 We have apologies from Michelle Thompson MSP at the moment. Our first item of business is the consideration of the Education Scotland Act 1980리 rotate modification regulations 2024, SSI 2024-040 rخت SSI 2024-040. The regulations are being considered under the negative and negative procedure. Those regulations make several amendments to the Education Scotland Act 1980. They will increase the current maximum annual income level for eligibility for free school meals from £8,717 to £9,552 to take account of the forthcoming increase to the national living wage from 1 April 2024. Do members have any comments that they wish to make about the subordinate legislation? Thank you, convener. I am slightly disappointed that we need to do this on the basis that free school meals should be being delivered across primary 1 to primary 7 already as the Government set out that they would do. Nonetheless, it is sensible that in the interim, whilst we wait for the Government to come good on that commitment, that this uprating is important. The other thing that I would like to say is that it would have been also useful had the SSI taken the opportunity to encourage schools to reach out to families in a more proactive way to find those families that might need the support that free school meals can offer, but other than that I have no further comment. Thank you, Ms Duncan-Clancy. Before I proceed any further, I welcome Stuart McMillan to the meeting as a substitute for Michelle Thomson. Good morning. Is the committee agreed that it does not wish to make any recommendations in relation to this instrument? The next item on our agenda is an evidence session on our additional support for learning inquiry. This is the third formal session on the inquiry, which will consider how the Education Additional Support for Learning Scotland Act 2004 has been implemented and how it is working in practice 20 years on. We will focus on three themes throughout the inquiry, first the implementation of the presumption of mainstreaming, secondly the impact of Covid-19 on additional support for learning and finally the use of remedies as set out in the act. Today we will be focusing mainly on the third theme, but we will likely touch on the first theme. We tend to stray a little bit as a committee. Can I welcome Mae Dunsmuir, president of the health and education chamber of the First Year Tribunal for Scotland? Good morning and welcome Mae. Thank you for coming. I would like to thank you for the written submission that you have provided ahead of this meeting. It has given us a great platform for our discussions today. I am going to move straight to questions from Members and, firstly, this morning is Willie Rennie. Good morning. I just want to give you a chance just for you to tell us how you think things are just now, but with a particular focus we have seen a sharp rise in the number of applications over the last period, but they are still not as high as the applications in England. I would quite like to explain that, but if you could maybe just range a little bit wider as to what you think is happening in the system, where is the pressures and what do you think your assessment is? Thank you for inviting me to give evidence this morning. It probably would help to give some context here. I have been president for 10 years of this jurisdiction in its former iteration and its current, but I have also been a member generally for 14 years in this jurisdiction, and I have seen patterns fluctuate over that period of time. In the lead-up to 2020, we were just ready to hit our first three figures up until then, our annual rate of applications sat somewhere between 60 and 70, but we were starting to see a rise emerge then. During 2020, as you might expect, given the impact that that had on the justice sector, we saw a reduction in applications. I did not really think that that was much of a pattern to analyse because there were very obvious external factors impacting on that. What has been interesting since then is that following our transition from the lockdown periods and the pandemic overall, we have seen a more dramatic year-on-year rise in the number of applications. In terms of trends, undoubtedly placing requests are breaking all records. As of today's date, we have now exceeded any year to date, and we have still got a few days left in this month. We are starting to approach the placing request season when parents would want to make and prepare their placing requests. We have seen not such a rise in disability discrimination claims. They have actually reduced somewhat. They have never been the most sizable type of application that the tribunal hears. We have seen a fairly level pattern in terms of CSPs. I am using that abbreviation because I think you will all know what a CSP is. That is surprising for a range of reasons, but I know from the evidence that you have considered that you will be aware that there is a degree of disconnect between the number of children with additional support needs who would be expected perhaps to have had a CSP and the actual figures and how those relate. That is what we are seeing in the tribunal. What we have seen this year is a trickle, but a rise nevertheless in the number of transition applications, largely focusing on whether there is adequate transition planning in place for a child, mainly post-school transitioning. That is unusual because we were not receiving many transitions at all. In terms of a comparison between Scotland and England, there is a sizable difference, obviously. We have a demographic difference, but I do recall when I first started as president that the senders it was then abbreviated to had far lower volume than they now have. I think the reason for the rise in that volume is something that would have to be explored with them, but we have to take into account the fact that the sendist grew and became a larger jurisdiction with a pilot having taken place to see whether they could also make not just education orders and not just discrimination in relation to education, but also care and social work related orders. I believe that pilot is now concluded and they now have that expanded jurisdiction. I cannot really say much more than that about England. In terms of why the pattern is as it is, it has always been the case that placing requests are the highest of the bunch, but I have never seen such a rapid increase. On examination of the types of placing requests that we see, there is still undeniably a very strong connection with what has happened during Covid-19. That is still very prevalent in many of the references. I think that you will be aware of the challenges that education is facing at the moment. I suspect that that is why we are seeing that translate into the type and number of references that we are receiving. I bring in Ruth Gawir now, please. How does the tribunal monitor, who is accessing it in terms of socioeconomic or other characteristics, I suppose that we are keen to know, conversely, who might be missing out and what the tribunal is doing to make sure that everyone has that opportunity? We monitor applications by type so that I am able to—initially, we used to just identify whether it was a parent or a carer, but we now monitor whether it was a parent, carer, young person or child, because there are three different types of people who can make an application to the tribunal with some limitations on children. I have broken that down further to monitor the amount of children who are the subject of our proceedings, not necessarily a party who are looked after, because we were not monitoring that some years back when the presumption was introduced that a child who is looked after would be deemed to have additional support needs. I wanted to monitor just how many were accessing the jurisdiction and at that point there were no references or claims being raised for or by children or young people who were looked after. That is not now the case, and we are seeing a rise there. It is not the kind of rise that I would expect, given the statistics regarding the number of looked-after children that are in Scotland. What are we doing to try to make the… Sorry to interrupt. Can I just be clear? What you gather is whether it is a parent, carer or child or whether they are looked after. Do you not gather sort of a quality statistics on who is applying? Would you be curious to understand what protected groups were? There is an ethnicity monitoring form that goes out with references or claims, but it is a matter of choice whether the person wishes to complete that. I think we could monitor more. I think, in the main, our principal concern is to make sure that people are aware of the presence of the tribunal and we make the tribunal process as accessible as possible. In that regard, we are very aware and we monitor the exact types of additional support need and or disability for that matter. There are protected characteristics that are naturally monitored through the course of the process because we ask definitive questions around that, which is why I can tell you that the vast majority of children and young people who are the subject of our proceedings are autistic. That is not to say that is the only type of additional support need that is present for an autistic child, but that is the dominant type. In terms of socio-economic background, we do not monitor in that respect. There are two agencies. Let's talk ASN, the national representation and advocacy service for parents and young people who may wish to bring applications to the tribunal. I am not sure the extent to which they do any monitoring there. There is also my rights, my say, who provide the national children's service for 12 to 15-year-olds. There is also another agency that has relevance here, and that is the Equality and Human Rights Commission, because they will occasionally fund disability discrimination claims. Unlike references placing requests, CSPs and transitions, there is no national funded agency to provide funded support to a parent or a child or a young person for that matter to raise a claim, so they will fund some of those. What is it that gives you confidence that the tribunal is accessible? We test that. Our commitment is to making the jurisdiction child and young person-centred, and in order to achieve that, we have been on a fairly long and sometimes arduous journey where we have had to learn from mistakes that have been made. We decided early on that the best way and the most authentic way to do this would be to have children leaders through this. Some of you will have visited our sensory hearing suites as one example. We discovered early on that, for a neurodivergent child—and bearing in mind that is the dominant category of additional support needs—coming to a conventional hearing, this would not work. This hearing room here would just not work. Rather than saying, here is what we think, what do you think, we started with a blank sheet of paper, and we said, first, would you like to come to a hearing? Second, depending on the answer to that, what should a hearing look like? Everything that flowed thereafter came from children's direction. We also engage with relevant agencies, including those that I have mentioned. I produce guidance that is published, so all of my guidance is published on our website. There is a particular guidance note called The Child, Young Person and the Tribunal, and all of that guidance is road tested