Scottish Government

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Contents

Introduction
Transitional arrangements
Placing requests
Tribunal rules of procedure

Introduction

This document reports on the consultation exercise held between 11 May 2005 and 3 August 2005 on three policy papers stemming from issues connected to the implementation of the Education (Additional Support for Learning) (Scotland) Act 2004. The issues covered in the policy papers were:

• Transitional arrangements for pupils with a Record of Needs (paper 08);
• Placing requests for children and young people who have additional support needs (paper 09); and
• Tribunal rules of procedure (paper 10).

When commenced, the 2004 Act will establish a new framework for supporting the education of all children and young people who require extra help with their learning. The framework will replace existing legislation, which is narrowly focused on children with special educational needs, with one based on a wider range of children and young people, whatever the reason for their need for additional support. This includes those whose needs arise from the learning environment, family circumstances, disability or health, or social and emotional concerns.

Two consultation events were held, one in Glasgow on 10 June and another in Edinburgh on 13 June. These events were attended by around 100 people in total, including parents, and professionals across education, health, social work, and further and higher education.

The key aims of the consultation events were to:

• allow participants to discuss and clarify their understanding of the policy contained in the papers; and
• enable the Scottish Executive to take account of a range of views before refining the legislation for presentation to the Scottish Parliament.

A total of 216 written responses were received, dividing up into the following categories:

The consultation events and written responses were very positive and provided many helpful suggestions. In addition, policy officers from the Additional Support Needs Division worked closely with COSLA, the Scottish Committee of the Council on Tribunals and a wide range of other bodies.

Scottish Executive Education Department
Additional Support Needs Division
October 2005

Transitional arrangements for pupils with a Record of Needs (paper 08)

Introduction

Paper 08 described the transitional arrangements which will be provided under the 2004 Act to children and young people who had a Record of Needs immediately prior to commencement of the Act. The paper also asked respondents to comment on whether there was a need to legislate to preserve Records of Needs for reference purposes only and, if so, for how long.

Following the consultation, regulations called the Education (Additional Support for Learning) (Scotland) Act 2004 (Transitional and Savings Provisions) Order 2005 were drawn up and were laid before the Scottish Parliament in October.

Preserve Records of Needs for reference purposes

The vast majority of responses favoured legislating in this regard. Of the 25 local authorities that responded, 14 favoured following this course of action, 8 thought there was no need to preserve the Record, and 3 offered no comment.

As to how long Records should be kept, the vast majority of those who favoured legislating thought 5 years would be appropriate. However, some felt a Record should be preserved for as long as the child is at school while others thought it should be kept indefinitely.

As a result of the consultation, provision has been made in the Regulations to preserve Records of Needs for reference purposes only for a period of 5 years from 14 November 2005 until 13 November 2010.

Although Records will exist for information only, it was felt necessary to ensure that the procedures in the Education (Record of Needs) (Scotland) Regulations 1982 for keeping and disclosing them are still followed by education authorities during the 5 year period. The relevant parts of the 1982 Regulations will be saved for this purpose and will also be amended to add mediators, the Tribunal and independent adjudicators to the list of people to whom the Record can be disclosed.

Draft circular to Directors of Education

The paper also contained a copy of a draft circular which will be sent to Directors of Education outlining the transitional arrangements and the requirements on education authorities during the transitional period. While not part of the consultation exercise, a number of useful comments were submitted with suggestions on the terms of the circular and where it might be made clearer.

However, a more substantive point was raised in relation to placing request appeals and Record of Needs appeals that have not been concluded prior to commencement. These would fall as a result of the repeal of the sections of the 1980 Act that govern them and concern was raised that this position was potentially inequitable.

Placing request and Records of Needs appeals

After careful consideration, provision has now been made in the Regulations for placing request and Record of Needs appeals made under the 1980 Act before commencement of the 2004 Act, and up to a period of 60 days after commencement, to continue to be considered and determined by an education authority appeal committee, or by Scottish Ministers or by a sheriff, as appropriate. In all cases, determinations will be taken to have been made immediately prior to the commencement of the Act.

