Dispute Resolution
In cases where there is no CSP and where the dispute in question is not over whether the child or young person is entitled to a plan, the parent(s) or young person do not have rights of appeal to the tribunal (see section on appeals). In place of that right of appeal, disputes relating to a child's or young person's additional support needs may be referred to a process of independent adjudication.
The parent or, as the case may be, the young person may make an application to independent adjudication in relation to a dispute arising from any of the following matters:
- a decision by the education authority that a child or young person has additional support needs;
- a decision by the education authority that a child or young person does not have additional support needs;
- a decision by the education authority as to the type of additional support needs a child or young person has;
- a refusal by the education authority to determine whether or not a child or young person has additional support needs;
- a refusal by the education authority of an assessment request made by a parent or young person;
- a decision by the education authority as to how, or by whom, an assessment or examination should be carried out.
- a failure by the education authority to provide additional support required by the child or young person;
- a failure by the education authority to make a statutory request for help from another appropriate agency (e.g. the Health Board) in relation to a child's or young person's additional support needs.
There is no formal time limit for making a referral to the authority, although the education authority need only accept a referral if it is reasonable. A referral made a long time after the incident or failure complained of may not be a reasonable one.
The application by the parent or young person must include the following information:
- the name and address of the parent or young person making the application and (if different) of the child or young person the application is about;
- the subject matter of the application (from the list above) and a summary of the circumstances giving rise to the application;
- a copy of any advice, information, requests or decisions which the applicant wishes to be taken into account;
- the grounds for the application (with references to the relevant parts of the Act;
- the applicant's views on how the dispute could be resolved; and
- if known, the views of the child or young person on the application.
You can download a style letter applying for independent
adjudication here. The style given is for a parent applying in relation to a child who is
not receiving additional support they require. It will require to be adapted to reflect the
individual circumstances of any given case.
The application is made, in the first place, to the education authority. Within ten working days (assuming the application is valid) the education authority must provide confirmation of the acceptance of the application and, at the same time, send a request to the Scottish Ministers to nominate an independent adjudicator. The education authority must then appoint the nominated adjudicator (and meet his or her fees for the adjudication).
Within ten working days of the acceptance of the application, the authority must provide a copy of its own written submissions to the applicant (and, where appropriate, the child or young person as well) which will include:
- the authority's views on the circumstances giving rise to the application;
- the authority's views on the application itself and any supporting material provided with it;
- a copy of any further advice, information, requests or decisions which the applicant wishes to be taken into account; and
- the applicant's views on how the dispute could be resolved.
Within twenty-five working days of the acceptance of the application, the education authority must send the application, its response and any further observations made by either side (further observations are allowed during the ten working days following the authority's response) to the independent adjudicator.
The adjudicator will then review the education authority's actions (or inaction!) and, in doing so, must take into account:
- the application;
- the authority's response;
- any further observations made by either side; and
- any further information or advice requested by the adjudicator.
Within a period of fifteen working days, the adjudicator must report back to the authority and the applicant (and any other appropriate persons) as to his or her recommendations as to how the dispute should be resolved. The education authority then has a further ten working days to issue its decision as to what course of action it will take in light of the recommendations. The decision must include details of:
- the facts on which the decision is based;
- the reasons for their decision;
- where applicable, the reasons for not following (in whole or in part) the recommendations of the adjudicator;
- the authority's view on the effect of the decision on the child or young person.
The next section is all about Appeals.