Introduction. The Additional Support Needs Tribunals for Scotland

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1 RESPONSE OF THE ADDITIONAL SUPPORT NEEDS TRIBUNALS FOR SCOTLAND TO THE CONSULTATION ON THE SCOTTISH GOVERNMENT S PROPOSALS FOR A NEW TRIBUNAL SYSTEM FOR SCOTLAND Introduction The Additional Support Needs Tribunals for Scotland ( the ASNTS ) welcomes the opportunity to respond to the consultation on the Scottish Government s proposals for a new tribunal system for Scotland. The ASNTS is an advocate of reform of the tribunal system in Scotland. The ASNTS supports the Scottish Government s aims as set out in its consultation document and is broadly supportive of the proposals set out in the consultation document, such as the proposals with regard to judicial leadership and, in general terms, tribunal organisation. As with all legislative reform, however, the devil will be in the detail and the Scottish Government must ensure that sufficient time is spent identifying issues relating to the individual tribunals in Scotland and clarifying the detail of implementation of tribunal reform. In an effort to assist in this process, rather than simply answering the consultation questions this response sets out the background to the ASNTS and highlights some issues relevant to the ASNTS. The response offers some comments on section 4 (the Scottish Government s proposal for a new tribunal system for Scotland) of the consultation document and thereafter sets out the ASNTS s responses to the consultation questions. The Additional Support Needs Tribunals for Scotland The ASNTS was established by section 17 of the Education (Additional Support for Learning) (Scotland) Act 2004 ( the 2004 Act ). The ASNTS became operational in November The ASNTS hears cases involving children and young people who face the biggest barriers to learning. The ASNTS considers appeals (references) made by parents and young people against decisions of education authorities regarding the provision of educational support. 2

2 Co-ordinated support plans are now prepared for children with additional support needs, arising from complex or multiple factors; requiring a range of support from different services; and enduring for one year or more. The ASNTS hears references involving children and young people who either have, or are potentially entitled to have, a co-ordinated support plan. The ASNTS will also in certain circumstances hear references about placing requests. From 18th March 2011, the ASNTS can also consider appeals (claims) made by a parent or a child (where the child has capacity to make a claim) against the responsible body on the basis that the responsible body has discriminated against a child because of a disability in an education setting. Schools must not treat disabled pupils less favourably because of their disability. Discrimination can also occur when a disabled pupil is placed at substantial disadvantage because reasonable adjustments have not been made to account for their disability. Section 4: The Scottish Government s proposal for a new tribunal system for Scotland Section 4.1 The ASNTS has some concerns in relation to the proposal in the Scottish Government s consultation document to create two new, generic tribunals (sections 4.1 and 1.1). The ASNTS was only fairly recently created as a specialist Tribunal to deal with education matters in relation to children who have additional support needs. Some of these children are amongst the most vulnerable members of society. The ASNTS very recently (March 2011) had jurisdiction conferred upon it by the Equality Act 2010 in relation to disability discrimination claims. The issues involved in ASNTS cases can be sensitive, emotive and complex. By the time cases are referred to the ASNTS there is often little scope for resolving the matter as positions have become entrenched and often relations between the parent or the child and the education authority have broken down. The ASNTS is of the view that it is crucial that tribunal reform does not lead to any loss of identity and expertise within the ASNTS and that that there should be no dilution of the particular culture and ethos within which the ASNTS operates. 3

