Independent Adjudication

Independent adjudication is a way of resolving disagreements about additional support needs. An adjudicator looks at information about a disagreement and then makes recommendations for how to resolve it.

This page explains more about what independent adjudication is, and how you can ask for it.

What is independent adjudication?

Independent adjudication is when a neutral and independent person (an adjudicator) looks at information about a disagreement about additional support for learning, and then makes recommendations for how to resolve it.

You have the right to request independent adjudication, and your child can ask for it if they are aged 12 or older. If your child is aged 12-15 they can get support with this process from My Rights, My Say

Independent adjudication involves both you and the local authority responsible for your child’s education providing information to the adjudicator explaining what has led to the disagreement and what you think should happen to resolve the situation.

Independent adjudication is a paper-based exercise in most cases. You will not usually have a chance to meet or talk to the adjudicator.

After reviewing all the information about the case, the adjudicator will write a report with their recommendations. It is expected that both parties will accept the outcome, but local authorities have no legal duty to apply the adjudicator’s recommendations.

The local authority is responsible for paying the costs of the independent adjudication.

Who are the independent adjudicators?

Scottish Ministers appoint the independent adjudicators. They all have knowledge and experience of additional support for learning and the local authority’s legal duties. The adjudicator must be independent of the local authority.

When can I use independent adjudication?

You will be able to resolve most disagreements about your child’s additional support for learning by working with the school, nursery or the local authority, either directly or through mediation. Find out more on our webpage Solving problems with your child’s school.

If this has not worked or if you or the local authority do not want to try mediation, you can request independent adjudication.

You can use independent adjudication if you disagree with a local authority’s decision about:

whether your child has additional support needs
the kind of additional support needs your child has
refusing a request to find out whether your child has additional support needs
refusing a request for a specific type of assessment or examination of your child’s support needs
the person doing an assessment of your child’s needs, or the way it is done.

You can also use independent adjudication if you think the local authority has failed to:

provide, or make arrangements to provide, support to meet your child’s needs
request help from another agency (for example, the NHS) to help meet your child’s needs.

If your disagreement is about something else, there are other options for resolving it. You can read more on our webpage Solving problems with my child’s school.

What happens in independent adjudication?

Here is a summary of the process

Step 1: Check that independent adjudication can be used for the disagreement you are in

Step 2: Send your application to Scottish Ministers

Step 3: Scottish Ministers will refer the case to the local authority

Step 4: The local authority will decide whether to accept the application

Step 5: The local authority will ask Scottish Ministers to appoint an adjudicator

Step 6: The local authority will send you copies of the information they are submitting to the adjudicator

Step 7: You and the local authority can both submit further information

Step 8: The local authority will send all the paperwork to the adjudicator

Step 9: The adjudicator will consider all the information they have received, asking for further detail if they need it

Step 10 :The adjudicator will send their written report to the local authority, and write to you to tell you that they have done so

Step 11: The local authority will decide whether to accept the adjudicator’s recommendations

Step 12: The local authority will send you their decision plus a copy of the adjudicator’s report.

How do I apply for independent adjudication?

The adjudication will be between you and the local authority that is responsible for your child’s education.

The local authority should have up to date information about how you can apply. They can also help you apply, but do not have to. An advocate, supporter or someone from a voluntary organisation may be able to help you complete your application.

You can apply for independent adjudication in any permanent format. This will usually be a letter or email but can also be a video or audio recording.

You must send your application to Scottish Ministers. You should email it to the following address: supportinglearners@gov.scot

Once you have applied and the process has started, you can stop it at any point if you would like to — for example if you and the local authority come to an agreement in another way.

What should I include?

Your application must contain:

Your name and address.
The name and address of your child.
What the disagreement is about. This is must be from a list of ‘specified matters’.
The ‘grounds’ for your application. You need to refer to the part of the law that is relevant to your disagreement. See the section below for help with this
Why you are applying for independent adjudication, giving a summary of the circumstances that have led to the disagreement.
A copy of any advice, information or requests that are relevant to the application. This could be copies of emails or letters between you and the school, nursery or local authority, school progress reports, minutes of meetings, your child’s support plan, or anything else you feel is relevant.
If your request is about a local authority decision, you must include a copy of the decision you received.
How you think the disagreement should be resolved.
Your child’s views, if you know what they are.

As you are unlikely to meet or speak to the adjudicator, it is very important to include all relevant information and documents in your application.

What are the ‘grounds’ and ‘specified matter’ for my application?

To use independent adjudication, your disagreement with the local authority needs to be about one or more of the ‘specified matters’ listed below.

You also need to explain what the legal basis of your disagreement is. This is known as the ‘grounds’ for your application. You need to reference the part of the law that you think the local authority has not followed for your child.

