After section 5D

Education (Additional Support for Learning) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:00 pm on 20th May 2009.

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Photo of Claire Baker Claire Baker Labour

I am delighted to speak to amendment 18, on the provision of advocacy services during a tribunal. I would have preferred to lodge an amendment on the provision of support services and advocacy, because it is clear that action needs to be taken in both those areas. If there was greater availability and uptake of support services, there would be less need for advocacy services at tribunal. However, I have been limited by the bill's financial restrictions, so amendment 18 focuses solely on the provision of advocacy services.

Amendment 18 is a simple amendment that would place a duty on ministers to secure provision of an advocacy service that would be available free and on request for tribunal proceedings. It addresses the anomaly that although the 2004 act created the right to advocacy, it did not create an accompanying duty on anyone to ensure the delivery of, or access to, advocacy services. Amendment 18 is supported by a range of bodies, including Independent Special Education Advice (Scotland) and Children in Scotland.

During stage 1, the committee heard evidence of the increasingly adversarial nature of some tribunals and of the need for parents and young people to be properly supported during the process. Amendment 18 would begin to level the playing field, particularly for those without the financial resources to hire an advocate. Ensuring the provision of an advocacy service that is available on request and free of charge to all parents is an important right that should be introduced to the bill. The provision of mediation and dispute resolution is in the 2004 act, and the opportunity should be taken with this bill to include the provision of advocacy services. At stage 1, the minister recognised the importance of advocacy services, saying:

"I want to ensure that parents have access to advocacy".—[Official Report, Education Lifelong Learning and Culture Committee, 21 January 2009; c 1905.]

During discussions at stage 2, the minister explained how the Government would achieve that:

"I am committed to establishing a representative advocacy service at tribunals for all parents and young people throughout Scotland. I propose the allocation of £100,000 per annum for a service to represent and/or support parents and young people effectively at tribunals."—[Official Report, Education, Lifelong Learning and Culture Committee, 22 April 2009; c 2194.]

Amendment 18 will deliver a service to which the minister has already committed in principle and financially. I believe that it is important that that commitment be secured within the bill to give certainty and security to parents and young people who require advocacy services.

I move amendment 18.

Photo of Margaret Smith Margaret Smith Liberal Democrat

I very much welcome amendment 18 and its focus on the need for advocacy support for parents and young people at tribunals. A case can be made for the need for advocacy services prior to that stage, so that parents can be supported earlier in the process and, indeed, so that disputes might not make it through to the level of a tribunal. However, all of us at committee, whether we liked it or not, were acutely aware of the costs involved in various amendments to the bill. I believe that amendment 18 strikes the correct balance.

The committee sought to achieve a greater balance of arms for tribunals between parents on the one hand and local authorities on the other, many of which employ lawyers and some of which employ Queen's counsels to argue their cases at tribunal. Amendment 18 and its projected funding requirement of £100,000 mirror a commitment that the minister made at stage 2 to invest that amount in tribunal advocacy services. I believe that it will represent valuable support to parents at what can be an incredibly stressful time. I thank Claire Baker for bringing the issue back before us at stage 3. She has been tenacious in her quest.

Photo of Adam Ingram Adam Ingram Scottish National Party 3:15 pm, 20th May 2009

Frankly, I am surprised that amendment 18 has been lodged, given my discussion with the committee at its evidence-gathering session on 22 April. It appears that commitments given by me as a Scottish Government minister have been discounted. That causes me some concern. The undertaking that I have given is to establish a representative advocacy service at tribunals for all parents and young people throughout Scotland. I also advised that I expected that the service would help parents and young people with independent adjudication and with other remedies that are open to them to resolve disputes with education authorities. Amendment 18 is somewhat narrower, as it would exclude any help with other dispute-resolution mechanisms.

Furthermore, I have concerns about the definition of "advocacy service" that is contained in amendment 18. The definition makes no mention of empowering parents or young people to speak up for themselves to secure their rights. I know that a number of advocacy providers share my concern about that.

Therefore, I ask Ms Baker to withdraw amendment 18 and to rely instead on the undertaking that I have given.

Photo of Alex Fergusson Alex Fergusson None

I apologise to Ms Baker, who was quite right to move amendment 18 when she did. I ask her to wind up the debate.