Further information

The circular to Directors of Education will contain more information about these specific arrangements and it will be issued after the Scottish Parliament has considered the Regulations.

In addition, a separate factsheet for parents on the transitional arrangements is being produced by Enquire, the national advice and information service for additional support needs, and will be available from them soon.

Placing Request (paper 09)

Introduction

The Placing Request paper 09 contained specific proposals on "reserved places", "deemed decisions" and "other procedures" in relation to placing requests for children and young people with additional support needs.

Following the consultation, regulations called the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005 were drawn up and were laid before the Scottish Parliament in October.

Reserved places

The majority of people who commented on "reserved places" agreed with the Scottish Executive's conclusion that it is not necessary or appropriate to develop the power under paragraph 3(5) of Schedule 2 of the 2004 Act to set a specific number or percentage of reserved places that cannot be exceeded by an education authority. As stated in the paper, this position will be kept under review as part of the ongoing monitoring of the operation of the 2004 Act.

Deemed decisions

While most respondents agreed with the proposals to make regulations on deemed decisions for children and young people with additional support needs and/or co-ordinated support plans a small number disagreed. They felt that the use of "deemed decisions" disadvantages parents because the education authority and appeal committee are absolved from notifying parents of their decision. As a result, parents would not know the outcome or what to do next.

However, the purpose of making provision in respect of deemed decisions is to allow the parents or young person to move the appeal on to the next appropriate stage of the process where a decision has not been reached within a prescribed timescale rather than having to wait indefinitely for an outcome.

On the basis that the majority of respondents agreed with the proposed deemed decisions timescales, the Scottish Executive decided not to change the position outlined in the paper in relation to education authorities and appeal committees. The Regulations have been drafted to reflect this.

In relation to placing requests appeals transferred to a Tribunal from an appeal committee because of a co-ordinated support plan issue, the majority of respondents agreed that the deemed decisions timescales should not apply to an appeal committee during the period the placing request is transferred. It was also agreed that the timescale clock would only resume ticking if the placing request appeal was returned to the appeal committee. In these circumstances, the appeal committee would have whatever number of days remained from the original timescale in which to take appropriate action.

A number of respondents suggested that in some cases the time remaining could be so short as to make it impracticable for an appeal committee to make the necessary arrangements or take the appropriate action. After consideration, the Regulations provide that an appeal committee will have whatever number of days remained from the original statutory period but will always have no less than 10 working days within which to take the action required.

Provision of information

The paper also outlined the Executive's intention to regulate to require education authorities to provide specific information to an appeal committee and the parents or young person. Everyone agreed that this was important to ensure that the appeal committees have all the relevant information as quickly as possible for consideration, and to ensure that the parents or young person are fully aware of the information being relied on by the education authority in reaching their decision, prior to the hearing. Regulations provide that an education authority must make available in writing all of the information relevant to their decision, including information concerning the views of the education authority as to the child's or young person's additional support needs and the additional support provided.

Further information

More information about placing requests for children and young people with additional support needs is contained in Chapter 8 of the Code of Practice. In addition, Enquire, the national information and advice service for additional support needs, is producing a placing requests factsheet for parents which will be available from them soon.

Tribunal rules of procedure (paper 10)

Introduction

Of the 216 responses to the consultation, 187 included comments on the rules of procedure. Therefore, percentages and fractions in this section are out of 187, with percentages expressed to nearest 5%.

Following the consultation, draft rules called the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 were circulated to the Scottish Committee of the Council on Tribunals and their further comments were considered before laying the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 before the Scottish Parliament in October.

Paper 10 was generally well-received and considered clearly written and easy to understand.

Time limits

Around two thirds of respondents were content with the provision on time limits and 15% had no comment or considered that it was too early to comment. A small percentage thought that the time limits were generally too short, not giving enough time for the appellant to make a reference or provide further information or for the education authority to respond. A smaller number thought that the time limits were generally too long and, in particular, the time for making a reference should be shortened to one month. One reason for doing this was to bring the time limit into line with that for education appeal committees.

