After witnessing May Dunsmuir speak earlier in the year about the importance of families, schools and local authorities working together when waiting for a Tribunal hearing we wanted to know more, especially as this is something we talk about a lot on our helpline. Here, May explains that during disputes, communication is key.
The Additional Support Needs Tribunal, part of Scotland’s Health and Education Chamber, is a specialist tribunal. It is a legal forum where decisions are taken by judicial members. We make legally binding decisions about a child or young person’s school education where there is a dispute with an education authority. We can make decisions about a co-ordinated support plan (the only statutory education plan in Scotland) and we can decide which school a child or young person should attend. We can decide if an education authority has failed to comply with their duties regarding transitions and we can make decisions about whether a disabled child or young person has been treated unfairly at school.
Understanding the process
The moment a reference is made under the Education (Additional Support for Learning) (Scotland Act) 2004 or a claim is made under the Equality Act 2010, a sequence of procedures then follow. This includes fixing a case statement period (a period of time specified in rules of procedure) for both parties to lodge their written evidence; one or more judicial case management calls with the legal member, when timescales, directions and hearing dates will be fixed; and the tribunal hearing itself. During this period the legal member will also be thinking about how best to take the views of the child or young person (unless they are a party) and whether the child or young person will give oral (verbal) evidence to the tribunal.
All of this takes a number of weeks from the date the reference or claim was received.
A rights-based approach
Children and young people are at the centre of our proceedings, which is reflected in our approach, the design of our processes and in our decision making.
We adapt our processes to suit them – we do not expect the child or young person to adapt to us.
All tribunals will consider relevant international treaties before making a decision, including the United Nations Convention on the Rights of the Child (UNCRC). The UNCRC is the most complete statement of children’s rights ever produced and is the most widely ratified international human rights treaty. President’s Guidance on The Child, Young Person and the Tribunal is available and wherever possible, this Guidance is read in a way which is compatible with the terms of the UNCRC.
Although under consideration and widely supported, at the time of writing, the UNCRC has not yet been incorporated into Scots law. Until then tribunals will continue to have regard to relevant Articles, such as Article 12, which specifies that every child who is capable of forming their own views has the right to express those views freely in all matters affecting them, and that their views be given due weight in accordance with their age and maturity. It also requires that children are heard either directly, or through a representative or an appropriate body in any judicial proceedings affecting them. This includes proceedings in the Tribunal.
The Tribunal process can be a stressful and exhausting time for all involved and tribunals will, with the assistance of parties, work to avoid delays as far as possible. This is part of the Tribunal’s overriding objective.
A number of factors can lead to delays, including the complexity of the case, some of which include the longer-term impact of Covid-19 restrictions on school education. Others include:
- Difficulties in obtaining school records
- Delays in obtaining representation
- Mental health and its impact on the party.
With year on year rises in case volume, with the exception of the first two years of the pandemic, along with delays, there is a greater demand for tribunal hearings. All of this places pressure on diaries – for the parties, judicial members and for representatives and witnesses. In reality, where before we could previously expect to schedule a hearing within a month to 6 weeks of the last case management call these are now being set further in advance.
Keeping the child at the centre
What does this mean for the child or young person who is at the centre of all of this?
In some cases the dispute is so entrenched that both parties are exhausted by the time of the hearing and the dispute itself becomes the focus, rather than the child or young person.
We appreciate tribunal processes and delays can be stressful, but parties or their representatives can and should continue to talk to one another. It is not uncommon for mediation to begin or continue during the tribunal process and I actively encourage and support this approach and a willingness to keep the lines of communication open. It is important to be aware that the terms of mediation will not be shared with the tribunal.
Some children or young people who are the subject of our proceedings will have stopped attending school. We do not want to see that non-attendance lengthen, if it can be avoided. Getting the child back into school should be at the forefront of everyone’s mind. Tribunal proceedings can run parallel to these plans and discussions.
I encourage everyone involved in a tribunal to keep talking, to keep working together in whichever way they can and whatever way is available to them and to keep the child or young person at the centre at all times.
May Dunsmuir is the Chamber President of the First-tier Tribunal for Scotland Health and Education Chamber which includes the Additional Support Needs Tribunal for Scotland.
Looking for more information?
For professionals: Our solving problems pages offer top tips for addressing concerns and outlines the options available to you, your learner and their family to resolve disputes.
For parents and carers: Our pages on working with school and solving problems offers advice on how to build a good relationship with your child’s school, how to get the most out of meetings, and the steps you can take if you are experiencing difficulties or disagreements.
Interested in mediation?
Resolve is currently the largest independent mediation provider to the education community in Scotland. They have a bank of skilled mediators with a wide range of knowledge and experience mediating in disputes relating to additional support for learning.