by children and young people. I might put together something, and I think that that is wonderful. I have drafted that very well. Depending on how they want to communicate, it might be text, it might be post-its, it might be in person. I might get told that it might be wonderful to you, but we do not understand what you are saying. There is a lot of road testing and consistent checking. I am very open to receiving information from the national agencies regarding absences of information. I added a section on child party rights into that guidance note that I have mentioned, because one of the agencies felt that there was a misunderstanding in relation to the rights of a child who is a party. The basic thing is that a child party has all the same rights as an adult party. We work very hard to make sure that the rights of the child and the young person are not being marginalised. We also connect with parent groups. I have engaged with a number of groups looking at, for example, restraint and seclusion and access to the tribunal and CSPs. We road test what we are doing there. I engage very regularly with a range of education authorities, but something that I do every year is that I have an annual forum, which is exceptionally well attended. This year, we have got 117 down. It is online. We have learned the benefits of online sometimes, and so last year was the first in person for a number of years. This year we will be online, and that is very well represented across all of the people who you would consider to be stakeholders, whether that is health professionals, representatives, children's agencies, parent agencies, education authorities and so on. It is a very open forum where I share what the year of the tribunal has been like. Some of the patterns we have been seeing, some of the things we might want to change, and so people engage with us there. They challenge us, and they ask us for better things to happen, and we look at that. I think that child-centred works to be absolutely commended. I suppose I would just remain curious, thinking about my own case work as an MSP of the families that are missing out and maybe do not know how to achieve their rights or know that there are routes that they can go down. I would want the tribunal to be equally curious as to who was not using the service. This is something that has been raised with me on a number of occasions by a number of MSPs and Cabinet Secretaries and Ministers. I have been asked many times why the tribunal is gaining ground in terms of volume, why it is not as busy as our counterparts in England, even taking account of the different population size. I am asking if that is a good thing. That is usually the question. Is that a good thing or not? I often have to reflect on that and say that we always have to test that against what is happening in education in Scotland and what is happening in terms of additional support needs. We know that there is a rise in the number of children with additional support needs. We know that outcomes for children with additional support needs are not as favourable as outcomes for those who are not. We know for specific groupings, such as looked after care experience children, that that deficit is even greater. It does not stack up when I look at that. I think that this is a jurisdiction that is not as well known as it ought to be. I think that much more could be done to promote, first of all, the fact that we exist and secondly, who can access it. I think that when I speak to parents, they are very greedy for information. They want to know what rights they have. I know that the children's commissioners express concern about those who are disadvantaged socially might not be able to access a jurisdiction and exercise their rights. I think that a right is only a right if you know you have got it and if you are supported to exercise it. What I would say on this point, finally, is that my approach and the tribunal and the approach of the judicial members is anything as possible, which is possible. In other words, we are sufficiently flexible to make a tribunal look and feel as it needs to ensure that access to justice is possible and to ensure that we gain the best evidence. Just before the pandemic, I was about to go to a sensory room in Fife to conduct a hearing because it was the only accessible venue for a particular party. That was before we had launched our sensory hearing suites. We do not need to do that now because we have our own facilities, but we will go to whatever lengths we need to go to to make it possible to access this jurisdiction. Part of that accessibility and participation might involve legal advice and representation. You have mentioned in your submission that many young people can get legal advice, but whether or not they are able to is a whole other question. Are you able to help the committee to understand that, given that we know or there seems to be a dearth of legal aid lawyers available, do you know if legal aid lawyers are available for these processes? In any event, what generally is the availability of representation and the rough cost of representation if a legal aid lawyer is not available? I will do my best to answer as much of that as I can. I would not be able to answer the question on cost. I have not worked in a legal aid environment for many years. I remember the pains of it well, so I could not really answer that, although I know others have suggested in your last evidence session that it can amount to some thousands of pounds. First of all, in our hearings, most parties are legally represented, that is the first thing to say. From the cohort of legal representation that is available free to the parent, young person or child, that largely comes from, let's talk, ASN, Government Law Centre, as part of that agency. I suppose that is what that agency was designed to do to provide a service free to the person making the application. In terms of child parties, child parties so far have always been legally represented, and they have always been legally represented from the My Rights My Say service. Cairn legal is the legal practitioner that makes up the composition of the legal element of that service. In terms of availability beyond that, we are starting to see some other less known firms appearing in our proceedings. I can say that because I monitor where the applications are coming from, where the representation is coming from, and I am seeing for myself people who are less familiar with our jurisdiction are beginning to dip their toe in the water. Now there could be a range of reasons for that. It could be simply that parent has gone to a high street solicitor and knocked the door, or it could be that someone is developing an interest. I do know that the Children's Commissioner has called for an accreditation for solicitors who work in this field, and I know that some discussions have taken place with the Law Society in this regard. The Children's Commissioner has expressed concern to me about availability. Is there enough? The former Children's Commissioner, I should say, had called for accreditation. To my knowledge, there is no accreditation at the moment, so someone looking for representation would draw from the national agencies or a charity like the National Autistic Society who will provide representation or the Equality and Human Rights Commission, someone who is prepared to take up their case and to fund representation. We do occasionally have parties who are paying for their own, no one is supporting them. That, I would say, is more rare than common, but where there are cases where it is being privately funded, there are more likely to be motions made for expenses if there has been any reason to argue that expenses for certain things should be met. Regarding the cost though, I really cannot say anything more because I really do not know what the costs are, but we are acutely aware of the need to avoid delay and be efficient in our process, which is the case for any case, whether it is represented or not. It is worth being in mind that parties do not need to have a solicitor to be represented in our proceedings, they could use someone else, and in the early years, initially advocates were being used. Not perhaps in the right way, as we understand it, because an independent advocate should not be engaging in representation, but it was certainly how it was initially, but this is such a complex jurisdiction. The law is inordinately complex, and the sheer nature of a child or young person's additional support needs and the impact it has on family is incredibly complex, and I can see why it is now the case that most representatives are legal representatives. Just very briefly, you mentioned delay in there. Can you give us an idea of how long it might take if one wanted to access the service? How long, from putting in whatever the claim is, to actually being heard and receiving a decision, do you think? Whether it is a reference or claim, there is a case statement period rather, and that is the point where the application comes in, the other party gets a copy of it, we have it, and then there is a period of up to 30 days for the appellant, I will say, to put together their case. That is where they put all the documents they want to rely on, and all the documentary evidence, and then you get the completion of that by the respondent, the other party, who is most commonly an education authority, but can be an independent school or a granted school. At the end of that, the tribunal will have the reason for the application, the case statement setting it, why they think that they should succeed, and the other party's argument why they think that they should succeed. Then we will go into a judicial case management process. In my experience, our process is quite unique, it is quite an intense process, this is where the legal member is allocated the case and they case manage it to the hearing. In the majority of our applications most settle, we are seeing a rise in the number that go to a hearing, but the majority still settle, and part of that process is the engagement of the tribunal judge trying to get the case to a point of absolute clarity. What is in dispute, rather than talking about matters that are in agreement? Quite often, when you take two parties to that point, they realise they agree more than they recognise, and sometimes the matter of dispute is bit smaller than they felt, because by the time parties come to us, they are very divided. There is usually an entrenched and lengthy journey to get there. If it is going to proceed to a hearing, provided all procedural matters are tidied up, we fix a hearing as soon as we reasonably can, I would hope that that would be within, say, six weeks. However, because of the rise in the number of hearings and the rise in volume, I have to say that I am not going to call it a target because it is all very fact in case specific, but that kind of timescale has lengthened. We are starting to see hearings being fixed two and a half months ahead, rather than four or six weeks ahead. Another reason for that is tied to your question on legal representation. There is a small cohort of legal representatives who appear in our proceedings, and they cannot be everywhere at the one time. We are hindered in some respects to the availability of the legal representative. If they have three hearings in two weeks, there is going to be less space for them to add another one in. It