Chapter 12: Resolving disagreements

Building a strong relationship with those who work with your child will make it easier to solve disagreements informally.

You should be fully involved right from the start in making any decisions about your child’s additional support needs (see the chapter on Being involved in making decisions). If you are unhappy with anything, make your views known as soon as possible. You can do this at any meeting or by arranging an informal discussion with a relevant member of staff such as the class teacher or additional support needs staff. Your views must be taken into account. Don’t forget that you have the right to bring a supporter or advocate along with you (see the section on supporters and advocates), to help ensure that your views are understood, put across and taken account of in discussions.

Please try to resolve disagreements with the school or local authority before considering more formal routes. It will usually be possible.

Failing this, independent mediation is one option that can help. Under the ASL Act, independent mediation services must be available in every local authority. Your local authority must give you information about the independent mediation service it uses in your area. The service must be free of charge for parents and young people.

Mediation

Mediation is a way of resolving disagreements or misunderstandings early on, to prevent them getting worse. It is not like a tribunal or court. It allows you, or your child if they are aged 16 or over, to meet a relevant person from your child’s school or local authority, and try to agree a solution. You can have a supporter or advocate with you to help get your views across (see the section on supporters and advocates).

Independent mediation can help to build or rebuild a positive relationship, leading to co-operation in making arrangements for the child or young person. It can help avoid conflicts that arise out of misunderstandings or lack of shared information. The aim is that disputing parties come to a shared agreement on how to resolve the problem themselves.

An independent and trained mediator will always be present. However, they will not offer advice or make recommendations. They will simply help both parties to find a satisfactory agreement that resolves the problem. They do not act on behalf of either party and are independent from the local authority.

It is important to remember that:

  • mediation is voluntary
  • mediation is private and confidential. You can discuss the issues and your ideas for resolving the disagreement without fear of them being used against you in the future if no agreement is reached
  • using mediation as a first option to resolve a disagreement or misunderstanding will not affect your rights if you want to take the matter further at a later date
  • mediation can be used more than once; for example, for resolving different parts of a disagreement
  • mediation can be an opportunity for your child’s view to be heard
  • mediation is easily arranged. Usually it only takes a few phone calls for a session to be set up.

Further information can be found in Enquire factsheet 8: Mediation and Enquire factsheet 4: Resolving disagreements.

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The Jacks’ story – mediation

Paul - picture posed by model

Paul

(picture posed by model)

Mr and Mrs Jacks have a son Paul who is 14. Paul has Asperger’s syndrome. Paul had a difficult transition from his local mainstream primary to secondary school. Mr and Mrs Jacks started to feel increasingly frustrated at the school as they felt Paul’s needs were not being met and it was having a bad effect on him. They brought this up with the deputy head and head teacher throughout S1 and S2. They did not think anything was changing so they decided to withdraw Paul from school and educate him at home themselves.

The home education programme worked out well in some ways and not so well in others. Mr and Mrs Jacks felt that Paul was socially isolated and did not have friendships and wanted to look at what alternatives might be better. As a result of their experiences with Paul’s secondary school, Mr and Mrs Jacks found it difficult to talk to any staff in the authority about where Paul would best be placed. There was distrust between the parties and Paul’s parents did not think the authority knew how to meet Paul’s needs. After some time both parties agreed to contact an independent mediation service.

A mediator from the independent mediation service got in touch with the Jacks and the contact person at the local authority. Mrs and Mr Jacks met the independent mediator to share information about their concerns and learn more about mediation. The same opportunity was given to the education officer involved.

Both parties met at the local voluntary centre, with the mediator there to facilitate their discussions. Mr and Mrs Jacks said how they felt about the handling of Paul’s transition to secondary school and raised concerns that his needs were not met in school. The education officer referred to the local authority’s policy on additional support needs and the staged intervention approach it adopts. They were able to talk about what would now work best for Paul. Both parties agreed that Paul’s home education programme would continue, and that an additional support needs teacher from the school he attended would begin some outreach support work. The plan would be to work towards Paul attending his local school again. Initially this would be on a part-time basis, until Paul and his parents were happy with this step.

