Tribunal Forum 5 May 2017

1. Tribunal Forum 5 May 2017 May Dunsmuir, President

2. Why is education important?

3. Education is a vital human right and plays a key role in human, social, and economic development. “Restricted access to education is one of the surest ways of transmitting poverty from generation to generation. Education is a vital human right, …….. Every girl and every boy should have the right to a quality education so that they can have more chances in life, including employment opportunities, better health and also to participate in the political process….. A special focus has to be given to the most vulnerable and marginalized groups.” Global Partnership for Education

4. “Education is important. You learn new things – it’s where you learn the skills of life.” Children in Scotland, We can learn together! (2014) “Every child has the right to become a successful learner, confident individual, effective contributor and responsible citizen – wherever their learning is taking place. Some will face barriers to learning and will need additional support to enable them to make the most of their educational opportunities and to realise their potential.” The Doran Review

6. The Expert Tribunal • Specialist jurisdiction • Membership expertise: legal, education, health and social work • Child focused • Flexible proceedings

8. Additional Support Needs Joseph Hughes Julius Komorowski Richard Mill Derek Auchie Peter Hessett Frances Konopka Lesley Dowdalls May Dunsmuir Deirdre Hanlon Isobel Wylie Russell Hunter Muriel Robison Jane Laverick Margaret Cooper John McDonald Ian Morrison Lio Moscardini Elizabeth Munro Barbara Peardon Maureen Howie James Hawthorn Gillian McKelvie Irene Stevens Kate MacKinnon Christina Leitch Hazel McKellar Lesley Sargent Hope Craig Pradeep Pasupuleti Christine Pacitti Polly Cowan

9. Impact of the Tribunals (Scotland) Act 2014 on ASNTS

10. Tribunals (Scotland) Act 2014 • Creates two new tribunals (the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland). • Makes the Lord President of the Court of Session Head of the Scottish Tribunals and creates the post of the President of the Scottish Tribunals. • Brings tribunal appointments under the remit of the Judicial Appointments Board for Scotland. • Transfers administrative support of tribunals to the Scottish Courts and Tribunals Service.

11. Upper Tribunal First-tier Tribunal Structure of Scottish Tribunals The Lord President Mental Health Chamber Housing and Property Chamber Health and Education Chamber General Regulatory Chamber Tax Chamber Composite Division Appeals from the First-tier Tribunal Upper Tribunal Land Division Land Tribunal for Scotland The Court of Session President of Scottish Tribunals Mental Health Tribunal for Scotland Private Rented Housing Panel/ Home Owner Housing Panel Additional Support Needs Tribunals Scottish Charity Appeals Panel Tax Tribunal Private Rented Sector Education Appeals Committees Parking Adjudicators Valuation Appeal Committees Private Tenancies NHS National Appeal Panel for Entry to the Pharmaceutical Lists Police Appeals Tribunal Letting Agents NHS Tribunal for Scotland

12. What this means for ASNTS • Users of the tribunal should see little change. • Existing members will transfer into the First-tier Tribunal with allocation to the Health and Education Chamber to maintain the specialist nature of the jurisdiction. • Administrative support will continue to be provided by SCTS. • Tribunals will transfer with their existing rules where possible. These will become part of the Chamber Rules. The main changes will be in relation to the review provision. • Appeals will heard in the Upper Tribunal by a Court of Session judge which maintains current practice. However, the Chamber President, the Lord President or the President of Tribunals may also hear cases.

13. Any Questions?

14. Preparing for a tribunal

15. Joint minutes of agreed facts • Focus the minds of the parties on the matters notin dispute • Focuses the direction of the evidence • Clarifies what evidence is required – and who should present this – and how

16. Availability • The case conference call • The hearing – parties and witnesses • Forward planning

17. The child and the Tribunal – the child’s views

18. The child’s views • From the beginning to the end • Flexibility in proceedings • A children’s section on the ASNTS website (12 to 15 years) • Child’s views form (12 to 15 years) • President’s Guidance Note • The environment – learning from the Nordic model

19. “Throughout the process, the focus shall be on the best interests of the child. The child shall be informed of all matters that affect him or her and shall be given the opportunity to express his or her views in such extent and in such manner that his or her level of maturity permits.” Rikspolisstyrelsen (2009). Delredovisning av regeringsuppdrag avseende gemensamma nationella riktlinjer kring barn som misstanks vara usatta for brott och kriterier for landets Barnahus

22. Education (Scotland) Act 2016Derek Auchie, ASNTS Training Committee Chair

23. Update from the TribunalHazel McKay, Secretary

24. Information from the Tribunal • The website has recently been reviewed by a legal member of the Tribunal to ensure the accuracy of the information available. • In advance of new legislation, the website will be updated to improve accessibility and will include a new children's section. • Pulse Survey - There is a pulse survey available now: https://www.asntscotland.gov.uk/content/pulse-survey-2017. Please complete this and give us your feedback. The survey will be live until the end of June 2017. • Please check the website regularly to keep up to date with upcoming changes.