‘Specified matter’ What your disagreement is about	Grounds The relevant section of the Education (Additional Support for Learning) (Scotland) Act 2004
A decision that your child has, or does not have, additional support needs	Section 1(1) definition of additional support needs Section 6(1)(a)(i) the local authority must identify which children and young people have additional support needs
A decision that your child has additional support needs of a type that you do not think accurately reflects their needs	Section 6(1)(b) the local authority must identify the particular needs of children and young people with additional support needs
A decision to refuse a request to establish whether your child has additional support needs	Section 6(2)(a) the local authority must comply with requests to assess whether a child or young person has additional support needs, unless the request is unreasonable
A decision to refuse a request for a specific assessment, such as an educational, psychological or medical assessment or examination	Section 8(1) the local authority must comply with requests for specific assessments when deciding whether a child has additional support needs, unless the request is unreasonable Section 8A(1) the local authority has a duty to comply with requests for specific assessments at any time, unless the request is unreasonable
A decision about the person, or the method used (or due to be used) to carry out an assessment or examination of your child’s support needs	Section 8(3), Section 8A(5) assessments must be carried out by a person the local authority considers appropriate
A failure to provide (or make arrangements for providing) the additional support required by your child (whether relating to education or not)	Section 4(1)(a) the local authority must make adequate and efficient provision for such additional support as is required by the child or young person
A failure to request help from an ‘appropriate agency’ (an NHS board, another local authority, Skills Development Scotland, or a further or higher education institution)	Section 23(1) where a local authority thinks that an appropriate agency could help in the exercise of any of their functions under the ASL Act, they can request the help of that agency

When will I know if my application has been accepted?

Within five working days of receiving your application, the Scottish Ministers will contact the local authority to refer your application on to them. The local authority will then decide whether to accept the application.

Within 10 working days of the local authority receiving your application, the local authority must write to you to tell you either that:

They accept your application and will ask the Scottish Ministers to choose an independent adjudicator for the case, or
They cannot proceed with your application. The local authority must tell you the reasons why – this could be because:
- it does not relate to a ‘specified matter’
- you have not included enough information with your application
- the request is unreasonable.

If the local authority does not accept your application because you have not included enough information, you can provide further information so that they can reconsider your application.

If your application is refused, there is no right of appeal, but there are other routes for resolving disagreements that you can try. Find out more on our webpage More formal routes to resolving disagreements.

What happens next?

Within 10 working days of accepting your application, the local authority must give you:

a copy of the local authority’s summary of why the disagreement has happened = their response to the information you provided in your application
their views on how the disagreement should be resolved
a copy of any further advice, information, requests or decisions that the local authority wants the independent adjudicator to consider when making their decision.

You and the local authority then have a further 10 working days to provide each other with any further supporting information or observations on your own or the others’ application that you want the adjudicator to see.

The local authority must then send the adjudicator:

your application and the supporting materials you submitted
their response and supporting materials, and
any further information or observations you and the local authority have provided.

This must all happen within a maximum of 25 working days from the date they accepted your application.

How and when will the adjudicator make their recommendations?

Once the adjudicator has received all the information, they will consider the circumstances and the available options for resolving the situation. In most cases their decision will be based on all the documentation that you and the local authority provided, rather than through meetings.

However, the adjudicator can ask for further observations, information or advice from you, the local authority, or any other relevant agency (for example social work or the NHS). If they ask you to provide further information, they will tell you how and when you should provide it.

If they think it is necessary, they may ask to meet you or others involved in the case, but this is rare. If this happens, you can take a supporter or advocate along to the meeting.

Within 15 working days of receiving all the necessary information, the adjudicator will provide a written report to the local authority with their recommendations for how the disagreement should be resolved. They will also write to you, and anyone else they think appropriate, to let you know that they have sent the report to the local authority. They will also tell you the date by which the local authority must decide if they will accept the recommendations of the report.

If the adjudicator cannot meet the 15-day deadline, they must write to you to explain why and set a new date for completing the process.

Once the adjudicator has sent their report to the local authority, their involvement in the process ends.

The local authority’s decision

Once the local authority receives the adjudicator’s report, they must decide whether to accept the recommendations. The local authority must send you their decision in writing within 10 days of receiving the report. They must tell you:

the facts they have based their decision on
the reasons for their decision
how they think this will affect your child.

The local authority must also send you a copy of the adjudicator’s report and recommendations.

If the local authority cannot meet this 10-day deadline, they must tell you why and set a new date.

The whole process of independent adjudication should take no more than 60 working days. This begins the day the local authority sent you the letter telling you they will accept your application and ends the day they send you their decision.

It is expected that you and the local authority will accept the recommendations and decision.

What can I do if I am unhappy with the local authority’s decision?

You cannot appeal the local authority’s decision to the adjudicator. However, there are further routes available for resolving disagreements. For example, you can make a formal complaint to the local authority.

If you think there has been a failure under education law, you can also make a complaint to the Scottish Ministers. This is called a ‘section 70 complaint’. Find out more on our webpage Section 70 complaints

The local authority can give you information about these options and other ways that may help resolve your disagreement. You can also contact the Enquire helpline for advice.

You cannot apply for independent adjudication again for the same issue within 12 months of your original application.

Where can I find out more?

The Govan Law Centre Education Law Unit can provide free legal advice and may be able to help you submit an independent adjudication application.

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