Following the consultation exercise, the Scottish Executive decided that no adjustment was necessary to the overall time limits. However, three significant changes have been made in answer to concerns raised by respondents.

Firstly, provision has been made in Rule 19 for a general power to extend time limits "in exceptional circumstances".

Secondly, the rules contain provision enabling the President or a convener to shorten or extend the case statement period in relation to references concerning refusal of a placing request (Rule 8(6)). The Scottish Executive accepted that the time limits, in particular the case statement period of 30 working days, could be problematic for references relating to refusal of placing requests. The new provision could enable a reference concerning a placing request made after April to be determined in time for the new school year in August.

Thirdly, a number of respondents expressed concern that the two-month period for making a reference did not allow sufficient time for mediation or dispute resolution to have a chance of succeeding before a reference would have to be made. The Scottish Executive considers that the two-month time limit should not be changed and expects that mediation will proceed quickly after a request for it has been made. However, a rule (Rule 14) has been provided which allows Tribunal proceedings to be suspended at any stage after a reference has been made to enable mediation or dispute resolution processes to reach a conclusion.

Working day

Over 85% of respondents were content with the definition of working day or had no comment to make. A few respondents thought that July should not be excluded from the definition, which would have the effect that all time limits would apply in July as they did for the rest of the year. This would make it difficult to comply with requests from the tribunal administration for appellants or education authority officers on summer vacation. Around 10% of respondents wanted to see other parts, or all, of the school holidays excluded. The Scottish Executive's view is that this would unduly delay the progress of references.

The definition of working day provided in Rule 2 is the same across Scotland. It is not realistic for the tribunal administration to take account of different public holidays in different areas across Scotland. The Scottish Executive agrees with respondents who thought that this would be confusing and difficult.

The Scottish Executive agrees with the suggestion that notification to parties should be explicit about the exact date for completing an action rather than setting a time limit which might be confusing. For example, a letter from the tribunal administration will refer to a particular action needing to be taken by "20th April" rather than "10 working days from receipt of this notice".

Representation and witnesses

About 85% of respondents were content or had no comment to make on proposals in the consultation paper for representation and witnesses. The remainder split roughly equally into those thinking too many people were allowed at the hearing, too few people were allowed at the hearing and those with substantive objections.

Representation

A number of responses sought equality of arms: that if one side was not legally represented, then the other side should be prevented from being so represented. Further, several responses wanted a presumption against legal representation. Whilst the Scottish Executive is sympathetic with the motivation behind these suggestions, which is consistent with the aims of the Tribunals, it is not possible to limit one or other party's access to legal representation in the rules. Rather, it is for the Tribunals to establish an ethos in which legal representation is considered unnecessary by the parties.

There was some confusion as to the role of the representative, set out in the consultation paper, and supporters and advocates defined at section 14 of the 2004 Act. The word "representative" was chosen carefully to emphasise that this role may be distinct from any other in the 2004 Act. Of course, it is likely that in many cases the "advocate" for the purpose of conducting discussions or making representations to the authority in section 14 will perform the role of "representative" at a Tribunal.

Some respondents considered that the appellant's supporter at the hearing was likely to be the same person who will be looking after the child during the hearing. There was concern that, if the child needs to be absent for any time, the supporter would also be absent. The Scottish Executive do not accept the consequential suggestion that the Tribunal should organise childcare facilities. Rather, if it is likely that the child will need to be absent for parts of the hearing, the appellant should bring a relative or friend who will look after the child being a person distinct from the supporter. The tribunal administration will pay the travel expenses of such a person.

Witnesses

The consultation paper (paragraph 4.1.1) proposed limiting both parties to two witnesses. The justification given (paragraph 4.1.2) was that it was necessary to keep hearings short and user-friendly and that evidence should have been submitted in the case statements. A number of respondents set out strong objections to these proposals and, whilst accepting the need to keep hearings small and manageable, did not agree with the approach outlined. The approach set out in the consultation paper was perceived to limit the appellant's one and only opportunity to have their case explored fully. Concern was also expressed that limiting the number of witnesses posed problems for a multi-agency approach where more than two services were involved in making provision for the child.

