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

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

2. Chamber President Mrs May Dunsmuir FtT Health and Education Chamber

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

4. Tribunal Patterns and Statistics Total Applications received:

5. Tribunal Patterns and Statistics References received:

6. Tribunal Patterns and Statistics Claims received: In 2018/19, 17 claimswere 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 Claimsreceived, 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the tribunal refused the claim • 1 claim was decided at a paper hearing, where the tribunal allowed the claim • 6 were withdrawn following an agreement between the parties • 8 claims remain outstanding • 11 involved children or young people with a diagnosis of autism • None were known to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 References and Claims received by Education Authority 2018/19

9. Tribunal Patterns and Statistics Nature of Additional Support Needs for Claims and References 2018/19

10. Nature of Additional Support Needs Tribunal Patterns and Statistics

11. In-House Convener Mr Derek Auchie Appeals and Reviews

12. 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 • 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

19. In-House Convener Mr Derek Auchie Co-ordinated Support Plans (CSPs)

20. 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): • “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. 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.

23. 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. 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: • “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. 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

28. 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? • 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 • Not expert/skilled (professional) evidence • No opinion given, just a factual account

31. 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. • 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: • 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: • 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 • 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

37. Placing requests: recent case • 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 • 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

40. 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 • 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 www.healthandeducationchamber.scot www.needstolearn.scot

43. Enquires and Questions

44. 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 • 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. 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.

47. 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 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. 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 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’).