If a council decides it wants to remove a child with additional support needs (ASN) from a school in a neighbouring local authority, where they are happy and settled, shouldn’t that child have the right to say, ‘I don’t want to go. I want to stay where I am’?” asks May Dunsmuir.

Thousands of children with ASN do have that right. The trouble is, they don’t know it.

Many also have the right to insist on improvements to their education - including looked-after children, who are more likely to underachieve at school, be excluded and leave at the first opportunity - but again, there is a lack of awareness.

Dunsmuir, who is in charge of the ASN tribunal set up to resolve disputes between local authorities and families over support in school (see box, bottom right), is calling for teachers to be more clued up about the rights that children have and to pass this information on to their pupils.

“Given the emphasis we place in Scotland on education, we have a responsibility to make sure we do the very best we can for this vulnerable group of children, and part of that, for me, is making sure teachers know the rights children have and teachers communicate those rights to children,” says Dunsmuir, whose official title is president of the Health and Education Chamber of the First-tier Tribunal for Scotland.

At the beginning of the year, the ASN tribunal moved into a swish new facility in Glasgow, known as the sensory hearing suites - every aspect of which has been carefully thought out and designed with the input of young people.

The tables in the hearing rooms, as in the legend of King Arthur, are round so that everyone feels equal. There are breakout areas and a sensory room, and there’s a separate lift so that children with special needs do not have to face the hustle and bustle of the main entrance and security.

When the interior colour scheme has been carefully considered: the walls are free from primary colours and unnecessary decoration in order to avoid sensory overload for autistic children, who are the most common visitors to these corridors.

Dunsmuir, who has spent nearly three decades working in child law and child welfare, believes there is nowhere else like it in the UK - possibly even Europe - and that this new facility will make children feel comfortable and therefore better able to tell their stories.

But, shortly after the launch of this facility in March 2020, the coronavirus pandemic arrived and, because of the ensuing lockdown, physical hearings ended.

Hearings are now conducted over the phone or via video conferencing - or a combination of the two - and the tribunal is working its way through a backlog of cases. That should be cleared by October, says Dunsmuir, who intends to review in November at what point face-to-face hearings might resume.

However, she says that she is very mindful of the fact that the children who attend the tribunal often have physical challenges as well as sensory ones, and as a result their health is not always robust.

“We have found a way through and now, no matter what happens, we can still discharge our business - I don’t see that there will be a need in the future to suspend cases,” Dunsmuir adds.

Upward trajectory

In 2018, Tes Scotland reported that the number of cases coming to the tribunal had hit triple digits for the first time, and the trajectory continues upward. In the past financial year, the tribunal received more than 146 applications, up on the 113 it received the previous year (see box, below). But it is a slow climb and nowhere near the 500 cases per year that the Scottish government envisaged when the tribunal was established.

We could look on this as a good thing - perhaps all is well in schools? But that would be naive.

We know that the number of children with ASN in schools is rising, with the latest figures showing that around a third of all Scottish pupils (30.9 per cent) have an additional support need. We also know that teachers are increasingly expressing concern about being able to meet the range of different needs that they have in their classrooms.

A 2017 survey of pupils and their families by the charity ENABLE Scotland showed that 52 per cent of children who had a learning disability or autistic children did not believe they were getting the right support at school. Meanwhile, the government’s published review of ASN, which it was accused of sneaking out in June, found that support was “fragmented, inconsistent and is not ensuring that all children … are being supported to flourish and fulfil their potential”. It added that austerity and pressure on resources were “clearly the most powerful driver in shaping the current reality of implementation”.

Dunsmuir - who took up her current role in 2014 - believes that the tribunal is reaching only “the tiniest tip of the iceberg”.

For example, after 2009, when it was decided that looked-after children would automatically be classed as having an additional support need, you would have expected, if not a flood of applications to the tribunal, then at least “a solid trickle”, she says. But that did not happen.

“I worry, given that the educational outcomes for looked-after children are not where they should be,” explains Dunsmuir. “I worry that there is a whole section of the child population in Scotland - many thousands of children - who don’t know that they have a right to insist on improvements in their education and, if those improvements do not occur, they have a right to take it to an independent decision maker.”

When children do know about their rights, however, they are “diligent” in pursuing them.

In January 2018, 12- to 15-year-olds in Scotland were given the right to ask for extra support in school. At the time, the Scottish government claimed the development meant that Scottish pupils had the most rights in Europe when it came to their entitlement to ask for support in school. Others, however, pointed out that enabling children to exercise these rights would require investment to actually give them the help that they needed.