Taking account of views expressed through the consultation exercise, the Scottish Executive has modified the policy as expressed in the rules. A party will normally only be able to call a maximum of two witnesses, as well as the child or young person who is the subject of the reference, to give evidence orally. However, the President, a convener or a Tribunal on the day of a hearing may give permission for more than two witnesses to give evidence orally. This is spelt out at Rule 28 (2). This provision only applies to witnesses giving evidence orally.

Rule 22(1) requires the parties to submit a list of proposed witnesses before the end of the case statement period. That would afford the opportunity to explain why any proposed witnesses should be present at the hearing when putting forward their names on the attendance form and would form a basis for a decision on whether more than two witnesses should be permitted to give oral evidence.

Citation of witnesses

There was concern that a Tribunal might cite a person as a witness who had caring responsibilities. Such a person would need to make arrangements in respect of their caring responsibilities for the duration of their absence in respect of their appearance at the Tribunal. This would be regarded as a necessary expense of their attendance and would be required to be met by the party seeking their attendance, under provision made by Rule 22(5).

Expenses

Around 60% of respondents were content and a further 10% had no comment to make on proposals for expenses. The remainder expressed a wide range of strongly divergent views; in terms of numbers of responses, there was no predominant objection. Views expressed ranged from:

• witnesses should not be present and, therefore, no expenses would be required;
• witnesses could attend but no expenses should be paid;
• expenses should be paid but to a more limited group of people than that proposed (e.g. just the appellant);
• agreement with proposals in the consultation paper;
• all witnesses should have their expenses paid;
• representatives should receive expenses;
• compensation should be paid for loss of earnings for various persons in addition to witnesses; and
• compensation should be paid for actual loss of earnings in respect of a wide range of people.

The Scottish Executive's policy in relation to expenses incurred by making a reference to a Tribunal is to find the right balance between careful use of the limited resources available to the tribunal administration and meeting sufficient of the expenses reasonably incurred by appellants in order to secure access to justice.

The consultation paper (paragraph 5.4.2) stated that no travel expenses would be paid in respect of any parental representation. Having considered the matter further in light of consultation responses, the Scottish Executive concedes that there will be circumstances where this would disadvantage the appellant; in particular, the situation where the appellant lacks the confidence or competence to represent himself and lacks the financial resources to pay the expenses of someone else. Policy is now that where a representative would not otherwise receive travel expenses, the tribunal administration will reimburse that person.

This change of policy is not reflected in any rule: rather the Tribunal's express powers in terms of paragraph 17 of Schedule 1 to the 2004 Act will be used to pay to any person such allowances and expenses as the President may determine for the purposes of, or in connection with, the person's attendance at hearings.

A number of respondents made reference to the cost of caring for the child, and other children belonging to the same family, during the hearing. In most cases, it is expected that the child will either be at the hearing or at school during the hearing. Similarly, other children of school age would also be expected to be at school during the hearing. The tribunal administration will pay the travel expenses of a relative or friend who will accompany the appellant to the hearing in order to look after the child.

Respondents on behalf of education authorities and schools raised three issues in relation to school staff attending a hearing: the travel expenses of that member of staff; the cost to the school of covering the absence of that member of staff; and compensation for that member of staff if the hearing takes place in school holidays. Where the member of staff has been cited by a Tribunal, the necessary personal expenses of their attendance must be paid to them by the party seeking their attendance, under Rule 22(5). However, all other costs and expenses, for example to the school, are a matter for the education authority.

It was suggested that the appellant should forfeit their travel expenses if they withdraw a case during a hearing. This will not necessarily be the case; there may be a good reason for making such a withdrawal. However, Rule 39 makes provision for a Tribunal to make an award of expenses against a party where that party has acted frivolously, vexatiously or unreasonably in making, pursuing or resisting a reference.

