Having read the Executive’s response to "The Way Forward" consultation, Govan Law Centre expected that children would have rights similar to those currently exercised to their parents in respect to assessment and recording of special educational needs. We are concerned that the Bill should confer rights on children to appeal against the opening of or details of their Co-ordinated Support Plans, to request the determination of additional support needs or the need for a co-ordinated support plan, and to request a review of any Co-ordinated Support Plan.

A failure to do so leaves the anomalous position whereby areas of the Bill which do not provide for appeal rights at all may therefore only be legally challenged by way of judicial review - which would be an action brought by the child. Whereas the child is denied access to the more accessible forms of dispute resolution - mediation and appeal to the tribunal.

It is understood that there may have been concern that a child’s right to appeal may undermine the parent’s position and rights. However, a child’s right to appeal could easily be a co-existent right (as is the case with exclusion appeals at the moment). This would lead to no more confusion than the current position proposed where any of a child’s parents would have co-existent rights of appeal.

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The current proposals are to enact the new legislation as a stand alone statute, rather than by amendment to the Education (Scotland) Act 1980. Section 28F of the Disability Discrimination Act 1995 (as amended) makes unlawful acts of disability discrimination by an Education Authority in carrying out their "residual duties". This includes the current system of assessment and recording and other functions as contained in the Education (Scotland) Act 1980, Education (Scotland) Act 1996 and Standards in Scotland’s Schools etc. Act 2000. Functions under other legislation are not covered.

The effect of the new provisions is therefore to remove these functions and their equivalent replacements from the scope of the 1995 Act altogether, unless the Westminster government agree to amend the Disability Discrimination Act 1995 to cover the new piece of legislation. This would effectively legalise discrimination against disabled children in the assessment of and provision for additional support needs.

In terms of Sections 29(1)(b) and 29(3) of the Scotland Act 1998, this would appear to relate to a reserved matter i.e. equal opportunities, as defined in Section L2, Schedule 5 of the Scotland Act. Therefore, large parts of the Bill, if not almost all of it, may fall outwith the legislative competence of the Scottish Parliament. While this is obviously a matter for the Presiding Officer in terms of Section 31(2) of the Scotland Act, there are two possible solutions which avoid the problem: either enact the changes as amendments to the Education (Scotland) Act 1980 or secure the amendment of the Disability Discrimination Act 1995 by Westminster.

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Throughout the Bill, and essential to the concept of co-ordinated support plans, the term "education authority" is used in such a way as to try to draw a distinction with the rest of the authority, e.g. the social work department. The Govan Law Centre considers this to be an artificial distinction. Further, the Bill does not appear to meet the stated intention of the Executive in this area. The "education authority" in terms of Section 135 of the Education (Scotland) Act 1980 is defined simply as the local Council (as a statutory body). This area of the draft legislation needs to be revisited.

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The term "incapable" is used throughout the Act in relation to young people who may be unable to exercise their own legal rights. This is a new and somewhat complex provision which is different from the existing educational provisions, and also from the terms of the Adults with Incapacity (Scotland) Act. The Govan Law Centre is concerned that there is no clear route for challenge in the event that a young person is effectively denied their rights because of a disputed view of their capability.

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3(1)(b) provides that adequate and efficient provision for a child’s additional support needs must made by education authorities. Govan Law Centre considers this a backward step from the level of provision required by Section 2 of the Standards in Scotland’s Schools etc. Act 2000 - i.e. the development of the child’s personality, talents and physical and mental abilities to their fullest potential.

3(2)(b) provides that those duties are restricted to those measures which are practicable at reasonable cost. This is an unacceptable reduction in pupils’ rights. Following the House of Lords case of R. v. East Sussex County Council, ex parte Tandy [1988] 2 AllER 769, it is clear that the current law in Scotland, as in England and Wales, is that duties to provide for special educational needs are not limited by consideration of costs or resources. This legislation could leave children north of the border in a worse position than their peers in England and Wales. There is no reason why this should be so.

It means that the education authority could not effectively be challenged for a failure to provide adequate and efficient education, even where that meant a child’s needs where not being met.

Finally, we would question the legitimacy of the introduction of this clause at such a late stage in the consultation and without mention in the accompanying guidance or notes.

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Sections 4(4) and 5(4) would benefit from the introduction of a time limit for compliance with duty to determine children’s needs.

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Section 7(5)(b) draws attention to the lack of enforceable duties in terms of educational provision to be provided by other authorities. Our current understanding is that the education authority remain ultimately responsible for meeting the child’s educational needs regardless of the type of need. The new bill removes this responsibility without introducing a corresponding duty on the other agencies who may be involved. Govan Law Centre is concerned that this will undermine the new (and welcome) emphasis on multi-agency working in the Bill.

We suggest that the jurisdiction of the tribunal be extended, or the exceptions to the duty to comply with a Section 17 request be more tightly restricted and subject to some form of independent review.

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Section 8(6) requires parents to give reasons for requesting a review of a co-ordinated support plan. The education authority ought to be subject to a corresponding duty to give reasons for any refusal to review.

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Section 12(2)(c) - The assessment of whether a young person has capacity to bring an appeal should be decided by the ASN tribunal, not by the education authority, who are a party to the appeal. This may otherwise lead to challenges in terms of Article 6 of the European Convention of Human Rights.

Section 12(3) - There should also be a right of appeal added against an education authority’s refusal to establish whether or not a child has additional support needs or needs a co-ordinated support plan.

Section 12(3)(c)(ii) - A right of appeal should be included against parts of the co-ordinated support plan to be covered by regulations, otherwise the parent may be left unable to appeal against parts of the Plan. A right of appeal should also lie against a refusal to review or decision to review on expedient grounds.

Section 14 - Govan Law Centre has concerns about the accessibility of the further right of appeal to Court of Session (especially if there is to be a short timescale for appeal). Further, specific guidance to the Scottish Legal Aid Board on the availability of legal aid for such appeals may be required, in order to ensure that appeals are not made impossible for financial reasons. In particular, it is suggested that the financial assessment for such cases be made on the child’s income and capital, rather than that of their parent(s).

Section 14(3) - The Court of Session should also be able to substitute its own decision for that of the tribunal (if appropriate) in order to avoid unnecessary delay of cases by reverting to the tribunal.

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Section 15 - The definition of "independent" should be altered so that employees of the Council cannot mediate cases involving their own colleagues. Central funding from the executive should be available for mediation. These would improve the perceived independence and transparency of any system of mediation.

Mediation should also be able to cover a wider remit e.g. disputes over educational input from health and social work as well as education.

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In Schedule 2, the Govan Law Centre questions the value of divergence in the appeal structures for placing requests and would recommend that the jurisdiction of the Education Appeal Committee be transferred to the new tribunal. This would also be more cost effective and efficient than a "twin-track" system.

Finally, the ASN tribunal should not be required to take into account the cost implications and precedence setting effect of any decisions, as is proposed. The education authority are not entitled to take these factors into account in composing the Co-ordinated Support Plan and the Court of Session are not placed under similar restrictions in hearing appeals from the tribunal.

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