is a far more efficient journey now that we have this judicial case management process, and we do our best to get there with as few delays as possible. Very grateful. I think that Stephanie Callaghan might have a question. Just before we bring Stephanie, I want to say that we have next week, we have my rights, my say and govern law, and the Children's Commissioner coming in. So this is all very useful information for us as we get ready for next week. Sorry, Stephanie Callaghan, thanks. Thank you very much, convener. I just wanted to ask you a little bit about making references to the tribunal. I am aware that the 12 to 15-year-olds under the Education Act are subject to capacity and wellbeing. However, claims under the 2010 act do not have the capacity and wellbeing test. I am just wondering if that is something that you could explain a little bit for me. Yes, I am not sure if you are aware of the history of how those two tests came into being. So very briefly, when the bill was first introduced, there was a best interest test, which was not well received, because at that point in Scotland we were moving away from that kind of approach to the exercise of children's rights. Of course, we now have the incorporation of the UNCRC, which itself has a best interest test. But in order to address the concerns that were raised, the bill was amended to include a different approach, and that is how we ended up with the capacity and wellbeing test. It is an anomaly. It is unusual. It was unusual to have it. My concern in having it introduced was that it should not inadvertently lead to a delay in children accessing the tribunal or exercising their rights. I could not tell an education authority what to do with their side of testing, but I could deal with the tribunal's side of that. What we introduced right from the very beginning was a preliminary hearing that would take place by telephone, and the two representatives would address the legal member on whether or not they believed the childhood capacity. If so, why? Whether the exercise of the right bringing the reference to the tribunal would adversely impact their wellbeing. If so, why? Today there has been no single case where there has been any dispute on capacity and wellbeing, and in every case there has been a finding that the child has the capacity and that exercising this right would have no adverse impact on their wellbeing. The scenario indicators are regularly referred to when evidence is being given on the wellbeing test. What is most commonly said is that not only would it not have an adverse impact, it would actually have a positive impact on their wellbeing in terms of respected and included. Those are two of the most common scenario indicators that are referred to here. Claims, we don't have that gateway, which means in theory we could have a child who might raise a CSP reference but also raise a claim. It's not uncommon for a claim and a reference to be consolidated. It's not very common, but it does happen, and in theory that could mean that if I was the legal member I would have to test that child's capacity and wellbeing against one of their applications, but not test it against the other. It's interesting that it's the equality act that hasn't introduced those two tests, so they're here. I don't know that they were particularly welcome introduction by the agencies that were consulted, although you would have to look back and see what the responses were, but we've made it work. Do they serve a useful purpose, would you say? I think that if you're going to extend rights to children, as we did in Scotland then, and it was claimed to be the greatest extension of rights to children across Europe, I think that you ought to remove as many barriers to accessing that right as possible. I think that that's the same whatever the right is, and I think that children and young people, given that this is a children and young people-centred jurisdiction, and my job is to improve access to the jurisdiction and remove barriers, then I don't think that statutory barriers are always helpful. Thank you. Thank you, Stephanie. Liam Kerr will bring you back in now. Thank you. Just one very brief, further question. I was particularly interested in your point about the number of cases that settle, but also that by the time, or if it gets to a hearing, it will be very entrenched and perhaps divided. Are you aware of any research that's been conducted into the outcomes for children and families who have access to tribune? No, I'm not aware of any research. We do a feedback process following hearing use to assess whether or not things have worked as they ought to. It's very difficult for a judicial body to conduct research, because quite often you're having to try to explain to a party, and I know this isn't just unique to my jurisdiction. There are jurisdictions elsewhere who want to analyse things as well as they can, but you have the decision that stands in the middle of all of that, and when you ask someone to assess the quality of that experience, quite often the feeling of the decision is paramount and it can be difficult, but not insurmountable. CREAD did some research on CSPs in particular and access to the tribunal pre-COVID, and that report would be available to this committee. I'm sure it was Professor Sheila Riddell who managed that, and she actually did some work with my jurisdiction and the English jurisdiction, comparing doing some comparative work. Beyond that, apart from that, we do occasionally get letters from parties expressing that, but I don't send that on to the tribunal because tribunals are judicially independent. Each tribunal, when it sits, is independent of my office, and it would be improper for me to say so-and-so has passed on this and I should let you know. We get a great deal of positive feedback, but we do get some negative feedback from time to time, but nothing that would be unusual. I know that it's a bit like Ping Pong, but Stephanie Calhann wants back in again. Just thinking about children and young people's right to fully participate, I wonder if you've got any observations about how effectively local authorities are supporting children and young people with complex needs to really have a meaningful say in those decisions that affect them. I'm certainly not looking for you to criticise local authorities, but I'm much more interested in other particular issues or themes that arise that perhaps indicate some areas of focus for local authorities to look at, so are there things that keep coming up again and again? Yes, and I could probably deal better with the end of that question. I couldn't comment on what local authority experiences are on the ground because they are dealing with a huge population of children in school education from nursery school through to secondary school and different schools and different compositions of schools. Common themes that we see in our decisions—the cases that proceed to a hearing—are that there is commonly misconception where you have a parent view that the child is struggling with school and they are seeing that emerge at home, whereas the school will say that we are not seeing those struggles and therefore the child is doing well. We actually did some concentrated training in this last year from the national autistic implementation team looking at the masking. I would go so far to say that we have become considerably expert in this area. From a party perspective, if we are hearing evidence that suggests that there is a completely different picture here and a completely different picture there, we have to figure out why that is the case. Does it have anything to do with school education? If so, what is it? A very common theme in our cases involving neurodivergent children is masking. That is where a child is putting in so much effort to be who they think they are supposed to be in school, that when they get home to their safe environment, the cost of that is enormous. Those are the difficult cases that we get, because if it is going to proceed to a hearing, it means that they have not been able to reach agreement. It is usually a very disputed component. Evidence of masking is something that we are seeing a great deal more of and almost commonly now. I think that we often see parties where one party is saying, well, we know you are doing the very best you can, but it is still not meeting the needs of my child. It is the job of the tribunal then to work out whether or not what those needs are and whether or not what is there is allowing that child to benefit from their education. I suppose, then, that certainly we have heard that reply to the evidence that we have taken to. Do you feel that parents and children's views and expertise as well perhaps needs to be some more work around recognising those views and expertise and respecting what they are saying and taking those things seriously? Anything that would take people back to basics, if I can say that, and it is far from basic, but anything that would reset the relationship that would mean that we would see things through the eyes of the child will always be a good thing. I can give you an example of a case. We publish our decisions, so this case is published, it is in the public domain, of a child party who raised a CSP application, and it was one of those cases exactly where the school said, everything's fine, we've got everything this child wants, the child just needs to ask, but the child's views and the process, this was quite a cathartic thing for this child party, the process allowed this child to separate themselves from their family because the child is not the parent or the sister or the brother, the child is the child, and their evidence was incredibly compelling, very commanding, and the school in that particular reference had no idea what those child's views were, but what the child said, and you'll find that in the decisions database we just put in the CSP child party, we've got a really good accessible database now, I'm promoting it because we've just got it right. The child said, all of these things are there, but in order to access them I have to step out of my invisibility, they don't want to say, I'm the child with additional support needs, I'd like in extra 15 minutes, I'm the child that needs a movement break, can I have it, instead of a culture of inclusion, which would be right, everyone we're taking a movement break, children with additional support needs who appear in our proceedings or who are the subject of our proceedings, the one common theme throughout, almost without exception, is that they don't want to be visible, they want to be integrated and supported, but they don't want to stand out. How do you, because there will be variable factors in the different behaviour at school compared with at home, but I presume parental behaviour has an impact on the child, because obviously it's different from the teacher behaviour. How do you make sure, or how, just give us an insight into how you make sure that you're focusing on the, not the failures, but the shortfalls of the school provision, and how do you, is there any system that helps parents be able to cope, therefore, with the consequences of that in their behaviour? I think you're asking me how do we, how do we wade through the evidence to find what we consider to be the facts, because we are decision makers and fact finders, that's what the tribunal is, and the beauty of that is people