3 The ASNTS therefore welcomes the statement that Existing tribunals will continue to hear their relevant cases, in their own distinctive manner. However, the ASNTS is of the view that the proposed structure of chambers within the new First-tier Tribunal requires to be clarified in advance of legislation being introduced in the Scottish Parliament. The ASNTS notes the proposal that appeals against ASNTS decisions will, in common with appeals against decision of other tribunals, go to the Upper Tribunal. The ASNTS appeals currently go to the Court of Session. The provisions of the 2004 Act are fairly complex in places and the appeals to the Court of Session have resulted in a number of Opinions, which have been helpful in clarifying the law in the area of additional supports needs. The ASNTS, however, has no difficulty with the proposal that appeals should go to the Upper Tribunal and recognises that this route may increase the accessibility of a remedy to those who seek it. Section 4.14 The ASNTS welcomes the statement that The Lord President of the Court of Session will be designated as head of the tribunal judiciary. Judicial leadership functions will be assigned to the Lord President, including the training, welfare, guidance, appraisal and discipline of tribunal judiciary, and the handling of complaints made against tribunal members. Section 4.19 The ASNTS welcomes the statement that The Lord President will be able to delegate any function relating to judicial leadership of the tribunals system to the President of Scottish Tribunals. The ASNTS welcomes the statement in section 4.22 that The President of Scottish Tribunals will be able to delegate any function relating to the judicial leadership of tribunals to the Chamber Presidents. The ASNTS is of the view that the efficient operation of jurisdictions within the First-tier Tribunal will only be secured if the necessary leadership powers remain with, or are delegated to, Chamber Presidents. Section 4.28 The ASNTS welcomes the statement that Members of the new tribunal system will be collectively known as the tribunals judiciary. The duty to uphold the independence of the judiciary placed on the Scottish Ministers under Section 1 of the Judiciary and Courts (Scotland) Act 2008 will be extended to include the tribunals judiciary. 4

4 Section 4.29 The ASNTS welcomes the statement that Chamber Presidents, Deputy Chamber Presidents and legally qualified tribunal members of the new tribunal system will be included in the definition of judicial office holder under Section 43 of the Judiciary and Courts (Scotland) Act The ASNTS notes, however, that it would appear from this that non legally qualified tribunal members of the new tribunal system will not be included in the definition of judicial office holder under Section 43 of the Judiciary and Courts (Scotland) Act 2008 and wonders what the rationale behind this is. The ASNTS notes that in its jurisdiction the three members of a tribunal have equal weight in decision-making. It therefore appears to the ASNTS that legally qualified and non legally qualified members of the ASNTS should be included within the definition of judicial office holder. Sections 4.36 and 4.37 The ASNTS recognises that cross-ticketing can be a useful deployment of tribunal members. The ASNTS welcomes the statement that the cross-ticketing of members to hear cases in chambers other than in the chamber of primary assignment will require the agreement of the Chamber Presidents concerned. The ASNTS views the role of the Chamber President in such decisions as an important safeguard to maintain the integrity of hearings in the additional support needs jurisdiction. The ASNTS notes that membership of individual tribunals is often governed by rules specifying particular qualifications or skills e.g. in the ASNTS for members other than the convener (who requires to be legally qualified) the criteria set out in the relevant Scottish Statutory instrument is (a) knowledge and experience of children or young persons with additional support needs within the meaning of section 1(1) of the Act or (b) a disability within the meaning of section 6 of the Equality Act If the ASNTS was to be amalgamated with some other jurisdiction to form a composite chamber the ASNTS would welcome clarification as to whether it is intended that members of that other jurisdiction would be able to hear additional support needs cases. The ASNTS would be concerned if the current requirements for appointment as a member of the ASNTS were, or were perceived to be, weakened as this could lead to, or lead to a perception of, the expertise of the ASNTS being diluted. 5

5 Sections 4.52 and 4.53 The ASNTS would welcome clarification as to the anticipated role of the expert advisors referred to in section 4.52 and 4.53 and the specialist knowledge that they would be expected to provide to tribunals and the issues in respect of which it is anticipated that the tribunals do not have expertise. The ASNTS is not clear what the purpose of these advisers is or how they can properly provide advice to members of a tribunal as they exercise a judicial function. The ASNTS is of the view that this proposal needs further explanation. 6

