The proposed framework for assessment and planning for children’s additional support for learning needs is to be based upon the obligation on Education Authorities (contained in Section 2(1) of the Standards in Scotland’s Schools etc. Act 2000) to:

"… secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential."

The above system has lead to a degree of specificity, detail and quantification far in excess of what is generally recorded in terms of Part V of the Record of Needs. Scottish Office circular 4/96 stresses that Part V need not be specific if flexibility is required in order to respond to changing needs. The Education Law Unit suggests that it is only in exceptional cases that a child’s needs would be changing so rapidly that this could not adequately be dealt with by way of the statutory review process.

There can be no good reason why children and young people with special needs in Scotland are denied the same degree of certainty and specificity, in terms of special educational provision, that their counterparts in England and Wales receive.

The proposals, rightly, remain committed to a degree of confidentiality surrounding documents which concern a child or young person’s special educational needs. At present, the Record of Needs is therefore exempt from the provisions of the Data Protection Act 1998, by virtue of the Data Protection (Miscellaneous Subject Access Exemptions) Order 2000. This has the effect of denying children of school age or younger their right of subject access to the Record of Needs, although their parent(s) will have a copy of the Record.

Unless disclosure of the Co-ordinated Support Plan is to be restricted by way of amendment of the relevant provisions (i.e. Section 60(4), Education (Scotland) Act 1980; and proviso (bb) to Reg. 7(2), Education (Record of Needs) (Scotland) Regulations 1982), then the subject access exemption will no longer apply. This will mean that children can access their Co-ordinated Support Plan directly without the need for further statutory amendment, since the exemption only applies to documents the disclosure of which is restricted by the above statutory provisions.

The proposals suggest an inter-agency approach to providing for children’s needs and the sharing of information for that purpose. The effective partnership of education and social work departments with each other and with other agencies, such as health boards is essential. However, areas of overlapping responsibility often become disputes regarding allocation and expenditure, with the child suffering as a result. New legislation should carry an extended power of investigation and enforcement for the First Minister, similar to that contained in Section 70 of the Education (Scotland) Act 1980, which would allow such disputes to be resolved without the resort to court action.

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As the proposals point out, legislation already requires children’s views to be taken into account regarding education (Section 2(2), Education (Scotland) Act 1980). However, as above, this only applies to pupils receiving school education directly from, or by virtue of arrangements made by, the Education Authority. This duty requires to be expanded to apply to all children undergoing a process of assessment and planning, or involved in the education system at all.

The duty to take children’s views into account in this context should also be put on an equal footing with the duty to take parental views into account. This can be achieved by placing a requirement on the Education Authority that the views of the child are to be canvassed in the same way as the parents’ views are sought throughout the recording process (for example, Section 62(2), Education (Scotland) Act 1980).

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Section 332B of the Education Act 1996 (as amended) sets out the framework for resolution of disputes by way of mediation in special educational needs cases in England and Wales. There are many positive features in this, and it could well be used as the basis for similar framework in Scotland. Of particular importance is the requirement that persons appointed for the function of facilitating the avoidance or resolution of disputes be independent.

Section 332B(6) makes it clear that participating mediation does not affect parental rights to appeal. This should be extended in Scotland to include children’s rights of appeal and to cover other types of legal challenge. The increase in time limits for appeals is a welcome step which will facilitate participation in mediation.

Mediation should be available for children with special educational needs (and / or their parents) with regard to disagreements with the Education Authority in any area, and not restricted to provision. Given that the definition of special educational needs is not a precise one and that it is not restricted to children with disabilities; and given that the new criteria of additional support for learning needs will be even wider, would it not be simpler to allow access to mediation for all pupils and parents, rather than to have some form of (inevitably imprecise and contentious) screening process to weed out children who do not have additional needs?

Mediation should also be available in cases of disputes involving more than two parties. For example where a dispute has arisen regarding placement of child in a school involving the child, their parent(s), the "home" authority and the "receiving" authority. Or where the parent, education department and social work department are in disagreement about funding for a residential school placement. Or the local health board may be involved in disagreement about medical / educational provision for a child’s disability. This would mean that this type of dispute could be resolved without recourse to expensive and complex litigation.

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The establishment of an expert tribunal to replace the Education Appeal Committee and Scottish Ministers is to be welcomed. Given the serious deficiencies with the Education Appeal Committee system identified in the special report by the Scottish Committee of the Council on Tribunals (which, according to the most recent annual report, remain unresolved), consideration should be given to extending the remit of the new tribunal to cover exclusion and placing request appeals also. Certainly these should be heard by a specialist tribunal in any case involving a child with special educational needs / additional support for learning needs. Assuming that the Westminster government can be prevailed upon to make the necessary legislative changes, the new tribunal should also hear complaints under Part 4 (Chapter 1) of the Disability Discrimination Act 1995 (as amended).

The special report by the Scottish Committee of the Council on Tribunals identified a need for independent representation of appellants before the Education Appeal Committee. This is confirmed in the new proposals which uphold the right of parents and / or pupils to be represented before the tribunal. In order to give meaning to the right to be represented, the Scottish Executive will require to amend the Legal Aid legislation to provide civil Legal Aid or ABWOR in appropriate cases before the new tribunal. The Tribunals and Inquiries Act 1992 will require amendment in order that the new body is properly regulated.

A further right of appeal to the sheriff should lie from the new tribunal. As the tribunal will (it is anticipated) be compliant with the requirements of Article 6 of the European Convention on Human Rights, there would be no requirement that an appeal to the sheriff would have to proceed by way of a rehearing of evidence. Indeed, it would perhaps be advantageous that the evidence was heard and findings in fact made by the tribunal who would have some form of experience and expertise in educational matters. An appeal to the sheriff on point of law should not require to be "final" as is now the case. Further appeal to the higher courts (again on point of law only) should be competent.

The constitution of the tribunal as proposed is broadly acceptable. However, the two lay members should be drawn from two separate "pools" as is the case in employment tribunals. One pool would be for persons with knowledge and experience of education / additional support for learning needs / disability from an education authority background (with the proviso that an employee or former employee of a particular Education Authority should not hear appeals against that same authority). The other pool would be for persons with knowledge and experience of education / additional support for learning needs / disability from a parent / pupil viewpoint.

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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. The new provisions should therefore be introduced by way of amendment to existing legislation, unless the Westminster government agree to amend the Disability Discrimination Act 1995 to cover the new piece of legislation. If the changes were introduced by way of fresh, stand alone legislation, then pupils would lose a measure of legal protection from disability discrimination in this area.

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