Photo of Claire Baker Claire Baker Labour

As I said in my earlier comments, amendment 18 is supported by Children in Scotland, ISEA and a range of other organisations.

I accept that the minister supports the provision of advocacy services for the tribunal process and that he is committed to delivering such services, but I believe that the best way to secure that commitment and to provide the service with the certainty that it deserves is to translate that commitment into the bill.

I am afraid to say that we have seen too many organisations lose political support and funding when priorities change. I believe that advocacy services for parents and young people at tribunals should not be left vulnerable to that possibility.

I will press amendment 18.

Photo of Alex Fergusson Alex Fergusson None

The question is, that amendment 18 be agreed to. Are we agreed?

Members:

No.

Division number 4

For: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brocklebank, Ted, Brown, Gavin, Brown, Robert, Brownlee, Derek, Butler, Bill, Carlaw, Jackson, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Foulkes, George, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Henry, Hugh, Hume, Jim, Jamieson, Cathy, Johnstone, Alex, Kelly, James, Kerr, Andy, Lamont, Johann, Lamont, John, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McArthur, Liam, McAveety, Mr Frank, McCabe, Tom, McInnes, Alison, McLetchie, David, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, Milne, Nanette, Mitchell, Margaret, Mulligan, Mary, Murray, Elaine, O'Donnell, Hugh, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Purvis, Jeremy, Rumbles, Mike, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stewart, David, Stone, Jamie, Tolson, Jim, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Allan, Alasdair, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Gibson, Kenneth, Gibson, Rob, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, Kidd, Bill, Lochhead, Richard, MacAskill, Kenny, MacDonald, Margo, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McMillan, Stuart, Morgan, Alasdair, Neil, Alex, Paterson, Gil, Robison, Shona, Russell, Michael, Salmond, Alex, Somerville, Shirley-Anne, Stevenson, Stewart, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

Photo of Alex Fergusson Alex Fergusson None

The result of the division is: For 71, Against 48, Abstentions 0.

Amendment 18 agreed to.

Photo of Alex Fergusson Alex Fergusson None

Amendment 19, in the name of Karen Whitefield, is in a group on its own.

Photo of Karen Whitefield Karen Whitefield Labour

The purpose of amendment 19 is to ensure the provision of independent mediation at local authority level. Although there are some excellent examples of the provision of mediation in some local authorities, evidence suggests that the fact that some councils provide mediation services internally has led to poor take-up because of concerns about how independent such services are. Parents often need mediation when a dispute arises between them and the local authority. Concerns have also been raised with the committee that some local authorities have made little or no provision for mediation.

Kenny Gibson lodged a similar amendment at stage 2 but chose to withdraw it because of a technical drafting issue. The committee agreed to his withdrawing it, but it was believed that it would be resubmitted at stage 3. Amendment 19 is a redrafted version of Kenny Gibson's stage 2 amendment. Account has been taken of the drafting problem that the minister highlighted at stage 2. As Mr Gibson said at the time, we need to ensure that

"there is no postcode lottery for mediation services".—[Official Report, Education, Lifelong Learning and Culture Committee, 29 April 2009; c 2250.]

That is what amendment 19 seeks to do. It has the support of ISEA and the for Scotland's disabled children coalition, so I urge members to support it.

I move amendment 19.

Photo of Adam Ingram Adam Ingram Scottish National Party

Amendment 19 would prevent a mediation service from being provided by anyone who had any involvement in the exercise by a local authority of any of its functions, regardless of whether or not those functions related to education, by redefining the circumstances in which mediation services are to be regarded as independent. Ms Whitefield has confirmed that the aim of amendment 19, as with the amendment that Kenneth Gibson lodged at stage 2, is to prevent authorities from using in-house mediators and to require those authorities that currently provide an in-house mediation service to employ an independent mediation service provider. We understand that at least two authorities deliver in-house mediation services.

