A government consultation aimed at closing loopholes in the Additional Support for Learning (ASL) Act has revealed huge concerns among parents, charities and councils about its implementation over the past two-and-a-half years.
Parents' groups complain that, despite the Act's intention to take the heat out of disputes over special needs provision, it has actually increased bureaucracy. Mediation has been used much less than anticipated, with parents opting instead for adversarial tribunal hearings.
Councils raise concerns about having to write a "blank cheque" for children with additional support needs who, through a placing request, are educated and supported in another authority but the services are paid for by their home authority.
And there is almost universal agreement that the legislation has failed to define one of the most crucial issues: what is meant by "significant" needs, which is one of the criteria for allocating a Co-ordinated Support Plan, the only legally binding support plan provided for in the ASL Act.
The parents' advocacy group Independent Special Education Advice (ISEA) Scotland argues that different interpretations of words such as "significant" and "adverse effect" are the main reason so few children and young people in Scotland (just over 1,800) have a co-ordinated support plan.
"If we look back to the fact that approximately 17,500 childrenyoung people in Scotland had a Record of Needs, and we were informed at the time of the passage of the Act that 50 per cent of these would not qualify for a support plan due to the change in criteria, we are approximately 7,500 (sic) short of the expected target," says ISEA.
Relationships between parents' groups and councils have been hostile at times, as revealed in East Lothian Council's submission. It describes ISEA as "confrontational" and accuses it of encouraging and canvassing parents "to become involved in dispute systems when not in the best interests of the child".
The National Autistic Society Scotland claims there are difficulties in engaging health and social work under the Act - a point backed up by Douglas Thomson, principal psychologist with City of Edinburgh Council.
"Without parallel legislation for health and social work, parents are using education legislation to address perceived deficiencies in health and social care provision for their children. This is understandable, but an unfortunate consequence for education authorities," he says.
One of the main purposes of the consultation is to resolve the legal minefield of placing requests and financial liability for support costs between authorities. This follows a judgement last year in the Court of Session which found that the ASL Act did not give parents the right to make a placing request for a school in an authority outside their own, if their child had additional needs requiring a co-ordinated support plan.
The case in question was brought by Wilma Donnelly, from West Dunbartonshire, who wanted her son Mark, who has cerebral palsy and is registered blind, to attend a special school in Glasgow instead of a mainstream school in her own authority.
The court ruled that, although the local authority could make a placing request on her behalf, there was no provision for Ms Donnelly to do so under the Act.
That prompted the Government to consult on whether the law should be amended to give children with additional support needs the same placing request rights as other children. If backed, the proposal would require a change in the powers of the Additional Support Needs Tribunal for Scotland to hear an appeal in cases where councils have turned down placing requests.
While most respondents have backed a change in the law, the Association of Directors of Education in Scotland warns that it would establish an inequality: parents of children with a co-ordinated support plan could make placing requests to independentfee-paying schools, with the home authority liable for these fees, where other parents could not.
"Where an outwith placing request is accepted, it will be very difficult for the home authority to estimate the extent, scope, length - and therefore the cost - of the potential commitment which might well extend far beyond the initial placement and support," says the association.
Leader, page 26.