Ways of resolving disagreement provided by the Additional Support for Learning Act
If a parent or young person disagrees with certain types of decisions made by the Education Authority including any of our staff, they have various rights under the Act to put their views to a person who is independent from the person making the decision which is the subject of the disagreement.
There are three ways to do this under the Act:
- Dispute Resolution
Generally, these ways will enable better understanding and agreement to be reached. In some circumstances, this independent person can provide formal advice or a judgement that changes a previous decision of the Education Authority. Accessing any of these methods is free, though there may be a cost if legal advice is sought.
The purpose of mediation is to help both sides to understand each other’s point of view in order to prevent a disagreement from becoming more serious and to give another chance to reach agreement.
If a disagreement occurs, the Education Authority may offer mediation to the parent or young person. Mediation is provided by an entirely independent mediation service.
Common Ground Mediation are the authority’s appointed service.
Tel: 0131 553 5200 / 07507 511502
Parents and young person do not have to accept the offer of mediation and this does not stop them from going down another route of dispute resolution. It is also the case that mediation can be used at any time, including during dispute resolution and tribunal.
The parent or young person can request mediation before it is offered by contacting the mediator directly.
Compared to dispute resolution and tribunal, mediation is faster and has very few formalities.
However it is important to note that the Scottish Government recommends that the parent or young person should not bring a lawyer with them to mediation.
The meeting is confidential and it is likely to take place somewhere convenient for the parent or young person and somewhere they feel comfortable – for example the school attended by the child or young person or a community centre near to where they live.
The mediator will not offer advice to either side but will help them to express their views and understand each other’s perspectives to try and find a positive way forward.
Dispute resolution can be used for disputes about most matters to do with assessing and meeting a child’s additional support needs. For example, it could be used for a disagreement about what are the additional support needs of the child, what is a reasonable assessment request, or what support the child needs to meet their additional support needs.
The dispute will be considered by an independent adjudicator. They will have experience of working in the field of additional support needs and will be appointed by the Ministers of the Scottish Government, ensuing they have no connection to the Education Authority.
An application for dispute resolution must be made to the Scottish Ministers containing the following information:
- the name and address of the applicant
- the matter at dispute and a summary of circumstances giving rise to the application
- a copy of any advice, information or request relevant to the subject matter of the dispute and a copy of any decision of the education authority which the applicant wishes the education authority and the independent adjudicator to take account of in considering the application
- the legal grounds for the application, referring to the relevant part of the Additional Support for Learning Act
- the views of the applicant as to how the dispute could be resolved
- where known to the applicant, any views expressed by the child regarding the dispute
The application should be addressed to the Scottish Ministers at the following address:
The Scottish Ministers
Support and Wellbeing Unit
Area 2 C South
Dispute Resolution is normally a paper exercise and the adjudicator will reach a decision based on reports and papers provided by the parent or young person and the Education Authority. In exceptional circumstances the adjudicator may decide there is the need for a meeting.
The Scottish Ministers expect that both sides will accept any recommendation made by the independent adjudicator, although neither side have to do this. We intend to accept all recommendations – unless there are exceptional circumstances which at this time we are unable to predict.
Dispute resolution does not cover:
- Disagreements relating to a coordinated support plan. These can be taken to the Additional Support Needs Tribunal.
- Disagreements relating to the refusal of a placing request for a particular nursery or school. These can be taken to the Additional Support Needs Tribunal.
- Disagreements relating to exclusions. These can be taken to East Lothian Council’s Appeal Committee.
- Disagreements about the general conduct of the Education Authority which go beyond additional support needs – for example allegations of failing to meet all of a child’s educational needs including those which have nothing to do with their need for additional support; or allegations of incompetence against a member of our staff. Some disagreements of this kind can be taken to the Scottish Ministers under the terms of Section 70 of the Education (Scotland) Act 1980 or to the Scottish Public Services Ombudsman.
Additional Support Needs Tribunals for Scotland
A reference to the tribunal can be made when the disagreement relates to:
- Co-ordinated Support Plans (CSP)
- Appeals on the refusal of placing requests, but only in relation to special schools and/or when a CSP is involved
- School to post-school transitions
- Certain matters covered by the Equality Act 2010
The main features of the tribunal are:
- It is made up of three people – a Chairperson who has legal training and two members who have expertise in additional support needs.
- It will take evidence on everything to do with the disagreement.
- There will normally be a hearing where the Education Authority and the parent(s) or young person get to speak to the tribunal and explain their views.
- The tribunal will make a decision which both sides must accept – unless the parent or young person or the Education Authority believe there has been a mistake in interpreting the law. They then have the right to appeal the decision to the Court of Session.
- There is no right of appeal against the tribunal’s decision on what the facts of the case are.
A parent or young person can use the tribunal for disagreements about the following things.
- a decision to refuse a placing request for a special school – or for a mainstream school for a child who has a coordinated support plan or who is being assessed for a plan or for whom a plan is being prepared or for whom there is a reference to the tribunal against the refusal of a plan
- a decision that a plan is needed
- a decision that a plan is not needed
- a decision to continue a plan following a review
- a decision to stop a plan following a review
- a decision to refuse a request to assess a child to find out if they need a plan
- a decision to refuse a request to review a plan
- some of the information contained in the plan
- the length of time taken to decide whether or not to carry out assessments to find out if a plan is needed
- the length of time taken to complete the assessment process and to make a decision on whether or not a plan is needed
- the length of time taken to open a plan following a decision that a plan is needed
- the length of time taken to review a plan
- alleged failure by the Education Authority to make arrangements to provide the support specified in the plan
With regard to the Equality Act 2010, the Tribunal can hear claims of alleged disability discrimination when this happens in an education setting in Scotland. Under the Equality Act 2010 it is unlawful for a school to discriminate against a disabled applicant or pupil in relation to:
- the provision of education
- access to any benefit, facility or service (this and provision of education covers all aspects of school life and the teaching of disabled pupils)
- any other detriment
The Education Authority has a duty to make reasonable adjustments to support disabled pupils and to prevent them from being discriminated against. It is also unlawful for a school to harass or victimise an applicant or pupil.
A parent or young person who wants to resolve a disagreement at the tribunal can request this by contacting the Service Manager - Education (ASN) whose contact details are given on page 1 of this information – or by contacting the tribunal directly. The contact details for the tribunal are:
The Additional Support Needs Tribunals for Scotland
4th Floor, 1 Atlantic Quay
45 Robertson Street
Tel: 0141 302 5860
There is an advocacy service available free of charge to parents and young people seeking to, or actually making an appeal to the Additional Support Needs Tribunal.
The contact details for this advocacy service are:
Let’s Talk ASN
c/o Govan Law Centre
18–20 Orkney Street
Tel: 0141 445 1955
The advocacy service Let’s Talk ASN is not available to the parent or young person in such a case of a complaint about alleged discrimination. However, the parent or young person can apply for legal aid.
The contact details for the Scottish Legal Aid Board are:
Scottish Legal Aid Board
91 Haymarket Terrace
Tel: 0845 122 8686