Some respondents thought that it was difficult and expensive for an appellant to provide five copies of audio or video material which they wished to submit for a Tribunal to consider, as suggested at paragraph 2.2.6 of the consultation paper. The rationale was, and remains, that sufficient copies are required to enable the parties and the Tribunal to examine the evidence prior to the hearing (unlike some tribunal systems where evidence is only substantively examined at the hearing itself). However, the Scottish Executive is sympathetic to the argument that this might present undue difficulty in certain cases and the tribunal administration is giving consideration to relaxing this requirement.

Children

The consultation paper (paragraph 5.1.12) suggested that children could attend the hearing and give evidence but that parents should not assume that their child will stay for the whole hearing. The consultation paper asked whether children should be encouraged to come to the hearing or not.

Around 10% of responses were content or made no comment. The most common opinion was that the attendance of the child should be considered on a case-by-case basis (30%). A significant minority thought that the child should normally be present (20%), almost balanced by the 15% who thought that the child should not normally be present. Some respondents thought it should be left to parental discretion (10%). Other consultation responses highlighted the following relevant factors in determining whether a child should attend:

• Age/maturity (10%). Other things being equal, the presumption of attendance becomes stronger with older children. Young children, especially, can have strong attachments to staff and peers and can experience distress when adults argue about provision for them.

• The nature of the child's additional support needs (10%). The nature of some children's additional support needs will mean that they find the Tribunal environment too distressing to attend.
• Divergence of views. The Tribunal needs to be confident that it has the child's views fairly represented to it. In some cases, where the Tribunal believes that the child may have views which conflict with either or both parties, the Tribunal may need to hear from the child directly. In other cases, the Tribunal may be content with a pre-recorded video presentation from the child.
• Child's ability to express and comprehend (10%). There is more benefit in the child being present if the child is able to express his or her views at the hearing and understand some of what is going on.
• Opportunity cost. If, by attending, the child will miss a significant day at school (eg an outing or performance), this might mitigate more against attending the hearing than an ordinary day.
• Effect on the Tribunal hearing. If the child's behaviour is disruptive or the presence of the child would adversely affect discussion, then the child should not be present. Or there may be child protection issues which would make it inappropriate for the child to be present.

Given the number and complexity of factors to be taken into account, the Scottish Executive has concluded that it would be inappropriate to insist that the child should attend a hearing in the Rules. Rather, Rule 27 (7) now facilitates the attendance of a child or young person at a hearing unless, in the case of a child, the Tribunal considers that their welfare would be prejudiced.

In addition to this, we envisage that the information and guidance to be issued by the Secretary in terms of Rule 25(2) (a) will encourage parents to bring their child along, at their discretion. The tribunal administration will keep under review whether further specific guidance on the attendance of children is necessary.

The child/young person as a witness

A child or young person appearing as a witness will not count against the witness allocation for either party. However this does not imply that a child of any age would necessarily be permitted to appear as a witness. This is a particularly important in relation to younger children and Rule 33 has been designed to safeguard their interests. Under this Rule, children under 12 will be permitted to give evidence only where the Tribunal consider that it is:

• necessary to enable a fair hearing; and
• the welfare or interests of the child would not be prejudiced by doing so.

All witnesses, including children under 12, are covered by the provisions of Rule 23 the terms of which allow a Tribunal a wide discretion as to how evidence may be given (e.g. by telephone or video link).

The Scottish Executive believes that these provisions achieve an appropriate balance between these interests and the need for a fair hearing of the reference.

Unsatisfactory reasons for a child or young person attending

The Tribunals have, on occasion, been compared with the children's hearings and the mental health tribunals. However, the child or young person should not attend for the purposes of:

• giving an account of their actions; or
• verifying a diagnosis;

which may be reasons for attending those tribunals, respectively.

Children's hearings will frequently be dealing with cases where the parent or child's actions are the reason for the hearing, for example where the child has committed a crime. In such cases, it is clearly important to hear from both parties. In the Additional Support Needs Tribunals, it is the action, or otherwise, of the education authority which is being scrutinised.