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Resolving disputes by independent adjudication

Under the ASL Act, independent adjudication is available as a way of resolving disagreements. It involves a formal review of your case by someone who is independent of your local authority and has expertise in dealing with children who have additional support needs. Unlike a mediator, the adjudicator will consider the circumstances leading to the disagreement, then reach a decision and make recommendations to everyone involved. Although there is no legal obligation for the recommendations to be acted upon, both parties are expected to accept the outcome.

You, or your child if they are aged 16 or over, have the right to request independent adjudication.

Independent adjudication can only be used for certain matters, for example, if you are concerned about:

  • whether your child’s additional support needs have been correctly identified
  • the local authority’s refusal of a request for a specific type of assessment
  • the level of additional support your child is receiving.

Independent adjudication does not cover things such as:

  • disagreements over the refusal of a placing request
  • disagreements over exclusions
  • allegations of misconduct, or broader policy issues such as school closures or complaints about the way a school is being run.

You can find more information in Enquire Factsheet 12: Resolving disputes using independent adjudication and Factsheet 4: Resolving disagreements.

It should take no longer than 60 days, from the time your local authority confirms it has accepted an application to you receiving the independent adjudicator’s report.

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The Smith’s story – independent adjudication

Maya - picture posed by model

Maya

(picture posed by model)

Mr and Mrs Smith have been in a long-running and difficult dispute with their daughter’s school and their local authority on the education of their daughter Maya who is 13. An education officer involved in the case suggested they could apply for independent adjudication. The officer explained how to do this. In their application, Maya’s parents said that the local authority was failing “to provide, or make arrangements for the provision of, the additional support” Maya needed.

To present their arguments and evidence to the independent adjudicator, Maya’s parents and the local authority had to clarify their views of Maya’s additional support needs and how well they were being met. They also had to consider how they thought the dispute should be resolved. Maya gave her views with the support of a member of staff at school she was comfortable with. Maya’s behaviour had deteriorated considerably at school and often she was not turning up.

The independent adjudicator reviewed the evidence and found that both parties disagreed on the nature and impact of Maya’s learning difficulties. There was no detailed up-to-date assessment evidence on the precise nature of Maya’s learning difficulties, and the targets in her personal learning plan were not precise. The adjudicator noted that Maya was anxious about the way the dispute was drawing attention to her.

In her report, the adjudicator’s recommendations for resolving the dispute included the following:

  • Maya should have a specialist assessment to establish the precise nature of her learning difficulties and advice on overcoming them.
  • The local authority should prepare an individualised educational programme that would be agreed and regularly reviewed by all parties and Maya herself.
  • Maya should work with a mentor to understand her learning needs and her part in dealing with them.

The local authority accepted the need to act on the recommendations. To co-ordinate this, it appointed an educational psychologist who had not previously been involved. Over time, Mr and Mrs Smith and the staff in Maya’s school began to work together to Maya’s benefit.

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Additional Support Needs Tribunals

You, or your child if they are aged 16 or over, can appeal to an Additional Support Needs Tribunal (the Tribunal) if you want to challenge a decision about a co-ordinated support plan (CSP) (see the earlier section) and in certain other circumstances.

The Tribunal has produced a guide for people using or thinking of using the tribunal system. There is also an easy-read version available. You can get copies from the Additional Support Needs Tribunals for Scotland: www.asntscotland.gov.uk

You can appeal to the Tribunal if you are unhappy with:

  • a decision to prepare a CSP for your child
  • a decision not to prepare a CSP for your child
  • a decision to continue your child’s CSP following a review
  • a decision to discontinue your child’s CSP following a review
  • the length of time it is taking to decide whether your child needs a CSP, to prepare the CSP or review the CSP. You can also appeal if the local authority fails to review your child’s CSP after 12 months
  • a decision to refuse your request to find out if your child needs a CSP, or your request to have an early review of the CSP
  • some of the information in your child’s CSP
  • the failure to provide the additional support included in the CSP
  • a decision to refuse a placing request where a CSP exists, or is required but not yet prepared, or if an appeal against a refusal of a placing request has not yet been considered.