will go away with the decision that says, here are the facts, we have found these to be true, which means they've got something, whether that's an education authority, an independent school or parent or child or young person. So, there are legal tests, first of all, and if we look at placing requests, which is often where the issue of masking behaviour in school most commonly arises, the education authority will have relied on a particular defence to refuse the placing request, because they ought to be granting it unless there are certain grounds not to, and so we will commit to those grounds when we're analysing the evidence, and you must remember that the tribunal's made up of, it's a specialist jurisdiction, and we have sitting there legal members who are specialists in this area of law, but we're supported by health and social work and education members who are specialists in this field, and so together we will examine the evidence that we're going to scrutinise, and it's interesting you use the word behaviour, because language is very important, and I'm sure you all know about the promise that Scotland is committed to, and how important language is. Well, behaviour is a very significant word in this jurisdiction because it's sometimes the case that there's a misunderstanding of what's happening when a child does something, and because behaviour is a very school-orientated thing, we focus on behaviour, we can sometimes associate how a child is behaving in the classroom as destructive or challenging, when in fact it's not any of that, it's actually distressed, it's emanating from their condition, and there is case law, which actually took us on a journey with that. An upper tribunal judgment in England in relation to our sister jurisdiction tackled this head-on, it was a disability discrimination claim, and they said, and there was a huge sigh of relief across all agencies who tried to support a better understanding of the neurodivergent child, but the tribunal judge in that case said that these behaviours were actually distressed behaviours, there was not culpability if you like, they were not choosing to behave this way, and that is a difficult area, it's not well understood, so we don't use, we're very careful with the language we use, and actually I've even moderated it very recently because the national autistic implementation team asked me to speak in something and they asked if I would just stop using the word distressed behaviour and just use the term distressed, and I thought why didn't I think of that, so we've got to listen and keep listening because we're learning about language, and language can be very stigmatising, especially for marginalised groups, and so we want to use language that's hard to come to a tribunal, nobody wants to see us, nobody wants to walk in and sit down in front of three strangers, and we will do the best we can to make that as accessible as possible, but the last thing we want to do is to add the wrong language into that. In terms of the influence of a parent in relation to how their child may be at school or how they may be at home, every parent will undoubtedly influence the environment in which the child lives. The kind of cases that we see though, where there appears to be masking present or some of the decisions that I've read where masking has been found to be present, the difficulties at home are enormous. These are not cases where a child is coming home from school and struggling for an hour, it's enormous. You really should just put in masking in our decisions database to have a look at some of them. In some cases, it's so disruptive to the family home that the physical environment has to be completely stripped out and the relationship between the child who's decompressing and the parent becomes more difficult because so much of the decompression is taking place in that safe environment. These are very extreme situations, there's nothing minor about it. Certainly in terms of the tribunal, I'm sure there's much more that goes on commonly, every day for parents of neurodivergent children, but they don't reach the tribunal. I think a better understanding of masking is called for, I know that because we're learning that in our cases, and I know that because we've been taught that by experts that there needs to be a better understanding of what masking is. Pam Duncan-Clancy. Thank you very much for that, it really is fascinating and actually reminds me of in a previous world when I looked into disability discrimination and internalised ableism and I think there is a connection between the points you've made and that, if I could take us back a moment to the point you made about placing requests and the decisions that local authorities or the reasons local authorities are using to not give the grounds. How many of those are when someone is in mainstream and the local authorities saying that we can't afford to have them in mainstream? The reason I'm asking this question is, a lot of what I've heard through case work is parents are really concerned that the support that their young people need is not available in mainstream, so they've applied for a placement in special education, but the school have refused that for various reasons. But we're not seeing the support that's needed in mainstream, so you would expect that that reason to not have pupils in mainstream might increase because of the costs associated, and I'm trying to get at the point which is I would have expected there to be more local authorities saying that it's too expensive to teach that pupil in a mainstream environment, but do you see that? Thank you. Member, you were straying into the question that's been allocated to members later on. Oh, forgive me. Sorry, that was unintentional. I was just responding to the point about placing requests. Very protective sometimes of Mr Bill Kidd, so if you don't mind, can we leave that then and pass that and allow the member to ask it later on, if you don't mind? Absolutely. Sorry, it was just in response to the point, but I take your point. Thanks, convener. Thank you. May it's been really, really quite enlightening this morning and so far and particularly around the masking and how that all can extrapolate and be the cause of some of the needs for the tribunals, so does the tribunal consider that the legal framework around the presumption of mainstreaming and its interaction with placing requests perhaps be changed, given what you're seeing and experiencing now, and if I may be so bold as to ask how you might think that might happen? Well, you'll have seen from a response that in my view there's duplication in the mainstream ground of refusal, and we see it elsewhere in the other grounds that are available, and if you're looking at mainstream from a perspective of inclusion, then you'll have read our evidence, which is that a bias in favour of one type of school isn't necessarily going to be interpreted as the most inclusive environment. I think there's what we see in our cases. We see quite a number of placing requests that have been refused on the mainstream ground. That was not always the case. I would say that that's been in the last perhaps four or five years. It would have been less common to see the mainstream ground relied upon. I think that probably reflects the fact that some education authorities are having to close or have streamlined their special school availability. I'm trying not to go into the question that was asked earlier, so I won't comment on that. Do I think that it's a necessary ground of refusal? I don't think it is, because the grounds relied upon, but the exceptionality strands, the three parts to that mainstream ground, appear elsewhere in the other 12 grounds that are set out in the act. I think that it's an unnecessary ground, but we do see a number of education authorities refusing a placing request on that basis now. They're clearly attaching that ground to their reasoning, but they could just as easily use the three strands from the other areas. I know that you're considering mainstream, and I know that Angela Morgan looked at that. Again, I suppose that I would make a plea to anyone who's looking at something so significant to see it through the prism of the child and young person. I would want to know what the child or young person can do to even understand what the term means. We talk about mainstreaming casually because we understand it, but children are not necessarily… Very few children will actually know what we're referring to, and many will not understand that there is a distinction in Scottish education in that regard. It's in the act, and we are certainly seeing it referred to, but as far as inclusion is concerned, having a bias towards a particular type of schooling, it might be worth looking at that from an inclusion perspective, whether that's the right approach to take or not. We have certainly heard in some of our informal sessions around that presumption in terms of if it's good for either the person that's with additional support for learning needs or the other children. We've been hearing lots of evidence in that space, and I'm not sure if you can. I can't speak about policy or practice. I can only speak from a judicial perspective. It's worth saying that the education that a child who has additional support needs will need. I think that I have to stick to the most complex additional support needs because that's what my jurisdiction deals with. We're not dealing with those who have additional support needs who don't need too much in order to benefit from education. I think that what we find when it comes to hearings and when it comes to the judicial process is at some point someone's forgotten to ask the child what is the right environment for them. We know what the two parties think about it, and that's why we place an emphasis on centering the judicial work around the child or young person. We use advocacy on it. We use a range of tools to try to in-gather the child's views, and it is very unusual for us not to have the child's views. I've sat in other jurisdictions as a tribunal judge over the years, and I think that we are all the richer for having developed ways to get those views in. Sometimes you find in that child's view that what they need in school is not really what's being argued. We might want to drill that down in terms of the evidence. Is this really our people aware and alert to that fact? That can change the whole course of a hearing, and you'll find that parties will come in re-centred looking at if we want to persuade the tribunal in that direction or that direction. We're not going to be able to ignore what the child has said here. Thank you very much, ma'e. Bill Kidd, can I come to you now, please? Thank you very much, convener, and thank you very much indeed for the excellent answers, because you're giving us plenty to think about here, going forward. Can I ask you, when the tribunal is determining placing requests, how and indeed is it a part of your consideration that you assess and consider the costs to local authorities? Well, there is a defence that the local authorities, there are defences they can rely on in essence that relate to costs, things like having to grow the classroom, taking an additional teacher into employment, but there's one particular test ground that's often relied on here, and that is that we have to take into account respective suitability and cost, so that's a comparator