in the bill, how many parents and children a year do you think would benefit?

An awful lot—that is about the only answer I can give.

When the 2004 act was going through Parliament, evidence was given about the number of children who should have CSPs, but we are well short of that number. The legislation must be changed so that more children can get CSPs. It must also be changed in the interests of the children who are classified as having additional support needs but who do not require CSPs, as those children often seem to be left out. They do not get review meetings and no work is done around transition. Those children need to be looked after, and the legislation must be changed to ensure that that happens.

The issue of the cut-off at 18 must also be addressed—I think that Jessica Burns talked about that. The problem usually arises with children who are at independent or grant-aided schools, to whom the local authority says, "Your CSP doesn't apply after your 18th birthday, and, by the way, that's the day you're leaving school." If a so-called normal 18-year-old's birthday is in November, they will be allowed to stay on until June, so why should a child with a disability have to leave?

If the changes that we suggest—even just the five changes that are suggested by the consortium—are incorporated in legislation, many thousands of pupils will benefit. As it stands, the bill will be of primary benefit only to those children who are the subject of cross-boundary placing requests.

So you are saying that there must be a fundamental change, and that the consortium's five suggestions must be implemented if we are to avoid the need to revisit the issue in four or five years.

Yes.

You have told us that thousands of pupils would be assisted if we were to take forward the five points that you have suggested. Those proposals have cost implications. Have you done any work on the financial consequences for local authorities and others of the incorporation of those changes?

The five changes that we are proposing do not place any onerous new obligations on local authorities; they do no more than ensure that education authorities comply with duties that they are already supposed to be complying with. For example, we are suggesting that the legislation should put a particular emphasis on putting in place a mechanism to ensure that children who are looked after and accommodated, who are young carers, or who have mental health problems are prevented from slipping through the net, which can happen at the moment. However, local authorities already have a duty to prevent that from happening. Councils are being funded on the basis of the duties that are placed on them by the 2004 act. That ought to mean that they are already providing for those children.

In my submission, I suggested that the financial memorandum should reflect the numbers that were given when the 2004 act was going through Parliament, rather than the number of children who currently have CSPs.

You talked about children who have special needs and require special support but who do not have CSPs. Could you give us some examples of the children you are talking about? You could write to us with the information, so that we do not prolong this session.

We can do that.

Thank you for your attendance and for your written submissions. The committee will reflect on the points that you have raised.

I wish everyone a happy Christmas. I hope you all have a very healthy new year.

Meeting closed at 12:55.