Consequently, the Scottish Executive does not consider that the equivalent of the "safeguarder" role in children's hearings is necessary, as was suggested in one response.

Unlike mental health tribunals, none of the three Tribunal members will (necessarily) have any medical expertise. So, for example, the Tribunal will not, of itself, be able to question or reassess the diagnosis of the child. If this was one of the areas of disagreement, it would be resolved through consideration of evidence presented by both sides and, if necessary, the Tribunal would commission its own report from a medical practitioner. The presence of the child at the hearing is unlikely to help in resolving such a dispute.

Obtaining the child's views

A number of respondents have pointed out that it is important that the Tribunal takes account of the views of the child, but that this can sometimes be achieved without the child being present at the hearing. The Scottish Executive strongly concurs with the view that the needs and interests of the child should be at the centre of the hearing and agrees that these will not always be best served by the presence of the child at the hearing. For example, a child might need to be excluded for all or part of a hearing because:

• being present would distress the child;
• the presence of the child might prevent a proper discussion of the issues; or
• the child's behaviour is disruptive.

Some respondents made the point that, where the child is not attending the hearing, the Tribunal should be able to justify this decision, in particular making sure that it is not due to the timing, location or other aspect of the hearing arrangements. Further, the Tribunal should be satisfied that the child really does not want to attend the hearing before accepting the child's absence. The Scottish Executive agrees that it is important that children are not excluded for administrative reasons and that Tribunals will need to satisfy themselves that the purported views of the child are really the views of the child.

Some thought it was not appropriate for the education authority to be responsible for gathering the child's views, presumably because of a potential conflict of interest. However, the Scottish Executive believes that, in order to comply with the duties under the 2004 Act, the child or young person's views should be sought by the authority as a matter of course. Therefore, it makes sense for Rule 10 to require the authority to report the views of the child or young person, or the reasons why the authority has not ascertained those views, in its response to the reference.

Under Rule 13, the President, convener or the Tribunal has the power to arrange a pre-hearing meeting with just the child or young person, the parent, the appellant's representative and the education authority's representative, in order to deal with any preliminary matter which could include determining whether the child should attend the hearing proper. Normally, this meeting will take place immediately prior to the hearing proper but the rules are flexible enough to allow it to take place on a separate occasion. A pre-hearing meeting could be useful on occasions where, for example, the child had views to express but would be distressed by staying for the full hearing.

Omissions and other matters

About 10% of respondents made comments about omissions and 20% raised issues under other matters. In each case, the vast majority had no comment and the remainder were content.

Witnesses refusing to attend a hearing

Some respondents wondered what a Tribunal would do if a significant witness failed to attend a hearing. Paragraph 13 of Schedule 1 to the 2004 Act makes provision for the citation of persons to attend proceedings of the Tribunal or to produce any document and Rules 21 (in the case of documents) and 22 (in the case of witnesses) make further reference to this provision.

In relation to a witness failing to attend, and in addition to the criminal penalty imposed under the Act in respect of citations, Rule 31 provides a power for the Tribunal to adjourn the hearing. This rule does not prescribe in detail the circumstances in which a hearing may be adjourned because it is not possible to anticipate all scenarios. Therefore, it is left to the discretion of the Tribunal to determine whether the absence of any particular witness should lead to adjournment.

Rule 31 (2) provides that a hearing should not normally be adjourned solely on account of the failure of a witness to appear. There will be scenarios in which it is in the interests of the child for a decision to be taken quickly and, even without the presence of a significant witness, sufficient evidence may have already been presented to enable the Tribunal to make that decision. In such a case, it would not be desirable for the Tribunal to be forced to adjourn.

Parties answering questions

Some respondents expressed concern that parties do not have to give evidence (consultation paper paragraph 5.1.10). The rationale is that, especially where a party has appointed a representative, they might not be comfortable addressing the Tribunal. However, the Tribunal will frequently want to hear from them directly and they will be encouraged to speak.

