Tribunal (Additional Support Needs) Forum

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Presentation transcript:

Tribunal (Additional Support Needs) Forum 08/05/2019 Tribunal (Additional Support Needs) Forum The White Box, Glasgow Wednesday 8 May 2019

Chamber President Mrs May Dunsmuir FtT Health and Education Chamber 08/05/2019 Chamber President Mrs May Dunsmuir FtT Health and Education Chamber

Update from Tribunal Administration 08/05/2019 Operations Manager Mr Paul Stewart Update from Tribunal Administration Overview 2018/2019

Tribunal Patterns and Statistics 08/05/2019 Tribunal Patterns and Statistics Total Applications received: References Claims Total 2013/14 50 12 62 2014/15 72 5 77 2015/16 6 68 2016/17 64 9 73 2017/18 89 11 100 2018/19 96 17 113

Tribunal Patterns and Statistics 08/05/2019 Tribunal Patterns and Statistics References received:   2013/14 2014/15 2015/16 2016/17 2017/18 2018/19 Placing Requests 32 50 45  53 74 71 Contents of CSP 9 11 4  4 1 8 CSP Not Required 5  1 7 Implementation of CSP 2 6  2 Deemed Refusal of CSP 3  3 Timescales (Issue CSP) Failure to Review CSP Transitions  0

Tribunal Patterns and Statistics 08/05/2019 Tribunal Patterns and Statistics Claims received: In 2018/19, 17 claims were made in the reporting year, representing an increase of 6 compared to the previous year. 7 claims were made on exclusion and another issue to do with education 1 claim was made on admission, exclusion and another issue to do with education 9 claims were made on the matter of another issue to do with education

Tribunal Patterns and Statistics 08/05/2019 Tribunal Patterns and Statistics Claims received, of these: 2 claims were decided at an oral hearing, where the tribunal refused the claim 1 claim was decided at a paper hearing, where the tribunal allowed the claim 6 were withdrawn following an agreement between the parties 8 claims remain outstanding 11 involved children or young people with a diagnosis of autism None were known to have involved a looked after child or young person

Tribunal Patterns and Statistics 08/05/2019 Tribunal Patterns and Statistics References and Claims received by Education Authority 2018/19 Local Authority Claims References Total West Lothian Council 1 21 22 City of Edinburgh Council 4 11 15 North Lanarkshire Council 8 Aberdeenshire Council 5 6 Aberdeen City Council Comhairle nan Eilean Siar Glasgow City Council Perth & Kinross Council Fife Council 3 2 East Renfrewshire Council Midlothian Council Dumfries & Galloway Council Local Authority Claims References Total South Lanarkshire Council 2 1 3 The Highland Council East Dunbartonshire Council The Moray Council Dundee City Council South Ayrshire Council Falkirk Council East Lothian Council Scottish Borders Council Renfrewshire Council Stirling Council

Tribunal Patterns and Statistics 08/05/2019 Tribunal Patterns and Statistics Nature of Additional Support Needs for Claims and References 2018/19 Additional Support Need Claim Reference Total Autistic spectrum disorder 11 66 77 Other specific learning difficulty 1 10 Other moderate learning difficulty 5 6 Dyslexia 2 3 Visual impairment Learning disability Not enough information supplied Physical or motor impairment Social, emotional or behavioural difficulty Hearing impairment Interrupted learning Physical health problem

Tribunal Patterns and Statistics 08/05/2019 Tribunal Patterns and Statistics Nature of Additional Support Needs  

In-House Convener Mr Derek Auchie Appeals and Reviews 08/05/2019 In-House Convener Mr Derek Auchie Appeals and Reviews

Appeals and Reviews: Reminder 08/05/2019 Appeals and Reviews: Reminder Right to appeal on a point of law Leave to appeal at First-tier and Upper-tier Right to review in interests of justice Filter for interests of justice test Interaction between appeal and review processes Appeal becoming a review Appeal of re-issued decision following review Can review and then appeal the same decision