Even if no co-ordinated support plan is involved the Tribunal will hear appeals on:

  • the refusal of a placing request to a special school
  • failures over post-school transition duties
  • issues related to disability discrimination of pupils.

Your local authority must inform you of your right to appeal to an Additional Support Needs Tribunal in the above circumstances.

Further information can be found in Enquire Factsheet 4: Resolving disagreements.

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Other ways of making a complaint

In some situations you do not have a formal right of appeal or the difficulty does not lend itself to being resolved through mediation or independent adjudication. You have a right to make a complaint if you are concerned about the quality of service your child is receiving, for example, where:

  • a problem has arisen in your child’s school or with a member of the school staff. In this case you should contact the head teacher
  • you are concerned about the conditions in which your child is being educated. You should contact the Parent Council and ask them to discuss the issue with school management to find a solution
  • you want to make a complaint about the work being done with your child by a professional who is providing their additional support (for example, their behaviour support teacher or a social worker). You should write to the individual’s line manager.

If you feel that these concerns have not been resolved to your satisfaction, you should then write to the head of your education service or the head of the other agency that is supporting your child.

Your local authority should have a designated complaints officer who can advise you on the local authority’s policy for making a complaint.

You could also write to your local councillor or your local MSP, but they will usually expect to see evidence that you have tried to resolve your complaint using your local authority’s complaints procedure.

You can complain to the Scottish Public Services Ombudsman if you have already been through your local authority’s complaints procedure but have not achieved a satisfactory result, or if your complaint was not appropriate at that level. This may be because you believe the local authority has mismanaged your case or not followed correct administrative procedures.

You will find contact details for the Ombudsman at www.spso.org.uk

If you feel that a local authority has failed to fulfil one of its legal duties, you can make a formal complaint to the Scottish Minister responsible for Education. This is known as a Section 70 complaint under the Education (Scotland) Act 1980. You must put a Section 70 complaint in writing, outlining your complaint with specific reference to the relevant duty failed. You can get more information about a Section 70 complaint from Enquire Factsheet 16: Section 70 complaints.

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Children who are educated outside the home authority

If your local authority arranges for your child to go to a school run by another authority, you can still access local mediation and independent adjudication services. This is because the home authority still has a duty to provide these services to the parents of children or young people belonging to their area. If your child attends a school outside your local area as a result of a placing request, the host authority will offer mediation and independent adjudication services locally.

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Children who are educated outside the public education system

If you have arranged for your child to attend an independent or grant-aided school and the local authority is not responsible for their education, you may still use the local mediation and independent adjudication services. However, you can only use the service to help resolve disagreements about the local authority’s duties under the Education (Additional Support for Learning) (Scotland) Act 2004.

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At a glance: Resolving disagreements

You have the right to:

  • use free independent mediation services. Mediation can be used at any time to address any issue or misunderstanding about your child’s additional support needs
  • have a supporter or advocate present at mediation sessions, although it is important to remember that mediation is a joint problem-solving process rather than trying to ‘beat the other side’
  • request independent adjudication
  • apply to the Additional Support Needs Tribunal (called ‘making a reference’) for decisions about a CSP and certain other issues. In particular, a parent or young person may make a reference about the decisions of a local authority:
    • to prepare or not prepare a CSP
    • to continue or discontinue a CSP
    • regarding the timescales for the CSP
    • not to comply with a request to establish whether a child or young person needs a CSP
    • to refuse a placing request where a CSP exists, or is required but has not yet been prepared, or if an appeal against a refusal of a placing request has not yet been considered
  • have a supporter or advocate present at a Tribunal hearing.

Local authorities must:

  • provide independent mediation services, free of charge, to parents and young people
  • have arrangements for resolving disputes and publish information on this. These arrangements must be free of charge to parents and young people.

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