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

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

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

4. 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

5. 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

6. 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

7. 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6 were withdrawn following an agreement between the parties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

8. 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

9. 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

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

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

12. 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

13. 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)

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

15. 08/05/2019

16. 08/05/2019

17. 08/05/2019

18. 08/05/2019

19. 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)

20. 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

21. 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.

22. 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 ; and (3) case studies at pp on elements of the test.

23. 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)

24. 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).”

25. 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.”

26. 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.

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

28. 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

29. 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

30. 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

31. 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).

32. 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.

33. 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”

34. 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

35. 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

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

37. 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)).

38. 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.

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

40. 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

41. 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

42. Contact Us HEChamberPresident@scotcourtstribunals.gov.uk 0141 302 5863
08/05/2019
Contact Us

43. Enquires and Questions
08/05/2019
Enquires and Questions

44. 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.

45. 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).

46. 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:

47. 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)

48. 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.

49. 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

50. 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 (re: determinations of ‘capacity’ and ‘wellbeing’).

51. 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.

52. 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

53. 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).

54. 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.

55. 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

56. 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

57. 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.

58. 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.

59. 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?

60. 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.”

61. 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

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

63. 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.

64. Contact Us HEChamberPresident@scotcourtstribunals.gov.uk 0141 302 5863
08/05/2019
Contact Us