Appeals and Reviews- Statistics 08/05/2019 Appeals and Reviews- Statistics 5 permission to appeal applications (PTA) since January 2018 3 review applications (RA) since January 2018 2 of the 5 PTAs were converted to a review One UT decision (refusing permission to appeal)

President Mrs May Dunsmuir Glasgow Tribunals Centre 08/05/2019 President Mrs May Dunsmuir Glasgow Tribunals Centre

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In-House Convener Mr Derek Auchie Co-ordinated Support Plans (CSPs) 08/05/2019 In-House Convener Mr Derek Auchie Co-ordinated Support Plans (CSPs)

08/05/2019 CSPs Section 2 of 2004 Act: “….a child or young person requires [a CSP] if…” If the s.2 criteria are met, a CSP must be made, there is no discretion Content is set out in s.9 of the 2004 Act Regulations set out a template Sample content can be found in the 2017 Code of Practice

Aim of CSPs Policy Memo to 2003 Bill (para 26): 08/05/2019 Aim of CSPs Policy Memo to 2003 Bill (para 26): “The aim of the CSP is to plan long-term and strategically for the achievement of a child’s or young person’s educational outcomes, and to foster co-ordination across the range of services, both within and outwith the authority, required to support this.” So, since it is a ‘plan’ it should have a future focus. It needs to do more than record what is happening now.

08/05/2019 Is a CSP required? Statutory tests in s.2 must be applied (nothing else): Is the EA responsible for child’s education? Does the child have ASNs? Do the ASNs arise from complex/multiple factors which lead/likely to lead to a significant adverse effect on child’s education? Are the needs likely to continue for > 1 year? Will the needs require significant additional support from EA and appropriate agency OR from EA as educator and another EA function 2017 Code of Practice is useful: (1) flowchart at p.74; (2) CSP template with guidance at pp.157-162; and (3) case studies at pp. 165-176 on elements of the test.

CSP Content Once again, 2017 Code of Practice: 08/05/2019 CSP Content Once again, 2017 Code of Practice: ‘short and succinct’ (p.83 para 49) ‘[educational] objectives.. [in terms]..specific enough to enable [monitoring and review over time].. [but not]…so overly specific that they narrow and constrain what should be learned. When setting an objective, a question that needs to be answered is “How will we know the objective has been achieved?”’ (p.85 para 58) [Statement of support] to be clear and specific and, wherever possible…quantified.” (pp.85-86)

08/05/2019 Other documents (1) The CSP should complement other documents, not replace them or be replaced by them: Policy Memorandum to 2003 Bill, para 28: “The CSP will complement other existing non-statutory educational plans, as well as linking with plans in health and social work services, aiming to avoid duplication of information across agencies.” Code of Practice 2017, para 9: “An individual child or young person may also [in addition to having a CSP] benefit from more detailed planning in school (typically in the form of an individualised educational programme).”

Other documents (2) Code of Practice 2017, page 83, para 49: 08/05/2019 Other documents (2) Code of Practice 2017, page 83, para 49: “Short-term objectives would continue to be contained within personal learning planning, or an individualised educational programme or other plan…..Some may wish to use an individualised educational programme to break down objectives in a co-ordinated support plan into small steps, to guide day-to-day learning and teaching.”

08/05/2019 CSP Summary Where statutory eligibility tests met – no discretion exists, a CSP is required by law. Other documents irrelevant to eligibility. CSP content should be specific, clear and quantifiable.

President Mrs May Dunsmuir The Role of a Witness 08/05/2019 President Mrs May Dunsmuir The Role of a Witness

Witnesses Who is a witness? Someone who gives oral evidence 08/05/2019 Witnesses Who is a witness? Someone who gives oral evidence Someone who prepares a witness statement Someone who prepares a report or account

Witnesses How is the evidence of a witness assessed? 08/05/2019 Witnesses How is the evidence of a witness assessed? Demeanour (how oral evidence is presented) Reliability: experience, involvement, likelihood of bias Form of evidence: oral evidence versus written Context of evidence: prepared in the shadow of a dispute? All contributes to ‘weight’ which the tribunal will attach to the witnesses evidence

Lay evidence A witness to events 08/05/2019 Lay evidence A witness to events Not expert/skilled (professional) evidence No opinion given, just a factual account

Skilled (expert) evidence 08/05/2019 Skilled (expert) evidence Based on the profession of the witness An opinion e.g. about likely progression of a child’s education; about the cause of certain behaviour NOT an opinion about the legal test in the case, for example the suitability of a school for a child (which sits with the tribunal).