There is no evidence whatever to suggest that in-house mediation services are in any way less effective or of a lower standard than mediation that is provided by an independent mediation service provider. To prohibit those authorities that have taken steps to put such a service in place from maintaining that service without any evidence that such a step would improve provision appears to me to be illogical and a rather negative development. I firmly believe that the mediation services for which the 2004 act provided are well regarded by all parents and that, in this instance, we in the Scottish Parliament should leave it to each education authority to decide the precise details of how it provides such services. Our role is to ensure that mediation services are provided free of charge to parents and young people, as the 2004 act provides.

Accordingly, I ask Karen Whitefield to withdraw amendment 19.

Photo of Karen Whitefield Karen Whitefield Labour

I listened carefully to the minister's comments. Although he suggests that there is no evidence that there is a problem with the mediation services that Scotland's 32 local authorities provide, the Education, Lifelong Learning and Culture Committee heard from a number of organisations that expressed particular concerns about the impartiality and independence of mediation services.

No one doubts the commitment of those people who work in the mediation services that local authorities offer internally, but the point is about independence. It is essential that parents who seek mediation services have confidence in the system. Given that such parents are often in dispute with their local authority, they can have confidence in the system only if those mediation services are delivered independently. Therefore, I have no intention of withdrawing amendment 19.

Photo of Alex Fergusson Alex Fergusson None

The question is, that amendment 19 be agreed to. Are we agreed?

Members:

No.

Division number 5

For: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brocklebank, Ted, Brown, Gavin, Brown, Robert, Brownlee, Derek, Butler, Bill, Carlaw, Jackson, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Foulkes, George, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Henry, Hugh, Hume, Jim, Jamieson, Cathy, Johnstone, Alex, Kelly, James, Kerr, Andy, Lamont, Johann, Lamont, John, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McArthur, Liam, McAveety, Mr Frank, McCabe, Tom, McGrigor, Jamie, McInnes, Alison, McLetchie, David, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, Milne, Nanette, Mitchell, Margaret, Mulligan, Mary, Murray, Elaine, O'Donnell, Hugh, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Rumbles, Mike, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stewart, David, Stone, Jamie, Tolson, Jim, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Allan, Alasdair, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Gibson, Kenneth, Gibson, Rob, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, Kidd, Bill, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McMillan, Stuart, Morgan, Alasdair, Neil, Alex, Paterson, Gil, Robison, Shona, Russell, Michael, Salmond, Alex, Somerville, Shirley-Anne, Stevenson, Stewart, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

Photo of Alex Fergusson Alex Fergusson None

The result of the division is: For 73, Against 47, Abstentions 0.

Amendment 19 agreed to.

Photo of Alex Fergusson Alex Fergusson None

Amendment 20, in the name of Ken Macintosh, is in a group on its own.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

Amendment 20 was suggested by ISEA. It deals with the problems that parents have encountered when trying to access dispute resolution. As members will know, at the moment when a parent or a young person wishes to refer their case to dispute resolution, they direct their complaint in writing to the local authority, which is the gatekeeper to the dispute resolution process.

In its evidence to the Education, Lifelong Learning and Culture Committee, ISEA highlighted that, in most cases, local authorities deemed those referrals from parents as not competent. The only recourse then for families is to take out what is called a section 70 complaint which, as we are all aware, takes months. Even worse, if parents do not know about section 70, the complaint goes nowhere.

ISEA estimates that, in the five years since the passage of the ASL act, between 20 and 25 parents have managed to access dispute resolution. However, on the upside, in the cases in which ISEA has been involved, there have been successful outcomes. That is something that we should hold on to.

I believe that all members want a reduction in conflict between parents and local authorities, and for cases to be settled long before they reach the tribunal stage. Amendment 20 will enable parents to lodge their complaint directly with Scottish ministers. That will not only address the problem of one party to the dispute being the gatekeeper to the resolution process but allow the process to be more widely publicised. If the amendment is accepted, there will be one central point and one address to write to—information easy to distribute to parents.

As Mr Gibson argued at stage 2, what is proposed will make it easier to obtain an independent adjudication, and will therefore enhance the rights of parents and young people. It will also provide a more accurate picture of how many such references are made and received. Most important, it will remove the delays and problems that many parents experience, and it will increase parental confidence.

When dealing with a similar amendment from Mr Gibson at stage 2, the minister queried the use of the phrase "in the first instance". Those words have been removed, which I hope makes the amendment more acceptable to all and more palatable to the minister.