Now, Tes Scotland can reveal that the tribunal has received only eight child applications since the new rights were introduced, with three from children who came back because they were not satisfied with the outcome.

But Dunsmuir does not see that kind of perseverance from parents.

It was an application to the tribunal raised by a child under these new rules that led to Dunsmuir - for the first time last year - using what she describes as her “impressive” power to refer a case to Scottish ministers.

The case dates back to 2018 and involves an autistic pupil who had been excluded from school “for reasons arising from her disability”, who wanted an apology and more support “from staff with a greater specialism in [autistic spectrum disorder]”.

The case was resolved before it got to a hearing - which is true for the majority of the cases that are referred to the tribunal - but the girl has since come back to the tribunal to say that she does not believe her education authority has complied with the decision (see box, below).

Dunsmuir says: “I’ve had requests to exercise that power from agencies such as the National Autistic Society and from representatives for their client, but I’ve not exercised that power because, following investigation, usually what happens is the education authority fixes what it has not done and it gets tidied up, so I don’t have to.

“On this occasion, I felt compelled to take it to this stage. The child’s words to me were, ‘You need to make the right decision.’”

However, Dunsmuir warns that too many children with additional support needs and their families have no clear idea of the support they ought to be receiving to access education because of the failure of councils to make use of coordinated support plans (CSPs) - legally binding support plans for children with special educational needs.

The plans also enable legal action to be taken if the child does not receive the help to which they are entitled. Figures show that while there were 215,897 children with an additional support need in Scottish schools last year, only 1,707 had a CSP.

But every child with additional support needs will require a CSP because it might be that their needs can be met by the education authority alone; the point of the plans is to coordinate multi-agency involvement.

However, Dunsmuir argues that looked-after children should usually have a CSP because they will have involvement with, at the very least, social work and education.

Yet the numbers, as she puts it, “don’t balance”, given that there are many more looked-after children in Scottish schools - more than 8,500 - than there are CSPs. And, of course, they are just one group of pupils who should be benefiting from the plans.

Lack of reassurance

If families and children do not have a CSP, they do not have the reassurance that a range of supports - such as occupational therapy, and speech and language therapy - will be put in place, for as long as is needed, irrespective of what happens to budgets.

It is a scenario that rings true for one family that won a disability discrimination case against their authority in 2019 after years of fighting with the council for a CSP, and then, once they’d got one, for what should be in it.

The tribunal validated the family’s position that a CSP was needed, stating that their son, who has diabetes and severe dyslexia, met the criteria. The tribunal also made recommendations for things they had been fighting for years to get, including the setting of clear targets in relation to their son’s learning, which would be assessed regularly to see if they were being met.

The tribunal’s decision has had an impact on their child’s progress in school, say his parents. But, more than that, it has given them hope for the future because they now have a document detailing the support he should be receiving. Previously, they felt reliant on the authority’s “goodwill”, feeling that they had no comeback if the council failed to deliver something that had been promised - from expert input to improved home-school communication.

Dunsmuir says: “I know there are plans aplenty all over the many different schools we have in Scotland, but the CSP is the only one that is common and statutory in its nature, yet it’s been driven into the shadows. I think that’s because the statutory criteria for the CSP are much too complex.

“The other thing is people have become a wee bit feart of it and think, ‘We have our own plans and they work well. Why do we have to have that?’ But it’s about rights - if you meet the criteria, you don’t have the choice, you have to have it. So, if the criteria are met, you don’t get to say, ‘I prefer my IEP [individualised educational programme]’ or ‘I prefer the Highland Council plan’. It’s an obligation and it’s a failure to deliver that obligation if the CSP is not being provided where the criteria are met.”

“The ASN tribunal has the power to compel an authority to give a child a CSP or to decide that something should be added to a CSP where one exists. The tribunal can also step in and be an independent arbitrator where there is disagreement over a placing request to a school. This might arise if a family wants a child to attend an independent special school but the authority believes that one of its schools is suitable.

But for children and families to apply to the tribunal, they do need to know that it exists.

A lot gets placed at the feet of teachers - from teaching pupils about online safety, healthy eating and sexual consent to, in this case, Dunsmuir’s call for schools to make children aware of their rights.

Yet it may be welcome news for educators - many of whom are also presumably unaware of the ASN tribunal - that if a child is being let down by the system, cash-strapped councils, desperately trying to balance the books, do not get to have the final say.

Children do not have to muddle through without adequate support - and neither do teachers. There is another way, and it is time more people knew about it.

Emma Seith is a reporter at Tes Scotland

This article originally appeared in the 25 September 2020 issue under the headline “Needs must”