Both? Many witnesses provide both lay and skilled evidence. 08/05/2019 Both? Many witnesses provide both lay and skilled evidence. Why does the distinction matter? Reason: because the witness duties differ, and so the tribunal has to apply a different approach to each type, lay and skilled.

Duties: Lay When giving lay evidence: 08/05/2019 Duties: Lay When giving lay evidence: answer all questions/provide any account truthfully be as precise as possible in any answers/account refrain from using an account/answers as an opportunity to bolster the case being pursued refrain from speculation “one for one”

Duties: Skilled Much more onerous: 08/05/2019 Duties: Skilled Much more onerous: independent and uninfluenced by the dispute independent and unbiased assistance to the tribunal underpinning facts or assumptions must be stated

Duties: Skilled any material detracting from facts to be included 08/05/2019 Duties: Skilled any material detracting from facts to be included matters outwith the expertise area to be disclosed full range of skilled opinion to be provided, including contrary opinion

In-House Convener Mr Derek Auchie Topical Matters 08/05/2019 In-House Convener Mr Derek Auchie Topical Matters

Placing requests: recent case 08/05/2019 Where an EA has an internal system for allocation of places to a ‘special school’ (unit), the request to allocate a place could be a placing request (even if routed through the child’s school). The definition of a ‘placing request’ is a ‘request to an EA to place the child in the school specified in the request, being a school under their management’ (2004 Act schedule 2, para 2(1), para 2(3) and s.29(1)).

Placing requests: recent case 08/05/2019 Placing requests: recent case Arguably, any internal process is irrelevant to whether the request is a placing request. Even where it is not, arguably EAs cannot put up a pre-requisite process to exercising a statutory right.

In-House Convener Mr Derek Auchie New Documents Guidance 08/05/2019 In-House Convener Mr Derek Auchie New Documents Guidance

New Documents Guidance 08/05/2019 New Documents Guidance Pilot of the operation of Draft Guidance started on 1st August 2018 Four Education Authorities agreed to take part Pilot covered: Relevance of documents Partial documents Lodging and distribution of documents The bundle

New Documents Guidance 08/05/2019 New Documents Guidance Recent review undertaken Compliance with the pilot has not been uniform Some changes required to wording of the Draft Guidance Consequences of non-compliance require to be specified Guidance to be amended and re-issued with four EAs for comment Followed by wider implementation

Contact Us HEChamberPresident@scotcourtstribunals.gov.uk 0141 302 5863 08/05/2019 Contact Us HEChamberPresident@scotcourtstribunals.gov.uk 0141 302 5863 www.healthandeducationchamber.scot www.needstolearn.scot

Enquires and Questions 08/05/2019 Enquires and Questions

Children and Young People’s Commissioner Scotland 08/05/2019 Children and Young People’s Commissioner Scotland 1. The impact on children’s human rights where additional support for learning needs are not being met.

ECHR ‘right to education’ Art. 2 of Prot. 1 08/05/2019 ECHR ‘right to education’ Art. 2 of Prot. 1 Cases around exclusions (Ali v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363; Re JR17’s Application for Judicial Review [2010] UKSC 27) and the provision of special education (A v Essex County Council [2010] UKSC 33).

08/05/2019 Art. 14 prohibits discrimination in the exercise of a Convention right.  The UNCRC carries obligations of States to protect and enhance the rights of children, (see Arts. 23, 24, 28 and 29). See also Centre for Studies on Inclusive Education website: http://www.csie.org.uk/inclusion/child-rights.shtml.