ground. If I look at that one, because that's the one that's most commonly relied on, then cost is central to the evidence. In cases where the cost is considerable, I'm thinking of some, I want to give you some examples of hard cases, rather than the balanced ones, so I'm thinking of a case that was decided last year where the cost to the education authority was considerable, probably one of the most considerable in terms of totality, if the child remains in that school for the remainder of their school education. In that particular case, the tribunal specified that it will not always be the case that suitability cost, in other words, no matter how suitable something is, it won't, just by being more suitable, doesn't mean it always overcomes the cost argument, but in this particular case, the evidence was so compelling in favour of the different school that the tribunal went on to make a decision to overturn the decision of the education authority and to go on to place the child in that school. If the tribunal, however, decides, I'm thinking of one that is about to be published soon, if the tribunal decides that in terms of suitability it's fairly even, both schools that actually could meet additional support needs, perhaps one is slightly more than the other, then the cost argument might be more persuasive in favour of upholding, confirming the education authority's decision. Cost is something that is commonly part of our evidence, sometimes it can be hard to get those costs drilled down because some education authorities will say if the child is to remain in the school of our choice, the cost to us is nil, which is fine if both parties agree it's nil, then we don't need to look behind that, but in a recent case the appellant argued that that couldn't be the case, and so then the tribunal has to unpick the evidence to see what is the actual cost, if there's no evidence led before us, we have to look at the evidence we have, and so cost can be quite an analytical process. Where we can we like to get the costs agreed in advance, so it's agreed that it's 37,000 a year for this and 8,000 a year for that. There's not often a great deal of dispute, but in recent times we've seen some disputes over what those costs are emerge. That is interesting because I'm going to cheat slightly here and actually lift something from somewhere else, but on the same lines Glasgow City Council made a submission which you'll no doubt have seen, but an element of it actually says the tribunal process could perhaps benefit from processes which would allow the revisiting of outcomes and the impacts then on children, families and local authority staff to improve partnership working and support the earlier resolution of conflicts, and that would include in terms of the cost. I did read that, I think that that arises from a common misunderstanding of what the tribunal is. It's a judicial body, we don't work in partnership, we don't have colleagues, we are independent, and that independence is critical and it's critical for both parties. We are composed of judicial members, they are all judicial officers, you wouldn't expect a court to work in partnership measuring outcomes. Well it's the same really for the tribunal. It's not our job, whereas in the children's hearing system for example there's a monitoring element that's present in the rules. The only monitoring element that's present in our rules is that I have a president's power to monitor the implementation of a decision. Now I can do that myself on my own initiative but most usually I do that because parties write and say this decision is not being implemented and we would like you to monitor it. So I can monitor to that extent. If the tribunal was to monitor the impact of its decision arguably that would interfere with their judicial independence and I think at all costs that must be protected. The comment about partnership working, I wonder if in some ways I'm a victim of our success here because we're a very transparent jurisdiction. I've heard it said to me many times in a positive way by agents in particular we don't get access to this amount of judicial intelligence elsewhere. You're sharing your practice guidance, you're sharing information with us at forums, you're listening to us, you're developing processes led and guided by us but none of that amounts to partnership and I think that's something that I know I frequently have to emphasise. We are listening and learning jurisdiction and we will be guided by our mistakes and by our successes and the areas we see developments we could benefit from working towards but we don't work in partnership. So effectively the tribunals if the rights and benefits of the child and that's what you're working on. The tribunals there to decide disputes between two parties that's ultimately what we're doing but the act is about children and young people and the decisions we are making when it comes to references are are this child's additional support needs being met in such a way that they can benefit from education that's the test. When it comes to a claim it's far more complex we've got to decide has there been discrimination if so what kind of discrimination and we're looking at the school education of the child so we cannot lose sight of the child but we don't have the reason I just wanted to say that is we don't have a best interest test in the 2004 act or in the 2010 act but we now have incorporated the CRC of which one article is about the best interests of the child so we will all have to be thinking about that despite the fact that it's not present in the primary legislation that we're obliged to follow. That's excellent thank you very much. Stuart McMillan you've got us a question on this theme. Yes thank you very much convener but first of all to apologise to you and the committee for my tardiness aileron is my fault. It's a very quick question just on the back of Bill Kidd's questions and Ruth Maguire asked a question aileron regarding the socioeconomic and so notwithstanding the socioeconomic point but also the issue of the staff availability in schools have you found in terms of the the cost of doing this have you found that there's actually been potentially an improvement in outcomes if it's a new school or a school that's been revamped within recent years but also has it have you found a better outcome or better outcomes in areas where it's more in an urban setting as compared to rural settings? No I don't think I could really comment on that bearing in mind that we're only seeing a small percentage of the fabric if you like of children with additional support needs. The comment you make about socioeconomic I can say that it's in the public domain that the commissioner I said earlier has expressed concerns that those who are more disadvantaged are less likely to be able to exercise their rights access the tribunal. What I would say is although I made the comment about partnership and it's a point I must stick to I have always been very mobile and willing to go out and speak to people and that has included parent groups and I have gone to by choice to some of the more socially disadvantaged areas to do that and what I've discovered when I've gone is we didn't know this if only and that varies from not knowing about the tribunal but also not knowing what a CSP is and commonly I'll sit in a room and listen and I'll say well all of the things you're talking about fit within the co-ordinated support plan and people are not aware of the right to a statutory education plan that's one thing and yes I probably can't really say much more than that because I just don't have access to the research that would give you the kind of answer you're looking for here. No thank you. Certainly in a wide variety of policy areas we're here in the Parliament on a regular basis a difference between urban and rural processes and outcomes so I was just very I was keen just to see if I said. You will know the educational outcomes very according to social diversity and I'm aware of that. I can say that we have noticed in there are two particular education authorities and I have noticed in terms of urban and rural I have noticed more applications arise from a particular area which is more socially mobile and I have seen a pattern there and that's been consistent across the tribunal's term. We're not quite 20 years in operation although we were established by the 2004 act. There is certainly evidence of that in one particular education authority area but that's quite a unique area other than that we don't we don't break it down to see for example you mentioned Glasgow City Council we don't look at is this coming from an urban or rural area in that education authority we don't we just don't look at that I'm afraid. No thank you very much. I'm interested in the considerations or how a placing request is dealt with if the mainstream school has an ESL unit or a dedicated space within it so it's not as simple a binary of distinction between mainstream school doesn't have specific provision special school would. Are there is a particular process that's followed are there any differences when you're handling that kind of request where there is that ESL provision within the mainstream school but obviously if it's got to you either the young person the family etc has obviously felt that's not sufficient to meet their needs. We are seeing a growing trend in the number of placing request refusals that come to us as references where the child is in a mainstream environment with either access to a communication base or the trouble is that everyone calls them different things but access to concentrated additional support needs support if we call it that and so that theme is emerging and the extent to which the child accesses that I'll just call a base will a the extent to which the child accesses that base can strongly influence the evidence that the education authority will rely on when it comes to this defence and they then are saying but we can meet the needs of the child in this environment and the reason we can do it is we have tailored this and it's tailored to such an extent that it will meet the needs of the child and then it's a weighing exercise for the tribunal to decide whether or not that will meet the additional support needs of the child or whether or not the the school that is the specified in place in request will do that. Sometimes we're starting to see some finer areas of some areas coming to us that we have not seen argued as much before and that can include things that are not neurodivergent but you might have a child who's neurodivergent but has other additional support needs and although they have autism for example they may be profoundly deaf and it's that additional support need that is being argued as not being met and so we then have to examine what does that base look like yes it may well be set up but everybody's trying to meet the needs of the neurodivergent child but is it meeting the additional support need of this child and that's very dependent on the facts and circumstances so you could have a super set up that is very fit for children who are neurodivergent but don't meet the needs of a profoundly deaf child. I had a piece of casework that was exactly that actually. So if I could just ask about that a little bit more is the legislation the guidance that the tribunal is operating under is that clear enough on how you should go about a case where there