Rule 36 makes provision for a Tribunal to determine a reference in the absence of a party. Except in the case of a witness under citation, there is no penalty for not attending a hearing, other than the obvious risk of not having their argument heard. Given this provision, we do not think it would be appropriate to make provision making it obligatory for a party to give evidence (unless the party has been cited, in which case, as outlined in Rule 22 (6), they will not be obliged to answer any question that they could not be compelled to answer in civil proceedings).

English not a first language

Some respondents were unhappy with the suggestion that a request for a decision to be translated was likely to delay the issue of the decision (paragraph 5.2.3). Having considered the matter further, the Scottish Executive agrees that the need for translation should not delay the issue of the decision.

Rule 37 allows for a decision to be given orally at the end of the hearing or not, as the case may be. Where an interpreter is required for the purpose of the hearing, that service would be paid for by the tribunal administration. In the event that a decision was given orally, the interpreter would be expected to translate it there and then. In any case, the need for an interpreter, and translation service in respect of the decision, would have been identified by the tribunal administration in advance so arrangements can be made to translate the decision quickly once it is produced.

Meaning of "parent"

There was concern that only natural parents could make a reference, although it was explained at paragraph 1.1.2 that the 2004 Act gave parents and young persons the right to make a reference to a Tribunal. In the 2004 Act, "parent" has the same meaning as in section 135 (1) of the 1980 Act. This provision takes account of the wide variety of family circumstances in which a child or young person might find themselves, e.g. looked after by both or one natural parents, foster parents, local authority carers.

The 2004 Act only requires one parent (not both) to make a reference. Rule 27 provides for the other parent to be entitled to be present at the hearing, whether or not they agree with the parent who made the reference.

Resources

A number of respondents were concerned about the resource implications of the Tribunals. These concerns fall into two categories: firstly, concerns about the cost to education authorities in preparing cases; and, secondly, concerns about the cost of implementing Tribunal decisions. In both cases, the concern was that the tribunal system would divert resources away from front-line services to (other) children.

The Scottish Executive will monitor the impact of the Tribunals on education authority resources but notes that the administrative costs will be offset by savings from ceasing the Record of Needs appeals. Furthermore, education authorities have been provided with increased resources to implement the 2004 Act.

Interface with mediation and independent external adjudication

There were concerns about the complexity of the three different systems for dispute resolution (Tribunal, independent external adjudication and mediation). This could be compounded by any failure by education authorities to inform parents of their rights of access to a Tribunal and difficulty in finding the relevant web sites, helplines and guidance documents. A related concern was that the Tribunals should not be the first port of call in relation to a dispute over a co-ordinated support plan: informal discussions and mediation should be tried first.

2007 Review

The 2007 review, with the possibility of disability discrimination in Scottish school education being given to the Tribunals, was welcomed. Only after the review and a public consultation will a decision be made as to whether or not the UK government should be approached (because disability is a reserved issue) for provision to give the Tribunals jurisdiction over such cases.

The 2007 review will provide the opportunity, after a year or so of being operational, to review other issues as well. For example, one respondent suggested enquiries/calls to the tribunal administration which did not lead to references should be monitored to see whether there were unnecessary barriers being put in place to making a reference (e.g. cost). The Scottish Executive agrees that it is important to collect a wide range of data so that the opportunity presented by the 2007 review can be taken to improve services.

Travel to hearings

Some respondents took issue with what the consultation paper said about travel time for parents and the starting time for hearings (paragraphs 5.1.2 and 5.1.3). It was noted that a two hour journey to a hearing with a 10 a.m. start could present difficulties in terms of arranging childminding. There was also disagreement with the longer travel time (2 hours) allowed to hearings as a central belt compared to hearings elsewhere (1 1/2 hours).

These are not matters to be prescribed in the rules and were only included in the consultation paper to set the scene. The tribunal administration will develop a policy on travel time and starting times taking account of concerns expressed in this consultation. In any event, the Scottish Executive expects that, in accordance with its aim of being user-friendly, the tribunal administration will be flexible in cases presenting special difficulties.

Further information

Further information about the Tribunals is available on their website: www.asntscotland.gov.uk

Additional Support Needs Division
October 2005