08/05/2019 UNCRPD, Art. 24 (the right of persons with disabilities to education) highly relevant. There has been an analysis of domestic cases from across the globe in which this Convention has been applied: Waddington and Lawson, The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (OUP) (2018)

Children and Young People’s Commissioner Scotland 08/05/2019 Children and Young People’s Commissioner Scotland 2. The reluctance of authorities to provide CSPs and the preference for non-statutory Child’s Plans (GIRFEC) at best; and the consequential barriers to young people accessing justice. This is especially important for 'looked after' children and young carers.

number of references still very low 08/05/2019 misunderstanding about the statutory and compulsory nature of a CSP (see earlier) statutory presumption that all looked after children have ASNs (2004 Act s.1(1A) and (1B) on the rebuttal of that presumption), so the question of a CSP should be considered in relation to all looked after children. number of references still very low

Children and Young People’s Commissioner Scotland 08/05/2019 Children and Young People’s Commissioner Scotland 3. The compatibility of the existing provisions and the implementation of guidance with human rights law, particularly for children under 12 and those children 12-15 (re: determinations of ‘capacity’ and ‘wellbeing’).

08/05/2019 protections in 2004 and 2010 Acts go beyond the minimum required under the three Conventions In ‘capacity’ and ‘wellbeing’ determinations, probably no human rights implications, since these rights extend beyond the minimum access rights set out in the Conventions.

Children and Young People’s Commissioner Scotland 08/05/2019 Children and Young People’s Commissioner Scotland 4. Low numbers of CSPs across local authorities and the increasing use of other, non-statutory plans 5. Mainstreaming

Guidance on education in a mainstream setting issued by SG March 2019. 08/05/2019 Guidance on education in a mainstream setting issued by SG March 2019. Guidance will be used by parties and tribunal where the mainstreaming presumption ground of refusal of a placing request is used. Wider application - can be relevant in any case where the question of mainstream education arises (e.g. at ‘stage 2’ in a placing request reference; in relation to the content of a CSP; in connection with a disability discrimination claim).

Royal College of Speech and Language Therapists 08/05/2019 Royal College of Speech and Language Therapists Guidance for witnesses (especially health professionals) approached by both parties.

Skilled witness is not giving evidence ‘for’ either party 08/05/2019 Skilled witness is not giving evidence ‘for’ either party Giving unbiased assistance to the tribunal (although usually called as a witness by one or other party) Where both parties wish to call same skilled witness, legal member can decide at the conference call stage. Does not affect guidance to the witness

08/05/2019 Where it comes to a witness of fact (a lay witness), it should usually be clear who should be calling that witness  

Royal College of Speech and Language Therapists 08/05/2019 Royal College of Speech and Language Therapists Guidance for witnesses at the point of being approached initially by a representative for appellant or respondent, in terms of the process that is expected of them.

No standard guidance HEC can provide. 08/05/2019 No standard guidance HEC can provide. Professional body should be able to advise. Representative should also advise. Good practice for skilled witness to be advised by the party calling him/her of duties and tribunal etiquette.

Mental Welfare Commission 08/05/2019 Mental Welfare Commission 1. Any current issues for the tribunal service that would inform the work of the Commission?

MWC Mission Statement : 08/05/2019 MWC Mission Statement : “Our mission is to be a leading and independent voice in promoting a society where people with mental illness, learning disabilities, dementia and related conditions are treated fairly, have their rights respected, and have appropriate support to live the life of their choice.”

Children whose mental health might affect their education. SEBD Autism 08/05/2019 Children whose mental health might affect their education. SEBD Autism Use of restraint and seclusion Efficacy of mainstreaming

East Renfrewshire Council 08/05/2019 East Renfrewshire Council Placing requests Use of mediation

08/05/2019 It has become clear that mediation is on the increase as a reason for suspending references. Mediation is always to be encouraged, as long as both parties feel that it would be worthwhile.

Contact Us HEChamberPresident@scotcourtstribunals.gov.uk 0141 302 5863 08/05/2019 Contact Us HEChamberPresident@scotcourtstribunals.gov.uk 0141 302 5863 www.healthandeducationchamber.scot www.needstolearn.scot