is that provision within the mainstream setting? I think this legislation is that thin you know I've worked in jurisdictions where you're working with a telephone book and it's been easier to navigate I think it's I accept I didn't draft the legislation so I can say it I accept the criticisms of this legislation and I agree that the legislation is difficult to navigate sometimes you're having to look for a provision that doesn't you can't find it where it should be and I think in terms of placing requests the statutory grounds for refusal are found in the schedule to the act I think they're relatively clear I think the mainstream one is the one that's more difficult because you're looking at these exceptions and you're you're having to look at them from a double negative perspective which no one likes and trying to bring clarity when you've got a test that's framed in that way can be a bit more challenging but I do think we're dealing with grounds that are relatively clear in the context of very complex legislation some people would say even the very basics are complex and I think that's probably true you just need to look at the csp I mean I don't know if you're asking me specifically about placing requests but if you were to say to me is the legislation clear enough in csp csp's I would say absolutely not that's actually the area that I believe we're just about to move on to I've got lots of questions on that but other members are coming in first thank you Ross for me respecting the our colleagues in that segue smooth as ever Pam Duncan-Colancy over to yourself but Ross Ross Greer has also got questions in this okay thank you Ross Greer and also apologies to the convener for stepping across Bill Kidd's comment area of question and earlier it was genuinely unintentional the point that we were just beginning to discuss there is around the the csp and parents and pupils tell us it's difficult to get something written down it's really difficult to get a plan of action to put in place support that their young people needs school staff tell us that it's that there are all sorts of things that are written down obviously there are issues around workload etc but there are things that are written down but there is only one plan which has a statutory footing and that is of course the csp so the first question I have on that is how important do you think that statutory footing is not with standing the limitations in the csp which I'll come on to I think it's incredibly incredibly important it is as you mentioned that the only statutory education plan and yes there are 32 education authorities in Scotland doing things their own way and there are a range of different exceptional plans quite often you see a plan you think oh that that's really well done but it shouldn't be in the avoidance of the statutory plan and the the legal position is simply if the criteria are met the plan has to be in place and I think there is a bit of doubt and a lack of understanding here and I did sit on the csp working group following the criticisms made by the Morgan review in this and I made a plea for clarity here I think that the idea that you can choose whether to have one or not is misconceived that's clearly not the case the law is clear there is criteria if it's met there should be one Parliament intended that this should be for the children who have the most complex additional support needs and the expectation would be that that would sit across a certain percentage I put into my written submission the comments of lady pool in the upper tribunal judgment and and she worked out that from the evidence given to her that you know it's five times less at least than what would have been anticipated I don't have the exact figures for the population of care experience and looked after children but that in its own I thought would open what I I came into the jurisdiction saw that presumption and I thought that's brilliant finally we're going to get a very disadvantaged population of children on an even footing they'll all have their csps the act makes it clear that there's a duty to consider whether a looked after child needs a csp there have been freedom of information requests made to education authorities there have been round tables with concerned agencies the commissioner and others and because of the findings of those FAIs which showed that there there was disparity in terms of what was actually happening I'm surprised there are so few if I could again bring the child into this people talk about csp being important for a range of reasons but it's often forgotten that it's just as important for the child because we know more about that now since the expansion of rights to children because they now make their csp references and if I could give you an example of a of another case involving a child party published on the decisions database the child wanted clarity in their life they were part of a family who had different social workers for different members of the family and I think in this particular case that the child felt that their views were just lost in the volume of all the adults and the csp was felt to be something that not only the child could use to insist on having what was stated but something that the child would then know who was going to do it when they were going to do it what they were going to do and how it was going to happen so that it's not just about accountability although clearly parliament intended that there should be it's about clarity certainty you know without me saying the pressures on education across nations not just Scotland across nations and I think if you factor in my earlier comment about masking the child sometimes with the greatest needs is not displaying that in front of school sometimes that will be very obvious but in terms of the cases that we decide that's not always been the case and so the csp can give that child not just that parent because sometimes it's a child that's asking for it can give that child that certainty in terms of patterns it's principally failure to provide a csp that we that that's the type of csp that's most common csp references usually will settle following through the judicial case management process and I sometimes think that's because the judicial process is is separating the week from the chaff it's saying that's really important but in order to decide this we need to concentrate on that so we are able to concentrate the minds of the parties and sometimes we'll say well that's a good question so I'm going to direct that you provide that and I'll have a look at that and in doing that suddenly a light bulb goes on and the parties managed to talk again and they managed to secure agreement child party cases on csp's not many proceed to hearing the one that I've mentioned there was one that did proceed to hearing and that centered around whether or not the provision being provided by an agency who was being funded by the social work department did that amount to appropriate agency input there there's another complexity for you what's inappropriate yet and so on and that was a decision which clarified that I think helpfully in saying look if you're funding it it's coming in through social work even if it's third sector is still coming in through social work so that's quite an interesting decision to look at do you think then that the requirement in the legislation on csp's to have that interagency work notwithstanding how important is and I'm actually I'll come on to that in a minute but do you think that restricts some some people's ability to access csp's I'm sorry I'm could you say that again so given that csp is large available for people who have complex needs and that complex is usually related to the fact that you need social work or you need another agency to come in do you think that that there needs to be a plan for people who don't always have other agencies involved that it could just be about education right are you asking me if the csp could the csp be used more broadly rather than as narrowly I don't know if I could answer that I I you know I have to stay centred on the judicial perspective here I can say that I understand the purpose of the plan we can see how parliament has intended it be used my concern is it's not being as well used as it ought to we know that from the evidence that we're hearing and so if you were to broaden it out what on earth would that do would that mean it would be used more or would it just enlarge the problem I do think based on the cases we hear that navigating through the statutory test is terribly hard people are struggling with well what does significant mean we now have a judgment from the upper tribunal that tells us when we're looking at the significance of support it's it's not the cumulative support we've got to look at it must be significant from there and from there that in itself is going to narrow the scope so it's very difficult to legally navigate in terms of what we're seeing in the references people are struggling to find their way through I will say though children are very determined rights exercisers if I can say that when they find out that they have this right I would say children have been more persistent in getting this dealt with and an example of that is a child party who came to a tribunal for a CSP the CSP was agreed and therefore it didn't proceed to hearing but it wasn't issued in the terms expected and the child come back to the tribunal right away and that was good to see that this was a child who understood their rights as a party understood a very well I won't say understood the complexity of the legal provision because I don't think that would be accurate but understood their right to have something even though it was legally very complex to get it and in your view how does the tribunal address a lack of support from other services that are not about education and is it an area where you think the scope could be widened this is very topical I was asked to give training to a group of talk rather to a group of educationalists who were doing training on the CSP and on transitions and I was asked if I would explain what the route to the tribunal was in terms of a variety of things and everyone on that event said that their greatest difficulty emerges from when they can't get the other agency to play their part now there are regulations which impose duties on those agencies but if they don't comply then the only route to the tribunal at the moment is to either ask for the president's power to monitor to be triggered which would mean the education authority would be saying I'm asking you to monitor me because I can't give implementation to this which it has happened we have once had an education authority ask that the decision be monitored because they had failed to implement it other than that we don't have jurisdiction is that something where there's a gap in the law I think what I'm hearing from educationalists is they feel that there's there's no redress there that in comparison with England is different where they have a broader jurisdiction which means that they can deal more fully with the needs of the child that they are seeing before them not just their education needs but their social needs and health so they can make orders I can't say whether they can make orders compelling an appropriate agency or a similar type because I don't know whether that's the case but until we have jurisdiction to be able to