25. Keep Informed • Keep informed by visiting the “Publications” section of the website https://www.asntscotland.gov.uk/content/publications

26. Information Notes

27. President’s Guidance Notes / Practice Directions

28. Decisions Database

29. Secretary Update • First-tier Tribunal Health and Education Chamber - Everything is on target for the establishment of the Health and Education Chamber and the transfer of the ASNTS in November 2017.  • Front-line operational delivery will continue as normal. Details of changes will be communicated to you over the coming months. These will include:

30. New logo • Updated contact details will be communicated in due course. These will include a new website domain name and email addresses. There may also be an accommodation move in the new year. Information on this will be issued when available.

31. Tribunal Activity01 April 2016 to 31 March 201764 References9 Disability Discrimination Claims

32. References Received by Type

33. Nature of Additional Support Needs

34. References Received by Age and Gender1 April 2016-31 March 2017

35. References Received by Education Authority1 April 2016-31 March 2017

36. Disability Discrimination Claims • 9 Claims received in year 2016/2017 from 9 different responsible bodies • 6 Another issue to do with education • 3 Exclusion

37. Tribunal Hearings • 11 Oral hearings (1 Review) • 26 Oral hearing days • 1 paper hearing (Reference or Claim decided by a convener on the written evidence, with the agreement of parties)

38. Tribunal Outcomes Oral and Paper Hearings • Tribunal allowed reference/claim = 4 • Tribunal refused reference/claim = 4 • Reference withdrawn at hearing = 1 • Decision outstanding = 2

39. Representation at Tribunal HearingsOral and Paper • Appellant/claimant legally represented at 11 Tribunals • Respondent/responsible body legally represented at 9 Tribunals • No counsel appointed for respondent/responsible body at any Tribunals

41. Enquiries to the Tribunal

42. Partners in Advocacy Referrals to independent advocacy for the child/young person.

43. The Scottish Centre for Children with Motor Impairments • Is there guidance on a time for action after a tribunal decision has been made? i.e. If a placing request is granted, is there a timeline in which this should be: a. communicated to parents b. actioned by the appropriate parties

44. Independent Education Law Consultant • An update on the transition into the First-tier Tribunal for Scotland Health and Education Chamber.

45. Stirling Council • The challenge for local authorities which result from a cross-over between the Child and Young Person Act and the Additional Support for Learning Act regarding co-ordinated support plans and the child’s plan. • Placing Requests in financially challenging times.

46. Perth and Kinross Council Q. What is the average time a case is taking from acceptance of the reference to a decision from the tribunal?

47. Equality and Human Rights Commission Q. Can you provide more details about the Education (Scotland) Act 2016 extension of rights to children to challenge decisions under the Education (Additional Support for Learning) (Scotland) Act 2004? When will the provisions come into force; Can you provide an indicative timescale for when draft Tribunal rules will be available?

48. City of Edinburgh Council Q. Would the President provide guidance on the rules of evidence for tribunals, especially for oral hearings? E.g. What is or is not a leading question?

49. Royal College of Speech and Language Therapists Q. What is the ASNTS procedure in cases where the same family apply to the Tribunal on several occasions? What account is taken of previous hearings and outcomes? Q. What advice can the Tribunal provide Therapy managers on how best to prepare and support staff who may be called as witnesses at a Hearing? What can service leads do to ensure that their staff are familiar with Tribunal proceedings and expectations, e.g. relating to aspects of clinical evidence and service delivery? Q. How are different types of additional support needs represented in References to ASNTS and what is the breakdown of Hearings by Reference type? Q. Further information relating to the ways in which ASNTS anticipate seeking the views of the child or young person.

50. Glasgow City Council Comment: At the last Tribunal Forum there was a discussion about the role of expert witnesses. There is a Glasgow Sheriff Court judgement from Sheriff Anwar which suggested further judicial guidance which might be of general interest (case JQ v CC – a family action, 1 March 2016). You will find a copy of this case at the back of your information pack.