Setting the records straight
Some parents will view the Additional Support for Learning Act in November with trepidation. For others, it may give them rights to more help for their child than they might have struggled to gain in the past.
Miranda Harvey, of Edinburgh, has a foot in both camps.
Her youngest son, Kit, 11, has Angelman syndrome, a rare neurological condition which causes severe learning difficulties and means he has no speech, does not walk and has some visual impairment. He has a record of needs (RoN) and would qualify for a co-ordinated support plan (CSP) under the new Act because his needs arise from complex or multiple factors and he requires support from a range of providers.
Mrs Harvey's older son, Jack, 13, has a developmental co-ordination problem similar to dyspraxia. He does not have a record of needs but would be assessed as having additional support needs under the Act.
"When the legislation was being debated and discussed, a lot of parents of children who have RoNs were fearful that they might get something less. The record of needs was the tool which had enabled them to pin down a school or education authority to get what they needed. Losing the RoN was seen as threatening," says Mrs Harvey, who wrote the response from the Scottish Parent Teacher Council to the ASL Bill consultation and also sits on Edinburgh City Council's Additional Support Forum.
Having acknowledged the fears of some parents whose children have records of needs, she adds: "I don't know many parents who felt that the RoN was a good system. Its main downfall is that it effectively writes down all the difficulties your child has. And there was also a feeling that record of needs children got A, B, C and the others were left to fight for various resources. It was very unfair. Personally, I am not sad to see it go."
The co-ordinated support plan - to which some, but not all, children with a record of needs will be entitled - "looks good on paper", says Mrs Harvey, and it means there is a named co-ordinator for the child. "It's less miserable having to read it. It's about hopes and aspirations and moving forward rather than saying this child is trapped in a disability."
Key changes in the Act include the introduction of mediation, dispute resolution and a tribunal system to arbitrate disputes. Opinion is split over the jurisdictional divide. If a child is deemed to have additional support needs, then parents can go to either mediation or a new dispute resolution system. However, if the argument involves a co-ordinated support plan, the routes are mediation and an appeal to a tribunal.
For some, the distinction is artificial. The National Autistic Society for Scotland is one of several groups which would like to have the tribunal option available to all levels of additional support needs.
The Scottish Executive's aim, however, was to make the system less adversarial and more consensual. It estimates - based on the experience of England and Wales, where a tribunal system operates - that there will be around 300 referrals a year to the tribunal system, with perhaps 100 of these finding their way to a hearing.
The tribunals are on course to be operational by November 14, the date of implementation of the Act. Eight staff will be based in Scottish Executive offices in Glasgow and 12 tribunal members, six conveners and a tribunal president are now being appointed. The tribunals themselves will sit in a venue as close as practical to parents involved and in neutral territory, such as a hotel.
Shabnum Mustapha, the policy and campaign officer of the National Autistic Society of Scotland, says her organisation is setting up a free advocacy service to support parents. In England and Wales there have been cases of parents having to remortgage their home to pay for tribunal costs and it has not been uncommon for education authorities to be represented by barristers at hearings. While the intention in Scotland is to offer a more consensual approach, she fears that parents may have to face similarly daunting legal line-ups.
Lorraine Dilworth, who runs the Independent Special Education Advice (Scotland) organisation, which ran out of funding last year but has been given a financial lifeline from BBC Children in Need, is already helping parents to prepare cases for tribunal. She believes the estimate of 300 referrals to be an under-estimate.
Her main concerns about the new legislation are that it "gives local authorities more power than ever over parents"; it does not address the postcode lottery of provision that currently exists; it requires parents to justify in writing the kind of assessment process they want for their child when many may not know what kind of assessment is most appropriate; and the mediation and dispute resolution routes have "no teeth".
Mrs Harvey is more sanguine, although she takes issue with the Executive on some areas, including the likelihood of increased demand upon resources.
The Executive and education directors argue that the Act should not create a greater workload or significant extra costs. They say that children who under the legislation would now be recognised as having additional support needs because, for instance, they have suffered a family bereavement, have English as an additional language, or are particularly gifted, are already supported under current provision.
Ann Carnachan, chair of the social inclusion committee of the Association of Directors of Education in Scotland, says schools are already providing support to children with a range of needs and difficulties. "I don't think it's a whole new world," she says.
Mrs Harvey, however, warns that the new framework will allow parents to pursue extra resources for their children and it is inevitable that demands will grow.
"The Executive is raising expectations that children's needs will be better met and that will mean extra resources. That will mean an extra burden on education authorities where they are handling children who don't have a co-ordinated support plan.
"There are going to be a lot of parents thumping on the table saying, 'This legislation said my child's abilities would be met and they're not'." She adds that the legislation's mission statement is set out in such a way that if a parent thinks their child should be in the top maths set and is not, then there is the potential to pursue a claim for additional support.
While such a claim might seem extreme, she warns that the Act will give parents a much stronger case for saying: "I want this much support for my child and if you don't provide it I will go to mediation or dispute resolution."
Her fervent hope is that it will bring home to schools and education authorities the importance of meaningful communication with parents from an early stage.
Veronica Rankin, the Educational Institute of Scotland's national officer for education and equalities, fears the legislation could mean a greater workload for teachers, who may be required to prepare papers for a growing number of appeals. While welcoming the shift from a "deficit model" of records of needs, she worries that there will be insufficient resources to meet demand and that this will mean additional burdens on schools.
For education authorities, one particular funding issue is already causing cross-border wrangling. Who pays for the additional support needs of a child placed in a school following a placing request, the residential authority (as happens now) or the educating authority?
Smaller education authorities such as East Renfrewshire and East Dunbartonshire, which receive disproportionately high numbers of placing requests, including those for children with additional support needs, are concerned that their budgets will be hit by the new legislation.
Under the old system, the funding followed the child. Under the Act, it appears that the educating authority will have to meet the costs, while the home authority is under only a moral, not legal, obligation to contribute.
That, inevitably, could lead to authorities refusing placing requests - and more appeals to dispute resolution or tribunals.
Faced with demands for support, authorities may employ the argument of "unreasonable cost". While parents may fret that the Act does not define what is "unreasonable" with sufficient clarity, the Executive insists that it would not expect this claim to be anything other than exceptional.
Parents would have to make their case along the lines of "without X our child cannot do Y".
While education authorities have a duty to provide "adequate and efficient education", that is not necessarily the same as a Rolls-Royce service.
The Executive has provided around pound;26 million over the past two years for implementation on top of the pound;50 million it spends every year to support inclusion.