do something about that the only real route for a party not just an education authority for that matter but either party would be to come back and say that the csp is the order of the tribunal is not being implemented and here's the reason why and then I would have to look at that and decide whether to make a reference to the Scottish ministers or not thank you just have one briefly and then we're coming on to Ross Greer on the same theme okay thanks thank you and the rules around child support plan and coordinate support plan say that educational authorities view must be taken into consideration and is needed should that also include the views of the young person do you think absolutely and CSPs do have and you'll see the template in the code of practice that there's a section there absolutely and I think that we are getting better at understanding that children have views and will express them if you give them the space to make them and if you respect the way in which they want to express their views and that's something that we've had to develop and I think we're doing we're on that journey we're learning that children have got something to say and this is a due restriction where that needs to happen and in additional support needs when it comes to CSP I think it would be very difficult to put together a CSP without knowing the views of the child or young person they might not want a speech and language therapist to actually come into the school there are some children if they were taken out of the class that would just be awful there are others who will need a pupil support assistant there all the time or they might need a pupil support assistant for transitions it very much depends on the child and so if we take a generic approach to the CSP we're not fulfilling the statutory expectation which is that it's for the individual child thank you thank you very much may Ross Greer please thanks thanks community second with the theme of CSPs i've been interested maybe if you could just explain a little bit around how you would handle a case differently or if there are significant differences between a referral in relation to a CSP versus if it has been under the a claim under the 2010 act well they can come on under either guys which we discovered just before we transferred into the first tier tribunal there was a case where a CSP refusal had been made to the tribunal by the parent and the tribunal said that a CSP should be made and ultimately i'm giving you a very very short version of what happened because it was very lengthy what eventually happened was the CSP was so thinly drafted that the parent felt that this had now become an act of discrimination and the tribunal upheld that said that there had been discrimination that the CSP was so poorly drafted that it amounted to discrimination and that was appealed by the education authority and it went to the inner house of the court of session and leary smith who then was the president i actually she might have decided this just no i think she was then the president of scotland tribunals i think that's correct and the inner house including leary smith said that the CSP was that it could amount to my apologies actually i don't think it was leary smith that decided that i don't think it matters to you who decided it i'm thinking of another case um but it was an inner house decision and they decided that the CSP had been amounted to discrimination now the interesting thing about that is it's coming in through the equality act is a far broader way to come in and because the tribunal can make any order it deems fit apart from an order for compensation then there could be innovative ways that claims are used and that was one of the ways where the parent said i'm not coming back through a reference i'm coming back as a matter of equality and when it comes to matters of discrimination i'm trying to think whether it's different or not because i've sat in claims and references sometimes when it comes to matters of discrimination where the child is the party what we've seen is the child can express much more of a feeling of need for change to arise for their disabled group almost almost a campaigning edge if i can call it that now the tribunal makes its decision based on the law before it but the the enthusiasm of the child party in a discrimination claim there is definitely a difference a noticeable difference there and i don't know whether that's children saying oh i've got it right now well i'm going to use it and i feel strongly enough about this not just for myself but for my group and that's where the promise teaches us voice co-design if we're listening to the voice of children and young people there's a great deal of maturity in their understanding of where they perceive their needs are not being met now it will not always be the case that a tribunal make a decision that supports the view that the child has set out but the tribunal's duty then is to record the child's views and to explain why it's it's gone down a different route and respectfully setting that out we also issue letters to children that's children who are not parties to say in a one page a four why we've made the decision and we're developing a visual letter which will be rolled out later this year using visual imagery to explain why we've made the decision we shouldn't we should be respectful at all times when we're explaining what we're doing and the tribunal has worked very hard not to appear patronising when it comes to children and young people respecting how they communicate when it came to the development of our hearing suites the child that led the charge on what should be in that room was non-verbal but incredibly able to communicate their needs and i apologize because i've just gone off in a tangent when you weren't asking me that no that was all very useful and actually the letters in particular recognising the confidentiality of each case if you do have any anonymised or generic examples of the letters that you could provide to the committee i think we'd find that really really interesting recognise that might not be possible given the nature of them well i'm going to ask my tribunal judge who's present here to take a note of that and i'll take that way to think because we don't so it's my job to decide what to publish and what to approve and i haven't published any letters to children but published decisions but i'll see if there's something that we could share with the committee we will be we could share some of the training models that we developed but i can tell you that the tribunal forum which is taking place next month i am going to be putting on screen so into the public domain what a visual letter will look like so i can certainly make sure that you have access to that yes something like that i should mention that we've developed our own suite of images and one of the first things we learned from consulting with children was they're totally confused about who we all are and they think we're either cams or we're school or and it's really important as i've been doing throughout the morning to emphasise our judicial independence and so the only way we could really do that was rather than borrow Macaton imagery or Child's Commissioner golden rules imagery to create our own and so we did that so that eventually through the repeat of that they'll see and that imagery can be found from the website the forms the guidance the doors in the hearing room the walls everything and in the letter to the child so that they can disconnect us from other agencies and understand i hope that we're independent that's really important thanks just one final question for me i understand the like the example you gave the instances where it may start off as a referral in relation to csp and then escalate to a claim under the 2010 act i'm interested though in where children or their parent or carer is coming in directly with a claim under the 2010 act because some of what we've heard around just how few csps there are not point two percent of all children with a recognized additionally have one part of the reason for that based on some of the evidence we've heard previously is children and the adults in their life not being aware of the existence of csps or their right to access it so be interested if if you have cases coming to you that are going straight to claims under the 2010 act but maybe actually could have been resolved through a csp and that's simply not information that had been provided to the child or their parent or carer beforehand it's not common um csps come in usually through the reference route the the case that i described to you was unusual we don't get um we don't get that many claims and i say that the 2004 act sorry is a very complex piece of legislation but anyone who makes decisions in relation to equality act claims will tell you my goodness you know you're re-educating yourself every single case you sit on and there's a great deal of literature out there to explain what discrimination amounts to in the main discrimination claims this year anyway we've we've had less at the moment and in the main they're coming from parents rather than children although we have certainly had children making claims a very significant claim was raised just at the beginning of our lockdown journey in 2020 i say just at the end probably at the end of the first lockdown before we went into the next one i'm i'm yes i'm sure you know all about that but we had a a case where a looked after child with additional support needs so they had additional support needs just by dint of being looked after but they also were neurodivergent and they raised a discrimination claim because in the middle of lockdown all their contact with their parent was shaken up and for a looked after child who's just changed school which and again this is in the public domain can you imagine so that had an impact on that child's ability to cope and i'm afraid to say the language in that decision is distressed behavior rather than distress but it's distressed behavior and the tribunal was at pains to specify that language was important and this is a restraint case where multiple incidents of restraint were used when the child we we say in this jurisdiction all behaviors communication so if you're saying to child your mum's not coming today and they don't live with their mum and they live in a residential school and they show how unhappy they are about that that is a form of communication and in this particular case there were multiple incidents of restraint and the tribunal went on to decide that there had been multiple areas of discrimination and i know that that case has informed a number of residential school environments because of the scrutinised the case and the tribunal makes a number of criticisms about first of all the use of restraint but the approach taken in the lack of understanding about what was happening when the child was distressed and that case is also an example of the school failing to understand that conventionally if i misbehave at the end of that period of time the trusted adult i'm with would try to sit down and say to me do you understand what went wrong there in suitable language and i would say yes i'm sorry well try not to do that again they were trying to do that with this child but this child couldn't be accountable for something that was out with their control and therefore the school were interpreting that as a