6 Responses to consultation questions Question 1: Should the distinctive tribunals systems be capable of reconsidering decisions and hearing appeals and, if so, what grounds of appeal from the First-tier Tribunal to the Upper-tier should be allowed? Response: The ASNTS is in favour of decisions of the First-tier Tribunal being able to be reconsidered by the relevant jurisdiction of the First-tier Tribunal. The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (SSI 2006/88) already empower the ASNTS, on the application of a party, to review a decision and to vary or revoke the relevant decision, order or award where the ASNTS is satisfied that (a) its decision was based on an error of fact or in law; (b) a party, who was entitled to be heard at a hearing but who failed to be present or represented had a good reason for failing to be present or represented and the interests of justice require or; (c) otherwise that the interests of justice require. The ASNTS is of the view that the grounds of appeal from the First-tier Tribunal to the Upper tier should be restricted to appeals on points of law. Question 2: Which functions of judicial leadership in the tribunals system should be exercised by the Lord President, the President of Scottish Tribunals and the Chamber Presidents, respectively? Response: The ASNTS is of the view that all functions of judicial leadership in the tribunals system which are assigned to the Lord President should be capable, if appropriate, of being devolved by the Lord President to the President of Scottish Tribunals and then, if appropriate, of being devolved further to the Chamber Presidents, to ensure that the Lord President and the President of Scottish Tribunals have the maximum possible flexibility in operating and maintaining the new tribunals system in Scotland. For example, given the expertise, specialism and ethos of the ASNTS, it may be that it would be desirable for the training function of judicial leadership to be devolved to the Chamber President of the additional support needs jurisdiction, to ensure that high quality, bespoke training for members 7

7 operating in that jurisdiction which is currently provided in-house by the ASNTS could continue to be developed and provided. Question 3: Should any restrictions be placed on the ability of an appointed member to sit and hear cases in a chamber other than the chamber of their primary assignment? If so, what restrictions? Response: The ASNTS notes that the consultation document envisages that a member will not be able to sit and hear cases in a chamber (other than the chamber of their primary assignment) without the agreement of the President of that chamber. This restriction appears to the ASNTS to be sufficient to allow Chamber Presidents to maintain the integrity of their jurisdictions. The ASNTS has raised in its general response to the consultation document the issue of how specific member appointment criteria would operate in a culture of cross-ticketing. The Tribunal assumes, for example, that a President of the chamber containing the additional support needs jurisdiction could not agree to a member of another chamber sitting and hearing additional support needs where that member has not been appointed by the Scottish Ministers in accordance with the criteria set out in the relevant Scottish Statutory Instruments. The ASNTS would be concerned if the current requirements for appointment as a member of the ASNTS were, or were perceived to be, weakened. Question 4: Is this the most appropriate option for judicial remuneration and, if not, what other options are there to remunerate fairly the judicial members of the Scottish tribunal system? Response: The ASNTS welcomes the statements made in relation to judicial remuneration in sections 4.40 to The ASNTS has no further comments to make on the issue of judicial remuneration. 8

8 Question 5: How should procedural rules for the new tribunal system be made? Response: The ASNTS notes the statement at section 4.49 of the consultation document that A new procedure for making tribunal rules will be introduced. The procedure will include proposals for new rules to be made to Scottish Ministers on the basis of independent advice. A new body will be established with the sole power of initiative in proposing rule changes. The Lord President and the Scottish Ministers will both be empowered to require a proposal for rule changes to be made. The ASNTS seeks confirmation that prior to this new body, with the sole power of initiative in proposing rule changes, being established and before this new procedure for making tribunal rules being introduced, transitional arrangements will be put in place to ensure that current rule making powers are not lost and are retained in the interim (e.g. the rule making power in the additional support needs jurisdiction provided by paragraph 11 of Schedule 1 to the Education (Additional Support for Learning) (Scotland) Act 2004). Question 6: What issues/opportunities do the proposed changes raise for people with protected characteristics (e.g. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation) and what action could be taken to mitigate the impact of any negative issues or to capitalise upon opportunities? Response: Any dilution of the specialism of the ASNTS or the culture and ethos within which the ASNTS operates or any unintended drift towards generalised arrangements as a result of Tribunal reform in Scotland would have a detrimental effect on children whose cases come before the ASNTS. 9