At stage 2, the minister welcomed the advantages that the amendment then being considered would bring in that the Scottish Government would be alerted to any applications for dispute resolution and to any breach of timescales by a local authority. The minister then suggested that he would consider how to take the matter forward. I would welcome his thoughts on the problems that ISEA has identified with dispute resolution and, in particular, on the proposal before us in amendment 20.

I move amendment 20.

Photo of Adam Ingram Adam Ingram Scottish National Party

Amendment 20 provides that regulations as to dispute resolution may require that, where a parent or young person makes an application for dispute resolution, that application must be made to the Scottish ministers instead of—as at present—the local education authority.

As I made clear at stage 2, I appreciate that authorities can sometimes be tardy when it comes to contacting the Scottish ministers to nominate an independent adjudicator. That is simply unacceptable. To address that, I said that I would issue a direction under section 27(9) of the 2004 act to direct authorities to comply with the relevant timescales that are laid down in the regulations.

I recognise that it may be beneficial for the Scottish ministers to be alerted to the fact that a parent has submitted an application for dispute resolution, as that would enable Scottish ministers to contact authorities directly on a case-by-case basis where it is thought that an authority may be in breach of the relevant timescales. However, it is vital that any new process that we introduce is as easy as possible for parents. Most parents, particularly those located in the more remote areas of the country, would prefer to be able simply to visit or to send a reference to their local council offices rather than to have to write to the Scottish ministers in Edinburgh with all the details of their case.

The Government does not claim that we have no role in the process. We have a role, but it is not the one that is proposed in amendment 20. Surely, the issue is about what individual parents want and the access that they have to their local providers. Our role is to support the process without getting in the way of it. Accordingly, I do not consider amendment 20 to be a good solution to the issue, so I ask Ken Macintosh to seek to withdraw it.

Photo of Kenneth Macintosh Kenneth Macintosh Labour 3:30 pm, 20th May 2009

The minister has approached the issue in a serious manner and has offered an alternative way of dealing with it. The issue is a moot point. The trouble is that, in the five years for which we have had the dispute resolution process, it has not worked very well. We are not talking about a huge number of cases. The minister argues that it is easier and simpler for parents to go to the local authority. He also talked about what parents want. I suggest that it is probably easier and simpler for parents to go straight to the minister, and we know that that is what they want, because they have told us that through organisations such as ISEA. Although I acknowledge fully that the minister means well and has suggested an alternative, the simple question is whether we want parents to go to local authorities or through the minister. I think that they should apply to the minister. On that basis, I will press the amendment.

Photo of Alex Fergusson Alex Fergusson None

The question is, that amendment 20 be agreed to. Are we agreed?

Members:

No.

Division number 6

For: Aitken, Bill, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brocklebank, Ted, Brown, Gavin, Brown, Robert, Brownlee, Derek, Butler, Bill, Carlaw, Jackson, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Foulkes, George, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Henry, Hugh, Hume, Jim, Jamieson, Cathy, Johnstone, Alex, Kelly, James, Kerr, Andy, Lamont, Johann, Lamont, John, Livingstone, Marilyn, Macdonald, Lewis, MacDonald, Margo, Macintosh, Ken, Martin, Paul, McArthur, Liam, McAveety, Mr Frank, McCabe, Tom, McGrigor, Jamie, McInnes, Alison, McLetchie, David, McMahon, Michael, McNeill, Pauline, Milne, Nanette, Mitchell, Margaret, Mulligan, Mary, Murray, Elaine, O'Donnell, Hugh, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Rumbles, Mike, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stewart, David, Stone, Jamie, Tolson, Jim, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Allan, Alasdair, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Gibson, Kenneth, Gibson, Rob, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, Kidd, Bill, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McMillan, Stuart, Morgan, Alasdair, Neil, Alex, Paterson, Gil, Robison, Shona, Russell, Michael, Salmond, Alex, Somerville, Shirley-Anne, Stevenson, Stewart, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

Photo of Alex Fergusson Alex Fergusson None

The result of the division is: For 72, Against 47, Abstentions 0.

Amendment 20 agreed to.