lack of accountability when it was nothing to do with it so that's a very rich case in terms of a child party a looked after child a discrimination claim the use of restraint all of which was very topical because it was in the heels of the no safe space report by the children's commissioner so i would say we're seeing some attempts to use the equality act for less conventional means but not to the extent i thought might have happened by now thanks very much really useful thank you that's gear yes thank you very much me we're drawing coming to an end of our session just so you've got a bit sense you've been very very good this morning but you have mentioned about the two parties that are coming and they are quite some distance apart and prior to them getting to the tribunal there's a process to try and bring them closer together but i was and we have heard about some of the challenges and how the tribunal process can be seen to pitch two parties against each other and some of our other evidence so how could that process around the dispute resolution be changed to reduce that conflict perceived or real as it is and support better working in it between the families and the local authorities we've done a great deal in this area i think the first thing to say is that the tribunal as with other tribunals is both inquisitorial and adversarial so it's not wholly adversarial which would be more akin to a court environment it's both inquisitorial and adversarial the adversarial component is present in that you have two parties they're entitled to representatives they're entitled to bring evidence they're entitled to examine the evidence of other witnesses and make submissions so that's if you like the adversarial element the inquisitorial part and the fact that the tribunal can regulate its own proceedings in many ways is what makes us unique we can change the shape of the tribunal to accommodate the facts and circumstances of the case when i started as a president and there was no real rhythm i suppose i would say to the number of days that might take for a case to be decided it could be anywhere from two to five or seven days and it seemed to me that what we needed to try to do was to reduce the amount of time people spend in a hearing room it's hard for me and i know what i'm hopefully no i'm doing can you imagine this is your whole life and children tell us you know why is it that adults think we we're not allowed to get upset when you're talking about things that upset us so these are highly sensitive environments and so what what we did is we put in place a number of steps pre hearing to try to reduce the number of the amount of oral evidence so we have written witness statements we have written submissions outlined submissions so that before everyone comes into the hearing they both know what the other side is arguing they both know what the other witnesses have to say i've recently more recently i this was planned to be piloted in 2020 and it had to be delayed but i've introduced documentary evidence guidance to try and stop we would get you know that would four of those would be the documentary evidence and it was about trying to stop that stop putting in a 50 page handbook if you only want to refer us to page three stop putting in primary one to seven primary school reports if you're looking at a secondary school placement at secondary four so it was about educating people to help them to understand first of all that this was a judicial process it wasn't an extension of education nor was it an extension of health we weren't a case conference meeting this would be something that would be tested evidentially and with a conclusion so a lot of information was put together for unrepresented parties because although i've said they're mainly all represented we have seen a rise in unrepresented parties so everything they were asking us i started to formulate and put an information note explaining what witnesses could expect to happen in a hearing how witnesses should behave for example a witness being brought in for an independent school saying to that witness you're not here to give evidence to promote the permit position of that school you're here to support us in understanding what the child's additional support needs are trying to get witnesses steered in a better fashion you know that that's a journey because a witness anyway i'm came here this morning and i haven't eaten very much because i was nervous so any witness that's appearing in any setting where a decision's going to be taken is going to be nervous no matter how good their evidence is and our job is to try to make the environment as non-confrontational as possible to assist that witness what we want what everyone wants is the best evidence and i have a principle of dignity and respect which means that both parties are to behave in a manner that's dignified and respectful and we don't use court language we don't talk about cross examination we say if you've got any questions for the witness we've stripped out all of the jargon we don't permit multiple questions of children children there's one set of questions agreed by the parties one questioner the child doesn't have to be exposed to you know write your turn we've got the option of a one-to-one room where the child can go in and give their evidence without seeing but they know that everyone's out there that's a very popular thing for parents and for children so i think we also make it clear that the child and young persons at the centre of the process what we can't do though and we will be steered and guided by what's needed to make the environment inclusive whether that's on screen or in person but what we can't do is we can't rub out the journey to the tribunal and some people will say and i don't know the correct answer to this some people will say that we should be the last resort others will argue that we should be the first resort i've had parents say if i'd just known and come to you first i would have saved myself years and it can be years of dispute so i don't know the answer to that and that's a matter of policy so i can't comment but there's an argument either way i've read some of the comments of some of the submissions i don't regulate what parties decide they're going to rely on in their documentary evidence i do say that there will be no duplication and i do say if you put a 50 page report and i'm going to ask you about page one two three four five six and all the way through so they now have got that message and so we've seen the bundle reducing size but the moment something is entered into the process in written form it becomes part of the evidence and the other party has the right to test that and so what you're seeing in a tribunal is the broadest expression of rights people should be able to argue their case whoever the party is they should be able to test the evidence that's being presented they should be able to make submissions in many ways that sits outside the control of the tribunal although all of these efficiencies have reduced the actual number of days it's now more common for a two-day hearing rather than if we would rarely have a five or seven-day hearing um i i i i i i i i i i i i i i i think once it's better understood a leiriaeth mew hwn newyddau mewn gwir. There will be no one left to trybunol. I think it would be highly unusual for someone to say that that I'm excited because I've got three trybunols coming up. I don't even think that the trybunol judges are going to be that excited about that fact because they're so intense and the evidence and another point to make I suppose is that it's very common for us to have experts present Felly, sefyllfa ond logiadaeth â y cyfle hwn o'r synes tr�ing yn llwyffan ym Ym heddiw. Felly, sefyllfa ond logiadaeth â y cyfle hwn o'r synes tr�ing yn llwyffan y tro, mae'n bryd yn fawr yn gweld o ran fy ffordd yn y cwilio ar gyfer hyn yn adonbiadol. Mae'n dymian i gael o gleiliau ar gyfer y cyfle hwn. Mae'n allai chi'n gwylltech yn y ffordd, a'r g�odd gan yr cyfle hwn o'r desgwisio ac yn ddeadwch, ac mae'n bryd i'n meddwl y gynnig yn falch yn gwelwch am ein partig yn wneud i gydag y gwir y pwynt, cymdeithasol, o berthyn nhw'n fenddiol o'r hwnnw, o'r bwysig o'r cymdeithasol, oedden nhw'n gwir o'r hyn o'r fawn. Felly, mae gennym ni nôr, rwy'n gwybod yn ddechrau, bydd hon i ni os i ffathol, ac mae hynny'n ei ddweud o'r hawdd ymwysig, mae hynny'n rydw i ymddillion neu mae hynny'n rhaid o'r hanfodol. Felly, mae'n bwysig o'r hwnnw. ond y cysylltiau aethau'r lluniau ddiweddol, ac mae'n dweud i'r lleiwyr ar gyfer cael ei wneud yn ddweud. Ond ddim yn fwy naeith i Lleon Llywodraeth aeth, yn gweithio. Rwy'n gweithio, mae'n cyfrifiadau mewn cyfrifiadau? Yr hyn yn gwneud i'r prinsipau? Rwy'n gweithio i'r prinsipau i ysgrifenen. The permission has to be given to appeal or to review. If we look at the permission to appeal process, someone would make a request within a specified number of days and they have to be able to show that there's an arguable point of law. The threshold for that is very low. If that's received, I have an independent tribunal member, a legal member who determines those. I try to keep it away from the deciding tribunal. That's just an approach I thought was the better approach. Not every tribunal will do that. The reason I did that was the perception of neutrality and independence is very important. We did before have a reviewing power, before transfer and parents were critical. They were saying, well, you're asking the same tribunal to review its own decision. We're not sure that's wholly independent. We have this independent process. If permission to appeal is refused, then the party seeking permission can then go to the upper tribunal. That's the appellate body that sits above us. They can decide whether or not to grant permission. If permission to appeal is granted, then it goes to the upper tribunal and the upper tribunal hears the position of both parties and then issues a decision. We don't have a huge amount of appeals. The appeals that we have have been helpful in helping us to reframe and understand the law. There is an appeal above the upper tribunal to the inner house. Senators, senior judges who sit in the court of session, decide or I can decide in the upper tribunal. The reason it's senators, rather than some other jurisdictions where it shares, for example, is in the transfer in it was agreed as part of the tribunal Scotland bill process that the same continuity of type, would be maintained in the appeal process. The idea is the upper tribunal's more efficient specialist. It's quicker than going through the court route. That was the argument that was made out. For that reason, we have senators because our original appeal route was to the inner house. It was argued that that was almost completely inaccessible for many. That's why it's a senator or a chamber president myself who would sit, although I haven't sat in any upper tribunals today. I understand. Thank you for that. I'd like to thank you, Mae Dunsmyr, for your evidence this morning. We do plan to take further evidence on this inquiry over the coming weeks and will then produce a report based on what we've heard with recommendations for the Scottish Government. That concludes the public part of our proceedings. I now suspend the meeting to allow our witness to leave. The committee will then move into private session to consider its final agenda item. Thank you very much.