Applications for special schools remain high in Scotland and there has been an increasing number of legal challenges when requests for a space in specialist settings are refused. This means, increasingly, that teachers and school leaders are required to be involved with the legal process. This can be time-consuming, stressful and challenging.
Many references (that is, appeals) on placing request refusals now go all the way to the Health and Education Chamber of the First-tier Tribunal for Scotland (which subsumed the Additional Support Needs Tribunal in 2018). From our experience in dealing with these references, we take a look at current trends and offer practical advice on how to approach them. The advice on tribunal preparation and participation is equally applicable to references relating to alleged failures in the preparation or delivery of coordinated support plans for pupils with additional support needs (ASN) in mainstream education settings.
The availability of free advocacy and legal representation
There are several services that provide advice to parents and carers of pupils with ASN. Enquire, the Scottish advice service for additional support for learning, provides free advice and information. Access to free advocacy and representation is available through the Let’s Talk ASN scheme or the My Rights, My Say programme. All are funded by the Scottish government.
For many, the availability of free representation and specialist advocacy by experienced education law solicitors has provided the opportunity to bring references that may not otherwise have been pursued, given the cost or the daunting prospect of representing themselves. Indeed, the tribunal statistics show that applications increased from 83 in 2020-21 to 133 in 2021-22; there have been 130 applications in the first half of 2022-23 alone.
Dealing with placing request refusals
1. The initial rejection letter
Schedule 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 sets out the statutory grounds (that is, the reasons) that can form the basis of an education authority’s decision to refuse a placing request. Authorities are required to grant the placing request unless they are able to establish one of these statutory grounds of refusal.
Refusal letters may only state the statutory reason for refusal, without any further explanation as to how that reason applies to the individual’s circumstances. We are encouraging education authorities to re-examine how this stage of the process is handled, providing a more detailed explanation of the basis of refusal, to allow all parties to understand the reasoning for the decision. School staff will have an important role to play at this stage in the process to ensure that any additional details being provided are accurate.
2. Preliminary challenge
Where a parent or carer chooses to challenge the authority’s placing request refusal, there may be an opportunity to resolve matters before a reference is made to the Health and Education Chamber. Formal mediation is an option that families are entitled to participate in, at no cost, and there are professional mediators who specialise in education disputes.
3. At tribunal
Some cases will not be easily resolved and will escalate to tribunal proceedings.
We have acted on behalf of education authorities in a significant number of references made to the tribunal, including appearing on behalf of the authority at tribunal. In our experience, the preparation required for both parties at such tribunal hearings is significant and the timescales are relatively short. The tribunal normally requires all documents, including assessment reports and witness statements, to be produced in advance of the hearing.
Witnesses can expect to be guided through the process by the specialist solicitor dealing with the tribunal. You may be asked to provide a written witness statement in advance. Statements from witnesses to fact are designed to assist the tribunal’s understanding of the factual matters that are within the witness’ knowledge. Speculation should be avoided and matters of opinion should be dealt with by expert witnesses only.
If you are a witness you will also be required to attend the tribunal hearing to give evidence in person or via video link. Tribunals are a relatively formal process and witnesses are expected to be professional in all aspects, from appearance to the content of their evidence. You will have access to a copy of any witness statement that you submitted in advance and may refer to it throughout proceedings. You can ask for any questions to be repeated and it is perfectly acceptable to say that you don’t know if the answer is not within your own knowledge.
Many cases will not get as far as a final tribunal hearing. We have found that the exchange of detailed information (which it has only been possible to provide by working closely with the relevant teachers) about the position of the authority in advance of the hearing sometimes causes parents to either ask for proceedings to be suspended to allow them to decide if they want to continue, or choose to withdraw the reference completely.
Whether the proceedings run to a final hearing or not, the system ensures that the grounds for decision making are transparent and that all pupils are provided with the appropriate level of support to achieve their potential.
Scott Milligan is a partner and Kate Sutherland is a senior associate in the employment team at law firm Harper Macleod
