Scottish Government

Introduction

1. This document reports on the consultation exercise held between 9 May 2008 and 19 June 2008 entitled 'Consultation on the Education (Additional Support for Learning) (Scotland) Act 2004 - Amendment Bill 2008'. The consultation document contained detailed proposals on amendments to the Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act) and a draft version of the Education (Additional Support for Learning) (Scotland) Bill (the Bill).

2. This report also sets out what impact the consultation findings have had on the draft Bill.

3. The Bill will be introduced to the Scottish Parliament during the week commencing 6 October 2008. The Bill will be accompanied by a Policy Memorandum and Accompanying Documents (which includes Explanatory Notes and a Financial Memorandum). The Policy Memorandum explains the policy objectives of the Bill, the alternative options considered, the consultation process and the effect of the Bill on human rights, island communities, local government, sustainable development and equal opportunities. The Explanatory Notes provide a section-by-section description of what the Bill does, to help the reader understand the provisions of the Bill. The Financial Memorandum sets out the estimated costs which will fall to the Scottish Government, to local authorities and to other organisations and individuals as a result of the proposals in the Bill.

4. We recommend that the Bill is read along with these documents to give a fuller picture of what is being proposed and why. Both the Bill and its accompanying documents can be obtained from the Scottish Parliament website at http://www.scottish.parliament.uk/s3/bills/16-EdAddSup/index.htm

Definitions of terms used in this analysis

5. Within this analysis the terms 'few', 'less than half', 'majority', 'most' and 'almost all' refer to specific percentage values as follows:

6. The term 'Key Stakeholders' refers to a selected group of respondents. This group has been compiled from the responses of voluntary organisations, professional organisations and non-departmental public bodies with a direct interest in education or additional support needs and have been selected in order to cover as wide a spectrum of expertise as possible while avoiding over emphasis on any one specific specialist area.

7. While there were other responses from stakeholder groups which have been highly instructive, it has not been possible to included these responses in the statistical analysis due to the fact that they did not provide a definitive answer to the consultation questions and were more general in nature.

8. The responses included in the 'key stakeholders' group are from: the Association of Directors of Education in Scotland ( ADES), the Association of Directors of Social Work ( ADSW), Education in Scotland ( EIS), the President of the Additional Support Needs Tribunals for Scotland ( ASNTS), Govan Law Centre, the Scottish Consumer Council, Scotland's Commissioner for Children and Young People, Independent Special Education Advice ( ISEA), Learning Teaching Scotland ( LTS), the National Autistic Society, the National Deaf Children's Society, Down's Syndrome Scotland, the Special Needs Information Point, the Scottish Traveller Education Programme, the Scottish Division of Educational Psychologists, the Equality and Human Rights Commission and Barnardo's Scotland.

9. Stakeholders provided a wide range of views to this consultation. While not all these views have been included in this report, all responses have been carefully considered by the Scottish Government. The sample views provided throughout the report have been included to give a flavour of the most commonly expressed views. All published consultation responses can be viewed on the Scottish Government's website: http://www.scotland.gov.uk/Publications/2008/07/16110426.

Background

10. Her Majesty's Inspectorate of Education ( HMIE) conducted a 2 year inspection programme into how local authorities are implementing the 2004 Act. An interim report of their findings was published on 31 October 2006 and their final report was published on 14 November 2007. Key issues arising from these reports include the need for better information to parents and young people, inter-authority arrangements and better engagement of health and social work services. They also raised some issues over arrangements for preparing CSPs.

11. Adam Ingram, Minister for Children and Early Years, wrote to all local authority Chief Executives on 21 December 2007 asking them to ensure that their authority's procedures are in line with the requirements of the 2004 Act and the associated "supporting children's learning code of practice."

12. Additionally, recent Court of Session rulings have highlighted the need to amend the current legislation to reflect the original policy intention. The first of these was a decision by Lady Dorrian in the case Deborah Gordon against a decision of an Additional Support Needs Tribunal dated 25 August 2006 (2006 CSOH 45) on the jurisdiction of an ASNTS to hear placing request appeals. The second was a decision given by Lord Macphail in the case of WD v Glasgow City Council (2007 CSIH 72) on an ASNTS's jurisdiction in relation to out of authority placing requests identified that clarity was required to enable parents of children with CSPs to make out of area placing requests to any authority in Scotland and secondly that a right of appeal against the refusal of such a request should lie with an ASNTS.

13. The process of consulting on the proposal for change began in May 2008 with the publication and distribution of the 'Consultation on the Education (Additional Support for Learning) (Scotland) Act 2004 - Amendment Bill 2008'. 4319 copies of this document were circulated around a wide range of stakeholders including all local authority education and social work departments, health boards, all Scottish schools, colleges and universities, community councils and relevant voluntary organisations. In addition to this, the document was publicised in the Moving Forward newsletter which is circulated to 10,000 professionals. The Minister for Children and Early Years met with various stakeholders to discuss the proposals contained in the consultation document. The consultation document sets out the reasons for reviewing the current legislation, and outlines the proposed legislative changes (including consultation questions). Additionally, Children in Scotland, supported by the Scottish Government, hosted a series of nine consultation events throughout Scotland during the week commencing 2 June 2008.

14. The 13 questions contained in the consultation paper were designed to cover the areas in which the Scottish Government was proposing to amend the 2004 Act. The amendments aim to strengthen the rights of children with additional support needs and their parents and include:

• the rights of young people and parents of children with additional support needs to make out of area placing requests;
• parental and young people's access to mediation and dispute resolution from the host authority following a successful out of area placing request, and
• increased parental and young people's rights in respect of access to an Additional Support Needs Tribunals for Scotland ( ASNTS) regarding failures by the education authority

15. We received 165 responses from a broad range of consultees including 23 out of the 32 Scottish local authorities. Those responses where consent to publish was agreed have been published on the Scottish Government's website and can be viewed at:
www.scotland.gov.uk/Publications/2008/07/16110426/0.

16. Both through the consultation events and the responses submitted to the consultation document, a wide range of views were expressed. These views have been essential in informing the policy direction of the Bill. We would like to thank all those who took part in the consultation process for allowing the Scottish Government the benefit of their opinion, as well Children in Scotland for organising the consultation events.